Citation: REGINA v JACONA [2005] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 25 February 2005
Judge(s): Spigelman CJ; Wood CJ at CL; Barr J
Background
The appellant was the owner of a property at Thirroul. The State Rail Authority had placed two work sheds on his land without authorisation, as part of preparatory works related to an ongoing dispute with the appellant over damage he had caused to a railway embankment. The sheds were positioned at the edge of a slope.
In June 1986, the appellant used a bulldozer to push both sheds down the slope, damaging them. He was subsequently convicted after trial before Judge Goldring and a jury in the District Court on two counts of maliciously injuring property, contrary to s 247 of the Crimes Act 1900. One shed belonged to the State Rail Authority and the other to a plant hire company.
The appellant, who appeared in person before the Court of Criminal Appeal, challenged his conviction on the basis that the jury had insufficient evidence to find malice and that his actions amounted to a lawful and reasonable exercise of his rights as a landowner removing a trespass.
Legal Issues
- Whether there was evidence open to the jury to find that the appellant acted with the requisite malice under s 247 of the Crimes Act 1900
- Whether the jury was entitled to reject the appellant's defence that he was taking reasonable steps to remove an unlawful trespass from his property
Decision
Spigelman CJ, with Wood CJ at CL and Barr J agreeing, dismissed the appeal. The Chief Justice emphasised that the issues raised were quintessentially jury questions and that the Court of Criminal Appeal's power to intervene with jury findings of fact is very limited.
The jury had before it significant evidence bearing on the appellant's credibility and true motive. Shortly after the incident, he told police "it was the kids that did it," and when later interviewed, said he had done it to "get back at" the Railways for trying to sue him. He also failed to mention to police the work-related justification he later relied on at trial. These were matters the jury was entitled to weigh when assessing his version of events.
The jury was also entitled to consider the manner in which the damage was caused. Using heavy earthmoving machinery to push sheds down a slope, in circumstances where damage was an obvious likely consequence, was a relevant factor going to both malice and the reasonableness of the appellant's conduct. The acknowledgment in both his police interview and trial evidence that his motivation included anger at the Railways' threatened lawsuit was a matter the jury could properly take into account.
The Court found that, on the evidence before it, the jury's verdict was one it was open for them to reach. No error in the conviction was established.
Orders Made
- Appeal dismissed
Key Takeaways
- A conviction under s 247 of the Crimes Act 1900 for maliciously injuring property requires proof of malice, but a jury may draw on the defendant's own admissions as to motive when assessing that element.
- Where a defendant raises a defence of reasonable action to remove a trespass, a jury is entitled to reject that defence if the evidence discloses additional motivations inconsistent with a genuine and reasonable exercise of a property owner's rights.
- The Court of Criminal Appeal confirmed that the circumstances in which it will intervene with a jury's findings of fact are very limited, particularly where the issues on appeal are the same factual questions properly left to the jury at trial.
- Inconsistencies between a defendant's post-incident statements to police and the version advanced at trial are matters the jury may weigh when assessing credibility and the reliability of a claimed lawful purpose.
- In dismissing the appeal, the Court noted that the method used to cause the damage, specifically heavy machinery pushing objects down a slope with obvious risk of harm, was itself a relevant consideration for the jury in determining both malice and reasonableness.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 247 (maliciously injuring property)
Cases:
No cases were cited in the judgment text provided.