Citation: Director of Public Prosecutions v Fraser & O'Donnell [2008] NSWSC 244
Court: Supreme Court of New South Wales, Common Law Division
Date: 2 May 2008
Judge(s): Simpson J
Background
Two environmental activists, each associated with Greenpeace, entered a coal loading facility near Newcastle operated by Port Waratah Coal Services. On 21 February 2007, they activated a safety isolation switch on a conveyor belt, rendering it inoperable, then chained themselves to its underside using heavy metal chain and steel clamps. The conveyor remained out of operation for almost two hours, at a cost to Port Waratah of approximately $27,000.
Police attended and requested a key to the locking devices. The defendants stated they did not have one. Police ultimately released the defendants using their own equipment. Each defendant was charged with maliciously damaging property under s 195(1) of the Crimes Act 1900, and separately charged with trespass (to which they each pleaded guilty).
The Local Court magistrate dismissed the malicious damage charges. The DPP appealed to the Supreme Court on a question of law. Each defendant filed a Notice of Contention, arguing the dismissal should be upheld on grounds separate from those advanced by the DPP.
Legal Issues
- Whether the magistrate erred in law by dismissing the malicious damage charges
- Whether "damage" within the meaning of s 195 of the Crimes Act 1900 encompasses temporary functional disruption to property, even without any physical alteration or interference
- What findings of fact the Supreme Court could make in an appeal limited to questions of law
- Whether, even if the magistrate erred, the evidence before the Local Court was capable of proving damage as properly defined
Decision
The magistrate's reasoning was found to contain an error of law. The magistrate had characterised the matter as essentially civil in nature, suggesting Port Waratah's appropriate remedy was a civil claim for economic loss rather than a criminal prosecution. Simpson J held this approach was legally incorrect and that the DPP's grounds of appeal were therefore made out.
However, the defendants' Notices of Contention required the Court to consider whether the charges should nonetheless have been dismissed, on the basis that the evidence could not support a finding of damage under s 195. This required Simpson J to examine the meaning of "damage" in the criminal law context. After reviewing English and Australian authorities, the Court held that mere interference with the functionality of property, without some physical interference with or alteration to the property itself, is insufficient to constitute "damage."
Applying that principle to the evidence, Simpson J concluded the defendants' actions did not meet the threshold. The activation of the safety isolation switch and the attachment of chains to the conveyor were not capable, on the evidence, of constituting damage to the machinery. There was no evidence of any physical change to the property itself; the disruption was purely operational and temporary.
Because the evidence was incapable of supporting a conviction, remitting the matter to the Local Court would have served no purpose. The magistrate would have been obliged to dismiss the charges again, albeit for a different reason. Accordingly, both appeals were dismissed.
Orders Made
- Both appeals dismissed.
Key Takeaways
- Under s 195(1) of the Crimes Act 1900, establishing "damage" to property requires proof of some physical interference with or alteration to the property itself; temporary disruption to its functionality alone is not sufficient.
- The Supreme Court confirmed that the authorities draw a clear line between impairing what property can do and physically affecting what property is, with only the latter satisfying the damage element of the offence.
- In dismissing the appeals, the Court exercised its power to uphold the magistrate's orders via the defendants' Notices of Contention, even though the magistrate's own reasoning had contained a legal error.
- Where the Supreme Court determines on appeal that the evidence before the lower court was simply incapable of sustaining a conviction, remitting the matter serves no utility and the appeal will be dismissed rather than the proceedings sent back.
- Significant economic loss to a proprietor, caused by activists temporarily immobilising equipment, does not by itself bring the conduct within the criminal offence of malicious damage if no physical change to the property is established.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 194, 195
- Crimes (Appeal and Review) Act 2001 (NSW), s 56(1)(c)
Cases:
- Henderson v Battley (unreported, English Court of Appeal, Criminal Division, 29 November 1984)
- Cox v Riley (1986) 83 Cr App R 54
- Morphitis v Salmon [1990] Crim LR 48
- R v Fisher (1855) LR 1 CCR 7
- Samuels v Stubbs (1972) 4 SASR 200
- R v Zischke [1983] Qd R 240
- Hardman v Chief Constable of Avon and Somerset Constabulary [1986] Crim LR 330
- Rowe v Kingerlee [1986] Crim LR 735
- R v Tacey [1821] Russ and Ry 458; 168 ER 893
- Ranicar v Frigmobile Pty Ltd [1983] Tas R 113