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Court of Criminal Appeal 10 May 2013

Hammond v R

[2013] NSWCCA 93

Also reported as (2013) 85 NSWLR 313
Public order & justice offences
CRIMINAL LAW

Citation: Hammond v R [2013] NSWCCA 93
Court: NSW Court of Criminal Appeal
Date: 10 May 2013
Judges: Hoeben CJ at CL; Slattery J (principal judgment); Bellew J

Background

The appellant was arrested in Warren, NSW in January 2012 and taken to the local police station. While held in the dock area, he deliberately spat a considerable amount of saliva and mucus onto the stainless steel seat in the dock. Police told him the area would require professional cleaning.

He was convicted in the Local Court of one count of maliciously damaging property belonging to another, contrary to s 195(1)(a) of the Crimes Act 1900. He appealed to the District Court at Dubbo, where Judge Lerve dismissed the appeal. At the appellant's request, however, Lerve DCJ stated a case to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912.

The District Court's factual findings were clear on one point: no permanent or ongoing damage was caused to the dock seat. The cleaning requirement was inferred rather than established in precise terms, and no finding was made that the seat was rendered unable to function for any identifiable period.

  • Whether the facts found by Lerve DCJ were capable of supporting a conviction for malicious damage under s 195(1)(a) of the Crimes Act 1900, specifically whether those facts proved beyond reasonable doubt that the seat had been "damaged."
  • What the word "damages" means in s 195(1)(a), in the absence of a statutory definition covering this situation.

Decision

Slattery J (with whom Hoeben CJ at CL and Bellew J agreed) answered the stated question in the negative and quashed the conviction.

The Court conducted a detailed analysis of the word "damages" in s 195(1)(a), noting that the Crimes Act does not define the term for general purposes. Drawing on Australian and English authorities, the Court held that "damages" requires proof of either physical harm to property or functional interference with it, sufficient to show that the thing has been rendered imperfect or inoperative in the context in which it exists. Temporary impairment or the need for cleaning can, in principle, be enough, but the facts must establish this clearly.

Applying that test to the stated facts, the Court found the findings insufficient. The stated case recorded that no permanent or ongoing damage occurred, and the inference that cleaning was required said nothing definitive about whether the seat was actually rendered imperfect or inoperative. Unanswered questions remained: Was the seat used again before cleaning? Would it have been cleaned in any event under a routine cleaning regime? Was there any interference with the seat's function at all? Those questions were neither asked nor answered in the findings before the Court.

The Court was careful to note that this outcome reflected no criticism of Lerve DCJ. The necessary factual material had simply not been placed before him, meaning the record could not sustain the conviction.

Orders Made

  • Time extended to 26 October 2012 for the appellant to submit the stated case.
  • The question of law answered in the negative: the stated facts cannot support a finding of guilt beyond reasonable doubt of an offence under s 195(1)(a) by damaging the seat in question.
  • The appellant's conviction quashed pursuant to s 5B of the Criminal Appeal Act 1912.

Key Takeaways

  • Under s 195(1)(a) of the Crimes Act 1900, a conviction for malicious damage requires proof of either physical harm to property or functional interference with it, demonstrating that the property was rendered imperfect or inoperative in its context.
  • Temporary impairment or the need for cleaning may, in principle, satisfy the damage element, but the prosecution must establish this by evidence capable of supporting a finding beyond reasonable doubt.
  • Where a case is stated to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912, the Court is confined to the ultimate facts recorded in the stated case and cannot go beyond them to fill evidentiary gaps.
  • A finding that cleaning "was required" and would take "some degree of effort" fell short of establishing functional interference with the seat, particularly where no finding was made that the seat could not serve its purpose for any identifiable period.
  • The Court of Criminal Appeal confirmed that the stated case procedure under s 5B(3) empowers the court to quash a conviction where the question of law is resolved in the accused's favour, even after the District Court appeal has already been disposed of.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 195(1)(a), s 194(4)
- Criminal Appeal Act 1912 (NSW), s 5B
- Supreme Court Act 1970 (NSW)

Key Cases
- Collins v State Rail Authority of NSW (1986) 5 NSWLR 209
- Elias v Director of Public Prosecutions (NSW) [2012] NSWCA 302
- Morphitis v Salmon (1990) Crim Law Reports 48
- Hardman v Chief Constable of Avon & Somerset Constabulary [1986] Crim LR 330
- "A" (a Juvenile) v R [1978] Crim L Rev 689
- R v Henderson & Battley, Court of Appeal (Crim Div) (Unreported, 29 November 1984)
- Industrial Equity Limited v Corporate Affairs Commissioner [1990] VR 780
- Director of Public Prosecutions v Fraser and O'Donnell [2008] NSWSC 244
- R v Madden (1995) 85 A Crim R 367
- Lavorato v R [2012] NSWCCA 61