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Court of Criminal Appeal 24 October 2017

Grajewski v Director of Public Prosecutions (NSW)

[2017] NSWCCA 251

Also reported as (2017) 270 A Crim R 33
Public order & justice offences
CRIMINAL LAW DAMAGE TO PROPERTY CRIMES ACT 1900 (NSW) S 195 COAL LOADER NOT ITSELF DAMAGED STATED CASE CRIMINAL APPEAL ACT 1912 (NSW), S 5B

Citation: Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251
Court: NSW Court of Criminal Appeal
Date: 24 October 2017
Judge(s): Leeming JA (primary reasons); Johnson J and Adamson J (agreeing)

Background

A protester climbed to the top of a coal-loading machine at the Carrington Coal Terminal and used a harness and rope to suspend himself approximately 10 metres above the platform. The machine was shut down for safety reasons as he climbed and remained inoperable for roughly two hours until NSW Police Rescue removed him. Coal loading operations did not resume until approximately 10:15am.

The protester was convicted in the Local Court of intentionally or recklessly destroying or damaging property belonging to another, contrary to s 195(1)(a) of the Crimes Act 1900 (NSW). A $1,000 fine was imposed. His appeal to the District Court was dismissed.

Because no further appeal from the District Court lay as of right, the District Court judge submitted a stated case to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW), asking whether the facts could support a conviction under s 195(1)(a) and, specifically, whether the evidence was capable of proving that the machine had been "damaged."

  • Whether the facts stated, including that the protester physically attached himself to the machine and rendered it inoperable for approximately two hours, were capable of supporting a finding of guilt under s 195(1)(a) of the Crimes Act 1900 (NSW).
  • Whether "damages" in s 195(1) requires some physical derangement or alteration to the property itself, or whether rendering property temporarily inoperable by physically affixing oneself to it can suffice.
  • What limitations apply to the Court of Criminal Appeal's powers when answering a stated case under s 5B of the Criminal Appeal Act 1912 (NSW).

Decision

The Court answered the principal question "Yes": the facts stated were capable of supporting a conviction. Leeming JA (with Johnson J and Adamson J agreeing) concluded that physical attachment to a machine, causing it to be rendered inoperable, can constitute "damaging" that property within the meaning of s 195(1).

The protester's central argument was that "damage" requires some physical derangement or alteration to the property itself, and that merely causing a machine to cease operating by clinging to it was insufficient. He drew support from the decision of Simpson J in DPP v Fraser & O'Donnell [2008] NSWSC 244, which arose on materially identical facts and had reached the opposite conclusion. Leeming JA conducted an extensive review of local and international authority, including the history of cognate legislation in England, Scotland, and other Australian jurisdictions, and declined to follow Fraser & O'Donnell. His Honour concluded that the authorities supported a broader interpretation: causing property to be impaired in its utility or function, even without permanent or structural alteration, can constitute damage.

The Court drew on two prior Court of Criminal Appeal decisions, R v Heyne (1998) and Hammond v The Queen (2013), which had treated interference with the operation of property as potentially sufficient. Leeming JA also examined the statutory context, noting that s 194(1) confines the Part to tangible property, and that s 194(4) provides an extended definition of "damaging property" that is inclusive rather than exhaustive. Nothing in the text of s 195 confined the offence to cases of physical derangement.

On procedure, the Court confirmed it could not go beyond the facts as stated in the case. Both parties had sought to rely on evidence from the District Court proceedings, but this was unavailable to and impermissible for the Court of Criminal Appeal on a stated case. The second question, which referred to the evidence rather than the stated facts, was therefore inappropriate to answer. The Court also rejected the protester's argument that a later NSW statute creating a separate interference offence cast any light on the meaning of s 195(1) as it stood at the time of the offence.

Orders Made

  • The first question of law reserved ("Can these facts support a finding of guilt for an offence contrary to s 195(1)(a) of the Crimes Act 1900?") was answered: Yes.
  • The second question was answered: Inappropriate to answer.
  • No order as to costs was made.

Key Takeaways

  • Under s 195(1)(a) of the Crimes Act 1900 (NSW), "damaging" property is not confined to cases of physical derangement or structural alteration. Physically affixing oneself to a machine so as to render it inoperable for a period can constitute damage for the purposes of the offence.
  • The Court of Criminal Appeal expressly declined to follow the 2008 Supreme Court decision of Simpson J in DPP v Fraser & O'Donnell, which had held that applying a locking mechanism to a coal loader without physical alteration was insufficient for a s 195 conviction.
  • A stated case under s 5B of the Criminal Appeal Act 1912 (NSW) is strictly confined to the facts as found and recorded by the court below. The Court of Criminal Appeal cannot make additional findings, draw inferences from evidence not before it, or cure deficiencies in the facts stated.
  • Where an accused elects an "all-grounds" appeal to the District Court, this forecloses the separate pathway of a law-only appeal to the Supreme Court under s 52 of the Crimes (Appeal and Review) Act 2001, with consequences for the scope of further review.
  • Legislation enacted after the offence, and not yet in force at that time, cannot inform the statutory meaning of the provision under which the accused was charged.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 4, 194, 195
- Criminal Appeal Act 1912 (NSW), s 5B
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 52
- Supreme Court Act 1970 (NSW), s 101
- Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 (NSW)
- Criminal Damage Act 1971 (UK), ss 1, 10
- Malicious Damage Act 1861 (UK), s 15
- Interpretation Act 1987 (NSW), s 33

Cases:
- Director of Public Prosecutions v Fraser & O'Donnell [2008] NSWSC 244
- Hammond v The Queen (2013) 85 NSWLR 313; [2013] NSWCCA 93
- R v Heyne [1998] NSWSC 429 (unreported, Court of Criminal Appeal, 18 September 1998)
- Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61
- BP Australia Ltd v Bissaker (1987) 163 CLR 106; [1987] HCA 24
- Morphitis v Salmon [1990] Crim LR 48
- R v Fiak [2005] EWCA Crim 2381
- Hardman v The Chief Constable of Avon & Somerset Constabulary [1986] Crim LR 330
- Director of Public Prosecutions (NSW) v Lucas [2014] NSWSC 1441
- Aubrey v The Queen [2017] HCA 18; 91 ALJR 601