AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 19 February 2018

Krste Kovacevski v R

[2018] NSWDC 14

Theft & property

Citation: Kovacevski v R [2018] NSWDC 14
Court: District Court of NSW
Date: 19 February 2018
Judge(s): Haesler SC DCJ

Background

Following a contested property settlement in the Federal Circuit Court, an appellant in his seventies was ordered to vacate and transfer a Wollongong property to his former spouse by 5 August 2016. He executed the transfer document on 3 August 2016, and his solicitor forwarded it for registration the following day. Just after midnight on 4 August 2016, before registration was complete, the appellant set fire to the house using kerosene, destroying it entirely. Damage was assessed at $251,000.

The appellant was charged under section 195(1)(b) of the Crimes Act 1900 with maliciously destroying property by fire belonging to his former spouse, or belonging to them jointly. He pleaded not guilty before Magistrate Douglass at Wollongong Local Court, who convicted him and sentenced him to two years' imprisonment with a six-month non-parole period. The appellant then appealed both conviction and sentence to the District Court.

The central dispute on appeal was whether the former spouse had a legally cognisable interest in the property at the time of the fire, given that the transfer had not yet been registered under the Real Property Act 1900, and whether that interest was sufficient to ground a charge under section 195.

Legal Issues

  • Whether the Court Attendance Notice (CAN) was valid when it used the phrase "property of" rather than the statutory language "belonging to" in section 195 of the Crimes Act 1900
  • Whether the former spouse held a property interest in 46 Jutland Avenue at the time of the fire, given the transfer was signed but not yet registered
  • Whether section 194 of the Crimes Act 1900, which restricts the definition of "property" to tangible things, prevented the charge from being made out
  • Whether the words "belonging to" in section 195 require legal title, or whether an equitable interest suffices
  • Whether a claim of right defence arose on the evidence such that the prosecution was required to rebut it

Decision

Issue 1: Validity of the Court Attendance Notice

The CAN used the phrase "property of" rather than the statutory term "belonging to" in section 195. The court held the CAN was nonetheless valid. The phrases "property of" and "belonging to" are commonly used interchangeably in legal practice, and the CAN clearly identified the appellant, the time and place, the act of destruction by fire, and the property involved (at [33]-[38]). Under the Criminal Procedure Act 1985, a court may cause a CAN to be amended and proceedings to continue as if no defect had existed (at [37]).

Issue 2: Did the former spouse have a property interest at the time of the fire?

The court rejected the argument that the Real Property Act 1900 provisions on registration determined the scope of "property" under the Crimes Act 1900. The Crimes Act 1900 contains its own inclusive definition of "property" in section 4, which covers every description of real property (at [47]). Courts have consistently declined to read Real Property Act registration requirements so literally as to extinguish the rights arising from the underlying transaction (at [45]). By executing the transfer document and having it witnessed and forwarded for registration, the appellant had done what was required to create a property interest in the former spouse (at [44]). The appellant himself conceded during the appeal that his former spouse held an equitable interest in the property at the time of the fire (at [42]).

Issue 3: Section 194 and the tangibility limitation

Section 194 of the Crimes Act 1900 restricts the definition of "property" in section 195 to property of a tangible nature, so that the destruction of purely intangible property cannot ground a charge (at [53]). The appellant argued that because the former spouse's interest was equitable and therefore intangible, section 194 barred the charge. The court rejected this reasoning. The property actually destroyed was the house itself, a corporeal structure and plainly tangible real property (at [56]). Section 194 goes to the nature of the thing destroyed, not to the character of the former spouse's interest in it. The house at 46 Jutland Avenue satisfied the tangibility requirement (at [56]).

Issue 4: Meaning of "belonging to"

The court held that "belonging to" and "property of" are sufficiently synonymous for the purposes of the Crimes Act 1900, and that "belonging" connotes ownership in the sense of a legal right to possess and enjoy the subject matter (at [68]). The former spouse's right to possess and enjoy the property arose from the Federal Circuit Court order made on 22 July 2016 and was reinforced by the signed transfer document (at [70]). The fact that she was not yet in physical possession was irrelevant: owners frequently grant possession to others while retaining ownership (at [69]). The property belonged to both parties at the time of the fire (at [71]).

Issue 5: Claim of right

Section 194(3) of the Crimes Act 1900 allows for a claim of right to be raised in response to a section 195 charge, but the evidential onus rests on the defendant to point to evidence raising it before the prosecution must rebut it (at [84], [87]). The appellant's admissions to police, made at the scene and later confirmed in a recorded interview, established he knew what he was doing and knew it was wrong (at [82]). The appellant had signed the transfer document in compliance with the Federal Circuit Court order and was acting in deliberate defiance of that order when he set the fire (at [87]). No genuine claim of right arose on the evidence.

Orders Made

  • Conviction appeal dismissed: orders of the Local Court convicting the appellant confirmed.

Key Takeaways

  • An equitable interest in real property, arising from a court order and a signed but unregistered transfer document, is capable of constituting a property interest sufficient to ground a charge under section 195(1)(b) of the Crimes Act 1900. The District Court confirmed this without reference to the Real Property Act 1900's registration requirements (at [70]-[71]).

  • Section 194 of the Crimes Act 1900 limits section 195 to the destruction of tangible property, but that limitation applies to the nature of the thing destroyed, not to the character of the victim's interest in it. Where a physical structure is destroyed, the tangibility requirement is met regardless of whether the victim's interest was legal or equitable (at [53]-[56]).

  • The phrases "property of" and "belonging to" are treated as sufficiently synonymous in the Crimes Act 1900, and a minor discrepancy between CAN language and statutory language will not ordinarily invalidate the initiating process where all other material particulars are clearly identified (at [34]-[38], [68]).

  • A claim of right under section 194(3) of the Crimes Act 1900 requires the defendant to point to evidence raising the defence before the prosecution is obliged to rebut it. Admissions demonstrating awareness that conduct was wrong, combined with deliberate defiance of court orders, are inconsistent with a genuine belief in a legal right to act (at [84]-[87]).

  • In NSW, a person may lawfully destroy their own property by fire unless some other offence is committed, for example where the property also belongs to another. The District Court noted that NSW did not adopt Model Criminal Code Committee recommendations that would have created a separate arson offence applying even to one's own property (at [28]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 NSW; Interpretation Act 1987 NSW; Real Property Act 1900 NSW; Crimes (Appeal and Review) Act 2001; Criminal Procedure Act 1987 NSW; Justices Act 1902 NSW (repealed); Crimes Act 1983 (Vic); Criminal Law Consolidation Act 1935 (SA): Real Property Act 1986 (SA); Criminal Code Act 1995 (Comm)

Cases
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
- Barry v Heider (1914) 19 CLR 197
- Bignill v DPP [2016] NSWCA 13
- Charara v The Queen (2006) 164 A Crim R 39
- Corin v Patton; (1990) 169 CLR 540
- Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218
- Dyason v Butterworth [2015] NSWCA 52
- Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290
- Evans [1957] NZLR 1128; Ex Parte Burnett;
- Re Wicks [1968] 2 NSWR 119; Gianoutis v Glykis (2006) 65 NSWLR 539;
- Grajewski v DPP (NSW) [2017] NSWCCA 251
- Holden v R (1998) 103 A Crim R 70
- Knaggs v Director of Public Prosecutions NSW [2007] NSWCA 83
- O’Regan v Commissioner of Stamp Duties [1921] St R Qd 283
- Parsons v The Queen (1999) 195 CLR 619
- Myerson v. Collard 25 CLR 154 (1918) 24 ALR 306 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78]
- R v Burgess [2005] NSWCCA 52
- R v Manser (1999) SASC 91
- Re Day [No 2] [2017] HCA 14
- The Queen v Hodgson, unreported TCCA, 21 August 1985 16 of 1985; Tietyens v Cox (1916) 17 SR NSW 48
- Walton v Salmon, NSWSC Loveday J 24/4/92; (1992) 10 Petty Session Review 4530