Criminal Damage - 1

Question 1

What is Criminal Damage an offence under

Answer 1

Criminal damage is an offence under Crimes Act 1958 s197(1).

Question 2

To establish an offence under s197(1) what must the prosecution establish BRD

Answer 2

The offence of criminal damage has the following four elements:

1. The accused destroyed or damaged property;
2. The property belonged to another;
3. The accused intended to destroy or damage property;
4. The accused did not have a lawful excuse for his or her actions.

Question 3

in the 1st element of the offence for CD

“The accused destroyed or damaged property;”

what is property

Answer 3

For the purposes of this offence, property is defined as real or personal property of a tangible nature (Crimes Act 1958 s196(1)).

This is specifically stated to include the following objects:

1. Money;
2. Wild creatures which have been tamed or are ordinarily domesticated;
3. Other wild creatures or their carcasses that:
4. Have been reduced into possession that has not been lost or abandoned; or
5. Are in the course of being reduced into possession (Crimes Act 1958 s196(1)). [1]

Question 4

What does it mean to “destroy or damage” property?

Answer 4

The words “destroy” and “damage” are not defined in the Crimes Act.

Destroying property involves rendering it useless for the purpose for which it exists (A Smith, Property Offences (1994), 835).

In contrast, the term “damage” has a broad meaning, and covers injury, mischief or harm to property (Samuels v Stubbs [1972] 4 SASR 200).

“Damage” has been held to include:

1. Permanent or temporary physical harm;
2. Permanent or temporary reduction of functionality, utility or value
3. Property may be “damaged” by virtue of being defaced

Question 5

is it possible to damage property by omission

Answer 5

it is possible for a person to destroy or damage property by omission (R v Miller [1983] 2 AC 161).

This may occur where the accused has created a dangerous situation, and has a duty to take action within his or her capabilities to address the dangers he or she has created.

The first element of the offence will be met if the prosecution can prove that the accused knowingly failed to act in the way he or she was required to, and as a result property was damaged or destroyed