Criminal Damage - 2

Question 1

is it necessary to show that the accused directly damaged or destroyed the property in question.

Answer 1

It is not necessary to show that the accused directly damaged or destroyed the property in question.

This element may be met where the accused sets off a chain of events which lead to the property being damaged or destroyed(R v Hayes [2008] QCA 371).

In such cases, it may be necessary to examine the issue of causation.

Question 2

outline the 2nd element the prosecution must prove

Answer 2

the damaged or destroyed property either:

1. Belonged to another person; or
2. Belonged to the accused and another person (Crimes Act 1958 s197(1)).

Question 3

When does property “belong” to another person?

Answer 3

Property “belongs” to a person where that person has:

1. Custody or control of it;
2. A proprietary right or interest in it (other than one arising from an equitable agreement to grant or transfer an interest); or
3. A charge on it (Crimes Act 1958 s196(2)).

Question 4

Who must the property belong to?

Answer 4

While the property must belong to “another person”, that person does not need to be the sole owner.

It is possible for the accused to commit an offence by damaging or destroying property that he or she co-owns with someone else(Crimes Act 1958 s197(1); Howell v Dakin [1965] Tas SR 142).

Question 5

Outline the 3rd element Intending to Destroy or Damage Property

Answer 5

The 3rd element the prosecution must prove is that the accused intended to damage or destroy the property (Crimes Act 1958s197(1)).

Section 197(4) sets out the requirements for proving this element. A person only intends to destroy or damage property if:

1. One of his or her purposes is to destroy or damage property; or
2. He or she knows or believesthat his or her conductis more likely than not to result in destruction of or damage to property (see also R v Hayes [2008] QCA 371).

Question 6

the 4th element

Without Lawful Excuse

outline some of the lawful excuse that CD can occur

Answer 6

A person has a lawful excuse to a charge under s197(1) if, at the time the relevant act was committed, he or she believed that:

1. The property belonged solely to him or herself (s201(2)(a)(i));
2. He or she held a right or interest in the property which authorised him or her to engage in the conduct (s201(2)(a)(ii)); or
3. The people he or she believed were entitled to consent to the destruction or damage had consented, or would have consented if they had known the circumstances of the destruction or damage (s201(2)(a)(iii)).