Grajewski v Director of Public Prosecutions

Judgment

1. LEEMING JA: Mr Paul Olaf Grajewski was convicted in the Local Court of New South Wales of an offence contrary to s 195(1)(a) of the Crimes Act 1900 (NSW), and a fine of $1,000 was imposed. Mr Grajewski's appeal against conviction to the District Court of New South Wales pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) was dismissed. No further appeal lies, but s 5B of the Criminal Appeal Act 1912 (NSW) authorises a question of law to be submitted to this Court. That procedure was followed, with a view to this Court determining whether Mr Grajewski's locking himself to a coal loading machine, such that it was inoperable, was conduct capable of constituting "damaging property" within the meaning of s 195.

The case stated to this Court

1. On Mr Grajewski's application the primary judge submitted the following facts and questions of law: "FACTS In determining the appeal against conviction by Paul Olaf GRAJEWSKI on 29 May 2017 I was satisfied of the following beyond reasonable doubt. 1. Paul Olaf GRAJEWSKI was a protestor who attended the Carrington Coal Terminal on 8 May 2016. 2. At 7:50am a machine known as Ship Loader 2 was being used to load a vessel on Dyke 5. 3. Paul Olaf GRAJEWSKI climbed the stairs to the top of Ship Loader 2. 4. As Paul Olaf GRAJEWSKI commenced to climb Ship Loader 2 the machine was shut down due to safety concerns. 5. He then used a harness and roping device to lock himself to Ship Loader 2. 6. He then lowered himself down to about 10 metres above the platform. 7. The actions of Paul Olaf GRAJEWSKI and his position posed a potential risk of serious harm to himself. 8. The machine was inoperable whilst he remained in that position. 9. NSW Police Rescue successfully removed Paul Olaf Grajewski from Ship Loader 2 at approximately 9:40am. 10. Carrington Coal Terminal Ship Loading Operations recommenced at 10:15am. QUESTION OF LAW FOR DETERMINATION The question I now submit is: Can these facts support a finding of guilt for an offence contrary to section 195(1)(a), Crimes Act, 1900. In particular, was the evidence capable of proving beyond reasonable doubt that Ship Loader 2 had been damaged by the conduct of Paul Olaf GRAJEWSKI."
2. The principal question is framed so as to be confined to a question of law. This Court's powers in answering it do not include making findings of fact or drawing inferences from facts found by the court below: Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61 at [8], [52] and [71]. It is not necessary for present purposes to consider the qualifications to that limitation mentioned in The Queen v Rigby (1956) 100 CLR 146 at 151-152; [1956] HCA 38 and Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 at [11].
3. Some difficulties arise in relation to the second question. Although framed as being a particular of the first question, it is broader, insofar as it purports to be based on the evidence, rather than the facts stated. What is more, the evidence which was before the primary judge is not before this Court, and so the second question cannot be answered. In the event, nothing turns on this. If, as Mr Grajewski contends, physical damage to "Ship Loader 2" is an element of the offence of which he has been convicted, then the facts stated cannot support his guilt.
4. At various times both parties invited this Court to have regard to the evidence in the District Court. Mr Grajewski contended, on the basis of a paragraph in the witness statement of the manager of the Terminal, that it was the operation of the contingency plan which caused the machine to be shut down. The Crown invited this Court to infer that Mr Grajewski had intended to cause the machine to be shut down. Both submissions must be rejected, as Mr Dawson SC, who appeared with Mr Funnell for Mr Grajewski, and Mr Kell SC, who appeared with Mr Pulsford for the Crown, each acknowledged when they were directed to the limitations of the stated case procedure. This is not an appeal. If there is a deficiency in the facts contained in the stated case, that cannot be cured in this Court. That in turn is a consequence of Mr Grajewski choosing to bring an "all-grounds" appeal to the District Court, from which no further appeal lies, rather than exercising his right of appeal to the Supreme Court on a ground which involves a question of law alone, pursuant to s 52 of the Crimes (Appeal and Review) Act 2001, from which a further appeal lies (by leave) to the Court of Appeal: Supreme Court Act 1970 (NSW), s 101(2)(h).
5. Both parties' submissions going beyond the scope of the stated case were directed to the same issue, which relates to the causal connection between Mr Grajewski's conduct and the inoperability of the machine. On the view I take, nothing turns on the issue. Fact 4 establishes that Ship Loader 2 ceased operations because of a decision in the control room. Fact 5 establishes that, thereafter, Mr Grajewski used a harness and rope to lock himself to the machine, and Fact 6 establishes that he lowered himself so that he was 10 metres above the platform. Fact 8 establishes that the machine was inoperative while he remained in that position. If causing the machine to cease operating by physically affixing himself to it is sufficient to satisfy the offence, then the facts unquestionably were capable of supporting a finding of guilt.

The parties' submissions

1. Section 195(1) is as follows: "A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable: (a) to imprisonment for 5 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years."
2. Mr Grajewski's principal submission was simple. It was that the natural meaning of s 195(1) required physical damage to tangible property, which did not extend to causing it to cease to operate where there was no "physical derangement" (to pick up the language used in the authorities). As he put it, "the offence requires that the relevant interference with functionality be the result of some physical derangement or alteration of the property". He prayed in aid the requirement in s 194(1) that the property be tangible in support of the proposition that the damage must involve a physical derangement. He also invoked the principle that a penal statute should be construed narrowly. And he had the powerful support of the reasons of Simpson J in Director of Public Prosecutions v Fraser & O'Donnell [2008] NSWSC 244, a decision on materially identical facts, where environmental activists chained themselves to the underside of a conveyor belt at a coal loader and were charged with an offence under s 195(1). The DPP's appeal directly to the Supreme Court was dismissed. Simpson J concluded at [44], after a review of many authorities, that "for a conviction to be made out under s 195, it is necessary that the prosecution establish, even to a limited degree, some physical interference or alteration to the property in question", and that the application of the locking mechanism, although unauthorised, was not sufficient.
3. Prominent in the Crown's response were two decisions of this Court, R v Heyne [1998] NSWSC 429 (unreported, 18 September 1998) and Hammond v The Queen (2013) 85 NSWLR 313; [2013] NSWCCA 93. The Crown contended that interference with the operation of the machine per se was sufficient to establish damage.
4. Both parties sought to gain support from a wide-ranging review of local and international authorities on cognate legislation. I acknowledge at the outset the industry of the practitioners acting for both parties in assisting the question to be fully considered. The distinction sought to be maintained by Mr Grajewski was that while it had long been established that partly dismantling property so as to render it inoperative was to injure or damage it, in the present case there was no physical alteration or derangement to Ship Loader 2.

The text of s 195

1. The starting point is to consider the provision in its immediate context. Section 195 is the first provision in Division 2 ("Crimes against property generally") which is within Part 4AD. Although "property" is defined in s 4 in broad terms, to include "every description of real and personal property; money, valuable securities, debts, and legacies ...", the first and only section in Division 1 of Part 4AD, s 194, provides in subs (1) that "In this Part, a reference to property does not include a reference to property that is not of a tangible nature". Subsection 194(4) provides that "damaging property includes removing, obliterating, defacing or altering the unique identifier of the property". The verb "damages" is not otherwise defined in the statute.
2. Subsection 194(1) is an example of what the High Court in BP Australia Ltd v Bissaker (1987) 163 CLR 106 at 114; [1987] HCA 24 described as an "exclusionary definition". Its effect (relevantly to s 195(1)) is that the broad definition of "property" in s 4 is confined, such that destroying or damaging property which is not tangible property cannot come within the offence. However, contrary to a submission advanced by Mr Grajewski, the exclusion of intangible property from the scope of "property" says nothing as to the meaning of "damage", save possibly so as to exclude meanings which could only be applicable to intangible property. Accepting as I do that both "damages" and "property" are to be read in context, and by reference to the exclusionary and enlarging definitions in ss 194(1) and (4), the Legislature has taken a different approach in defining each word, and it would be wrong to extend the exclusion of intangible property so as to confine damage to physical damage.

Legislative history

1. Section 195 and the other provisions in Part 4AD were inserted by the Crimes (Criminal Destruction and Damage) Amendment Act 1987 (NSW). The Attorney General noted in the Second Reading Speech that the provisions in the Crimes Act 1900 (NSW) as initially enacted had been drawn from the Malicious Damage Act 1861 (Eng). He observed that: "the new offence of malicious damage to property set out in proposed section 195(1)(a) is similar to the existing offence of malicious injury in s 247 and will carry the same penalty of 5 years' imprisonment. This is a simple offence of wide application which provides clarity and virtual universal application. It obviates the need to prove a particular type of property, and applies to both living and inanimate objects."
2. The Attorney General also said that: "The bill completely overhauls other offences involving criminal damage to property. The bill is the product of an extensive review undertaken by the criminal law review division of my department." Parliamentary Debates, Legislative Assembly 28 October 1987, p 15343.
3. The reference to the extensive review is to a Discussion Paper by the Criminal Law Review Division titled "NSW Malicious Injuries to Property Provisions". After a review of the position at common law, in England and in other Australian States and Territories, that paper contained the following at p 34 under the heading "Proposed Reforms": "The tide of change in Australia displays a movement from offences based on classification according to types of property to offences against buildings or structures in general, and on to a general offence of criminal damage to property. This movement acknowledges that the culpability of an offender in respect of criminal damage to property is more referable to the mental element of an offender than to types of property damaged. ... It is proposed that a simple legislative scheme of offences drawn from the UK, Victorian and ACT provisions be enacted, which would incorporate the aggravating factors of dishonesty, use or fire or explosives, and malicious endangerment of life." (References omitted.)
4. The report gave the following account of the provision which became s 195: "Offence One: Maliciously destroying or damaging any property (maximum penalty: 5 years' imprisonment). Whereas the current s 247 applies only in respect of property which is not the subject of another offence in Part IV Chapter II, the proposed offence would apply generally. A similar offence is found under the UK, Victorian and ACT legislation. The adoption of a simple offence with wide application provides clarity and virtual universal application, removes certain anomalies and obviates the need to provide that a particular type of property is involved. The proposed penalty is in accordance with the current penalty in respect of s 247."
5. The term "maliciously" was replaced by a fault element of "intentionally or recklessly" in 2008: see Crimes Amendment Act 2007 (NSW), Schedule 1, items 2, 21. Nothing turns on this for present purposes.
6. The offence of which Mr Grajewski was convicted was wholly statutory. Arson was the only form of injury to property which was an offence at common law. Holdsworth wrote that "All other kinds of damage to property were treated simply as trespasses": A History of English Law (Methuen & Co Ltd, 5th ed 1966) Vol III p 370. Hence, and from a very early time, criminal statutes were enacted relating to the destruction of property that fell outside the common law offence. One was a 1788 statute of "breaking into a house or shop or place [and] ... shall wilfully and maliciously break, destroy or damage any frame, machine, engine, tool, instrument or utensil" used in, inter alia, certain textile industries: 28 Geo III c 55. Earlier Tudor statutes are summarised in Blackstone's Commentaries on the Law of England, Bk IV, ch 17, pp 243-245.
7. One of Sir Robert Peel's consolidating acts was 7 & 8 Geo IV c 30, sometimes known as the Malicious Injuries to Property Act 1827. That statute was received in New South Wales pursuant to s 24 of the Australian Courts Act 1828 (9 Geo IV c 83), although many of the specific offences (such as damage to canals) had no application to the colony. The 1827 English Act was replaced by 24 & 25 Vic c 97, the work of mid-nineteenth century law reform commissioners, which became known as the Malicious Damage Act 1861 (by reason of the Short Titles Act 1896 59 & 60 Vict c 14). Most of the provisions of the Malicious Damage Act were adopted in New South Wales by Sir Alfred Stephen's Law Reform Commission in 1871 and ultimately enacted in the colony by the Criminal Law Amendment Act 1883 (NSW): see G Woods, A History of Criminal Law in New South Wales: The Colonial Period 1788-1900 (Federation Press, 2002), pp 248-249. The Crimes Act 1900 (NSW) was a consolidation of that and other colonial statutes. Speaking generally, the other Australian colonies also enacted the 19th century English legislation.
8. The Criminal Damage Act 1971 (UK), enacted following a 1969 working paper and a 1970 report by the Law Commission, repealed the suite of offences created under the Malicious Damage Act 1861 and created a simple offence of "destroying or damaging any property belonging to another intending to destroy or damage any such property". Legislation based on the 1971 statute was enacted in Victoria by the Crimes (Criminal Damage) Act 1978 (Vic), in the Australian Capital Territory by the Crimes (Amendment) Act (No 4) 1985 (ACT) and, in 1987, in New South Wales.
9. That history discloses two consequences of present importance. The first is that the English and other Australian decisions to which the parties referred were decisions on cognate legislation. The second is that it explains the nature of the 1987 amendments, which were to replace the multitude of particular property damage offences tracing back to the mid-nineteenth century by a smaller number of generally applicable offences. It is helpful to consider the effect of the 1987 amendments in slightly more detail.
10. The suite of nineteenth century offences were located in Chapter II of the Crimes Act 1900 as originally enacted, entitled "Malicious Injuries to Property". The first section of that chapter was s 194(1), which made reference to "Every act of malicious injury to property punishable under this Act", and thereafter made general provision extending the various offences to both private property and Crown property, and providing that it was not necessary to prove the existence of malice. Section 196-249 thereafter criminalised various injuries to various types of property. Some of those offences used the verb "damage" but most used "injure". Many provisions criminalised conduct which "maliciously destroys, or damages" various things (including hopbinds growing on any plantation of hops (s 215), any tree, sapling, shrub or plant, or any underwood (ss 216 and 217); other instances may be seen in ss 219, 224, 225 and 244).
11. The offences most clearly comparable to Mr Grajewski's conduct expressly referred to the functioning of machines. Sections 209 and 210 provided (emphasis added): "Injuries to manufactures, machinery, &c. 209. Whosoever - maliciously cuts, breaks, or destroys, or damages, with intent to destroy or render useless, any goods, article, or material, in any stage process, or progress, of manufacture, or any loom, frame, machine, engine, rack, tackle, tool, or implement, whether fixed or movable, prepared for, or employed in, manufacturing, or preparing, any such goods, article, or material, or, by force enters into any building, or place, with intent to commit any such offence, shall be liable to penal servitude for seven years. 210. Whosoever maliciously cuts, breaks, or destroys, or damages, with intent to destroy, or render useless, any machine, or engine, whether fixed or movable, used, or intended to be used, for performing any agricultural operation, or any machine, or engine, used, or intended to be used, for sheep-washing, wool-pressing, sugar-crushing, cottonginning, or for performing any process connected with the preparation of any agricultural, or pastoral, produce, or with the preservation of meat, or other animal substances, or any appliance, or apparatus, in connection with any such machine, or engine, shall be liable to penal servitude for five years.
12. Sections 223 and 224 were also broadly worded, and were as follows (emphasis added): "Injuries to mines. … 223. Whosoever - maliciously causes any water to be conveyed, or run, into any mine, or into any subterraneous passage communicating therewith, or maliciously pulls down, fills up, or obstructs, or damages, with intent to destroy, obstruct, or render useless, any airway, waterway, drain, pit, level, or shaft, of or belonging to any mine, with intent in any such case to destroy, or damage, such mine, or to hinder, or delay, the working thereof, shall be liable to penal servitude for seven years. 224. Whosoever - maliciously sets fire to, or pulls down, or destroys, or damages, with intent to destroy, or render useless, any engine employed, or about to be employed in sinking, draining, ventilating, or working any mine, or any appliance or apparatus in connection therewith, or any staith, building, or erection, bridge, waggon-way, or trunk, used or intended to be used, in, or about, the business of any mine, whether such engine, staith, building, erection, bridge, waggon-way, or trunk, is completed or unfinished, or maliciously prevents, or obstructs, the working of any such engine, appliance, or apparatus, or maliciously cuts, breaks, unfastens, or damages, with intent to destroy, or render useless, any rope, chain, or tackle used in any mine, or in or upon any way, or work, employed in, or connected with, any mine, or the business thereof, shall be liable to penal servitude for seven years."
13. Section 232 similarly provided (emphasis added): "Whosoever, by any unlawful act, or wilful omission, or neglect, obstructs, or causes to be obstructed, the passing, or working, of any engine, or carriage, on any railway, or aids, or assists, in any such offence, shall be liable to imprisonment for three years."
14. Section 247 (to which the Attorney General compared the new s 195) had provided, as originally enacted: "247 Injuries over five pounds not otherwise provided for. Whosoever maliciously injures, to an amount exceeding five pounds, any real or personal property whatsoever, either of a public or private nature for which act no punishment is hereinbefore provided, shall be liable to imprisonment for two years, and where such offence is committed in the night, shall be liable to penal servitude for five years."
15. The provision was amended three times prior to the 1987 amendment, although without changing its substance. In 1986 s 247 had read: "247 Other injuries Whosoever maliciously injures any real or personal property whatsoever, either of a public or private nature for which act no punishment is provided in this Chapter, shall be liable to penal servitude for five years."
16. Throughout the entirety of its history from 1900 until 1987, s 247 spoke (consistently with the verb predominantly used in this part of the statute) of the crime of maliciously injuring property, which was not caught by any of the preceding, more specific sections.
17. Thus as originally enacted, s 194 referred to "every act of malicious injury to property punishable under this Act", and one of the last sections, s 247, likewise referred to any malicious injury which had not been the subject of earlier provision. On a natural reading, "injury" and "injures" in a chapter titled "Malicious injuries to property" in the Crimes Act was apt to include all of the particular offences, even those which were not expressed in terms of injuring property, and including those which referred to obstructing the working of a machine or rendering it useless.
18. It will be seen that there was both a structural and a textual change to the legislation in 1987. The "catch-all" provision s 247, which was applicable when no other provision applied, and had been the last provision in this part of the statute, became the first section of the new Part 4AD, and no longer included words "for which act no punishment is provided in this Chapter". Further, the verb "injures" was replaced by "destroys or damages". I return to the significance of this after dealing with the authorities.

Authority

1. Both parties referred to an extensive range of Australian, English, Irish and Scottish authority on cognate legislation, it being common ground that there was no authority binding this Court on point. It is convenient to summarise that authority chronologically and geographically, by reference to the legislative measures referred to above.

English authority before 1971

1. R v Tacey (1821) Russ & Ry 452; 168 ER 893 concerned an indictment founded on the offence created by the 1788 statute of 28 Geo III c 55 of "wilfully and maliciously break, destroy, or damage any frame, machine, engine, tool, instrument or utensil" in certain trades including knitting. Mr Tacey had entered a shop and carried away part of a frame used for the making of frame-work knitted stockings, called a "half-dash jack". The report states that the half-dash jack is a piece of iron, which "is an essential part of the frame, and when taken out, the frame is rendered useless. It may however be taken out, and again replaced, without injury to the frame, and is sometimes so treated, when the frame is taken to pieces to be cleaned." Objection was taken that the removal of the half-jack was not damaging of the frame. The objection was overruled at Nisi Prius, and the conviction was upheld by what was even at that time known as the Court for Crown Cases Reserved (although the practice of the judges consulting one another informally on a point of law was only formalised in 1848 by 11 & 12 Vict c 78: see Holdsworth, History of English Law Vol 1, p 217). The report states that the judges were: "unanimously of opinion that the taking out and carrying away [of] the piece of iron called the half-jack, was a damaging [of] the frame within the meaning of the 28 Geo III, as it made the frame imperfect and inoperative. They held the conviction right."
2. R v Fisher (1865) LR 1 CCR 7 was a unanimous ex tempore decision of the Court for Crown Cases Reserved constituted by Pollock CB, Willes J, Pigott B and Shee and Montague Smith JJ. Mr Fisher was charged with an offence under s 15 of the Malicious Injuries to Property Act 1861 which made it an offence to "unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy or to render useless, any Machine or Engine" used for agriculture or certain manufacturing. The evidence established that (a) the parts had been so tightly screwed so as to prevent the steam engine working, (b) the plug of a pump which supplied the engine boiler with cold water had been taken out and replaced with the wrong side up, preventing water from passing the pump into the boiler, and (c) that another pipe to the boiler had been stopped up by a piece of stick being thrust up it, so that, even supposing that water could have passed through the plug, it could not have got through the pipe into the boiler. It was also admitted that when the working parts of the engine had been loosened, the plug taken out and properly replaced, and the obstruction from the pipe had been removed, "the engine was just as good as before". The Chairman of Quarter Sessions directed the jury that preventing the machine from working was "doing damage", and the jury convicted. The Chairman reserved a question of law for the consideration of the Court for Crown Cases Reserved: "Whether, upon the facts stated, the temporary injury to the engine was such a malicious damage as to bring the prisoner under the penalties of the statute, and whether the prisoner was property convicted."
3. The Court affirmed the conviction and said: "It is like the case of spiking a gun, where there is no actual damage done to the gun, although it is rendered useless. The case falls within the expression 'damage with intent to render useless'. Can it be said that the machine was not damaged, when it was placed in such position that, if water had gone on boiling, the boiler would have burst? Moreover, great injury may be done to a machine by the displacement of its parts; and in this case, until the parts were replaced, the machine was useless. Surely the displacement of the parts was a damage within the fifteenth section, if done with intent to render the machine useless."
4. There were thus two aspects of the reasoning: (a) doing something with no actual damage to the machine which rendered it useless because, if it were used, it would have been physically destroyed, and (b) displacement of the parts of the machine, which, until replaced, was rendered useless. However, as Mr Grajewski emphasised, s 15 made it an offence to "damage with intent to destroy or to render useless", which is differently worded from s 195(1).
5. Tacey and Fisher were applied by Black LJ, sitting as a Judge of Assize in Getty v Antrim County Council [1950] NI 114. The offending conduct was the unscrewing of two Ford Ferguson ploughs, and taking away vital parts of them, without doing any damage to the parts left behind, and the submissions descended to the detail of the textual differences between the earlier legislation and s 5 of the Local Government (Ireland) Act 1898, which referred to "maliciously setting fire to, destroying, or injuring property". The submission was made that the word "injury" bore a narrower meaning than the word "damage" considered in Tacey and Fisher. Black LJ said: "I cannot accept this contention. To my mind, the distinction which Mr Babington seeks to draw is much too fine, and I do not think that any such distinction was in the mind of the Legislature. If the dismantling of a machine constitutes a damage to the machine under the wording of section 15 of the Act of 1861 it equally, in my opinion, constitutes an injury to the machine under the wording of s 5(1) of the Act of 1898."

English authority on the Criminal Damage Act 1971

1. As noted above, s 1 of the Criminal Damage Act 1971 (UK) replaced a large number of specific offences by a general provision: "A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property … shall be guilty of an offence." Property was defined in s 10(1) of the 1971 Act to mean "property of a tangible nature, whether real or personal …".
2. In A ("a Juvenile") v The Queen [1978] Crim LR 689, the Kent Crown Court allowed an appeal following evidence that A had spat upon a police sergeant's raincoat. The appeal appears to have proceeded on the bases that "damage" extended to "rendering imperfect or inoperative", and held that the raincoat, being designed to resist the elements, was not damaged by the spittle, nor was it "rendered inoperative (if it was 'inoperative', it was solely on account of being kept as an exhibit)". The Court distinguished between spitting on a raincoat and spitting on a garment such as a satin wedding dress; in the latter, any attempt to remove the spittle might in itself leave a mark or stain, and it was said that an article "might also have been rendered 'inoperative' if, as a result of what happened, it had been taken to dry cleaners." Although the precedential authority of the decision is limited (see P Allsop, A Ashworth and S Nicholas (eds), "The Binding Effect of Crown Court Decisions" [1980] Crim LR 402), it will be seen below that the decision has been quite influential.
3. R v Henderson and Battley is an unreported decision of the Court of Appeal (Criminal Division) given on 29 November 1984 concerning the unlawful dumping of 30 lorry loads of soil, rubble and mud onto a development site. Cantley J, giving judgment of the Court, observed that "whether damage was done to this land was a question of fact and degree for the jury". The trial judge's direction was that "damage" under s 1 of the Criminal Damage Act 1971 "just bears its ordinary everyday meaning". The trial judge added that damage "includes even the temporary rendering of the land less usable, or, indeed, not usable: adversely affecting its character for the purpose for which the owner had it." Cantley J considered that the direction was "completely in accordance with good sense and with the principle exemplified in" Fisher.
4. In Morphitis v Salmon [1990] Crim LR 48 the Queen's Bench Divisional Court (Lloyd LJ and Auld J) found that s 1 of the Criminal Damage Act 1971 extended to "permanent or temporary impairment of value or usefulness", although on the facts of the case the removal of a scaffold bar and clip fell outside the scope of that provision.
5. In R v Fiak [2005] EWCA Crim 2381, the Court of Appeal dismissed an appeal against conviction of criminal damage to a blanket and a police cell. The appellant had been arrested and was placed in a cell. He placed a blanket down the lavatory and flushed it repeatedly, causing his own cell and two adjoining cells and the passage to become flooded. The Court said at [8] that: "The blanket was wet, but not visibly soiled, and the water which caused flooding was clean water from the lavatory fallen onto a waterproof cell floor. However, the water made the blanket unusable until it was cleaned and dry, and the cells themselves were cleaned by a contract cleaner before they were available to the police for normal use."
6. The Court relied upon what had been said in Morphitis v Salmon [1990] Crim LR 48, where Auld J had said that the term "damage" for the purpose of this provision should be "widely interpreted so as to include not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness". The Court concluded at [20] that: "… [W]hile it is true that the effect of the appellant's actions in relation to the blanket and the cell were both remediable, the simple reality is that the blanket could not be used as a blanket by any other prisoner until it had been dried out (and, we believe, also cleaned) and the flooded cells remained out of action until the water was cleared. In our judgment it is clear that both sustained damage for the purposes of the 1971 Act."

Australian decisions outside New South Wales

1. In Griffiths v Morgan (unreported, Supreme Court of Tasmania, 13 October 1972) Neasey J determined an appeal by way of rehearing under s 113 of the Justices Act 1959 (Tas). Mr Griffiths was charged under s 37(1) of the Police Offences Act 1935 (Tas), which simply provided that "No person shall unlawfully destroy or injure any property". The offending conduct was that he had released either saliva or water or both into the mouthpiece and sample tube of breath analysing equipment. There was evidence that the machine was inoperative for returning a correct reading and had to be sent to Hobart to be dismantled and cleaned out. However, there was no evidence that any parts of the machine were damaged, or that when cleaned out and put together, it was not fully operative. Neasey J said: "However, to cause the machine to become inoperative until it was cleaned and adjusted was, in my opinion, to injure it within the meaning s 37(1) of the Police Offences Act 1935. To injure property is, to adopt the most apt of the meanings given in the Shorter Oxford Dictionary, 'to do hurt or harm to; to damage'.
2. His Honour then relied upon what had been held in Tacey and Fisher. He concluded: "In my opinion, a rendering of the breath analysis machine temporarily useless, which the appellant did by his action, was unlawfully to injure it."
3. In Samuels v Stubbs (1972) 4 SASR 200, Walters J in the Supreme Court of South Australia heard a Crown appeal from the dismissal of a charge of damaging property contrary to s 43 of the Police Offences Act 1953 (SA). The accused kicked and crushed a police officer's cap whilst he was being arrested. He observed that the meaning of the word "damage" must be controlled by its context: at 203, and that the term "damage" may not necessarily "be employed interchangeably with the term 'injury' with reference to mischief wrongfully occasioned to the person". He concluded however that "it is sufficient proof of damage if the evidence proves a temporary functional derangement of the particular article of property", and drew a distinction between damage to property and the consequent loss or damage to the owner of it. Consequently, the appeal was allowed and the respondent was convicted.
4. Samuels v Stubbs was approved in the Bristol Crown Court in Hardman v The Chief Constable of Avon & Somerset Constabulary [1986] Crim LR 330, holding that specially mixed unstable whitewash which was soluble in water, which was used to paint human silhouettes on an asphalt pavement on an anniversary of the Hiroshima bombing, did damage, notwithstanding that the markings washed away and would eventually be eradicated by rain and pedestrian traffic. It was said to be sufficient that markings had caused expense and inconvenience to the local authority.
5. The joint judgment of the Court of Criminal Appeal of Queensland in R v Zischke [1983] Qd R 240 arose from a conviction of wilfully and unlawfully damaging property in the night time contrary to s 469 of The Criminal Code. The Court said at 243 that the question was one of mixed fact and law: whether spraying paint on buildings and other structures amounted to damage. Mr Zischke was permitted on appeal to contend that there was damage done "only if the structure or substance of some part of the subject property had been deranged" and that the application of an adhesive substance or (and/or) a penetrant, without more, does not constitute such damage." The Court reviewed a large number of decisions, including Tacey, Fisher and Getty. Its conclusion at 246 was: "What emerged from a review of the decisions is that 'damage' may be held to have been done even though the injury to the article of property is not permanent but is remediable, if only by the expenditure of money. Probably the formula that most nearly embraces all the attempts at definition is that a thing is damaged if it is rendered imperfect or inoperative: see 'A' (a juvenile) v The Queen [1978] Crim LR 689."
6. Two further things may be noted. The first is that their Honours observed that it was correct for the trial judge to leave open to the jury to determine as a fact whether or not by applying paint the accused had damaged the property to which it was applied. The second is that s 460 of the Code included a definition which extended to obliterating or rendering illegible certain things. The court said that that inclusive definition could not be relied upon as a legislative indication that, apart from that definition, a narrow meaning of damages was intended in relation to s 469.

New South Wales decisions

1. The force of this Court's reserved decision in R v Ian Eric Heyne (18 September 1998, Handley JA, James and Levine JJ) may have been diminished by the way in which it has been made available. It is not reported in any series of law reports. It is not presently on Caselaw. It is available amongst the decisions collected on "Butterworths unreported cases", where it is BC9807961 and the appellant's name is misspelt as Hayne. I have used the original hardcopy version published by the Court, which is accurately reproduced in the version published electronically by AustLII. The headnote includes the proposition: "Despite the technicalities of the doctrine of unlawful and dangerous act in this case (notably 'temporary functional derangement'), the trial Judge's directions to the jury were correct."
2. Mr Heyne appealed against his conviction and sentence for manslaughter. Following an argument with his wife, he had obtained a can of petrol and splashed it around the living room of his house. The petrol ignited. The appellant was able to escape, but his wife was trapped and died. The Crown case included that Mr Heyne caused her death by an unlawful and dangerous act, the unlawful act being malicious damage to property. The judge's directions identified three bases in which that offence may have been made out: "The wetting of the carpet with petrol, which is only temporary, any permanent staining of the carpet from the petrol, and what was referred to as the temporary functional derangement of the house because of the presence of the petrol."
3. Handley JA, with whom Levine and James JJ agreed, was critical of issues that had been left to the jury, but nevertheless dismissed the appeal, which included a ground that the jury had been misdirected on the ways in which they might find the offence of malicious damage to property made out. His reasons included this passage: "… [T]he Judge directed [the jury], as he was bound to, that it was open to them to find that the pouring of the petrol may have been unlawful because it caused a 'temporary functional derangement' of the house, making it unusable until the vapour dispersed. In Samuels v Stubbs (1972) 4 SASR 200, Walters J held that the respondent, who had stamped on a policeman's hat during a demonstration and temporarily put it out of shape, could be convicted of wilful damage to property, 'temporary functional derangement' being sufficient for this purpose. Mr Norrish QC submitted that this case should not be followed, but I see no reason to doubt its correctness. It is cited without criticism in Johnson & Howie, "Criminal Practice and Procedure (NSW)", para 8820.20, and in Watson, Blackmore and Hosking, "Criminal Law (NSW)", para 2.27710, and is consistent with other authority. This includes Hardman v Chief Constable of Avon [1986] Crim LR 330-1 (whitewashing footpath damage although rain would eventually wash it away) and Morphitis v Salmon [1990] Crim LR 48, 49 where Lloyd LJ and Auld J said: 'Whether damage … was caused in the particular case was a question of fact and degree and could be of various kinds … It included not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness.' This challenge therefore fails."
4. The affirmation of a temporary functional derangement constituting damage was part of the ratio of the decision. It could not be known which path or paths left open to them had been followed by the members of the jury, and so if what had been said about a temporary functional derangement was incorrect in law, the verdict would prima facie be unsafe: see for example Osborne v R; R v Osborne [2017] NSWCCA 11 at [133]. Mr Grajewski sought to distinguish this decision on the basis that the petrol (being a liquid) seeped into the carpet, thereby physically interfering with it, while Mr Grajewski and his harness and roping device were merely attached to the surface of Ship Loader 2.
5. Justice Simpson in Director of Public Prosecutions v Fraser & O'Donnell [2008] NSWSC 244 appears not to have been referred to Heyne. Her Honour reviewed many of the earlier authorities, and held that the protesters' locking themselves to the machinery did not constitute the requisite physical interference with property. However, both Heyne and Fraser & O'Donnell were considered by this Court in Hammond v The Queen (2013) 85 NSWLR 313; [2013] NSWCCA 93, when Slattery J reviewed all of the decisions mentioned above, save for Griffiths v Morgan, in the context of a conviction under s 195(1) for spitting on a stainless steel seat while the offender was being held in custody. His Honour was asked to follow the narrower approach taken by Simpson J, and concluded as follows at [68]-[69]: "But it is not strictly necessary to decide this question in these reasons because of the approach taken below in relation to the findings in the stated case: that the findings neither establish physical damage nor functional interference with the seat. But were it necessary to decide the question I would respectfully differ from the approach that Simpson J took in Fraser, and conclude that the course of authority in both England and Australia now supports the conclusion that interference with functionality of the property in question alone, even without physical harm to or 'derangement' of the property is sufficient to establish 'damage' within the Crimes Act, s 195. In my opinion this conclusion is justified on the various judicial formulae of what constitutes 'damage' developed in the course of authority. Both Zischke and A (a Juvenile) allow physical harm ('imperfect') and functional interference ('inoperative') as alternative paths to establishing a finding of criminal damage. Samuels v Stubbs also approved in this court in Hayne [sic], allow that 'temporary functional derangement' is alone a sufficient basis for a finding of criminal damage. And Morphitis v Salmon, Henderson & Battley and Whiteley allow the establishing of 'physical harm' and 'impairment of value or usefulness' as separate paths to a finding of criminal damage." Hoeben CJ at CL and Bellew J agreed. The decision was applied by R A Hulme J in Director of Public Prosecutions (NSW) v Lucas [2014] NSWSC 1441 allowing an appeal from the Local Court which had dismissed a charge under s 195(1) based on letting air out of a vehicle's tyre.

Consideration

1. If one were to put to one side context, purpose and existing authority, there is force in the conclusion reached by Simpson J that the words "destroys or damages" in s 195(1) require a physical interference or alteration to the property. Mr Grajewski also invoked the principle against giving a broad construction to a penal provision, applied in Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; [2005] HCA 58 at [45]: "[I]n choosing between a relatively broad and a relatively narrow construction of legislation, it is desirable to take into account its penal character. ... An appreciation of the heavy hand that may be brought down by the criminal law suggests the need for caution in accepting any loose, albeit 'practical', construction of Div 2A itself."
2. Although it was at the forefront of his written submissions, the principle invoked by Mr Grajewski does not exclude the ordinary rules of construction: Waugh v Kippen (1986) 160 CLR 156 at 164; [1986] HCA 12. Indeed, Gibbs J's qualified observation in Beckwith v The Queen (1976) 135 CLR 569 at 576 that the "rule is perhaps one of last resort" has much more recently been reiterated in unequivocal terms: by Nettle and Gordon JJ in Re Day [No 2] [2017] HCA 14; 91 ALJR 518 at [276] and in the joint judgment in Aubrey v The Queen [2017] HCA 18; 91 ALJR 601 at [39]. I do not for a moment understand the High Court, by referring to "rules" and "last resort", to be implying that the task of ascertaining the legal meaning of a statute is mechanistic, to be determined by the application of rules, amongst which the penal character of the statute is the last to be invoked. The process is considerably more nuanced, reflecting as it does the constitutional relationship between the various arms of government: Zheng v Cai (2009) 239 CLR 446; [2009] HCA 52 at [28]. As was express in the passage from Stevens v Kabushiki Kaisha Sony Computer Entertainment reproduced above - a statute's penal character is to be regarded as a very minor consideration to be taken into account in ascertaining its legal meaning in light of its text, context and purpose.
3. But the task of ascertaining the legal meaning of s 195(1) cannot disregard context, purpose and authority. I respectfully disagree with the conclusion reached by Simpson J for the following reasons.
4. First, Simpson J did not have the benefit of this Court's decisions in Heyne and Hammond. The former is ratio; the latter is obiter but is fully reasoned following detailed argument on the point. Not lightly would this Court now adopt a construction which is inconsistent with both those earlier decisions on the same section.
5. Secondly, the legislative history confirms a construction whereby "destroys or damages" includes physical interference which obstructs the working of a machine or renders it useless, either permanently or temporarily. There were formerly specific offences applicable to industrial or agricultural machines, mines and railway engines which used that language, namely, ss 209, 210, 223, 224 and 232 of the Crimes Act 1900 as originally enacted. All those offences were contained in a chapter entitled "Malicious Injuries to Property" and ss 194 and 247 confirmed that "injures" had a broad meaning which extended to obstructing machinery and rendering machinery useless. There is nothing to suggest that the general provision which replaced those nineteenth century specific offences, which used "destroys or damages" rather than "injures", was any narrower. The reasoning of Neasey J in Griffiths v Morgan on the Tasmanian legislation referring to "unlawfully destroy or injure any property" supports that conclusion.
6. Further, once it is ascertained that "destroys or damages" extends to physical interference which causes property to be inoperable, there is no straining of the language if a machine is damaged so that it is rendered temporarily inoperable. The distinction observed in s 195 between "destroys" and "damages" is apt to distinguish between property which is rendered permanently inoperable and property which is only rendered temporarily inoperable.
7. Thirdly, this Court is required to prefer a construction which promotes the legislative purpose: Interpretation Act 1987 (NSW), s 33. The purpose of s 195 was to replace a large number of nineteenth century offences with a single offence of generality which extended at least so far as the sections it was replacing. The Minister introducing the 1987 bill described s 195 as "a simple offence of wide operation", and there is nothing in any of the extrinsic materials to suggest that the simplified structure brought about the result that conduct which had formerly been criminal was now outside the Act. That is to say, Mr Grajewski's construction is contrary to the command in s 33 of the Interpretation Act.
8. Fourthly, the very considerable weight of authority now supports a broader approach. Tacey, Fisher, Henderson, Morphitis and Fiak are English appellate decisions on cognate language. Further, Griffiths v Morgan, Samuels v Stubbs and R v Zischke are carefully reasoned decisions on similar statutes. To the extent that Mr Grajewski sought support from A ("a Juvenile") v The Queen I would note that the raincoat was not rendered inoperative by being spat on, and it was that fact which was regarded as decisive.
9. Mr Grajewski submitted that "damage" has, in the criminal context, "never been previously understood as being constituted by interference with functionality alone". This may be accepted. It is not necessary to go so far as this Court stated, obiter, in Hammond, namely that interference with functionality of property even without physical harm or derangement is sufficient to satisfy s 195. The Crown submitted that a protester who lay down in front of a bulldozer, intending to prevent its operation, would contravene s 195 in its application to the bulldozer. I would not accept that submission, just as I would not accept that a false threat that a bomb had been left in a factory would contravene s 195 (the latter would be an offence contrary to s 199). Although in both cases the effect may be to render the machinery inoperative, I think consistently with the legislative text and purpose and authority that there must be some physical interference with the property. That is to say, I think there is a material difference between a protester who ties herself to the wheel or to the blade of a bulldozer, and the protester who lays down in front of the bulldozer. In both cases the operator may be prevented from using the bulldozer, but only in the former cases is there the combination of physical interference and temporary inoperability which satisfies the "destroys or damages" element of the offence.
10. That said, Mr Grajewski's submissions to distinguish Heyne are unpersuasive. There is nothing to suggest that s 195 involves distinctions between petrol seeping into a fabric causing a dwelling to be temporarily unusable and a protester attaching himself to the outside of a machine causing it to be temporarily unusable. Once the conclusion is reached that physical interference causing property to be inoperable falls within the section, there is no occasion to imply fine distinctions based on precisely how that is achieved. It would seem absurd if, say, letting out the air in a vehicle's tyre was an offence under s 195(1) but attaching a wheel clamp was not. And how are cases like R v Henderson and Battley (rubble on a building site) and R v Zischke (paint on a building) to be reconciled with the facts of the present case? Constructions which yield improbable or capricious results are to be avoided on settled principles of statutory interpretation: see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 321.
11. There may in some cases be questions of fact and degree. I agree with what was said in this respect in "A" (a juvenile): spit on a raincoat may not involve damage, whereas spit on a satin wedding dress may. The same point was made in R v Zischke. Such differences are outside the limited scope of the question reserved to the Court pursuant to s 5B of the Criminal Appeals Act. They do not presently arise, because the stated cases establishes that Mr Grajewski's physical presence attached to Ship Loader 2 caused the machine to continue to be inoperable for some two hours.
12. Finally, Mr Grajewski relied, albeit weakly, on the enactment of the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 (NSW), which commenced shortly after the offence. The new aggravated offence of unlawful entry onto inclosed lands applies where a person on inclosed lands on which a business or undertaking is conducted "interferes with, or attempts or intends to interfere with, the conduct of the business or undertaking" or "does anything that gives rise to a serious risk to the safety of the person or any other person on those lands". True it is that the new offence would appear, on its face, to have applied to Mr Grajewski's conduct. However, I fail to see how that statute could have any bearing upon the legal meaning of s 195(1) at a time before it came into force. Mr Dawson did not seek to apply the new legislation directly, but only indirectly as a response to a submission from the Crown, and acknowledged that "it not being in force at the time, it is difficult to have regard to it as a principle of statutory construction". The later statute which was not in force says nothing as to the meaning of the statute which was in force.

Orders

1. For those reasons, I propose that the questions reserved be answered "Yes" and "Inappropriate to answer".
2. There is power to order costs on a stated case (see for example Smith, Robert Arthur v Alison Byrne (New South Wales Electoral Commission) [2017] NSWCCA 35 at [18]) but when this was raised the Crown Advocate confirmed that he made no application for costs.
3. JOHNSON J: I agree with Leeming JA.
4. ADAMSON J: I agree with Leeming JA.

Amendments 24 October 2017 - [2] - "to" added between "submitted" and "following" [8] - "convicted of" changed to "charged with" [11] - "damage" deleted from Division heading name [15] - "tha" replaced with "that" [32] - "Court of" changed to "Court for" [33] - spelling of "Pigott B" corrected; "just a good" replaced with "just as good" [40], [51] - citation of Morphitis v Salmon corrected [42] - "or value" changed to "of value" [51] - "JJA" replaced with "JA" [65] - "enclosed lands" replaced with "inclosed lands" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 October 2017