KIEFEL CJ, BELL, KEANE AND GORDON JJ. A person who intentionally or recklessly destroys or damages property belonging to another (or to that person and another) commits an offence contrary to s 195(1) of the Crimes Act 1900 (NSW). This appeal is concerned with the physical element of the offence. In issue is whether a person can be said to destroy or damage a thing if the person's conduct does not occasion any alteration to the physical integrity of the thing.
Mr Grajewski, a protestor, harnessed himself to a ship loader at a coal terminal. Mr Grajewski was at risk of serious harm while he remained in this position. The ship loader was shut down as Mr Grajewski commenced to climb the machine and remained shut down until he was removed. Mr Grajewski was charged with an offence against s 195(1)(a), particularised as doing "damage [to] property causing the temporary impairment of the working machinery" of Ship Loader 2. He was convicted of this offence in the Newcastle Local Court, and fined a sum of $1,000.
Mr Grajewski appealed against his conviction to the District Court of New South Wales (Judge Bright). Her Honour dismissed the appeal and confirmed the conviction.
Under s 5B(2) of the Criminal Appeal Act 1912 (NSW) a party to appeal proceedings in the District Court may request that a question of law be submitted to the Court of Criminal Appeal for determination even though the proceedings during which the question arose have been determined. The Court of Criminal Appeal may, in connection with the determination of the question of law in such a case, quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court.
At the request of Mr Grajewski, Judge Bright stated a case to the Court of Criminal Appeal setting out the facts and asking (i) can these facts support a finding of guilt for an offence contrary to s 195(1)(a); and (ii) was the evidence capable of proving beyond reasonable doubt that Ship Loader 2 had been damaged by the conduct of Mr Grajewski.
The Court of Criminal Appeal (Leeming JA, Johnson and Adamson JJ) considered the stated case principally by reference to three Australian authorities. In Director of Public Prosecutions v Fraser & O'Donnell, Simpson J in the Supreme Court of New South Wales dismissed the Director of Public Prosecutions' appeal against the dismissal of charges under s 195(1)(a) arising out of Ms Fraser's and Mr O'Donnell's conduct in chaining themselves to a conveyor belt at the site of a coal loader. Her Honour reviewed the authorities in the United Kingdom and Australia on the meaning of "damage" in cognate legislation ("criminal damage") and concluded that, with the possible exception of the decision of the Court of Appeal (Criminal Division) in R v Henderson and Battley, common to all is the requirement that there be "some physical change or alteration to the property", even if temporary.
The Court of Criminal Appeal acknowledged the force of Simpson J's conclusion that the words "destroys or damages" require that there be some physical interference with or alteration to the property. The Court of Criminal Appeal considered, however, that it should not depart from two decisions which were against acceptance of this "narrow" construction. In the first, R v Heyne, an unreported decision to which it appeared Simpson J had not been referred, it was held that the "temporary functional derangement" of property suffices as criminal damage. In the second, Hammond v The Queen, it was held that interference with functionality alone without any "derangement" of the property may constitute criminal damage. The Court of Criminal Appeal also considered that the purpose of s 195(1), understood in light of the legislative history, provides a further reason for rejecting the "narrow construction".
The Court of Criminal Appeal determined that "physical interference causing property to be inoperable", whether temporarily or otherwise, satisfies the "destroys or damages" element of the offence. In the Court of Criminal Appeal's analysis, Mr Grajewski's attachment to Ship Loader 2 amounted to an act of physical interference which caused it to be inoperable for some two hours. The Court of Criminal Appeal answered question (i) "yes" and declined to answer question (ii) because it asked the Court to determine the question on the evidence as distinct from the facts stated by Judge Bright.
On 18 May 2018, Kiefel CJ and Bell J granted Mr Grajewski special leave to appeal from the judgment of the Court of Criminal Appeal. For the reasons to be given, damage to property within the meaning of s 195(1) of the Crimes Act requires proof that the defendant's act or omission has occasioned some alteration to the physical integrity of the property, even if only temporarily. It follows that the first question submitted by Judge Bright to the Court of Criminal Appeal should be answered "no" and in consequence that Mr Grajewski's conviction should be quashed.
Section 195(1)(a)
Part 4AD of the Crimes Act, headed "Criminal destruction and damage", comprises a number of Divisions concerning crimes against property generally; crimes relating to particular kinds of property; sabotage; and bushfires. Part 4AE concerns offences relating to transport services, including to aircraft and to railways. Parts 4AD and 4AE were inserted into the Crimes Act by the Crimes (Criminal Destruction and Damage) Amendment Act 1987 (NSW) ("the Amending Act").
Section 195(1) is in Pt 4AD. It provides:
"195 Destroying or damaging property
(1) 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 five years, or
…"
"Property" is broadly defined in s 4(1) of the Crimes Act to include every description of real and personal property. Section 194(1) provides that in Pt 4AD, "a reference to property does not include a reference to property that is not of a tangible nature". Apart from providing that for the purposes of Pt 4AD, "damaging property includes removing, obliterating, defacing or altering the unique identifier of the property", the Crimes Act does not define "damage". The unique identifier is any numbers, letters or symbols that are marked on, or attached to, the property to enable it to be distinguished from similar property.
As a matter of ordinary English, to damage a thing means to injure or harm the thing in some way that, commonly, lessens the value of the thing; a thing is not damaged if the physical integrity of the thing is not altered in any respect. Contrary to the Court of Criminal Appeal's analysis, the legislative history does not support a construction of the offence in s 195(1) that extends its reach to any "interference" with property that results in the property being inoperable.
The legislative history
Chapter II of Pt IV of the Crimes Act, as enacted, contained a plethora of offences of criminal damage to property. Its provisions can be traced to the Malicious Damage Act 1861 (UK) ("the 1861 UK Act"), which amended and consolidated the Malicious Injuries to Property Act 1827 (UK). The latter was the first consolidation of many provisions largely enacted in the eighteenth and nineteenth centuries which made criminal damage to particular types of property an offence ("property-specific offences").
The 1861 UK Act, like its predecessor, contained a range of property‑specific offences: some criminalised "damaging" the thing and some criminalised "injuring" the thing. There is no reason to consider that the former was intended to have any wider meaning than the latter. The difference in wording merely reflects that the 1861 UK Act, like its predecessor, was a consolidation Act. Section 51 of the 1861 UK Act was novel. It made it an offence for a person to "maliciously commit any Damage, Injury, or Spoil to or upon any Real or Personal Property whatsoever, either of a public or private Nature, for which no Punishment is herein-before provided". This general offence was said by its draftsman to recognise the "many very valuable instruments and machines daily invented" and the impracticality of making specific provision for each.
Section 247 in Ch II of Pt IV of the Crimes Act, as enacted, was framed in terms reminiscent of s 51 of the 1861 UK Act and provided that "[w]hosoever maliciously injures … 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". Chapter II of Pt IV was repealed by the Amending Act, which inserted Pt 4AD. On the second reading of the Bill for the Amending Act, the Attorney‑General stated its object as the reformation and simplification of the law. The Attorney‑General observed that Ch II of Pt IV contained "a large number of archaic and anomalous offences … based on damage to different types of property", and he described the s 195(1) offence as being "similar to the existing offence of malicious injury in section 247".
The simplification of offences involving criminal damage under the Amending Act, in common with reforms introduced in Victoria and the Australian Capital Territory, was based on the Criminal Damage Act 1971 (UK) ("the 1971 UK Act"), which replaced many antique property‑specific offences with a general offence of intentionally or recklessly destroying or damaging any property belonging to another.
The Court of Criminal Appeal considered that s 195(1) is to be understood as having a broad meaning that is apt to capture all of the offences formerly contained in Ch II of Pt IV. Their Honours noted that Ch II of Pt IV was headed "Malicious injuries to property", and they concluded there is no reason to find that the legislature intended "damage" to have a narrower meaning in Pt 4AD than "injury" in Ch II of Pt IV. Among the conduct proscribed in the repealed Chapter were offences of obstructing machinery and rendering machinery useless. The Court of Criminal Appeal identified a number of provisions in this respect. Sections 209 and 210 contained offences that were most apt to cover the conduct with which Mr Grajewski was charged. These sections were expressed in terms "[w]hosoever maliciously cuts, breaks, or destroys, or damages, with intent to destroy or render useless, any … machine, engine …". Sections 223 and 224 were offences involving injuries to mines. The former made it an offence to obstruct or damage "with intent to destroy, obstruct, or render useless, any airway, waterway, drain, pit, level, or shaft" and the latter made it an offence to destroy or damage "with intent to destroy, or render useless, any engine". Section 232 made it an offence to obstruct, or cause "to be obstructed, the passing, or working, of any engine, or carriage, on any railway". Against this background, the Court of Criminal Appeal concluded that physical interference which obstructs machinery, or which renders machinery useless, whether permanently or temporarily, should be understood as within the meaning of the expression "destroys or damages" in s 195(1).
The legislative history cannot overcome the plain words of the provision. In any event, it is not apparent that the history supports the Court of Criminal Appeal's interpretation of the intended broad reach of s 195(1). The view that the offences formerly provided in ss 209 and 210 were most apt to capture the conduct with which Mr Grajewski was charged conflates the physical and mental elements of the repealed offences. The physical element of each offence was "cutting, breaking, destroying or damaging". It was the mental element that required that the conduct be accompanied by the intent, among others, to "render useless".
While the evident intention of enacting s 195(1) was to provide a general offence of criminal damage to property applying to conduct which in many instances had been criminalised in the repealed property‑specific offences, it is overstating its object as to apply to all of the conduct proscribed in the repealed Ch II of Pt IV. The conduct proscribed by ss 223 and 224, obstructing or rendering useless machinery or structures involved in mining activity, is proscribed under s 201 in Pt 4AD. The conduct proscribed by s 232, obstructing any engine or carriage on any railway, is proscribed under s 213 in Div 2 of Pt 4AE, which is headed "Offences relating to railways etc".
The physical element of the offence created by s 195(1) is conduct which "destroys or damages". It strains the language of the provision to interpret the words "destroys or damages" as including conduct which obstructs or renders useless without in any way altering the physical integrity of the property. If the legislature intended to criminalise the obstruction of property or the rendering of it useless in s 195(1), it is to be expected that it would have so provided.
While the Court of Criminal Appeal was correct to take from the legislative history that the word "damages" in s 195(1) does not have a narrower meaning than the word "injures" as the latter is used in the context of criminal damage to property, it remains that the legislative history does not warrant interpreting either word as applying to conduct which does not occasion any alteration to the physical integrity of the thing said to be damaged or injured.
The authorities
Mr Grajewski adopts Simpson J's analysis of the authorities and her Honour's conclusion in Fraser & O'Donnell that proof of criminal damage requires that there be some "physical derangement" of the property damaged. The respondent submits that it is not possible to explain a number of decisions which have considered the meaning of criminal damage by reference to this criterion: R v Fisher; Henderson and Battley; Griffiths v Morgan; Hardman v Chief Constable of Avon & Somerset Constabulary; R v Fiak and Heyne. Implicit in the submission is the further submission that in following the model of s 1(1) of the 1971 UK Act the legislature is presumed to have intended the words "destroys or damages" to have an extended meaning consistent with a settled line of authority.
A difficulty with acceptance of the respondent's submission is, as Auld J observed in Morphitis v Salmon, the authorities show that what constitutes "damage" in this context is not always clear. In Morphitis, the Queen's Bench set aside Mr Morphitis' conviction for an offence of criminal damage, particularised as damaging a scaffold clip and scaffold bar. These two items together with an upright had formed a barrier across an access road. Mr Morphitis dismantled the barrier and carried off the scaffold clip and scaffold bar, leaving the upright in position. The question on the appeal was whether the scaffold clip and scaffold bar, although not physically damaged as individual objects, were nevertheless damaged within the meaning of s 1(1) of the 1971 UK Act by their separation from the upright.
Impairment of value or usefulness as a test
In Morphitis, Auld J said the authorities show that "damage" is to be widely interpreted so as to include not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness. Mr Morphitis' appeal was allowed because the charge as framed did not allege damage to the barrier. Had the allegation been of damage to the barrier, Auld J considered it was clear on the authorities that the offence could have been proved. The analysis took into account decisions holding that dismantling a thing and removing a part from it amounts to criminal damage even where no other physical damage is done to the thing or the part removed.
In the earliest of these decisions, R v Tacey, the prisoner in company with others forcibly broke into a shop, where he and others dismantled two frames used for making knitted stockings and carried away an essential component of each known as the half-jack. The question of whether this amounted to damage to the stocking frames within the meaning of an eighteenth century statute was reserved for the consideration of the common law judges. Their Lordships were unanimously of the view that the taking out and carrying away of the half-jack was "damaging" as it made the frame "imperfect and inoperative".
The conclusion that the dismantling and carrying away of the half-jack damaged the frame may be thought to accord with the ordinary meaning of the word. Nothing in the brief report of the reasoning in Tacey suggests that, in stating that the frame had been made "imperfect and inoperative", the common law judges were articulating a disjunctive test.
Auld J's analysis also took into account Fisher, in which the Court for Crown Cases Reserved, in an ex tempore judgment, held that stopping-up the feed pipe of a boiler by thrusting a stick into it, thereby preventing water passing into the boiler, amounted to damage to the boiler within the meaning of s 15 of the 1861 UK Act.
The removal of the half-jack in Tacey and the introduction of the stick in Fisher were acts which undoubtedly involved impairment of the function or usefulness of the property. Equally undoubtedly the impairment of function or usefulness in each case was the result of a physical alteration to the integrity of the property albeit that in each instance the alteration was remediable.
The English Court of Appeal in Whiteley approved Auld J's statement that damage is to be "widely interpreted so as to include not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness". Mr Whiteley, a computer hacker, appealed against his conviction for the malicious damage to discs in a computer system. Mr Whiteley had gained unauthorised access to the system and he had issued commands, impulses magnetising or de-magnetising particles, so as to alter data that had been written to the discs. Mr Whiteley contended that his activity had affected only intangible information contained on the discs. Lord Lane CJ rejected the argument, stating:
"What the Act requires to be proved is that tangible property has been damaged, not necessarily that the damage itself should be tangible. There can be no doubt that the magnetic particles upon the metal discs were a part of the discs and if [Mr Whiteley] was proved to have intentionally and without lawful excuse altered the particles in such a way as to cause an impairment of the value or usefulness of the disc to the owner, there would be damage within the meaning of section 1".
The impairment of the value or usefulness of the discs was brought about by a physical, albeit unseen, alteration to the magnetic particles on the discs.
The Court of Appeal of England and Wales returned to the scope of the concept of "damage" in Fiak. Mr Fiak appealed against his conviction for malicious damage contrary to s 1(1) of the 1971 UK Act. While he was held in a police cell Mr Fiak stuffed a blanket into the toilet and repeatedly flushed the toilet causing his cell and the adjoining cells to be flooded. The charge was particularised as damage to the blanket and the cells. The Court of Appeal referred to Auld J's statements in Morphitis and to the analysis in Whiteley and held that, while the effect on the property was remediable, the blanket could not be used until it was dried out (and cleaned) and the flooded cells were "out of action" until the water cleared. Mr Fiak's appeal was dismissed.
It will be recalled that Simpson J identified Henderson and Battley as a possible exception to the requirement for "physical derangement" of the property damaged. In that case, the Court of Appeal (Criminal Division) confirmed the defendants' convictions for criminal damage occasioned by the deposit of some 30 lorry-loads of soil, rubble and mud on a building site. Their Lordships rejected an argument that there had been no damage because the condition of the land beneath the rubble had not been altered. Whether damage was done was said to be a question of fact and degree for the jury's assessment.
Lord Lane CJ explained Henderson and Battley in Whiteley, observing:
"The trial judge['s] … decision was upheld on appeal, on the grounds that damage can be of various kinds and that the definition found in the Concise Oxford Dictionary … namely 'injury impairing value or usefulness,' was appropriate to cover the facts of the case." (emphasis added)
The deposit of 30 lorry-loads of rubble on a site may be thought to have occasioned a temporary alteration to land beneath, which had been "cleared flat" in readiness for construction work. So understood, in none of the decisions which have used, or been explained by, Auld J's formulation has the impairment of function or usefulness not been occasioned by some injury in the sense of some alteration to the physical integrity of the property, even if relatively slight as in Fiak.
Has the property been rendered inoperative?
There was no dispute that there must be some form of physical connection to the property. However, the decision in Hammond, where the Court stated that inoperability of the property alone could be considered "damage" under s 195(1), was influential in the reasoning of the Court of Criminal Appeal below. It is therefore necessary to address inoperability or "temporary functional derangement" as a possible test under s 195(1). Hammond was a case stated to the New South Wales Court of Criminal Appeal which asked whether the facts stated were capable of supporting Mr Hammond's conviction for a s 195(1)(a) offence. Those facts were that Mr Hammond spat on a stainless steel seat located in the dock of a police station. As the Court of Criminal Appeal noted, the facts bore similarity to those in "A" (a Juvenile) v The Queen, in which the defendant was charged with criminal damage for spitting on the back of a police officer's raincoat. "A" appealed against his conviction in the Juvenile Court to the Kent Crown Court. The Kent Crown Court acknowledged that spitting on a garment may damage the garment and instanced spitting on a satin wedding dress which leaves a mark or stain. In "A"'s case the spittle landed on a garment that was designed to resist the elements and there was no likelihood that if wiped with a damp cloth any trace of it would remain. The Kent Crown Court contemplated that criminal damage to a garment may be sustained if the garment is rendered "inoperative" until it is dry-cleaned. "A"'s conduct had not rendered the raincoat imperfect or inoperative and his appeal was allowed and his conviction quashed.
In Hammond, the Court of Criminal Appeal said that a "new judicial approach" to the determination of criminal damage had been identified in "A" (a Juvenile): applying this approach, the court considers (i) whether the physical appearance of the property has changed as a result of the defendant's act so that it may be described as "imperfect"; or (ii) whether as a result of the defendant's act the property was rendered "inoperative". The stainless steel seat was not rendered imperfect or inoperative as the result of Mr Hammond's act and the Court of Criminal Appeal answered the question reserved in the stated case "no". Although not strictly necessary to the decision, their Honours said that interference with the functionality alone, even without physical harm to, or "derangement" of, property may suffice to establish damage within the meaning of s 195(1).
As the Court of Criminal Appeal observed in Mr Grajewski's case, the decision in "A" (a Juvenile) has proved to be influential despite its limited precedential authority. Important to acceptance of the "new judicial approach" was its approval by the Court of Criminal Appeal of Queensland in R v Zischke.
In Zischke the issue for the Queensland Court of Criminal Appeal was whether slogans spray painted on buildings, walls and footpaths at the Townsville Mall constituted criminal damage under the Criminal Code (Qld). Mr Zischke argued that an adhesive substance applied to a structure does not, without more, damage the structure. The Court of Criminal Appeal rejected the argument, observing that the authorities show that an article may be damaged even though the damage is remediable. Their Honours cited "A" (a Juvenile) with approval and concluded that the formula which "most nearly embraces all the attempts at definition [of criminal damage] is that a thing is damaged if it is rendered imperfect or inoperative". Their Honours considered that this formula accommodated the test which had been applied by the Supreme Court of South Australia in Samuels v Stubbs, which equates the "temporary functional derangement" of property with damage to the property. The graffiti was held to have rendered the surfaces on which it was sprayed "imperfect".
"Temporary functional derangement"
Samuels v Stubbs was an appeal from the dismissal of a complaint that charged the respondent with criminal damage to a police constable's cap. The Special Magistrate found that the cap had fallen to the ground as the constable was attempting to arrest a demonstrator and that the respondent kicked the cap and jumped on it with both feet. The Special Magistrate recorded "it was crushed under his weight, it didn't spring back into its original shape; [and] it remained in a semi-crushed condition". The Special Magistrate dismissed the complaint, holding that the evidence did not establish "actual damage" to the cap. Walters J observed that it is difficult to lay down a "precise and absolute rule" as to what amounts to "damage" and that it is necessary to be guided by the circumstances of each case. His Honour concluded that it suffices for the prosecution to establish "a temporary functional derangement" of the property. The cap was damaged in that it was "injured or harmed in such a way to cause temporary derangement of its function and of the purpose which it was normally to serve".
Applying the ordinary meaning of the language of the provision, the conclusion that the cap was damaged might be thought inevitable; it was crushed out of shape. The foundation for the test of "temporary functional derangement" as a criterion of criminal damage to property is less clear. Immediately before articulating the test, Walters J commented that "damage" in the context of property offences may not necessarily be employed interchangeably with "injury" in the context of offences against the person. It may be that his Honour took the test from the rejection of counsel's argument in Fisher. Counsel is reported to have submitted unsuccessfully, by analogy with a decision of the Court for Crown Cases Reserved dealing with proof of the offence of occasioning bodily injury dangerous to life, that a "temporary functional derangement" of the boiler did not suffice to constitute criminal damage to property.
In Heyne the test of "temporary functional derangement" was approved as a criterion of criminal damage. The question arose in somewhat unlikely circumstances and the Court of Criminal Appeal's consideration of the criterion was brief. Mr Heyne was convicted of the manslaughter of his wife, who had died in consequence of being trapped inside their burning home. Mr Heyne had poured petrol on the carpet inside the house but the cause of its ignition was unknown. The prosecution contended that Mr Heyne was guilty of manslaughter by unlawful and dangerous act or criminal negligence. On the former case, the unlawful act was the malicious damage occasioned by pouring the petrol onto the carpet. The jury was directed that it was open to find that this act amounted to criminal damage in any of a number of ways, including by (i) wetting the carpet with petrol, which was temporary, (ii) any permanent staining of the carpet by the petrol, and (iii) the "temporary functional derangement" of the house occasioned by the presence of the petrol.
On appeal against his conviction, Mr Heyne argued the trial judge erred in law in leaving the third basis for the jury's consideration since it could not support a finding that the act amounted to criminal damage. Handley JA, giving the leading judgment, saw no reason to doubt that the "temporary functional derangement" of property may suffice for liability for the s 195(1) offence. His Honour said the formulation is consistent with Hardman and Morphitis.
There could be no serious question that the pouring of the petrol on the carpet in Heyne occasioned damage to the carpet and, as Mr Grajewski argues, the three ways in which the trial judge invited the jury to consider that the foundational offence was made out might be thought to be cumulative. In any event, viewing the third way in isolation, the presence of the petrol vapour in the house occasioned a temporary physical alteration to the house.
Neither Hardman nor Morphitis requires recourse to the concept of "temporary functional derangement" to explain the decision. As earlier noted, the analysis in Morphitis is that the dismantling and removal of a part of a thing damages the thing. In Hardman painting graffiti on a pavement with water soluble whitewash was held to damage the pavement notwithstanding that the whitewash would eventually have been eradicated by rainwater and pedestrian traffic. It is not apparent that there was any functional derangement of the pavement; however, the surface of the pavement was undoubtedly altered by the graffiti even though the damage thereby occasioned was not permanent.
Whatever its origin, the concept of "temporary functional derangement" is not a useful criterion for the determination of criminal damage to property. It is an effect or product of damage. Interference with functionality alone can hardly be said to amount to damaging the thing; and, as indicated, this was not the contention of either party. If it were otherwise, as Simpson J has pointed out, removal of the ignition key of a motor vehicle might be within the reach of the s 195(1) offence.
The only other decision on which the respondent's submission, that there is no requirement that there be any "physical derangement" to property, is based is Neasey J's decision in Griffiths v Morgan. Mr Griffiths filled his mouth with water before taking a breathalyser test and when asked to blow into the breathalyser machine he released the water or saliva or both into the tube thereby rendering the machine inoperative. It was sent to Hobart where it was dismantled, cleaned and adjusted before it became operational again. Neasey J held that the machine was injured within the meaning of s 37(1) of the Police Offences Act 1935 (Tas). Contrary to the respondent's submission, the introduction of the fluid into the machine brought about a physical albeit temporary alteration to the machine. As Neasey J reasoned, the case was analogous to Fisher.
The Court of Criminal Appeal's test in Mr Grajewski's case
In Mr Grajewski's case, the Court of Criminal Appeal was not prepared to embrace Hammond's conclusion that interference with functionality alone suffices to establish damage. The Court of Criminal Appeal said that there must be "some physical interference with the property" before liability under s 195(1) can be engaged. In this respect the Court of Criminal Appeal discerned a material distinction between the protestor who ties herself to the wheel or blade of a bulldozer and the protestor who lies down in front of the bulldozer. In each case the result may be the stopping of the bulldozer but it is only in the former case that there is a combination of "physical interference and temporary inoperability" which suffices to satisfy the "destroys or damages" physical element of the offence.
Inoperability may be the product of damage done to property but it does not, of itself, constitute damage to property. Nothing in the authorities justifies an interpretation of the expression "destroys or damages" as extending to conduct which does not in any respect alter the physical integrity of the thing said to be damaged. The attempt to overcome the evident difficulty in the conclusion in Hammond, that interference with functionality alone suffices to establish the offence, by the addition of a requirement of "physical interference" does not solve the difficulty. The protestor who ties herself to the blade of the bulldozer does not damage the bulldozer just as the protestor who lies in front of the bulldozer does not damage the bulldozer. It may be that in each case the bulldozer is stopped while the protestor remains in position but that is not because of anything done by the protestor to affect the functioning of the bulldozer. It is because of the desire of the operator not to injure the protestor.
Application to Mr Grajewski
At this point the facts and the questions of law for determination stated by Judge Bright should be set out in full:
"In determining the appeal against conviction by Paul Olaf GRAJEWSKI on 29 May 2017 I was satisfied of the following beyond reasonable doubt:
- Paul Olaf GRAJEWSKI was a protestor who attended the Carrington Coal Terminal on 8 May 2016.
- At 7:50am a machine known as Ship Loader 2 was being used to load a vessel on Dyke 5.
- Paul Olaf GRAJEWSKI climbed the stairs to the top of Ship Loader 2.
- As Paul Olaf GRAJEWSKI commenced to climb Ship Loader 2 the machine was shut down due to safety concerns.
- He then used a harness and roping device to lock himself to Ship Loader 2.
- He then lowered himself down to about 10 metres above the platform.
- The actions of Paul Olaf GRAJEWSKI and his position posed a potential risk of serious harm to himself.
- The machine was inoperable whilst he remained in that position.
- NSW Police Rescue successfully removed Paul Olaf Grajewski from Ship Loader 2 at approximately 9:40am.
- 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."
The Court of Criminal Appeal said that fact 4 established that Ship Loader 2 ceased operations because of a decision in the control room; fact 5 established that, thereafter, Mr Grajewski locked himself to the machine; fact 6 established that he lowered himself so that he was ten metres above the platform; and fact 8 established that Ship Loader 2 was inoperative while Mr Grajewski remained in that position. Notably, the Court did not refer to fact 7, that Mr Grajewski's actions and his position posed a potential risk of serious harm to him. The Court of Criminal Appeal's determination that the first question submitted by Judge Bright should be answered "yes" reflected their Honours' conclusion that Mr Grajewski caused Ship Loader 2 to cease operating by physically attaching himself to it and that this conduct sufficed to satisfy the physical element of the offence in s 195(1)(a) of the Crimes Act.
The Court of Criminal Appeal considered that once the conclusion is reached that physical interference causing property to be inoperable is within s 195(1), "there is no occasion to imply fine distinctions based on precisely how that is achieved". The Court said that it would seem absurd to hold that letting out the air in a vehicle's tyre amounts to damage for the purposes of s 195(1) but that attaching a wheel clamp does not. Equally, it may be thought absurd to hold that the protestor who ties herself to the wheel or to the blade of a bulldozer commits an offence contrary to s 195(1) while the same protestor who lies in front of the bulldozer does not.
The physical element of the offence created by s 195(1) is conduct that "destroys or damages" some article of tangible property. A person does not damage a thing by conduct which does not bring about any alteration to the physical integrity of the thing. The alteration may be relatively minor and temporary as in letting the air out of a tyre, which physically alters the tyre and renders it imperfect. By contrast, unless the attachment of a wheel clamp to the tyre causes some physical alteration to the tyre it has not damaged the tyre even though the vehicle may be inoperable while the clamp remains in place.
The Court of Criminal Appeal's conclusion that Mr Grajewski's physical presence attached to Ship Loader 2 caused it to continue to be inoperable for some two hours does not establish that Mr Grajewski damaged Ship Loader 2. On the facts stated, nothing done by Mr Grajewski brought about any alteration to the physical integrity of Ship Loader 2. The decision to shut down Ship Loader 2 was taken due to safety concerns for Mr Grajewski (fact 4) and those same concerns led to Ship Loader 2 remaining shut down until Mr Grajewski was removed from it (facts 7 and 8).
For these reasons the appeal must be allowed. As noted, the Court of Criminal Appeal has power to quash the conviction or sentence of the District Court on the appeal to the District Court. Section 37 of the Judiciary Act 1903 (Cth) permits this Court to give such judgment as ought to have been given in the first instance. The facts stated by Judge Bright cannot support Mr Grajewski's conviction. The conviction and the sentence of the District Court on the appeal to the District Court must be quashed.
Mr Grajewski seeks an order for costs. The proceeding is not relevantly to be distinguished from an appeal and there is no reason to depart from the usual practice of making no order as to costs in criminal proceedings.
Orders
For these reasons, there should be the following orders: