Hammond v R

The Parties' Submissions 26The parties' respective submissions may be shortly stated. Both parties accepted that the Crimes Act itself did not anywhere define the verb "damages" within s 195, other than the limited inclusive definition in s 194(4), and that it was necessary therefore to look at the course of authority to determine the meaning of the word in this provision. 27The applicant's argument. The applicant's argument was put in two parts. The applicant first argued that mere functional interference does not form part of the meaning of "damages" in s 195 but that some material or physical damage is always required to make out a s 195 offence. Then, the applicant argues that findings as to what physically happened to the seat in this case could not establish material change to the seat so as to constitute s 195 "damage". 28(1) Material damage is necessary. The applicant first submits: that some physical alteration, derangement or interference with the physical integrity of an object is necessary for the prosecution to establish that "damage" to the object has occurred, or for a tribunal to conclude that a person "damages" it; and that mere interference with the functionality of the object is not "damage" within s 195(1). The applicant put his submission the following way:- "..defacing a stainless steel chair by spittle, in circumstances where the said chair is designed for and situated within a holding cell at a police station, is not capable of establishing "damage", as there was no physical alternation, derangement, or interference with the physical integrity of Dock 1." 29The applicant based his submission on certain statements of principle of Simpson J in Director of Public Prosecution v Fraser and O'Donnell [2008] NSWSC 244 ("Fraser"). In Fraser her Honour said (at [38]): Interference with functionality alone, without "physical derangement" would, in my opinion, be insufficient to establish damage within the meaning of s 195 [of the Crimes Act]. 30It was conceded in brief oral submissions on the applicant's behalf that if this Court decides that the decision in Fraser was wrong, then the applicant necessarily fails, because the District Court's findings included findings that there was a temporary interference with the functionality of the dock: Lerve DCJ inferred that "the dock area of the Warren Police Station had to be cleaned", presumably because it was unhygienic and could not be used for its proper function, until it was cleaned. For the reasons given below this concession was perhaps a little too generous when the facts found in the stated case are fully analysed. 31(2) No material damage to the seat here. The question arises next in the applicant's argument as to what material change to the seat would constitute s 195 "damage". The applicant concedes in submissions that his actions amounted to a defacement of the chair, in the sense that its appearance was altered. But pointing to a number of cases, which deal with defacement of objects, he argued that a conclusion that the defacement amounted to "damage" within the meaning of s 195 was not open on the facts here. 32The applicant submitted that both generally and in the defacement cases authority requires consideration of two elements: the surface of the object defaced (here the chair) and the constitution of the substance defacing it (here spittle or mucus). 33The applicant submits the chair was made of stainless steel, which "is a non-porous, non-permeable and stain resistant surface incapable of being physically damaged by spittle". The applicant concludes that spittle could not have bonded with the chair. It could have been easily removed without causing damage to the chair and therefore interference with the physical integrity of the chair was not demonstrated. 34The applicant concedes that Dock 1 was rendered temporarily inoperable during the period of time that it would have taken to clean it. But the applicant submits that this is a purely functional issue, something very different to suggesting a physical alteration to the chair: adapting Simpson J's words in Fraser, the applicant submits there was no damage here, merely an "interference with functionality". Again as these reasons later demonstrate, even this concession may be too generous upon closer analysis of the facts actually found in the stated case. 35Moreover, the applicant argues that having the dock professionally cleaned and presumably incurring the associated cost of such cleaning, instead of simply wiping away the spittle, was the choice of those administering the Warren Police Station and does not establish damage. 36Lastly the applicant submits that, for policy reasons, the facts of this case should not be classified as "damage" in s 195: to do so would extend the breadth of the offence and would render criminal a broad range of quite innocuous conduct. The applicant gives examples of conduct that would be criminalised were his submissions not accepted. The applicant presents the example of a person deliberately choosing to leave a dinner plate or other utensil unwashed, so that the food contents on the plate dried and hardened over time; such a plate with a hard porcelain surface could no doubt be washed without any permanent damage. But the washing of the plate would require strenuous physical labour later and would therefore qualify as s 195 "damage" if material damage to the surface of the object is not required. 37The respondent's argument. The respondent takes issue with both the applicant's main arguments. The respondent submits in reply: (1) that Crimes Act s 195 "damage" may include mere loss of functionality and that material damage is not an essential requirement; and, (2) that the physical changes to the seat here are not necessarily outside s 195 "damage". 38(1) Material damage is not necessary. The respondent submits that if Simpson J's decision in Fraser requires some physical injury interfering with the fabric or the integrity of the property in question, beyond interference with the function of the property, then: the decision represents an unduly restrictive narrowing of the interpretation of the word "damage"; and it is at odds with the course of previous authority, which has developed a more flexible approach and allows Courts to consider the particular facts of each case and the property in its context when deciding what is or is not "damage" within Crimes Act s 195. 39(2) Physical changes here qualify as "damage". The respondent contends that Simpson J's analysis of the term "damage" in Fraser does require some physical derangement, interference or alteration of the property in question but that it need not be permanent, or even lasting. And the respondent submits: that Lerve DCJ found that placing the spittle on the chair involved such physical derangement and not an interference with functionality only, and so it was s 195 "damage"; and, that such finding was open to his Honour on the facts before him. 40The respondent also replies to the applicant's policy based argument. The respondent says that narrowing the meaning of "damage", as the applicant appears to be advocating, is not appropriate. The respondent foresees that with the increasing development of modern technology new and developing forms of property might be capable of being damaged in various ways, which may not necessarily involve physical change or impact. The respondent submits that the broader interpretation of "damage" authorised under existing authority should be maintained. 41Summary of conclusions on these submissions. These reasons do not fully accept either the applicant's or respondent's submissions. Rather they conclude: (1) that the course of authority supports the respondent's submissions that mere interference with the functionality of an object (without material damage) may constitute s 195(1) "damage"; (2) that it is not necessary to show that physical damage has occurred to the object to make out s 195(1) "damage"; but (3) that facts found in the stated case do not support the conclusion beyond reasonable doubt that any material damage or functional interference was caused to the seat.

The course of authority on s 195 "damages" 42The case law in relation to Crimes Act s 195(1) dates back to the early industrial revolution, when its predecessor legislation was first passed. As the Queensland Court of Criminal Appeal explained in R v Zischke (1982) Qd. R. 240 at 244E-G ("Zischke"), provisions such as the Criminal Code (Qld) s 469 (which is substantially equivalent to Crimes Act s 195 (1)) had their origins in a statute 24 and 25 Vict Chapter c. 97, known variously as the Malicious Damage Act and the Malicious Injury to Property Act which was passed in England in 1861. That enactment was itself a consolidation of a number of earlier statutes, which dealt with diverse acts of damaging fish-ponds, dams, crops, farm animals, machines or engineering works. As the Queensland Court of Criminal Appeal explained in Zischke, many of those particular provisions were designed to suppress the activities of early nineteenth century Luddites. But Section 51 of the Malicious Injury to Property Act of 1861 which became a model for the provisions of colonial legislatures (and which model, for example, ultimately found its way into Crimes Act s 195(1)) represents an attempt to formulate a general offence in respect of property of all types. Some of the early cases predate the passage of the Malicious Damage Act 1861 and are concerned with conduct in relation to machinery. 43In Zischke the Queensland Court of Criminal Appeal undertook its own comprehensive survey of these early cases, which that Court concluded demonstrated "both the width of the expression 'damages' [used as a verb] and the variety of means available for injuring one's neighbour by acts directed against his property". The Queensland Court of Criminal Appeal considered (at 245B - 246B) the principal 19th century authorities and some 20th century applications of them in the following way:- Dismantling machinery was in R v. Tracey (1821) Russ. & Ry. 452; 168 E.R. 893 held to constitute a form of damage to it; as also was dislocating it: see Foster (1852) 6 Cox 25. In R v. Fisher (1865) L.R. 1 C.C.R. 7 a disaffected employee dismantled and wrongly re-assembled a boiler, plugging up a pipe forming part of it so as to render it temporarily useless and liable to burst if used. Although there was no "actual damage", his conviction was upheld, Pollock C.B. remarking that "great injury may be done to a machine by the displacement of its parts". The decision may have rested in part on the terms of the provision in question which spoke of "damage with intent to render useless"; but Piggot B. suggested in arguendo that there was damage "because labour was required to re-instate the machine", and Willes J. that "there was a lesion in the sense of a dislocation". The decision has been followed in Northern Ireland in Getty v. Antrim County Council [1950] N.I. 114, where the plaintiff's tractor was dismantled. Other activities resulting in convictions have included adding water to milk, which had to be thrown away: Roper v Knott [1898] 1 Q.B. 868, although the decision in that case may have been influenced by the presence of the word "spoil" as well as "damage" in s. 51 of the Act of 1861; The same may perhaps be said of the decision in R v. Maund (1866) 1 W.W. & a'B. (L) 96, where the Full Court of Victoria upheld a conviction for malicious damage arising from the scattering in the complainant's wheat field of seeds of noxious weeds (sorrell, drake and wild oats) where they germinated. Except as a conclusion of fact, it is considerably more difficult to justify the decision in Gayford v. Chauler [1898] 1 Q.B. 316 that walking across grass, described as "knee-deep", constituted damage. Another case which may be thought to come close to the limits is the decision of the Supreme Court of Ireland in Rexi Irish Mink Ltd. v. Dublin County Council [1972] I.R. 123 where it was held that deliberately allowing breeding mink to escape amounted to "damage" under the Act of 1861 because the mink, although recaptured, were thereafter no longer individually identifiable and were therefore valueless for breeding purposes. Fitzgerald J., who dissented, did so essentially on the ground that the mink were rendered less valuable "not because of any injury to them but because of the owner's inability to identify them" ([1972] I.R. 123, 142). The same thought underlies the [1983] 1 Qd R 240 at 246 decision of Jarvis J. in R v. Nyawo (1966) 2 S.A. 61, in the Supreme Court of what was then Rhodesia, refusing to uphold a conviction for malicious damage where the accused had pulled away the stays holding a stack of sugar cane which it had taken time and labour to compile. His Lordship considered that, although the stack was destroyed, the property to which damage had to be proved was the sugar cane and not the stack. 44Cases as early as Tracey in 1821, Foster in 1852 and Fisher in 1865 show that merely dismantling machinery so as to render it non-functional, but without there being additional evidence of physical injury, may yet amount to "damage" within this and equivalent legislation. As these reasons will show, later cases have often applied this reasoning. 45Developments in technology in the 20th century led to the application of malicious damage legislation to new materials and new kinds of machine. For example in King v Lees (1948) 65 TLR 21 a divisional court held that a person who urinated on the mat of a taxi cab had injured the cab even though the injury could be put right "quickly and easily leaving no after-effect". Even daubing paint on statues, thereby disfiguring them, but in such a manner that they can be restored, although only with expense and difficulty, was nevertheless held to amount to damage within equivalent legislation: R v Bowden (1957) (3) SA 148 (applying the English law offence of malicious damage to property received into the Roman-Dutch law of South Africa). 46But in the last three decades of the 20th century developments in the relevant case law accelerated. Many of the cases in this later period arose out of acts of political protest or the causing of harm to computers. The first Australian example in this period is Samuels v Stubbs (1972) 4 SASR 200 ("Samuels v Stubbs"), a case in which the defendant was charged "with having wilfully and without lawful authority destroyed or damaged a cap, the property of a police officer, contrary to s 43 of the Police Offences Act (SA) 1953 - 1972." The police officer's cap had fallen to the ground whilst he was attempting an arrest during an anti-war demonstration. The defendant had kicked the cap and then jumped on it with both feet. The cap was crushed but not recovered. Another person had removed it from the scene. In Samuels v Stubbs Walters J, sitting on appeal from a dismissal of the charge, emphasized the difficulty of laying down any general rule about what may constitute damage and pointed out that the meaning of the word "damages" must be controlled by its context. In the relevant context his Honour considered that damage might be proved by a "temporary functional derangement" of the particular property, namely the cap. This is what he said (at 203):- The word "damage" in law has more than one meaning, and care has to be exercised in examining the context in which the word appears (cf. Swansea Corporation v Harpur [1912] 13 KB 493, per Fletcher-Moulton LJ at p 505). It seems to me that it is difficult to lay down any very general and, at the same time, precise and absolute rule as to what constitutes "damage". One must be guided in a great degree by the circumstances of each case, the nature of the article, and the mode in which it is affected or treated. Moreover, the meaning of the word "damage" must, as I have already said, be controlled by its context. The word may be used in the sense of "mischief done to property", as distinct "from injury done to the person", so that the term "damage" may not necessarily "be employed interchangeably with the term 'injury' with reference to mischief wrongfully occasioned to the person" (cf. Smith v Brown (1871) LR 6 QB 729). It is my view, however, the word "damages", as it is used in s 43, is sufficiently wide in its meaning to embrace injury, mischief or harm done to property, and that in order to constitute "damage", it is unnecessary to establish such definite or actual damage as renders the property useless, or prevents it from serving its normal function - in this case, prevents the cap from being worn. In my opinion, it is sufficient proof of damage if the evidence proves a temporary functional derangement of the particular article of property. I think that an offence is committed against the section if there be wilful and unauthorised injury, mischief or harm to property, even though no loss to the owner of the property ensues; that a distinction may be drawn between damage to property and the consequent loss or damage to the owner of it. (cf. Roper v Knott *1872) lr 4 pc 184, AT P 191 PER Lord Russell CJ at p 872). 47Walters J found that the constable's 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". His Honour concluded that the defendant should be convicted. His Honour's description, "functional derangement", has been subsequently used as a formula for testing whether damage has occurred due to loss of function or usefulness. 48In 1978 further judicial exegesis of the expression "damages property" in this and equivalent legislation first appeared. In that year an English Crown Court in "A" (a Juvenile) v The Queen [1978] Crim L Rev 689 ("A" (a Juvenile)" formulated and applied a test of whether a person "damages property", which test has since been considered with approval and applied at appellate level in Australia. 49The case in question, "A" (a Juvenile), is not only a source of subsequent Australian authority, but it also bears a close factual resemblance to the present case. The defendant had spat once on a police sergeant's raincoat. The sergeant was unaware of the incident occurring but attempted to remove it later with a paper tissue. The defendant was arrested and charged and as a result no further attempts were made to clean the raincoat. At the hearing, when the uncleaned raincoat was produced, a faint mark could be seen on it. The prosecution contended that the raincoat required dry cleaning and must therefore have been "damaged". The defence contended that there was no case to answer because the prosecution failed to prove any damage. The defendant was convicted and appealed. The Crown Court in allowing the appeal said the following:- that when interpreting the word "damage", the court must consider the use of an ordinary English word. Spitting at a garment could be an act capable of causing damage. However, one must consider the specific garment which has been allegedly damaged. If someone spat upon a wedding satin dress, for example, any attempt to remove the spittle may in itself leave a mark or stain. The court will find no difficulty in saying that an article had been rendered "imperfect" if, after a reasonable attempt at cleaning it, a stain remained. An article may also have been rendered "inoperative" if, as a result of what happened it has been taken to dry-cleaners. However, in the present case, no attempt has been made, even with soap and water, to clean the raincoat, which was a service raincoat designed to withstand elements. Consequently, there was no likelihood that if wiped with a damp cloth, the first obvious remedy, there would be any trace or mark remaining on the raincoat requiring further cleaning. Furthermore, the raincoat was not rendered "inoperative" at the time; if it was "inoperative", it was solely on account of being kept as an exhibit. Thus, in the view of the court, nothing occurred which could properly be described as damage. 50The appellant's conviction in "A" (a Juvenile) was quashed. But the case introduced a new judicial approach to analysis of the various equivalents of Crimes Act s 195, an approach, which Courts have sometimes found to be of practical assistance. It may not be a test that will readily suit every case. In my view it is an approach that is useful for the present case. The "A" (a Juvenile) test requires the Court to look at the specific property in question and consider: (i) whether its physical appearance changed as a result of the act, despite reasonable attempts at cleaning, so that it may be described as "imperfect"; or (ii) whether as a result of the act the property was rendered "inoperative", or unable to be used for its ordinary functions for a period whilst its imperfections were eliminated. If the property can be described as either "imperfect" or "inoperative" in these senses, then the property has been "damaged" within the meaning of Crimes Act s 195 and cognate legislation in relation to malicious damage to property. 51Four years later, in 1982 the Queensland Court of Criminal Appeal (Campbell CJ, and Matthews and McPherson JJ) applied "A" (a Juvenile) in Zischke. The appellant in Zischke had been convicted on 11 counts of wilful damage to property by painting political slogans on the surface of buildings, footpaths and walls in public places. The Queensland Court of Criminal Appeal considered the authorities already referred to and applied a test of "damage" that was directly based on that formulated in "A" (a Juvenile), namely whether the act rendered the object "imperfect or inoperative". The Court decided that the reasoning in Samuels v Stubbs could also readily be accommodated within the "A" (a Juvenile) formula: What emerges 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. L. Rev. 689. This would incidentally also serve to accommodate the decision in Samuels v. Stubbs (1972) 4 S.A.S.R. 200, where a conviction of damaging a policeman's cap was sustained by proof that the respondent had kicked it three times and then jumped on it, thus producing what was described as a "temporary functional derangement" of the article in question. In the present case what was done is fairly capable of being described as rendering imperfect the objects to which the paint was applied. It was not in our view essential to the success of the prosecution to establish that an expenditure of money was required to remedy the state of affairs produced by the paint, although proof of such expenditure may afford helpful evidence of the fact and extent of the imperfection created. This being so, His Honour's direction on this point correctly and properly left it to the jury to determine as a fact whether or not, by applying the paint, the accused had damaged the property to which it was applied. 52On this basis, in Zischke the Court upheld the defendant's conviction; there being evidence of expense and effort expended by or on behalf of property owners to obliterate the painted words from the surfaces on which they appeared. 53Two years later, in 1984 another judicial formula for the establishing of malicious "damage" emerged. In R v Henderson & Battley Court of Appeal (Crim Div) (Unrep 29/11/84) ("Henderson & Battley") involved the dumping of soil, rubble and mud onto a development site. The persons who dumped that material were convicted of damaging the land and the Court of Appeal upheld their conviction. It was found in Henderson & Battley that a significant sum of money had to be spent to remove the rubbish and to restore the land to its pre-existing condition. Cantley J's approach to whether or not damages had occurred was based on the concise Oxford Dictionary definition of "damage" as "injury impairing value or usefulness" (the Macquarie Dictionary definition is similar). His Honour said on this subject: Ultimately whether damage was done to this land was a question of fact and degree for the jury. Damage can be of various kinds. In the Concise Oxford Dictionary 'damage' is defined as 'injury impairing value or usefulness'. That is a definition which would fit in very well with doing something to a cleaned building site which at any rate for the time being impairs its usefulness as such. In addition, as it necessitates work and the expenditure of a large sum of money to restore it to its former state, it reduces its present value as a building site ..." 54The Court of Appeal had held that the usefulness of the site had been temporarily impaired and upheld the defendant's conviction. Whether or not physical damage had occurred to the site was not considered in Henderson & Battley. But by 1990 it was to become clearer on the English authorities that malicious damage may be constituted either by physical material change to the property or by impairment of value or usefulness. 55But the formula in Samuels v Stubbs was still widely applied. In Hardman & Ors v The Chief Constable of Avon and Somerset Constabulary (1986) Crim. L Rev. 330 the Crown Court considered the appeal of a number of defendants who were convicted of causing criminal damage to a pavement during a nuclear disarmament demonstration. They had painted an unstable whitewash on the pavement which was expected to wash away with rain over time. But the local authority had decided to clean the pavement using high pressure water jets. The appellants contended there had been no damage to the pavement. "A" (a Juvenile) was cited to the Crown Court but it considered an "unduly narrow definition of damage" was not appropriate and took direction from the words of Walters J in Samuels v Stubbs that "one must be guided in a great degree by the circumstances of each case, the nature of the article and the mode in which it is affected or treated". The Court found that there had been damage in the sense of "mischief to property", citing Samuels v Stubbs, which had caused expense and inconvenience to the local authority. 56In Morphitis v Salmon (1990) Crim Law Reports 48 the Queens Bench Division (Lloyd LJ and Auld J) quashed the appellant's conviction by magistrates under Criminal Damage Act 1971 (UK) s 1(1) for damage to a scaffolding clip and bar erected as part of a barrier over a common access way. Auld J, in a judgment in which Lloyd LJ agreed, restated that determining whether damage done in any particular case is a matter of "fact and degree". After citing Cantley J in Henderson & Battley, his Honour said: Whether the damage ... was caused in any 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. 57Again Auld J continued and made clear that physical harm and impairment of usefulness were alternative ways of establishing malicious damage: The authorities show 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. 58The charge in Morphitis v Salmon was only in respect of damage to the scaffold bar and clip, not the larger barrier of which it was a part. The distinction between the two became important on the appeal because the magistrates had found there was no actual physical damage to the bar and clip that could be attributed to the appellant. There was no doubt that the usefulness of the barrier as a whole had been impaired by the removal of the individual bar and clip. But because the charge related only to the bar and clip the question was whether their removal had impaired their usefulness. The case demonstrates the importance of analysis of the use and function of the precise property the subject of the charge, when impaired usefulness is in question. Auld J said: Even if the scratches had been capable of being attributed to the appellant, it is apparent from the case stated and the findings of the magistrates, that there was no evidence before them upon which they could have found that it constituted damage in the sense of impairment of value or usefulness on what were, after all, scaffolding components. The scratching of a scaffolding bar is an ordinary incident of its existence and it is unlikely that the magistrates, if they had considered the matter, would have been entitled to find that it constituted damage in the sense that I have described. The main question for this court is whether the dismantling of the barrier constituted damage to the bar and to the clip in the wide sense of impairment in their value or usefulness as part of the barrier. Many of the reported cases concern allegations of criminal damage to an article by reason only of the removal of some part of it although no physical damage was caused to the article in question or to the part removed. In such case, where the owner is left, albeit temporarily, with an incomplete article which does not fully serve the purpose that it did before the removal of the part, there has clearly been damage to the article as a whole. Thus, in R v Tacey (1821) Russ & Ry 452, there was held to be damage to a stocking frame where a part was removed from it rendering it inoperative. In R v Fisher (1865) 29 JP 804; (1865) LR 1 CCR 7, the mere tampering with a machine so that it would not work was held to be damaged although no part of it was removed or broken. And in Getty v Antrim County Council (1950) NIR 114, the dismantling of a plough without damage to any of the dismantled parts, was held to be damage to the plough. A more up-to-date example of criminal damage is Cox v Riley (1986) 83 Cr App R 54. In that case, the Court of Appeal upheld a conviction where the appellant had deliberately erased a computer programme from a plastic circuit card of a computerized sort so as to render it inoperable. However, the matter is different, as in this case, if the charge is one of criminal damage to the part removed from some other object and not to the larger object itself and where there is no physical damage to the part removed. See eg R v Woodcock [1977] Crim LR 104 and 161. 59The case is also instructive because it illustrates the need to have regard to matters of fact and degree: the scratches to the scaffolding, though constituting material alterations to the surface of the bar were nevertheless consistent with its ordinary use. Moreover the case indicates against the overly rigid formulation of requirements for physical harm to property or impairment of its value or usefulness. 60In R v Whiteley (1991) 93 CR App R 25 the Court of Appeal considered an appeal of a computer hacker against his conviction under the Criminal Damage Act (UK) 1971, legislation which is in similar terms to Crimes Act s 195(1). No physical damage had been caused to the discs of the computer by the hacker's conduct, which had involved rewriting the information on the discs. But the result of the hacker's actions was that the computer's programs did not work as intended and time and effort had to be spent in replacing them. After reviewing the authorities including Henderson v Battley, Morphitis and Salmon and the computer damage case Cox v Riley (1986) 83 Cr. App R.54 , Lord Chief Justice Lane held [at 29]: Morphitis v Salmon [1990] Crim.L.R. 48 was another decision of the Divisional Court. The facts of the case are immaterial, but in the course of delivering his judgment, but in the course of delivering his judgment, with which Lloyd L.J. agreed, Auld J, in the transcript of the judgment, having cited the decision in Cox v Riley (1983) 83 Cr.App.R. 54 said this: "The authorities show 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 effect of those various decisions, in our judgment, is as follows: Any alteration to the physical nature of the property concerned may amount to damage within the meaning of the section. Whether it does so or not will depend upon the effect that the alteration has had upon the legitimate operator (who for convenience may be referred to as the owner). If the hacker's actions do not go beyond, for example, mere tinkering with an otherwise "empty" disc, no damage would be established. Where, on the other hand, the interference with the disc amounts to an impairment of the value or usefulness of the disc to the owner, then the necessary damage is established. 61In the result the Court of Appeal dismissed the appellant's appeal against conviction. In my view by 1991 English authority was clear that malicious damage could be occasioned either by physical harm, or by impairment of value or usefulness. 62But Australian authority was also advancing. In R v Hayne, Court of Criminal Appeal (18 September 1998) CCA 60496/97 - unreported ("Hayne"), this Court (Handley JA and Levine and James JJ) said it "had no reason to doubt the correctness" of Samuels v Stubbs. In Hayne this Court was considering an appeal against conviction for manslaughter by an unlawful and dangerous act, namely the act of pouring petrol throughout a house, which then accidentally ignited, causing the death of an occupant. On the issue of whether that act was unlawful, this Court applied Samuel v Stubbs, Hardman v Chief Constable of Avon, and Morphitis v Salmon. But the Court does not seem to have been referred to Zischke or "A" (a Juvenile). The Court held that whether the pouring of petrol be described as a Samuel v Stubbs "temporary functional derangement" or a Morphitis v Salmon "temporary impairment of value or usefulness", the act of pouring the petrol qualified as malicious damage to property under Crimes Act s 195 and was therefore "unlawful". 63This Court in Hayne did not have to choose between the formulae in Samuels v Stubbs and Morphitis v Salmon (nor consider Zischke) to reach this result. This is not surprising. As Walters J explained in Samuel v Stubbs "it is difficult to lay down any very general and, at the same time, precise and absolute rule as to what constitutes 'damage'". And as Lloyd LJ and Auld explained in Morphitis v Salmon "whether damage...was caused in any particular case was a question of fact and degree and could be of various kinds". The courts' approach to what constitutes "damage" will vary from case to case. But the judicially developed formulae of past cases do assist in determining whether damage has been caused in any particular case. But sometimes particular formulae will be more useful for analysis of the facts. Looking ahead at the facts of this case, involving as it does fluid on the surface of a seat, the approach taken in "A" (a Juvenile) seems particularly apt. But as will be seen, all the different judicial formulae would in my view produce the same result in this case. 64Finally, the course of authority is completed with two cases decided in the last decade; one in England in 2005 and the other in this Court in 2008. In R v Fiak (2005) EWC Crim 2381 ("Fiak") the appellant had been arrested for being drunk in charge of a car and assaulting a police officer. He was convicted before a jury of criminal damage under the Criminal Damage Act (UK) s 1(1) and appealed. After being placed in a police cell overnight he had put a blanket down the toilet and repeatedly flushed it, flooding his cell. The appellant's argument that clean water on a waterproof floor could not constitute 'damage' was unsuccessful. Judge LJ and Rafferty and Hallett JJ applied the principles cited above from Morphitis v Salmon and Whiteley, that damage may include not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness. Their Honours found that the blanket could not be used as a blanket until it had been dried and that the cell was out of action until the water was cleared. Their Honours also held it was open to the jury to conclude that the blanket and cell had been damaged within Criminal Damage Act s (1)(1) (UK) and the appeal against conviction was dismissed. 65The last decision in this survey of authority is DPP v Fraser and O'Donnell (2008) NSWSC 244 ("Fraser"). The appellant placed emphasis on this case in his submissions. In Fraser Simpson J was considering a DPP appeal against the dismissal of charges under Crimes Act s 195 against members of an environmental protest group, who put a coal conveyor belt out of operation for almost 2 hours. The members of the group had accessed the coal loader premises, activated a safety isolation switch, which rendered the conveyor belt inoperable and then chained themselves and locking devices to part of the conveyor belt structure. The defendants did not physically alter the conveyor belt, which could be de-isolated by resetting electrical equipment. The question was whether the protestors had occasioned "damage" within s 195(1) to the coal loader, despite the lack of a finding of physical harm. The appellant in Fraser argued on the basis of Walters J's statement in Samuels v Stubbs, "In my opinion it is sufficient proof of damage if the evidence proves a temporary functional derangement of the particular article of property" that mere functional interference to the conveyor belt was sufficient to constitute damage. 66Her Honour concluded that no damage within the meaning of s 195 had occurred, because the conveyor belt was not itself physically affected by the action of the defendants. After extensive review of the authorities, including a civil case Ranicar v Frigmobile Pty Limited [1983] Tas R 113, together with Henderson v Battley, Hardman, Samuels v Stubbs and Zischke her Honour concluded (at [38]) that physical harm was necessary before 'damage' could be established: In my opinion, an essential element of "damage" for the purpose of s 195 is, to use the words (or some of them) of Walters J in Samuels v Stubbs, "physical derangement" (though not necessarily permanent, or even lasting) to the property in question. It is the word "functional" that has given rise to the present argument. But I do not read his Honour's conclusion as meaning that temporary functional interference, without a physical interference with the property itself, could be sufficient to establish criminal damage. It is of some significance that in that case the evidence was that the policeman's cap had been jumped upon and crushed. That was ample evidence of physical derangement. In my opinion too much emphasis has been placed upon the word "functional" without it being seen in its complete and proper context. Interference with functionality alone, without "physical derangement" would, in my opinion, be insufficient to establish damage within the meaning of s 195. Interference with functionality could be proved, for example, by proof of the removal of a key to a motor vehicle, or the erection of physical barricades around a vehicle preventing its use. But here, in my opinion, while they might amount to some other offence, such interference would fall short of amounting to (malicious) damage. 67In the context of a substance such as spittle/mucus being placed on property (as is the case here), the applicant here submitted that her Honour's statements in Fraser in relation to a "physical derangement" or "physical interference" to the property meant that it was necessary for the prosecution now to establish that that the substance and the property in question had to "bond". He submits that if the analysis in Fraser is correct, and such physical interference is a necessary element of "damages" and if no such bonding can be established on the facts, no relevant damage could have occurred here. In answer the respondent submits that "physical derangement" may be satisfied by a substance being deposited on the property, without any "bonding" taking place. 68But 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. 69But 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 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 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.

Consideration 70Whichever of these judicial approaches is taken to the facts found in the present case, those facts do not support the applicant's conviction. Whether the approach in Zischke and "A" (a Juvenile) is deployed to assess whether a person "damages" a thing within Crimes Act s 195(1) by being rendered imperfect or inoperative, or whether the approach in Samuels v Stubbs of "functional derangement" is adopted, or whether the approach in Morphitis v Salmon of "physical harm" or "impairment to value or usefulness" is adopted, the result in my view is the same. The facts found in this stated case do not support the applicant's conviction. 71This conclusion readily emerges from a close reading of the facts found in the stated case in light of authorities discussed above. Upon analysis Lerve DCJ found neither physical damage to the seat nor actual interference with the usefulness of the seat. 72As to physical damage, either permanent or temporary, the case stated is clear "No permanent or ongoing damage was occasioned to the dock of the Warren Police Station". But, of course, it is not necessary for the damage in question to be permanent or irreparable: Zischke at 246 and Fraser at [27]. 73Nor did Lerve DCJ make any finding of temporary physical damage to the seat. His Honour did not make findings about the effect of the spittle/mucus interacting with or adhering fast to the surface of the stainless steel. This is perhaps not surprising given the anti-corrosive characteristics of stainless steel. This is not like the graffiti cases, which often include findings about material such as paint being applied to a surface then adhering to that surface, and only being able to be removed by specific methods such as a high-pressure hose, or over time, by the force of rain on other agents. Either no evidence was put before Lerve DCJ as to such adherence or as to specific removal requirements; or if there was such evidence, his Honour was not prepared to make any relevant findings based upon it, other than through his reference to "professional cleaning", a reference which has the limitations analysed below. The facts his Honour found are quite consistent with the physical effect of the spittle/mucus on the metal seat being such the same as many fluids, which could be wiped away with a damp cloth without leaving any mark. 74Nor did Lerve DCJ find any interference with the function of the seat in the dock. All he found was that the applicant "projected spittle or mucus from his mouth" and that he thereby caused it "to land on the metal seat of the dock". The only findings that could support an inference of interference with function were that "police informed [the applicant] that the presence of the spittle or mucus in the dock area would require professional cleaning". But his Honour recognised the unsatisfactory nature of this hearsay statement from the police about "professional cleaning". He did not infer as a matter of objective fact that professional cleaning would actually be required. His Honour was only prepared on the evidence before him to draw the rather more limited inferences that the dock area "had to be cleaned" and that "such cleaning required some degree of effort by some person" (emphasis added). These findings are quite consistent with an employee at the police station merely wiping a damp cloth over the seat to clear it of spittle/mucus in the course of otherwise required routine cleaning, or in the course of what described in Re "A" (A Juvenile) as "a reasonable attempt at cleaning". His Honour did not infer a need for professional cleaning, or a need for the expenditure of any specific funds on such cleaning, or any particular level of difficulty or additional effort or inconvenience beyond what would be required for the removal of this substance during routine cleaning of the area. 75Whilst it is true on the authorities discussed it is not necessary to prove the expenditure of funds to establish damage on a Crimes Act s 195 charge, such expenditure is nevertheless one indicator that damage has occurred: Samuels v Stubbs, at 203. 76But none of these findings amount to an ultimate finding of an interference with the function of the seat in the dock. Far more detailed preliminary findings would be required to support an ultimate finding of functional impact from the spittle/mucus. Such a finding could well require the answers to many questions. How long was the seat? (As explained earlier in these reasons, Exhibit D, the photograph of the seat, was not submitted as part of the facts found.) How much of the seat was covered by the spittle/mucus? Did the portion of the seat covered by spittle/mucus make the whole seat temporarily unusable, or not? Considering the importance of analysis of the relevant function of the property in question (see Morphitis v Salmon above), given the frequency of persons being charged in Warren Police Station at the time could the spittle/mucus have been removed with a simple cleaning cloth before it was required for the next person charged? Was the dock/seat in fact used after the applicant was present in it? Would the spittle/mucus probably have been removed in any event as part of the routine cleaning system for the dock area due to its regular use by members of the public: a cleaning system which must ordinarily anticipate that some of the dock's users may be intoxicated, may have influenza or may have recent wounds. Without the answers to those and other questions it is not open to draw an inference beyond reasonable doubt that this substance did interfere with the seat's function. These questions are neither asked nor answered in the findings before this Court on this case stated. And importantly here there was no clear finding that the seat or the dock could not serve its function for any identifiable period. 77Questions such as these illustrate that the element that a "person damages" property in this Crimes Act s 195(1) charge requires the proof of facts that establish either physical harm to or functional interference with the property the subject of the charge, so as to show that the thing was rendered imperfect or inoperative in the context in which the property exists. Such supporting proof is not evident in the findings here. This observation should not be taken as any criticism of Lerve DCJ: it seems apparent that the necessary factual material was not before him. 78Thus the Court is left with findings that do not support an inference of physical damage or functional interference to the seat or showing that the thing was rendered imperfect or inoperative. The applicant's conviction therefore cannot be supported on those findings and must be quashed. Conclusion and Orders 79In the result therefore the orders I would propose that the Court make are: (1)Extend time up to and including 26 October 2012 for the applicant to submit his stated case; (2)The question of law on this stated case should be answered in the negative, as the facts set out in the case cannot support a finding of the applicant's guilt beyond reasonable doubt of an offence contrary to Crimes Act s 195 (1)(a) by damaging the seat in question; and, (3)The applicant's conviction is quashed pursuant to Criminal Appeal Act 1912 s 5B. 80BELLEW J: I agree with Slattery J.

Amendments 17 May 2013 - H.M. Wilson (replaced Ms Girdham) as Respondent Amended paragraphs: Name of Counsel 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: 17 May 2013