Hanel v Shoemark [2011] ACTCA 16 | Case summary | Zoe

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Hanel v Shoemark [2011] ACTCA 16 | Case summary | Zoe

On 5 November 2008 the appellant was arrested and charged with a summary offence under s 116(3) of the Crimes Act 1900 (ACT). The charge against the appellant was in the following terms: That he, in the Australian Capital Territory, on 5 November 2008, did intentionally and without lawful excuse, damage property, to wit, the rear panel of the passenger side of a black Mitsubishi Lancer bearing New South Wales registration [xxx xxx], belonging to Miss Michelle Wilson. Hearing in the Magistrates Court
To this charge he entered a plea of not guilty, and the matter proceeded to hearing in the Magistrates Court. On 28 September 2009 a Magistrate heard evidence from four prosecution witnesses and from the appellant. In brief, the evidence was that the appellant had been involved in an altercation with a neighbour and her visitors about where one of the visitors had parked her car. There was evidence that the appellant had been observed to punch the passenger side of the car with his hand, and shortly thereafter the car’s owner observed a new dent in the rear passenger side of the car. The owner of the car confronted the appellant who, she said, offered to pay half for the damage on the ground that the car was parked inappropriately and “it pretty much deserved to happen”. The owner of the car called the police and in due course the appellant was charged as set out above. At the hearing in the Magistrates Court, the appellant denied causing the damage and denied having offered to pay for it.
The Magistrate found the offence proved, recorded a conviction and imposed by way of penalty a good behaviour order for a period of 18 months. The appellant was also ordered to pay compensation of $847 within 28 days. Appeal to Supreme Court
By a notice of appeal dated 13 October 2009, the appellant appealed from the orders made by the Magistrate. The notice of appeal did not clearly indicate whether the appellant was appealing from both conviction and sentence, or against conviction only. The order sought by the appellant in the notice of appeal was an order for acquittal. The appeal was heard by Refshauge J on 14 May 2010, with his Honour handing down a written decision dismissing the appeal on 15 July 2010. It is apparent from the reasons of Refshauge J that he treated the appeal as an appeal against conviction only, although the formal orders made by his Honour were that the conviction and sentence of the Magistrates Court be confirmed.
The appeal before Refshauge J was conducted on the basis that the evidence before the Magistrate did not establish the guilt of the appellant beyond a reasonable doubt. No issue of law was taken by the appellant in those proceedings. Appeal to Court of Appeal
By a notice of appeal dated 6 August 2010 the appellant appeals from the decision of Refshauge J. The appeal to this Court is pursuant to the provisions of s 37E of the Supreme Court Act 1933 (ACT). Section 37N of that Act provides that this Court must have regard to the evidence given in the proceedings out of which the appeal arose, and may draw inferences of fact from that evidence.
Mr Doig appeared on behalf of the respondent to this appeal. The appellant, Mr Hanel, represented himself, as he did in the proceedings in the Magistrates Court and before Refshauge J.
Before calling on the appellant to argue his appeal, the Court drew to the attention of counsel for the respondent a matter relating to the offence with which the appellant had been charged. Interpretation of the offence provision
As noted, the charge sheet referred to an offence under s 116(3) of the Crimes Act. That offence is as follows: (3) A person who, intentionally and without lawful excuse, and by means other than fire or explosive, destroys or damages property that— (a) belongs to another person, or to himself or herself and another person; and (b) does not exceed $1 000 in value; commits an offence. Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
It seemed to the Court that on a careful reading of s 116(3), the maximum value of $1,000 mentioned in the offence relates to the property damaged, not to the damage that has been caused. Paragraphs (3)(a) and (b) describe something referred to in the introductory words of s 116(3), and the only possible something is “property”; there is a reference to the verb to damage (“A person who ... damages”), but “damage” is not used as a noun. Even if it were, it could not be the subject of paras (a) and (b), because clearly only “property” (and not damage) can belong to a person as mentioned in para (a).
In short, the offence is constituted by damaging property that has a value of $1,000 or less, it is not constituted by causing damage to the value of $1,000 or less. Whether this was intended when the summary offence was created in 1995, the Court’s interpretation of s 116(3) was supported by the Explanatory Memorandum for the Crimes (Amendment) Bill (No. 2) 1995 by which s 116(3) (then numbered s 128(4)) was inserted in the Crimes Act. The Explanatory Memorandum said: [Clause 6] amends section 128 to create a new summary offence of destroying or damaging property where the value of the property does not exceed $1,000. The 3 indictable offences at section 128 carry penalties of imprisonment for 10, 15 and 20 years. (emphasis added) The evidence
At the hearing before the Magistrate, evidence was admitted that the damage to the complainant’s car had been to the value of $847. No evidence of the value of the car was tendered.
If s 116(3) applies only to property with a value of $1,000 or less, then there was no evidence before the Magistrate of one of the elements of the offence charged. Indictable offence of damaging property
In raising this matter with counsel, the Court also noted the offence created by s 403 of the Criminal Code 2002 (ACT), as follows: (1) A person commits an offence if the person— (a) causes damage to property belonging to someone else; and (b) intends to cause, or is reckless about causing, damage to that property or any other property belonging to someone else. Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.
If s 116(3) of the Crimes Act does not apply to an act of damaging property because the value of the property is too high, then it would seem that the act could be the subject of a charge under s 403(1) of the Criminal Code, with a much higher maximum penalty. The resolution of the appeal
The Court then stood the matter down for an hour to allow counsel for the respondent to consider his position and, if appropriate, to discuss the matter with the appellant.
When the hearing resumed, counsel for the respondent conceded that s 116(3) could only be interpreted as suggested at [11] above, that the offence with which the appellant had been charged had not been made out, and that the appellant’s appeal against conviction would have to be allowed. He noted that once the conviction had been set aside, there would be no impediment to the laying of a charge against the appellant under s 403 of the Criminal Code.
As we have said, the appellant was self-represented. Because of that and because he may face a fresh and more serious charge, the Court asked the appellant whether he wished to withdraw his appeal. His response was that he would defend any fresh charge. Orders
The Court accordingly made the following orders: (a) The appeal is allowed under s 37O(2)(a) of the Supreme Court Act. (b) The orders made by Refshauge J on 15 July 2010 are set aside. (c) The conviction and other orders made by Magistrate Lalor on 28 September 2009 are set aside. (d) Charge CC 2008/11961 is dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.