Krste Kovacevski v R

District Court of NSW|2017-11-09|Before: Loveday J, Rossiter CJ, Mr P, Ms J

The appeal

The appeal was commenced on 9 November 2017. A preliminary issue based on the validity of the Court Attendance Notice (CAN) was raised. I held that the CAN was valid. The matter was then adjourned to 30 November 2017. Mr Paine, Solicitor with the Legal Aid Commission, who appeared for the Appellant and appeared below, produced comprehensive written submissions: MFI 3. Ms Walshe, Solicitor for the Respondent Director of Public Prosecutions, asked for time to respond. The matter was then adjourned to 7 December 2017 and further written submissions were handed up and spoken to: MF1 4 (Appellant) and MFI 5 (Respondent). I adjourned briefly to consider them. At 4.25PM as I was about to deliver judgment Mr Paine produced a recent decision of the Court of Criminal Appeal said to be relevant: Grajewski v DPP (NSW) [2017] NSWCCA 251. The proceedings were adjourned to 12 December 2017. Mr Paine provided further written submissions: MFI 6. Both parties addressed these additional issues. The matter was then adjourned until today, 19 February 2018, the next date available to the court and the parties.
It is not in dispute that the Appellant intentionally destroyed the house at 46 Jutland Ave by means of fire. What was in dispute is whether a s 195 offence was committed by the Appellant.
Initially, the issues before Magistrate Douglass were recontested but as the hearing progressed the Appellant conceded he could no longer rely on the Real Property Act 1900 definition of "property" as establishing the Appellant was the sole legal owner of the property at the time of the fire.
A number of matters not put to Magistrate Douglass were raised before me. The Appellant first took issue with the CAN arguing it did not set out the elements of a s195 (1) Crimes Act 1900 offence. He then sought to draw a distinction between terms set out in the CAN "property of" and those in s 195(1) "belonging to." This required consideration of what was meant by "belonging to," words not otherwise defined in the Crimes Act 1900 or the Interpretation Act 1900. The appellant also raised for the first time the Respondent's failure to exclude the possibility the fire was lit pursuant to a claim of right
The Appellant's final point was that s194 (1) Crimes Act 1900 limits s195, so that only "property that is not of a tangible nature" could be the subject of a s 195 charge. Accordingly, Naumka Kovacevska's interest in the property arose from the Federal Circuit Court's order and signing of the transfer document. It was equitable and contingent at the time of the fire. She did not at the time have an interest of a tangible nature. Her "property" was therefore not properly the subject of a s.195 prosecution.

District Court power on rehearing

On the rehearing, the District Court's appellate powers are be exercised under Crimes (Appeal and Review) Act 2001. Section 18 relevantly provides: Appeals against conviction to be by way of rehearing on the evidence 1. An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19.
After hearing an appeal Crimes (Appeal and Review ) Act 2001 s 20 relevantly provides: 1. The District Court may determine an appeal against conviction: 1. by setting aside the conviction, or 2. by dismissing the appeal, …
On an appeal against conviction from the Local Court, a District Court Judge is permitted to have regard to the Magistrate's reasons for judgment, in addition to the transcript of the Local Court proceedings: Charara v The Queen (2006) 164 A Crim R 39, at [23]. The District Court does not have the supervisory jurisdiction over the Local Court. However, within the functions exercised by the District Court under Crimes (Appeal and Review) Act 2001, a District Court Judge must be alive to the possibility that misapprehensions and errors of judgment can occur in a Magistrate's evaluation of evidence.
A District Court Judge is entitled to draw his or her own inferences from the evidence given in the Local Court (with the "natural limitations" of an appellate court); those inferences may, or may not be contrary to any inferences drawn by the Magistrate. Neither the Crimes (Appeal and Review) Act 2001 nor the District Court Act 1973 specifically provide for the procedure to be adopted nor do they set out the powers to be exercised or the function to be performed by the District Court, with the exception of the provisions in Crimes (Appeal and Review) Act 2001, ss 18(2) and 19 relating to the receipt of fresh evidence and directions for a person to attend and give evidence: Charara, at [19].
On one view a s 18 rehearing does not require a finding error as there is no power of remitter: Gianoutis v Glykis (2006) 65 NSWLR 539. However in Dyason v Butterworth [2015] NSWCA 52, McColl JA expressed an opinion to the contrary. At [28]: "The powers of the District Court on a s 18(1) rehearing are exercisable where the Appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand. (Citations omitted)." See also Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290.
Now, this statement is still controversial. In Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218, Simpson JA said Gianoutis v Glykis still represents the correct approach. Basten JA disagreed.
That controversy cannot be resolved here. After the appeal commenced and became part-heard the Appellant advanced additional and different legal arguments to those put to Magistrate Douglass. Nothing in the Crime (Appeal and Review) Act 2001 prevents different legal and procedural issues being raised on appeal. Accordingly, even if Magistrate Douglass made no error I would still have to review these additional issues to determine whether a different order to that made below was required. Both the initial and the new arguments required my independent consideration of the evidence before the Local Court and the submissions made to this court: A conclusion that supports Justice Simpson's approach to this Court's powers.

Evidence

The Evidence before Magistrate Douglass was tendered as part of a Respondent's bundle as Exhibit A on the Appeal. It included the Notice of Appeal and appeal listing Notice; Bail acknowledgement, Local Court Bench Coversheets and orders; the police brief of Evidence - 18 documents tabbed per index 1 to 19 (there is no 11), including; statements, photographs and the appellant's police interview (ERISP) transcript.
A transcript of the proceedings before His Honour at Wollongong Local Court on 10 April 2017, 29 May 2017, 23 June 2017, 8 August 2017 and 25 September 2017 was tendered as Exhibit B on the Appeal. Those transcripts contain no additional evidence, only submissions and His Honours reasons.

Summary - What must be proved beyond reasonable doubt?

The Appellant's case is that he committed no crime when he burnt down the house at 46 Jutland Ave. That case, on appeal, developed over the course of the hearing. The issues raised seemingly complex and novel problems. Problems which may have been avoided had the CAN followed the text of s195 or had New South Wales adopted the recommendations of the Model Criminal Code Committee (MCCOC) on the subject.
The history and development of the current provisions are set out helpfully by Leeming JA in Grajewski v DPP (NSW). In January 2000 the MCCOC produced a discussion paper: Damage and Computer offences, Model Criminal Code, Chapter 4, The Model Criminal Code Officer's Committee, AG Comm. January 2000. The MCCOC's proposed definition of "person to whom property belonged" was "property belongs to any person having possession or control of it, or having any proprietary right or interest…" (at p20-21). The MCCOC recommended two separate offences; damaging property belong to another and arson. The later offences could involve damage to property belonging to the person who lit the fire, "as arson has always been regarded with particular abhorrence and uncontrolled fire is an inherently unpredictable means of destruction." At p33. New South Wales did not take up the MCCOC recommendations. Those recommendations inform the current Criminal Code Act 1995 (Comm); for example s130.2.
In this State a person can destroy their own property by fire as long as that destruction involves no other offence: examples can be found at ss 196, 197,198 Crimes Act 1900.
The Appellant's arguments were labyrinthine. They can be split into four areas: 1. The validly of the CAN. 2. Meaning of the word "property" 3. The effect if any of s194 Crimes Act 1900 which confines the definition of property in s 4 and consequently s 195 of that Act. 4. Meaning of the term "belonging to" in s 195 Crimes Act 1900.
Rather than track the various arguments and responses in their entirety what is required here is an analysis of the relevant statutory provisions and the charge, in context, and the application of ordinary principles of statutory interpretation.
Krste Kovacevska was charged with a s195 offence. Section 195 reads relevantly: "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 5 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years."
Here relevantly what must be proved beyond reasonable doubt are the following critical elements: 1. That at the nominated time and place; 2. The accused now, Appellant; 3. Intentionally or recklessly destroyed or damaged property 4. Belonging to the him and another; 5. By fire.

Consideration - Validity of the CAN

The Appellant's first point related to the validity of the CAN. This point was not taken before Magistrate Douglass. He submitted this court declare the proceedings a nullity because the initiating process, the CAN, was defective as it failed to disclose an offence known to law because the words "property of" appear as an element in the CAN but s 195 Crimes Act 1900 uses the words 'belonging to another'. The defective CAN he submits cannot now be varied to reflect the words used in the legislation: MFI 2.
The CAN now before me did not follow the text of s 195 but it does nominate the Appellant and sets out the time and place of the offence and the act destruction by fire. Despite the Appellant's assertion to the contrary it does specify that property was destroyed and particularises that property was the house situated at 46 Jutland Ave Coniston. However, instead of picking up the words of the section "belonging to Naumka Kovacevski or of the accused and Naumka Kovacevski" it says "property of Naumka Kovacevski or of the accused and Naumka Kovacevski".
It is not uncommon for the terms "belonging to" and "property of" to be used interchangeably: An example is Walton v Salmon, NSWSC, Loveday J 24/4/92; (1992) 10 Petty Session Review 4530. Another is the Form of Indictment precedent for s195 (1)(b) in Crimes Act: Proof Material in Criminal Practice and Procedure NSW, R Howie and P Johnson, Butterworths, at [27-26,020.5]. "That [name of accused] on [date of alleged offence] at [locality/suburb] in the State of New South Wales, intentionally recklessly destroyed damaged [brief details of property] the property of [name of owner] or of himself/herself and [name of owner] by means of fire/means of explosives."
Obviously the CAN did not pick up the words of the section; much confusion would have been avoided had it done so. But while advisable it is not required. The Appellant's submissions must be rejected, for the following reasons: 1. The element "property" is properly set out in the CAN with the particulars of this element being the nature of the property, a house, and the nominated address. The use of the words "certain" and "to wit" do not create ambiguity. 2. The words "property of" and "belonging to" are similar words; they are synonymous. 3. They are similar enough to be sufficient in law to spell out each necessary element: s 11 Criminal Procedure Act 1985. 4. The use of the words "property of" creates no ambiguity or unfairness. 5. The offence here has not been misstated to the extent where it requires deletion and substitution. The stated offence in the CAN is inherently identical to the one prescribed in s 195(1)(b) Crimes Act 1900.
The Appellant's argument relying authorities which considered the repealed Justices Act 1902 would, if accepted, only be relevant if deletion and substitution were required. The Criminal Procedure Act 1987 provisions have to be considered in the context of the Act within which they appear. Part 2 Criminal Procedure Act 1985 headed "Indictments and other matters" applies to CAN's to the extent that it is capable of being applied: s 15 Criminal Procedure Act 1985. If objection is taken the court can cause the CAN to be amended and the hearing proceed as if there had been no defect.
The revised CAN is a valid CAN.

Consideration -"property"

The words "property of" in the CAN was the genesis for the Appellant's later submissions. Property is defined in the Crimes Act 1900, the Real Property Act 1900 and the Interpretation Act 1987. The term is also confined in its application to a s195 offence by s 194.
Where the word "property" is used twice in the CAN it creates a risk that that definition and the s 194 restriction will be applied twice. This would not and could not occur had the words "belonging to" been used in the CAN here as was obviously Parliament's intent. Section 194 says nothing about the meaning of "belonging to." Accordingly, with great respect to the learned authors, the precedent referred to in the Howie and Johnson, Butterworths' service is potentially misleading.
As the term "property' is defined in the Crimes Act 1900 there was not need, as was argued below and initially before this court, to go the Real Property Act 1900 or to Corin v Patton (1990) 169 CLR 540. This High Court appeal concerning, joint registered proprietors of land under the Real Property Act 1900, severance of a joint tenancy and whether certain actions had effectively alienated the property in Equity does not assist in my consideration of terms in the Crimes Act 1900.
The Respondent's written submissions (MFI 4) comprehensively answered the argument based on the Real Property Act 1900. During the course of the appeal Mr Paine conceded Naumka Kovacevska did have an equitable interest in the property at the time of the fire: MFI 4 at [25].
An unregistered interest in property can give rise to property rights. The law has long recognised such unregistered interests: Barry v Heider (1914) 19 CLR 197; Tietyens v Cox (1916) 17 SR NSW 48. This principle extends to the Real Property Act 1900: For example s 43A(1).
The Appellant by signing the transfer document and having it being witnessed by his Solicitor had done what was required to create an interest in the property for Naumka Kovacevska: "the transfers of the land before registration amounted to such a "disposition", inasmuch as they had been completed and handed to the solicitor for the donees to whom the certificates of title had already been delivered:" O'Regan v Commissioner of Stamp Duties [1921] St R Qd 283
Courts have consistently declined to read Real Property Act 1900 provisions relating to registration of dealings literally. They have enforced the rights that arise from the transaction lying behind the dealing and the actions that led to the dealing/s being executed: The Queen v Hodgson, unreported TCCA, 21 August 1985 16 of 1985; R v Holden (1998) SASC 6861; R v Manser (1999) SASC 91; R v Burgess [2005] NSWCCA 52.
In Parsons v The Queen (1999) 195 CLR 619, the High Court considered definition of property in the Crimes Act 1983 (Vic). In dealing with an argument similar to that advanced by the Appellant before me, the joint judgment, noted, "It would not be of immediate profit to consider authorities which construed provisions other than those of the Crimes Act which are in issue here." At [22].
Here, my focus must be on the Crimes Act 1900. The Crimes Act 1900 has an inclusive definition of property in s 4 Crimes Act 1900, here, relevantly, ""Property" includes every description of real property…"
What was destroyed was the house at 46 Jutland Ave. It was real property. "Real Property" is a concept inherited in Australian Law on British Colonisation. Historically "real property" is immovable property which could be recovered by real action. "Real" denotes that the thing itself or a particular right in the thing can be specifically recovered. Specific recovery originally referred to freehold interest. Real property therefor includes land and things attached to it so as to become part of it: Edgeworth B, Rossiter CJ, Stone MA 2004, Sackville and Neave Property Law: Cases and Materials, 7th Ed., LexisNexis Butterworths, Australia, pp. 55-56.
This element of the offence has been made out.

Consideration - s194 Crimes Act 1900

The Appellant refined his argument on 12 December: MFI 6. He drew my attention to Grajewski and Justice Leeming's comprehensive review of s 195. He then took me to s194 Crimes Act 1900. That section notes that a reference to property "does not include a reference to property that is not of a tangible nature." He submitted that as Naumka Kovacevska's interest was equitable and thus incorporeal or intangible, the destruction of the property the subject of that interest could not come within s 195 as her interest had no tangible form until registration.
There is no doubt 'property' can include intangible estates or interests: see s21 Interpretation Act 1987 and s 194 Crimes Act 1900 is clear in its terms; the destruction of such an interest does not give rise to a s195 offence.
In Yanner v Eaton [1999] HCA 53, an appeal that considered the question of ownership of wild animals and the Fauna Conservation Act 1974 (Queensland), the joint judgment posed this question: "To say that person A has property in item B invites the question what is the interest that A has in B? The statement that A has property in B will usually provoke further questions of classification. Is the interest real or personal? Is the item tangible or intangible? Is the interest legal or equitable?" At [20]
Section 194 resolves one of those questions. Section 194 (1) limits the definition of property in s 4 Crimes Act 1900: "… property does not include a reference to property that is not of a tangible nature." Section 195 therefore applies only to tangible property. Section 195 does not apply to the destruction of damage to property that is not of a tangible nature.
"Intangible property" is property that is unable to be touched; not having physical presence not constituting or represented by a physical object intangible property as having no intrinsic and marketable value, but is merely the representative or evidence of value: Oxford Dictionary or a "[A] chose in action in contradistinction to a chose in possession:" Croton v The Queen (1967) 117 CLR 326 at 331.
"Tangible property" is property that has physical form. It is property that can be "asported and the subject of larceny"- a chose in possession: See Croton v The Queen at 330-331.
What the Crown must prove here is that tangible property was destroyed. They have done so. The house at 46 Jutland Avenue was real property - tangible property. It was destroyed by the fire lit by the Appellant. Section 194 does not here confine the definition of property in s4 or s 195 Crimes Act 1900.

Consideration - "Belonging to"

The remaining contested element of the offence is: did the property destroyed belong to Naumka Kovacevska or Krste Kovacevski and Naumka Kovacevska?
The Appellant's argued that while Naumka Kovacevska had an equitable interest in the property she did not have a legal interest in it at the time of the fire: Accordingly, it did not belong to her. He submitted that "belonging to" had an ordinary meaning that is not as inclusive as the term "property." Applying "belonging to" to the facts in issue would mean that the prosecution could not prove beyond reasonable doubt that at the relevant time 46 Jutland Avenue belonged to Naumka Kovacevska as legal interest did not arise until registration of the transfer and title passing to her. To put it another way; applying the section in its terms, the prosecution cannot prove 46 Jutland Avenue "belonged to" Naumka Kovacevska as property does not belong to someone who has only an equitable or contingent interest in it.
The Respondent's position is that Naumka Kovacevska's interest in the property was an equitable one and it matters not what the nature of that interest was - it belonged to her. The element of s195(1)(b), which requires proof beyond reasonable doubt the tangible property that was destroyed by fire "…belonging to that person and another…" was proved.
Naumka Kovacevska's ownership of the property, her legal rights to, its belonging to her, arose from the handing down of the Federal Court ruling on 22 July 2016. This concept of belonging was strengthened and confirmed by the execution by the Appellant of the transfer document on 3 August 2016. The Respondent relied on Walton v Salmon, where Loveday J said: "It was sufficient if the prosecution proved that the vehicle was the property of a person other than the respondent." At 4532.
The exact point raised by the Appellant appears novel. There were no authorities directly on point cited to me. I am required to undertake a process of statutory construction as the term "belonging to" is not defined in the Crimes Act 1900.
I start with a literal reading of the section having regard to the context within which it appears: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47]. A construction that promotes the purpose of the legislation is to be preferred: s 33 of the Interpretation Act 1987 (NSW); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78]; Bignill v DPP [2016] NSWCA 13, per Bathurst CJ. Section 34 Interpretation Act 1987 allows for additional assistance in interpretation by a review of extraneous material. That exercise was not required here.
In determining the meaning of a penal statute the ordinary rules of construction must be applied. As here the language of the statute is neither ambiguous or doubtful, the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see Beckwith v The Queen (1976) 135 CLR 569 at 576, The Queen v. Adams (1935) 53 CLR at 567-568; Re Day [No 2] [2017] HCA 14 and Grajewski v DPP (NSW) at [55].
In Myerson v. Collard 25 CLR 154 (1918) 24 ALR 306, Issacs and Rich JJ: "When we speak of physical objects as belonging to a person, without any qualifying expressions, the primary natural meaning is that they are his own absolute property, and not that he has, instead of the objects themselves, a mere option which he may never exercise or a mere contractual right to own them on conditions which he may yet elect not to undertake."
In Myerson the Court proceeded on the basis that "ownership" and "belonging to" were synonymous. While they focussed on the "natural meaning of the words", the Court divided equally on the ultimate issue. The three judges in the majority held that property held pursuant to a hire-purchase contract did not belong to the person in possession of it while it was still subject to that contract, whereas the three judges in the minority took the view that property sold on the time-payment system becomes the property of the purchaser.
Yanner v Eaton [1999] HCA 53 at [25] caused four justices of the Court to muse on the different nature of property interests. "Ownership," they said, "connotes a legal right to have and to dispose of possession and enjoyment of the subject matter:" Yanner v Eaton [1999] HCA 53 at [25]. The joint judgment had earlier said that "The word "property" is often used to refer to something that belongs to another. But they also noted that elsewhere in the law, "property" does not refer to a thing; it is a description of a legal relationship with a thing." At [17]. They said the word "property" is a term that can be, and is, applied to many different kinds of relationship with a subject matter." At [19]. At [25] they noted, ""Ownership" connotes a legal right to have and to dispose of possession."
It was argued that at the time of the fire Naumka Kovacevska's interest in the house at Jutland Ave was intangible. However as I have already noted, the house at 46 Jutland Avenue was real property- tangible property.
I proceed on the basis that the terms "property of" and "belonging to" are for the purposes of the Crimes Act 1900 sufficiently similar that they can be regarded as synonymous. Belonging connotes ownership that is a legal right to possess and enjoy the subject matter or object owned. That subject matter here was a tangible object- the house at 46 Jutland Ave.
The allegations here do not relate to destruction of an intangible interest. They relate to real property, which at the time of the fire Naumka Kovacevska had the legal right to possess and enjoy. That she was not in possession at the time is irrelevant. Owners often give possession to another or others - the classic example being a tenancy. That the Appellant was entitled to remain on the property until the Federal Circuit Order took effect does not mean the property did not belong to them both. Naumka Kovacevska's situation was not analogous to that of a mortgagor who has an interest but not ownership: Holden v R (1998) 103 A Crim R 70 and Evans [1957] NZLR 1128.
Here the Respondent has proved damage to the corporeal hereditament or tangible property, the house at 46 Jutland Ave. Naumka Kovacevska's right or interest in the property derived from the order made by Judge Scarlett and the transfer document executed by the Appellant that was in the process of being forwarded for registration. It matters not that the Appellant also had an interest in the property until Registration of the Court ordered transfer to Naumka Kovacevska. It matters not that Naumka Kovaceska's interest was equitable or derivative from that order. Her interest arose when the Federal Circuit Court order was made. Her interest was in a tangible thing, the property at 46 Jutland Ave. Her property rights were not contingent on registration under the Real Property Act 1900 or otherwise.
The construction of the section which conforms to the legislative intention and is consistent with the whole of the provision is that contended for by the Respondent. At the time the fire was lit both the Appellant and Naumka Kovacevska had a proprietary interest in tangible property - 46 Jutland Avenue. At that time 46 Jutland Avenue belonged to them both.
In a sense, as the joint judgment noted in Yanner, all property interests are intangible. Here however Equitably or otherwise the tangible property the house at 46 Jutland Ave belonged to Naumka Kovacevska at the time of the fire. She owned it, along with her husband it was her property, it belonged to her.
The Appellant's final point had some superficial attraction until it is realised that s 195 only requires proof property was destroyed. When the word "property" is used in s 195, s 194 applies to it. The Appellant's final point picks up the second use of the words "property of" in the CAN but those words do not appear in s 195. That those words were used in the CAN cannot attract the definition of purport in s 4 or the confined definition in s 194. Section 194 says nothing about the meaning of the words 'belonging to."
The use of the synonyms in s 195 "property of" and "belonging to" enable the two elements to be differentiated. Section 194 does and cannot apply at this point. The object of s 194 is to restrict s 195 to the property destroyed. Section 194 does not apply to any consideration of whether the property destroyed belonged to another.
Here the Respondent has proved that the property "belonged to" "another", here, Naumka Kovacevska.

Claim of Right - Submissions

Although the point was not taken before Magistrate Douglass the Appellant's made a further submission to this Court that that the evidence in the police brief (Exhibit A -tab 4) disclosed prima facie the Appellant had a claim of right to set fire to the premises. Section 194(3) Crimes Act 1900 allows for this "defence." That defence had, it was submitted, not been rebutted by the Respondent.
The following evidence was relied on to prove what was within the Appellant's knowledge at the time of the fire: 1. The Appellant was the legal owner of the house, that is, he was on the Certificate of Title at the time of the damage to the house. 2. The Appellant was in possession of the house at the time the house was damaged. 3. The Appellant was entitled to be in possession of the house in accordance with the Federal Court order until Friday the 5 August 2016. 4. The house was damaged between the evening of the 3 August and 4 August 2016. 5. Naumka Kovacevska was not in possession of the house at the time of the damage to it. 6. An ERISP conducted with Police and the Appellant shortly after the fire burnt the house. Detective Nelson repeatedly prefaces his questions about the house by reference to 'your house' or 'your home' 7. ERISP - Q83 "And the house in Jutland Street, how long have you been living there? A. From 1991." Q85. "Who owns the house there? Has the house been just in your name? A. Yes" Q86. "And, and what, apart from being told to, to move out by Friday, what was going to happen with the house? A. They gonna transfer it to ex-wife." Q89. "Was there any property insurance on the house or the contents at all? A. No Q116. "Did you owe any money on the house? A. No" Q117. "Do you have any other properties? A. No." Q35. "And so when you, when you did that and you lit it up, what did you think would happen? A. I never think of anything. I would just sit there and what's happen happen because I lost everything so I've got nothing to worry. That old furniture, where I gonna take it in 24 hours? Clothes. What I have, I put in a car. That was it. But where I gonna take it, or the street? And that's the reason. Pressure went up."
All the above evidence, it is submitted, indicates that the Appellant's belief at the time of the fire was that the house still belonged to him. His belief was that in the future, from the Friday, at least, he was to lose possession of the house and it was going to be 'transferred' to his ex-wife.
Mr Paine concedes that Q119; "So when you've lit the fire, did you know what you were doing was wrong?" and the answer; A. "Yes," needs some consideration. He suggests that the difficulty in the Respondent relying on this this question and answer is that the answer was not explored further by investigating police. He submits that I should conclude that when the Appellant answers "yes", I could not determine what he was considering to be wrong. Accordingly it is summited that that the Appellant's belief at the time of the fire was that the house still belonged to him alone.
The Respondent sought to rely passage from Senior Constable Harris notebook that purported to be a contemporaneous comment by the Appellant: "property of 46 Jutland now belongs to his ex-wife...:" exhibit A tab 4 item 17 page 30. That passage was objected to by Mr Paine. He submitted that as the reference to this part of the conversation noted by Senior Constable Harris had been excised by consent from the Constable's tendered statement, its inclusion in the brief was an oversight.
When the brief was tendered Magistrate Douglass was told it had been edited "as best we can:" Exhibit B Transcript, 10 April 2017, page 1 line 16-17. After considering this submission I concluded that the notebook passage should not be in evidence before me as it did not meet the stringent requirement for admissibility of an admission in s281 Criminal Procedure Act 1987.
The exclusion of that portion of the evidence did not impact on the respondent's principle contention on this point: that here the Appellant was aware of the Federal Circuit Court orders. He was aware of his wife's rights to and interest in the property. His very actions undermine the suggestion his belief at the time of the fire he held a reasonable belief to light the fire. He knew what he did. He knew he had no right to did what he did. These conclusions are readily drawn from and confirmed by his admissions to police. At the scene he admitted he started the fire and had used kerosene.
The Respondent accepted that if a claim of right is relevant to the commission of an offence as it goes to the absence of mens rea to an essential element of the offence and that if a defendant can point to evidence showing the a belief in a claim of right, it is then up to the prosecution to prove that the defendant was not acting with such a claim in mind.
The Respondent position was s194(3) Crimes Act 1900 is clear; a belief in a claim of right "does not constitute an element of any offence under this Part." That section casts on a defendant not only an evidentiary onus to point to some evidence raising a claim of right, but also a legal onus to demonstrate a valid claim of right on the balance of probabilities as well.

Claim of right - Consideration

Claim of right is usually raised as an answer to a crime in which the means used to take the property involved an assault or the use of arms. There is however no in-principle reason why it cannot be raised as a defence to a s195 charge where the property was not actually taken from another but destroyed.
The relevant principles were set out in R v Fuge (2001) 123 A Crim R 310 at 314-315, that: 1. The claim of right must involve a belief as to the right to the property [in the hands of another]. 2. The claim must be genuinely, that is, honestly, held - whether it was well founded in fact or law or not. 3. While the belief does not have to be reasonable, a colourable pretence is insufficient. 4. The belief must be one of a legal entitlement to the property and not simply a moral entitlement. 5. The existence of such a claim, when genuinely held, may constitute an answer to a crime - the relevant issue being whether the accused had a genuine belief in a legal right to the property [rather than a belief in a legal right to employ the means in question to recover it]. 6. The claim of right must, however, extend to the entirety of the property. 7. It is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury.
No claim of right has been raised by the Appellant. Before the prosecution take on the onus of rebutting the issue it must first be raised by evidence: s 194(3) Criminal Procedure Act 1987. Nothing in the passages from the ERISP relied on raise any claim that the Appellant was asserting he had a right to do what he did. Nor could one be inferred from what was said. To the contrary, everything said and done confirms he did what he did knowing he had no legal entitlement to destroy the property having signed to transfer document in accordance with the Federal Circuit Court order. On the evidence before me the Appellant was acting to deny his wife her rights as ordered by the Federal Circuit Court. The Appellant was aware of that Court's orders and was acting in deliberate defiance of them. This fact alone establishes he knew he had no legal right to do what he did to the property.

Determination

Criminal law is concerned with consequences. Naumka Kovacevska had an interest in the property at 46 Jutland Avenue. That interest was not dependant on the definition of property in the Real Property Act 1900. The property belonged to her as just it belonged to the Appellant until all his interest passed on Real Property Act registration. Naumka Kovacevska's property interests were in need of the protection of the criminal law. The inclusive definition of property in the Crimes Act 1900 encompassed and protected her interest in tangible property. That interest was not excluded by s194 Crimes Act 1900.
Before a person can be convicted of a s195 Crimes Act 1900 offence each critical element of the offence must be proved beyond reasonable doubt. Having reviewed the evidence and submissions put to the Court I find that; on evening of 3 and 4 August 2016; the Appellant intentionally destroyed property; the house at 46 Jutland Ave. That property was a tangible asset. It belonged at the time to the Appellant and by virtue of the orders of the Federal Court and the signed transfer document also to Naumka Kovacevska. The destruction was brought about by fire. The Appellant did what he did so that Naumka Kovacevska would not have the full benefit of the property that belonged to her. He was not exercising any genuine belief he had a legal right to do what he did.
The order made by Magistrate Douglass was correct. The offence was proved. The Appellant, Krste Kovacevski, was properly convicted. The conviction appeal is dismissed.

Amendments 19 February 2018 - Paragraph 11 - Sentence amended. Amended on 19/02/18 25 October 2019 - paragraph [84] - corrected citation 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: 25 October 2019

Crimes Act 1983(Vic)

Real Property Act 1986(SA)

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Cases Cited (19)