R v Previsic [2008] VSCA 112

2 The grounds in respect of the conviction application are as follows:

1. The verdict is unsafe and unsatisfactory as the evidence did not enable a reasonable jury properly instructed to be satisfied beyond reasonable doubt that the applicant had: (a) caused criminal damage; and (b) even if the applicant could be proved to have caused criminal damage, that he had done so with the requisite criminal intention.
2. The learned trial judge erred in his directions to the jury concerning the element of damage, including by withdrawing the element of damage from the jury's consideration by erroneously directing the jury that it was not in issue that the dint[1] to the car amounted to damage. ...
3. There has been a miscarriage of justice by reason of unwarranted interventions by the learned trial judge in the course of the cross examination of prosecution witnesses.[2]

3 The incident out of which the charge arose occurred on 1 December 2001; that is, some five-and-a-half years before the trial. It arose out of damage allegedly done when the applicant struck the rear off-side quarter panel of a Ford motor vehicle then being driven by Stewart Hammil. The damage, if that is what it was, consisted of a dint in the panel, which was later pushed out at no cost by a panel-beater. That was despite it being originally asserted that the criminal damage was in an amount of $800. The incident was provoked, on the applicant's account, by Mr Hammil's vehicle striking his (the applicant's) parked vehicle when in the course of a parking manoeuvre, this occurring whilst the applicant was in his vehicle. There was some evidence, none of it contemporaneous and some of it based on observations made years later, that there had been damage done to the applicant's vehicle by Mr Hammil's vehicle.

4 Evidence which strongly implied that the applicant kicked Mr Hammil's vehicle was given by an independent witness, Mr Gray. That such contact was made was consistent with evidence given by Mr and Mrs Hammil, although at least Mrs Hammil did not see the precise nature of the impact and Mr Hammil's evidence that he did so was not uncontroversial.

5 The incident occurred outside a night club named Revolver in Chapel Street, Prahran. The applicant worked there as a security guard. Evidence was given that CCTV cameras were in operation at the time It was at least a possible inference that they would have captured the incident. But no footage was extant when, long after the incident, the applicant was charged.

6 In all, the incident was one in which the subsequent course of events - specifically, the long-delayed laying of a charge, a committal hearing, a contested trial, and now the present applications - beggars belief.

7 In my opinion, the key to the resolution of the conviction application lies in the matter raised by ground 2. I think that there is nothing to either of grounds 1 and 3.

8 As to the former, I am satisfied that, if the applicant caused a dint to the quarter panel of the complainant's vehicle, it was open to a jury to conclude that he damaged property with relevant intent.

9 It is not the law that there cannot be damage except if there is a cost of making good. The verb 'damages' in s 197(1) has been given a broad meaning in like legislation. Archbold Criminal Pleading, Evidence and Practice, states that damage 'is interpreted widely to include not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness.'[3] Examples of damage given by Archbold include circumstances in which there would not necessarily have been cost of repair: applying water soluble paint to a pavement;[4] and smearing mud on the wall of a police cell.[5]

10 In R v Hayne[6] Handley JA cited with evident approval the passage from Morphitis[7] which is cited in Archbold. His Honour also cited Hardman[8] in support of the conclusion of Walters J in Samuels v Stubbs[9] that putting a policeman's hat temporarily out of shape by stamping on it entitled a conviction for wilful damage to property. In Samuels, Walters J used the phrase 'temporary functional derangement' to describe the effect upon the hat. Such a description did not imply a cost of repair. One would think that remediation was likely to have required nothing more than pushing the hat back into shape.

11 R v Zischke,[10] cited for the applicant, does not assist a conclusion that there must be a cost of repair if there is to be damage. On the other hand, I think that Zischke stands for the sensible proposition that absence of cost of repair is a circumstance which a jury might take into account in deciding whether it was satisfied to the criminal standard that the accused had damaged property.

12 In the present case, I consider, absence of cost of repair did not render unsafe or unsatisfactory the jury's evident satisfaction that damage had been done to the complainant's vehicle. Such satisfaction flowed inevitably from photographs which were tendered in evidence.

13 As to ground 3, I am satisfied that the intervention of the judge in the course of cross-examination of Crown witnesses by the applicant's counsel did not 'constitute such a departure from the due and orderly processes of a fair trial as to amount to a miscarriage of justice.'[11] The judge was evidently impatient with counsel at times. He tried to cut to the heart of the contest, at times interrupting the flow of cross-examination. But his Honour's interruptions were relatively few, and in my opinion were a legitimate attempt to ensure that the trial proceeded by elucidation of relevant areas of dispute.

14 I turn to ground 2. In support of that ground, counsel for the applicant submitted that the learned judge misdirected the jury by instructing it that it was not in dispute that dinting the car amounted to damage, and that the absence of repair cost was not relevant. A re-direction had been sought at trial, counsel noted, but the judge had refused to give one.

15 Counsel submitted in support of this ground that the judge had tended to conflate the elements of damage and intention, and had given no clear and sufficient direction with respect to proof of necessary intention.

16 Counsel for the Crown submitted that applicant's counsel had conceded in his final address at trial that damage had been done to the complainant's vehicle. Counsel submitted also that it was a question of law whether the dint was damage for the purposes of s 197(1), and that his Honour had not misdirected the jury in saying that there was no issue as to damage. Counsel further submitted that there was no fault in the direction which his Honour gave with respect to the element of intention.

17 It was for the learned trial judge to direct the jury whether the dint could constitute damage for the purposes of s 197(1). It was for the jury to be satisfied to the criminal standard that the dint did constitute such damage before it could convict the applicant.

18 In his final address, counsel for the applicant mentioned damage at two points. He said, first:

What would happen in a civil case is, in the facts of this case, is that Mr Hammil would lose. He'd lose because he couldn't prove damage. That's in a civil context, right, because he's paid nothing to fix it. What you have here, though, is it's a criminal trial, and what the Crown say is a dint in the car is the damage. Now, ultimately, it's a matter for you to decide about that. But I want you to remember this That you heard from the informant today that at the outset Mr Hammil said there was $800 worth of damage to that car. He told him, anyway. That's where the figure came from. Mr Hammil's evidence, you'll remember, is that he took the car round the corner to the panel-beater. The panel-beater just - I'm using the term "popped it out", "pushed it out", drove it away, no cost.

So when you come to make your decision collectively about this case, I urge you to consider all of this evidence very, very carefully, the conflicts within it, the bits that don't add up, and in doing that, bear in mind, as the learned prosecutor says, how serious this is, how serious this is, in a context where the alleged damage - and I use the term 'alleged' because I concede there is damage - is not worth a dollar value.

19 When charging the jury, the learned trial judge identified the elements of the offence. The first of them was that the Crown must prove 'damage to property belonging to another' . Then his Honour said this:

As far as the first element is concerned, damage to property belonging to another, the allegation is, of course, that the dint in the rear quarter panel of the Ford car was damage to that car and it's not in dispute, as I understand it, that such a dint amounts to damage to the car, at least in the context of a criminal trial, and it's not relevant that in fact it was repaired at no cost to the owner of the car. The fact that we were told the panel beater simply pushed on the inside of the dints and it bounced back again and there was no cost involved in that operation. Such a dint, so far as the law in a criminal trial is concerned, does amount to damage, or can amount to damage, and I so direct you.

Thereafter, on a number of occasions, his Honour referred to there being an issue whether the applicant had actually caused the damage to the complainant's vehicle. He said:

the accused effectively denies that he damaged the car

the evidence in summary before you that the accused actually caused the damage ... comes firstly from ...

that is the evidence that is before you as far as the issue as to whether or not the accused man inflicted damage in the sense that he physically caused the dint in the side of the car.

20 Later, when recounting the submissions of counsel, his Honour said that applicant's counsel -

accepted that in a criminal case, as opposed to a civil case, that a dint to a car is in fact damage to that car.

21 Exception was taken by applicant's counsel. He said this:

the other matter, Your Honour, is you've said that in my submission that, it's not in dispute Your Honour, sorry, the damage is not in dispute. Your Honour, I addressed the jury about the damage and one of the - the one line sentences, as I said was we say there's no damage. Or there is no damage.

I'm taking exception and I'm saying that during the course of my address to them I said there is no damage.'

The issue of damage or not is a question for the jury as well. You direct them what damage is. It's a question of fact for them to find what there is.

22 The learned trial judge responded to the exception in this way:

I think I put it as an element to be proved that the accused caused damage and that he did it intentionally.

23 In my opinion, consideration of counsel's address, the charge and the exception shows that the learned judge and counsel were at cross purposes in their understanding of what counsel had submitted; and that his Honour mistook the import of parts of his charge.

24 As to the first of those matters, I think that counsel's address was to the effect that it was for the jury to decide whether or not the dint constituted damage for the purposes of s 197(1). The true import of the apparent concession that damage had been done was, in my opinion, no more than a concession that there was a dint which was alleged by the Crown to constitute damage, an allegation which the applicant put in issue. So is explained, in my opinion, the emphasis which counsel laid upon the adjective 'alleged'. Such an understanding of what counsel was getting at is compatible with his earlier submission in his address that it was for the jury to decide whether the dint was damage. But if the matter was not clear, at least it was uncertain; and the learned judge resolved the uncertainty decisively against the applicant.

25 I certainly do not suggest that counsel's address was altogether clear. It is understandable that the judge might have misapprehended the situation. It is unfortunate that his Honour did not clarify the import of what had been submitted.. But in the end, however it might be explained, I consider that his Honour did err in charging the jury that it was not in dispute that the dint amounted to damage to the complainant's car; and that counsel accepted in a criminal case that a dint to a car is in fact damage to that car. He further erred when, dealing with the exception, he characterised what he had said as having been no more than a direction of law.

26 His Honour's account of evidence that the applicant 'actually caused the damage', and his observation that the evidence which he recounted 'was the evidence as far as the issue whether or not [the applicant] inflicted damage in the sense that he physically caused the dint', were not directed to the question whether the dint was damage, but to the question whether the applicant had caused the dint. That was a discrete issue in the trial. In his record of interview, the applicant had admitted to slapping the complainant's vehicle, but not to dinting it. A number of issues were alive at trial. Was the dint damage? Did the applicant cause the dint? Did the applicant have relevant intent in the event that he had caused the dint? Was there lawful excuse in the event that he was proved to have caused the dint and the dint constituted damage? His Honour's reference to what evidence there was that the applicant actually caused the dint was directed to the second of those issues. It in no way contradicted his statements to the jury that it was not in issue that the dint was damage.

27 In all, it was correct for his Honour to direct the jury that a dint such as was observable on the photographs put in evidence can amount to damage. Erroneously, however, he charged the jury that a factual issue which would otherwise have fallen for its determination was foreclosed against the applicant by counsel's concession.

28 The misdirection, for such it was in my opinion, constituted a miscarriage of justice. Although a jury might well have been satisfied that the applicant caused the dint, and that the dint constituted the damaging of property, the fact is that an element which the Crown was required to prove to the criminal standard was withdrawn from the jury's consideration. In those circumstances, as senior counsel for the Crown rightly conceded, the case is not one in which the proviso to s 568(1) of the Crimes Act could be called into play.

29 In my opinion, the application for leave to appeal against conviction should be granted and the appeal allowed. The question is then what course should be taken. Having account of the very long delay in bringing this matter to trial, the essentially modest nature of any criminality that was involved, the applicant's otherwise unblemished character - he being a man aged 49 at the time of sentence and now aged 50 - and the cost that has so far been occasioned to the community as well as to the applicant arising out of this incident, I would direct entry of a verdict and judgment of acquittal.

31 I also agree that the appeal should be allowed and that a verdict of acquittal should be entered.

1. The application for leave to appeal against conviction is granted.

2. The appeal is treated as instituted, heard instanter and allowed.

1. The conviction and sentence passed in the County Court on 13 August 2007 are set aside.
2. In lieu thereof, a verdict and judgment of acquittal is entered.

[1] Throughout the trial transcript, the charge, and counsel's submissions, the spellings 'dint' and 'dent' were used interchangeably. For convenience, I will use the former spelling throughout.

[2] There was a fourth ground. It was not pursued on appeal, and so I have not set it out.

[3] 2008, para 23-6, citing Morphitis v Salmon [1990] Crim LR 48, 49 (Lloyd LJ, Auld J).

[4] Hardman v Chief Constable of Somerset [1986] Crim LR 330 (Divisional Court).

[5] Roe v Kingerlee [1986] Crim LR 735 (Divisional Court).

[6] Unreported, Court of Criminal Appeal, New South Wales, 18 September 1998.

[7] [1990] Crim LR 48, 49 (Lloyd LJ, Auld J).

[8] [1986] Crim LR 330 (Divisional Court).

[9] [1972] 4 SASR 200.

[10] [1983] Qd R 240.

[11] R v Mawson [1967] VicRp 23; [1967] VR 205, 207. See also R v Boykovski (1991) 58 A Crim R 436.