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7.5.16.1 - Charge: Criminal Damage

Click here to obtain a Word version of this document for adaptation.

 

When to Use this Charge

This charge should be used when the accused is charged with criminal damage under Crimes Act 1958 s197(1).

Related Charges

If the accused is charged with an offence under Crimes Act 1958 s197(2), use Charge: Criminal Damage Intending to Endanger Life.

If the accused is charged with an offence under Crimes Act 1958 s197(3), use Charge: Criminal Damage with a View to Gain.

If the accused is charged with an offence under Crimes Act 1958 s197(6), use Charge: Arson.

If the accused is charged with an offence under Crimes Act 1958 s197A, use Charge: Arson Causing Death.

If the accused is charged with an offence under Crimes Act 1958 s201A, use Charge: Intentionally or Recklessly Causing a Bushfire.

 

I must now direct you about the crime of criminal damage. To prove this crime, the prosecution must prove the following 4 elements beyond reasonable doubt:

One – That the accused damaged or destroyed property;

Two – That the property belonged to another;

Three – That the accused purposely damaged or destroyed the property, or knew or believed that damage or destruction was the likely result of his/her actions; and

Four – That the accused had no lawful excuse for damaging or destroying the property.

I will now explain each of these elements in more detail. [1]

Damaging or Destroying Property

The first element that the prosecution must prove is that the accused damaged or destroyed property.

[If there is a dispute about whether the relevant harm constitutes "damage", add the following shaded section]

In deciding whether [identify relevant property] has been damaged, you must decide if there has been some change to its physical integrity. This can be a permanent or temporary change.

In this case, it is alleged that NOA damaged or destroyed [identify relevant property] by [identify relevant action]. [2] [Summarise relevant evidence and arguments.]

This first element will be met if you are satisfied that NOA [identify relevant act], [where relevant add: and that what s/he did amounts to "damage"].

Property Belonging to Another

The second element that the prosecution must prove is that the property belonged to another person. [3]

In this case the prosecution alleged that the [describe property] belonged to NOC. [Insert prosecution evidence and/or arguments]. The defence denied this, arguing [insert defence evidence and/or arguments].

Intention to Damage or Destroy Property

There are two ways in which the prosecution can prove the third element of this offence.

First, they can prove that, when NOA [identify act], it was his/her purpose to damage or destroy the property, or one of his/her purposes.

Alternatively, they can prove that, when NOA [identify act], s/he knew or believed that his/her actions were more likely than not to result in the property being damaged or destroyed.

"Knowledge" and "belief" are both ordinary words. For this element to be proven on the basis of the accused’s knowledge or belief, the prosecution must prove that the accused thought about the likely consequences of his/her actions. If s/he did not think about whether his/her actions would cause the property to be damaged or destroyed, then this element will not be met.

However, it is not enough to find that NOA simply thought about the possibility of damage or destruction. This element will not be met if the accused thought his/her actions might damage the property, but probably would not. It will only be satisfied if the prosecution can prove that NOA knew or believed that his/her actions were more likely than not to result in the property being damaged or destroyed, or that at least one of his purposes in [identify act] was to damage or destroy the property.

[Summarise relevant evidence and arguments.]

Without Lawful Excuse

The fourth element that the prosecution must prove is that the accused had no lawful excuse for damaging or destroying the property.

The law recognises that a person has a lawful excuse for damaging or destroying property if s/he [describe relevant defence, e.g. honestly believed that the owner of the property had consented to the damage].

[Where a statutory excuse under s201(2) has been raised, add the following shaded section]

The focus of this element is on what NOA actually believed at the time s/he [identify act]. It does not matter if that belief was neither accurate nor justified.

It is not for the accused to prove that [describe relevant defence]. Instead, it is for the prosecution to prove beyond reasonable doubt that the accused did not [describe relevant defence].

[Summarise relevant evidence and arguments.]

Summary

To summarise, before you can find NOA guilty criminal damage, the prosecution must prove to you, beyond reasonable doubt:

One – That the accused damaged or destroyed property;

Two – That the property belonged to another person;

Three – That the accused purposely damaged or destroyed the property, or knew or believed that damage or destruction was the likely result of his/her actions; and

Four – That the accused had no lawful excuse for damaging or destroying the property.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of criminal damage.

 

Notes

[1] If an element is not in issue it should not be explained in full. Instead, the element should be described briefly, followed by an instruction such as: "It is [admitted / not disputed] that NOA [describe conduct, state of mind or circumstances that meets the element], and you should have no difficulty finding this element proven."

[2] If there is a factual dispute over whether the damaged object is "property", a direction on that issue will need to be given. See Criminal Damage for information about the definition of "property". Some guidance on charging the jury on this issue can be obtained from Charge: Theft (Extended). However, due to the slightly different definition of "property", judges should proceed with care.

[3] If there are any issues about whether the property "belonged to another", adapt the direction on "belonging to another" from Charge: Theft (Extended).

 

Last updated: 27 March 2019

See Also

7.5.16 - Criminal Damage

7.5.16.2 - Checklist: Criminal Damage