The offence of criminal damage intending to endanger the life of another has the following four elements:
The accused destroyed or damaged property;
The accused intended to destroy or damage property;
The accused intended by the damage or destruction to endanger the life of another;
The accused did not have a lawful excuse for his or her actions.
There is significant overlap between the elements of this offence and the elements of criminal damage (s197(1)). However, there are three important differences:
The prosecution does not need to establish that the property in question belonged to another person;
The prosecution does need to establish that the accused intended to endanger the life of another person; and
The lawful excuses contained in Crimes Act 1958 s201 are not available. Consequently, the prosecution only needs to rebut any defences or excuses that arise at common law.
This topic only addresses the third element of the offence. For information concerning the other elements, see Criminal Damage.
Intending to Endanger the Life of Another
The third element that the prosecution must prove is that the accused intended, by the damage or destruction, to endanger the life of another person (Crimes Act 1958 s197(2)).
Section 197(5) sets out the requirements for proving this element. A person only intends to endanger the life of another person if:
One of his or her purposes is to endanger the life of another by the damage or destruction; or
He or she knows or believes that the life of another is more likely than not to be endangered by the damage or destruction (Crimes Act 1958 s197(5)).
The prosecution must prove that the accused intended the danger to arise from the damage or destruction, rather than from the act that caused that damage or destruction (R v Steer  AC 111; R v Wenton  EWCA Crim 2361; R v Webster  2 All ER 168).
Thus, if the relevant act is dropping a rock on a passing train:
This element will not be met if the accused intended that the rock would pass through the roof of the train and fatally injure a passenger;
This element will be met if the accused intended that the rock would damage the train in such a way that a passenger’s life would be put in danger (see R v Webster  2 All ER 168).
Given the potentially fine distinctions that must be drawn in relation to this issue, it is essential that the trial judge carefully identify the way in which the prosecution alleges that the accused intended to endanger life. The directions must not conflate the danger created by the damage to the property with any danger created by the act causing the damage (R v Steer  AC 111; R v Wenton  EWCA Crim 2361; R v Webster  2 All ER 168).
Where a person knows or believes that destroying or damaging property is more likely than not to endanger the life of another, he or she must take steps to avoid creating the risk. It is not sufficient for him or her to take steps to mitigate the danger once it has been created (R v Merrick  EWCA Crim 5; Chief Constable of Avon v Shimmen  84 Cr App R 7).
The jury must look at the degree and type of damage the accused intended to cause by his or her conduct. This element may be satisfied even if the accused caused less damage than expected, caused a different kind of damage, or the damage caused did not create an objective risk to another (R v Dudley  Crim LR 57; R v Webster  2 All ER 168).
The offence of criminal damage (s197(1)) is a statutory alternative to the offence of criminal damage intending to endanger the life of another (Crimes Act 1958 s427).