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7.5.17.1 - Charge: Criminal Damage Intending to Endanger Life

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 intending to endanger life under Crimes Act 1958 s197(3).

Related Charges

If the accused is charged with an offence under Crimes Act 1958 s197(1), use Charge: Criminal Damage.

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 intending to endanger life. 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 accused purposely damaged or destroyed the property, or knew or believed that damage or destruction was the likely result of his/her actions;

Three – That the accused purposely endangered the life of another person by causing the damage or destruction, or knew or believed that the life of another person was likely to be endangered by the damage or destruction; 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"].

Intention to Damage or Destroy Property

There are two ways in which the prosecution can prove the second 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.]

Intention to endanger

There are also two ways that the prosecution can prove the third element of this offence.

First, they can prove that it was NOA’s purpose to endanger the life of another person by causing the damage or destruction, or one of his/her purposes.

Alternatively, they can prove that NOA knew or believed that the life of another person was more likely than not to be endangered by the damage or destruction.

For this element to be met, the accused must have meant to create such a risk by virtue of damaging or destroying the property, or must have known or believed that such a risk was likely to result from the damage or destruction. It is not enough that s/he knew or believed that someone’s life would be endangered by his/her act itself, or that s/he meant to put someone’s life in danger by that act.

This is a difficult distinction, which is probably easiest understood by the use of an example. Imagine that a person places a bomb on a train track, and stands by the side of the tracks waiting for a train before he detonates it. If he detonates it shortly before the train arrives, intending to damage the tracks and knowing or believing that this could derail the train killing the passengers, this element will be satisfied. In such a case he will have meant to put a person’s life in danger by virtue of damaging property – in this case, the train tracks. If, however, he waits until the train is above the bomb before detonating, intending that the bomb itself will directly kill the passengers, this element will not be met. This is because his purpose in such a case is to kill the passengers directly, through the use of the bomb, rather than to put a their life in danger by damaging or destroying property. He would be guilty of another offence, probably murder, but not of criminal damage intending to endanger life.

This may seem like a fine distinction, but it is an important one, because this element requires the prosecution to prove that NOA purposely endangered the life of another person by causing the damage or destruction, or knew or believed that the life of another person was likely to be endangered by the damage or destruction.

[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 intending to endanger life, the prosecution must prove to you, beyond reasonable doubt:

One – That the accused damaged or destroyed property;

Two – 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;

Three – That the accused purposely endangered the life of another person by causing the damage or destruction, or knew or believed that the life of another person was more likely than not to be endangered by the damage or destruction; 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 intending to endanger life.

 

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.

 

Last updated: 27 March 2019

See Also

7.5.17 - Criminal Damage Intending to Endanger Life

7.5.17.2 - Checklist: Criminal Damage Intending to Endanger Life