Previous Topic

Next Topic

Book Contents

Book Index

7.5.18.1 - Charge: Criminal Damage with a View to Gain

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 with a view to gain 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(2), use Charge: Criminal Damage Intending to Endanger Life.

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 with a view to gain. To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt:

One – That the accused damaged or destroyed property;

Two – That the accused did so dishonestly; and

Three – That the accused did so with a view to gain.

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"].

Dishonesty

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

In this case the prosecution alleged that NOA acted dishonestly because [describe the knowledge, intent or belief that is alleged to make the accused’s conduct dishonest].

[If the parties agree that the accused will have acted dishonestly if s/he had the alleged state of mind, add the following shaded section]

If you find that NOA had this [knowledge / intention / belief] when s/he [identify act], then the second element will be met. This is because it is clear that [describe alleged knowledge, intention or belief] is dishonest.

[If the defence contend that the alleged state of mind does not constitute dishonesty, add the following shaded section]

If you find that NOA had this [knowledge / intention / belief], you must then decide whether that made his/her conduct dishonest. This matter should be decided according to the standards of ordinary, decent people. If an ordinary, decent person would have considered NOA’s actions to be dishonest, then this element will be met.

[Summarise relevant evidence and arguments.]

View to Gain

The third element that the prosecution must prove is that the accused caused the damage or destruction with a view to gain something for himself/herself or another person.

In this case, the prosecution argued that NOA intended [NO3P] to gain [describe intended gain] by [damaging / destroying] the [identify property].

[Summarise relevant evidence and arguments.]

Summary

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

One – That the accused destroyed or damaged property;

Two – That the accused did so dishonestly; and

Three – That the accused did so with a view to gain for himself/herself or another person.

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 with a view to gain.

 

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

7.5.18 - Criminal Damage With a View to Gain

7.5.18.2 - Checklist: Criminal Damage with a View to Gain