Grajewski v DPP (NSW) [2019] HCA 8 - Meaning of Damaging Property

In Paul Olaf Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8 (13 March 2019), a majority of the High Court has allowed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of NSW (see Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251 (24 October 2017)). In doing so, the High Court has quashed the appellant's conviction and sentence for the offence of “intentionally or recklessly destroying or damaging property belonging to another”, contrary to the Crimes Act 1900 (NSW) section 195(1)(a).

Background

The appellant was taking part in a protest when he took the action of climbing onto a ship’s loader, which was then forced to shut down due to safety concerns. Using a harness and rope, the appellant managed to lock himself to the ship’s loader and lower himself into a position which posed a risk of serious harm to him. The appellant’s actions caused the ship’s loader to remain inoperable until the appellant was removed - a period of around two hours. As a result, the appellant was charged with an offence against the Crimes Act 1900 (NSW) section 195(1)(a), namely; doing ". . . damage [to] property causing the temporary impairment of the working machinery . . ." of the ship’s loader. At first instance, at the Local Court at Newcastle, the appellant was convicted of the offence under section 195 (1)(a).

On Appeal

From the Local Court, the appellant appealed against his conviction to the District Court of NSW at Newcastle. The District Court “stated a case” to the Court of Criminal Appeal asking whether the facts could support a finding of guilt for an offence contrary to section 195(1)(a). In Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251 (24 October 2017), the Court of Criminal Appeal answered the stated case in the affirmative.

In the High Court

On 18 May 2018 the appellant was granted “special leave”, to appeal to the High Court (see Grajewski v Director of Public Prosecutions (NSW) [2018] HCATrans 89 (18 May 2018)).

In its decision, the majority of the High Court held that damage to property within the meaning of Crimes Act 1900 (NSW) section 195(1) requires proof that a person's act or omission has occasioned some alteration to the physical integrity of the property, even if only temporarily. The reasoning of the majority was that, as a matter of ordinary English usage, “. . . a thing is not damaged if the physical integrity of the thing is not altered in any respect”. In this case the majority held that nothing in the case law justified an interpretation of the expression "destroys or damages" in section 195(1) as extending to “. . . conduct which does not in any respect alter the physical integrity of the thing said to be damaged”. In this case, the ship’s loader was shut down because of safety concerns, not because the appellant had brought about any alteration to its physical integrity. See paragraph [49] of the majority decision:

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Paul Olaf Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8 (13 March 2019) with supporting summaries and transcripts.

Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251 (24 October 2017)

Grajewski v Director of Public Prosecutions (NSW) [2018] HCATrans 89 (18 May 2018)