Criminal damage: What are the required elements of the property offence?

by The FindLaw Team

Language in law is extremely important, however, it can also be quite difficult to decipher in some instances because some legal terms might be perceived one way by a layperson, but for a lawyer, the term may have different connotations altogether within a legal context. So when we hear the offence of ‘criminal damage’ in relation to property, one might naturally wonder: Isn’t all damage to property, criminal? Well, yes, for the most part criminal damage is an offence under Australian law, but similar to other offences, the requisite elements still must be exhibited, in order for the offence to be proven.

What is criminal damage?

A person commits criminal damage when they intentionally destroy or damage a piece of property without lawful excuse. Using s 85(3) of South Australia’s Criminal Law Consolidation Act (the Act) as our legislative example, criminal damage is defined in the following manner:

“ (3)         A person who, without lawful excuse, damages another's property (other than a building or motor vehicle)—
            (a)         intending to damage property; or
            (b)         being recklessly indifferent as to whether his or her conduct damages property,
 is guilty of an offence.”

All states and territories in Australia have the offence under their various legislative instruments, and for the most part, use similar wording as South Australia’s Act.

What are the elements of criminal damage?

The essential element of the offence of criminal damage, is one of intent. The test in which is applied can be found in Pace v H, in which Scott J stated that a person is not guilty of the offence, unless he or she “…intended to cause that result, or believed that it was more likely than not such a result would be achieved.”

We can look to a more expansive articulation of the elements which constitute the offence of criminal damage, by again using s 85(3) of South Australia’s Act as a guide when determining whether or not, an offence of criminal damage has been committed. Looking to the judgment of Perry J in Durward v Harding, his Honour stated, that in order for a person to be found guilty of criminal damage, the following elements must be met:

• knowledge of the existence of the property
• knowledge of the existence of a risk that the conduct may damage the property
• an awareness of the risk
• proceeding with the offending conduct, despite of the awareness of the risk
• evidence that the causing of the damage is without lawful authority
• an understanding on the part of the defendant that no such lawful authority is evident.

One of the interesting aspects of the judgment of Perry J, is that intent to damage of property is subjective, rather than objective.

How much damage must there be for a person to be found guilty of the offence?

In ascertaining how much damage is necessary to constitute an offence of criminal damage, we can look to the judgment in R v Zischke which stated that “…“damage” may be held to have been done even though the injury to the article of property is not permanent but is remediable, if only by the expenditure of money. Probably the formula that most nearly embraces all the attempts at definition is that a thing is damaged if it is rendered imperfect or inoperative.”

A person can commit an offence of criminal damage towards their own property

Yes, it may seem unusual that a person can be found guilty of an offence of criminal damage in relation to their own property – but it can happen. The most common examples of criminal damage to ones property, is when a person either arranges for an acquaintance to get rid of their car for insurance purposes, as in the case of DPP’s Reference No 1 of 1998, or by deliberately lighting fire to their own property, which was the situation in R v Johnston.

If any reader is experiencing difficulties with criminal damage or any other criminal offence, please seek the help of a lawyer who will be able to assist, with your matter.


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