High Court Clarifies Meaning of Criminal Damage

Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8

This week, the High Court handed down its majority decision in the matter of Grajewski v Director of Public Prosecutions (NSW).

As reported last year, O’Brien Criminal & Civil Solicitors represented the appellant, Paul Grajewski, a protestor who harnessed himself to a ship loader at a coal terminal in New South Wales. Mr Grajewski attached himself to the ship loader with a harness and the loader was shut down until he was removed. Other than this attachment, Mr Grajewski did not physically interfere with the loader.

Mr Grajewski was charged and convicted in the Newcastle Local Court of the offence of damage to property under s 195(1)(a) of the Crimes Act 1900 (NSW). Mr Grajewski appealed this decision to the District Court, the New South Wales Court of Criminal Appeal, and eventually to the High Court of Australia for consideration of whether his actions meant that he “destroyed or damaged” the ship loader.

The Law

s 195(1)(a) of the Crimes Act 1900 (NSW) provides that:

  • A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable
    1. To imprisonment for 5 years, or
    2. If the destruction or damaged is caused by means of fire or explosives, to imprisonment for 10 years.

The courts have considered the question of what constitutes “destroy of damage” and have developed both a narrow and a wider definition in different cases[1]. The wider definition, preferred by the Court of Criminal Appeal in Mr Grajewski’s case, considered that “physical interference causing property to be inoperable”, whether temporary or otherwise, is sufficient. 

The High Court ruling

In considering Mr Grajewski’s case, the High Court determined that damage to property requires “proof that the defendant’s act or omission has occasioned some alteration to the physical integrity of the property, even if only temporary.” This is more consistent with the ordinary English definition of damage, which means to injure or harm a thing in some way that often lessens the value of that thing. In this case, Mr Grajewski attaching himself to the ship loader did not alter the loader’s physical integrity, and so he was not guilty of damaging it.

If you have been convicted of a criminal damage offence but like Mr Grajewski, don’t think you damaged the object you were charged over, contact us today to discuss whether this new ruling might affect your case.

The High Court of Australia

[1] See R v Henderson and Battley (unreported, Court of Appeal (Criminal Division), 29 November 1984 cf R v Heyne (unreported, Court of Criminal Appeal of New South Wales, 18 September 1998) and Hammond v The Queen (2013) 85 NSWLR 313.

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Peter O'Brien

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