What is your damage, Heather? Interpreting s 195(1)(a) of the Crimes Act 1900 (NSW)

It is not every day that a criminal damage case from the Local Court at Newcastle finds its way into the High Court. But that is what happened in Grajewski v Director of Public Prosecutions (NSW), a judgment handed down on 13 March 2019.  Grajewski is an interesting case in that at first blush, the answer to the question of statutory interpretation posed by the facts seems obvious, even blindingly so. And yet of the ten judges involved in hearing the case, only four reached that answer. A magistrate, a District Court judge, three judges of the New South Wales Court of Criminal Appeal and one judge of the High Court all came to a different conclusion. Fortunately for the appellant, the four judges who answered the question in his favour constituted a clear majority of the High Court.

In Grajewski, the appellant was charged with an offence against s 195(1)(a) of the Crimes Act 1900 (NSW), which provides that a person who ‘intentionally or recklessly destroys or damages property belonging to another’ commits an offence and is liable to imprisonment for a period not exceeding five years. According to the facts set out in a case stated by the District Court, on 8 May 2016, the appellant arrived at Carrington Coal Terminal and climbed onto a machine known as ‘Ship Loader 2’, which was at that time being used to load a vessel with coal. Using a harness and a roping device, the appellant proceeded to lock himself to Ship Loader 2, which was then shut down out of concern that its continued operation would injure or kill the appellant. There was no finding that any part of the appellant’s body had physically altered any component of the machinery of Ship Loader 2 or that his body had physically interfered with the manner in which those components interacted. The question, then, was whether the appellant’s actions, which had not altered the physical structure or operation of Ship Loader 2 in any way, had nevertheless ‘damaged’ it. Applying the ordinary meaning of the verb ‘to damage’ – being to ‘[i]nflict physical harm on (something) so as to impair its value, usefulness, or normal function’ – the obvious answer to the question is ‘no’. And yet, as noted above, the appellant was convicted in the Local Court and his appeal to the District Court was dismissed. A case was then stated by the District Court for the opinion of the Court of Criminal Appeal under s 5B(2) of the Criminal Appeal Act 1912 (NSW).

The Court of Criminal Appeal held that the facts set out in the case stated were capable of supporting a finding of guilt under s 195(1)(a) of the Crimes Act. In so finding, the Court was heavily influenced by the history of s 195(1)(a) and by authorities interpreting broadly similar legislation. It seems to have paid relatively little attention to the actual text of the provision. In particular, the Court formed the view that the amendments that introduced s 195(1)(a) into the Crimes Act were intended to ‘replace the multitude of particular property damage offences tracing back to the mid-nineteenth century by [sic] a smaller number of generally applicable offences.’ Consequently, it was said, s 195(1)(a) impliedly encompassed a range of specific offences that had formerly been created by repealed provisions of the Crimes Act, including offences the elements of which comprised such things as ‘obstruct[ing], or caus[ing] to be obstructed, the passing, or working, of any engine, or carriage, on any railway’ and obstructing the working of any ‘engine employed, or about to be employed in sinking, draining, ventilating, or working any mine’. From this, it was said to follow that ‘the legislative history confirms a construction whereby “destroys or damages” includes physical interference which obstructs the working of a machine or renders it useless, either permanently or temporarily.’ As should be obvious, there a number of serious difficulties with this analysis. First, the High Court has emphasised again and again that the task of statutory interpretation begins and ends with the statutory text itself. Legislative history may contain important clues to interpretation, but it does not supplant that text. Second, it is axiomatic that a statute will not be interpreted to create a criminal offence unless this is done in clear and unambiguous language. Finally, nowhere in the case stated did the District Court find that the appellant’s actions had physically obstructed the operation of Ship Loader 2. Rather, it found that Ship Loader 2 had been shut down out of fear that its continued operation would injure or kill the appellant. It is not difficult to see why, notwithstanding the minor nature of the charge against him, the appellant was granted special leave to appeal from the judgment of the Court of Criminal Appeal.

In the High Court, a majority comprising Kiefel CJ, Bell, Keane and Gordon JJ held that the facts stated by the District Court were not capable of supporting a finding of guilt and ordered that the appellant’s conviction be quashed. Their Honours conducted an extensive review of the legislative history behind s 195(1)(a) and concluded that even if that history did support the interpretation favoured by the Court of Criminal Appeal (which was far from clear), the ‘legislative history cannot overcome the plain words of the provision.’ Their Honours also reviewed a number of English and Australian lower court authorities on the meaning of the word ‘damage’ in the context of criminal damage statutes. They noted that historically, the concept of ‘damaging’ property has been held to extend to such things as putting a stick into a boiler to prevent the flow of water into it, stuffing a blanket into a toilet in order to flood a police cell, spraying graffiti on a building, deflating a car tyre, crushing a police constable’s hat, blowing water into a police breathalyser and pouring petrol onto the carpet of a dwelling. From this analysis, Kiefel CJ, Bell, Keane and Gordon JJ concluded that:

Nothing in the authorities justifies an interpretation of the expression “destroys or damages” as extending to conduct which does not in any respect alter the physical integrity of the thing said to be damaged … The protestor who ties herself to the blade of the bulldozer does not damage the bulldozer just as the protestor who lies in front of the bulldozer does not damage the bulldozer. It may be that in each case the bulldozer is stopped while the protestor remains in position but that is not because of anything done by the protestor to affect the functioning of the bulldozer. It is because of the desire of the operator not to injure the protestor.

In dissent, Nettle J commenced with the proposition that ‘[i]f an offender physically attaches something to property (even if only by the force of gravity) and the attachment renders the property dysfunctional (even if only until the attachment is removed) it accords with the natural and ordinary sense of language to speak of the offender’s actions as physical interference with property which affects the functionality of the property; and thus it accords with the apparent objectives of s 195(1), as construed against the background of its historical context, to conceive of the offender’s action as damage to property within the meaning of the section.’ In his Honour’s view, an action affects the functionality of property if, even though it does not physically prevent the property from functioning, it ensures that the property can ‘only do so in a manner that would be manifestly unsafe and hence contrary to the manufacturer’s operating instructions and statutory occupational health and safety requirements.’ It followed from these two propositions of law that, on the facts set out in the case stated, the appellant had damaged Ship Loader 2. However, it seems to me that on Nettle J’s view of the law, a person who stands in the tray of a pickup truck or utility vehicle necessarily ‘damages’ the vehicle, because it is incapable of being driven safely while he or she remains there. While a person who did this with the vehicle owner’s permission would have a defence under s 194(3) of the Crimes Act, interpreting s 195(1)(a) in such a way still appears to my mind to involve an unnatural interpretation of the word ‘damage’ that privileges assumptions about the intention behind s 195(1)(a) over the explicit text of the provision.

The mantra that statutory interpretation begins and ends with the statutory text, though undoubtedly true, tends to be of limited assistance when faced with truly obscure or ambiguous statutory text. However, Grajewski is a reminder that the most important and fundamental guide to the meaning of a statutory provision is the text of the provision itself. While the dialogue between the judicial and legislative branches of government that sits at the heat of statutory interpretation often necessarily involves going beyond the statutory text and applying ‘rules of interpretation accepted by all arms of government in the system of representative democracy‘, statutes still have to be interpreted on their own terms. They should not be ‘encrusted with legal barnacles imported from earlier times‘ and interpreted by reference to dubious assumptions drawn from predecessor provisions.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s