Grajewski v Director of Public Prosecutions (NSW)

[2018] HCATrans 89

[2018] HCATrans 089

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S307 of 2017

B e t w e e n -

PAUL OLAF GRAJEWSKI

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

Respondent

Application for special leave to appeal

KIEFEL CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 MAY 2018, AT 9.26 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant with MR A.T.S. DAWSON, SC and MR N.D. FUNNELL.  (instructed by O’Brien Criminal & Civil Solicitors)

MR D.T. KELL SC:   May it please the Court, I appear with MR M.O. PULSFORD for the respondent.  (instructed by Office of the Director of Public Prosecutions (NSW))

KIEFEL CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases.  We are a little out of time and seek an extension.

KIEFEL CJ:   Yes.  It is not opposed, is it?  You have that extension. 

MR GAME:   Thank you, your Honour.  One does not want to overstate the principle, but legislative history, context and extrinsic aids can only take one so far in determining the meaning of a statute.  To state the obvious, as a canon of statutory constructions those aids are for the purposes of determining what the statute actually means. 

If I could take your Honours – and I am thinking there of cases like R v Bolton; Ex parte Beane and Alcan with which your Honours are well familiar.  But if I could take your Honours to page 67, I would just add this, that there is a particular danger where you have a legislative history of a hotchpotch of provisions that have extensive ideas such as obstruct, but then they relate to specific things like delivery of water into mines.  You throw away the specific words and you keep the general ones and what you end up with is nothing more than an aggravated version of trespass.  We say that is what has happened in this case. 

So, if one looks at page 67, there is the statutory provision and the language of the provision, in our submission, really bears up that when one comes to words “damages property” it really does mean that there has to be some physical impact.  It could be quite minor such as squashing a hat, in the case of Samuels v Stubbs; it could be actually quite major - although this seems to not have been appreciated as the petrol on the floor in Heyne which is very clearly damage of a quite extreme kind. 

BELL J:   It was though that Justice Simpson erred by - in that her Honour was not directed to Heyne whereas your contention is if you pour flammable liquid on a carpet you damage it.

MR GAME:   Absolutely.  I mean it is a terrifying – it is a truly terrifying thing and the whole house cannot be occupied until some other elaborate things are done.  In that case, in a criminal law context one wonders why it was not reckless indifference to human life in fact.  So it is a really serious case of manslaughter anyway. 

But if one looks at the context here, it is “intentionally or recklessly destroys or damages”, and then we have different meanings of it, “by fire or explosives”.  It is a serious indictable offence.  Property is limited to tangible property, real or personal.  There is an extended definition of damage to pick up people changing the identity of motor vehicles by squashing out the identifier.  That is in subsection (4). 

So that is really fairly clear and there is ‑ just speaking of Justice Simpson’s judgment in Director of Public Prosecutions v O’Donnell, in that case they actually chained themselves to the machine so the machine could not actually work.  So, when one asks oneself what is the damage in this case, well it is the temporary inability to work the machine either for safety or other reasons and that is it. 

BELL J:   Mr Game, if one accepts that your submissions advance an arguable basis of challenge, one comes back to – this is a bespoke New South Wales provision, is it not? 

MR GAME:   Well, there are other provisions in other States that involve damage to property and in the South Australian one – I am not sure how bespoke it is but there are – I should have addressed that, but there are various State provisions that are considered.  I think that decision of Justice Walters in Samuels v Stubbs – if your Honours look at paragraph 45 at page 29, the language is the language of “damage”.

KIEFEL CJ:   I do not think this point is taken against you, but it is nevertheless a point that has to be addressed.

MR GAME:   I am sorry.  I have not looked at that closely enough, but the South Australian case at least is about damage, and, yes, it says, “Any person who wilfully and without lawful authority destroys or damages”.  So that actually is very much the same as here.  The same in Queensland, section – I am getting some help on the run - 469, so 469 of the Criminal Code (Qld). If it is in the Criminal Code in Queensland, then it will be probably in the Western Australian Code as well.

BELL J:   Yes, all right.

MR GAME:   So there are a couple of parts of the judgment I just wanted to take your Honours to - if your Honours look at page 36, paragraphs 62 and 63.  So the respondent said that if you lay down in front of a bulldozer you recklessly damage the bulldozer and Justice Leeming drew the line at

that and said, “No, you would have to attach yourself to the bulldozer”.  But a bulldozer ‑ ‑ ‑

BELL J:   I think your point is ‑ ‑ ‑

MR GAME:   ‑ ‑ ‑ is a rather large thing.

BELL J:   In either event, the temporary ceasing of the function of the bulldozer is to do with the bulldozer driver’s desire not to hurt the person.

MR GAME:   Not to kill the person.

BELL J:   Not to do with hurting the bulldozer.

MR GAME:   Yes.  I do not know if your Honours have ever seen one of these coal carriers.  They are absolutely enormous pieces of machinery, so I would not recommend climbing up one and attaching oneself to it.  But anyway, paragraph 63 - so that is 62 and the same – I have already said what I wanted to say about the carpet.  It is really – so there is that.

KIEFEL CJ:   Mr Game, we might be assisted to hear from Mr Kell at this point. 

MR GAME:   Yes.

MR KELL:   Thank you your Honours.  Your Honours, we submit that the application should be refused, that there is – that the judgment of the Court of Criminal Appeal is persuasive and correct, an appeal without insufficient prospects of success.  What is put by the applicant is that the court erred in finding that the offence could not be committed unless there is physical derangement of the property and that is said in their submissions to be, for example, at paragraph 32 of their submissions, that there is some alteration of the physical integrity of the property or that there is some change to the physical nature of the property and that unless you have that, you cannot have damage.  So that is where their cases arise.

The Court of Criminal Appeal, with the principal judgment of Justice Leeming, carefully analysed the context, text, purpose and existing authorities on the provision, and the history of the provision and its statutory predecessors going back 150‑odd years, and held that physical interference that causes property to become temporarily inoperable falls within the section.  In our submission the court was right to so find. 

A further point that is important here which, in a sense, makes this a very uninteresting case and quite separate from the bulldozer examples and so on, that a point is that on the facts of the stated case, there was no – two things:  first, there was no real issue that there was physical interference by the applicant with the property.  So he climbs the ship loader and he attaches himself to it, he fixes himself to the ship loader and that is similar - comparable to some of the older cases that are referred to in our submissions including Fisher in the era of the Luddites where someone would put a stick in a steam engine to prevent it working and that would be damaged. 

BELL J:   There is a distinction, is there not, if one looks at cases like Fisher - if you take a cog out of a machine rendering it inoperable, it may be that if you put the cog back in the machine can function again, but you have altered the machine physically.  It may be in doing that, that you will not be able to replace the cog and have the machine work again. 

There is a distinction between that surely, and attaching oneself to a coal loader without doing any – without in any way physically altering the coal loader, merely serving to stop it being used for the period that one is attached to it because whoever is in control of the coal loader chooses not to kill you. 

MR KELL:   Two things in response.  The first is in Fisher.  One of the – there were a number of means of damage, a number of aspects of damage, and one of them was not the removal of the part but sticking an item that obstructs the working of the machine and that was sticking a ‑ ‑ ‑

BELL J:   But there was the removal of a part, as I recollect it. 

MR KELL:   Yes, but they were alternative ways in which one could arrive at a conclusion that the property had been damaged.  So here there is not the removal of a component, but there is the applicant himself, in effect, being the stick that is thrust into the steam engine that stops the machinery from working for a temporary period.  Until that stick is removed ‑ ‑ ‑

BELL J:   Nothing stopped the coal loader working save the desire not to injure the applicant.

MR KELL:   This comes to the second point that I was coming to as to why this case is – does not raise some of those very interesting matters and that is that as the court found, and as is made clear by the stated case, that there is no – that the causation issue here, there is no interesting causation issues. 

On the stated case, the facts indicate that the physical interference by the applicant caused the machine to become temporarily inoperable for some two hours.  Your Honours can see that at application book 9 of the stated case and it starts with a sequence of two hours and when one gets to – and this was made clear by the judgment below at paragraph 64 which is at appeal book 37 - that when one gets to fact number 8 - so Mr Grajewski has climbed the machinery, he has attached himself to it, it is shut down for safety reasons but the causation finding, the important finding at fact number 8, is that the machine was inoperable whilst he remained in that position. 

At paragraph 64 of the judgment below, his Honour Justice Leeming makes that point clear, so it is does not raise the interesting matters that absent the limitations of the stated case might arise.  A further point is that in addition to cases such as Fisher, some of the other cases which we have summarised in our response, which is really at paragraph 23 at application book 63 to 64 - I have referred to Fisher.  There are a number of other cases there, four or five, Griffiths v Morgan, Henderson v Battley, Hardman and then Fiak. 

Those are also cases where, on proper view of them, there is no component of the machinery taken away, and there is no physical derangement of the machinery.  Fiak is a good example where - and it is an English Court of Appeal decision, a recent decision of 2005, where the accused damaged – was found to have damaged a waterproof cell floor in a police holding – police station by flooding it ‑ putting water on it. 

That was said to be damage for the purpose of the equivalent provision under the Criminal Damage Act 1971, but it cannot be doubted that the underlying property in Fiak, which was a waterproof police cell, was not physically deranged in any way.  I mean, it was waterproof and there was no – so there is no physical alteration to that property.  There is no – all that there is is physical interference by the accused doing an action, the result of which is a temporary inoperability of the police cell.  It cannot be used until it is – until the water is extracted.

BELL J:   If one is using temporary inoperability, why does one draw the distinction that Justice Leeming did between the person who lies in front of the bulldozer and the person who attaches themselves to the bulldozer. 

MR KELL:   Your Honour, I think that the short answer is that necessarily it is an exercise, although one is guided by context, purpose and authority, that at some point there is a line that is drawn and when one gets to the line, one can raise examples and counter examples can be raised as well.

BELL J:   Accepting your point that in the way the special case is framed the causation issue does not arise in terms of the functionality of the reasons informing the inoperability of the loader, nonetheless, what is challenged is the Court of Criminal Appeal’s analysis based on the acceptance of the distinction in the bulldozer example which raises the issue acutely. 

MR KELL:   Yes.  As I indicated ‑ I mean, a line is drawn by legal analysis and then examples on either side of the line rise for interesting debate. I will come back to deal with it directly, but one counter example is that, for example, on the applicant’s construction, if someone changes the locks of a property, a residential property, so that the owners cannot get in, then that might constitute damage because there has been an alteration to the property. 

But if one comes along, and instead of doing that, puts a very big lock that covers those locks so that the owner cannot get in, then by that same example to the bulldozer, well on the applicant’s case that would not be damage because there has been no alteration to the property.  There has just simply been an attachment to it in the same way that Mr Grajewski attached himself to the coal loader.  So that there are ‑ just as they can raise the bulldozer example, we can raise the example of double locks. 

The other point is that, and this goes to the bulldozer example, that the requirement for physical interference that causes or leads to relevantly temporary inoperability is one way of showing damages, is a result in part of a synthesis or gaining an understanding of the case law that stretches back 150 years and that is, we submit, a proper and appropriate way as one means of statutory construction.  That leads to examples such as the bulldozer. 

BELL J:   Justice Simpson examined the history to come to a different conclusion and her Honour’s decision is criticised for the failure to take account of Heyne’s Case, but it is put against you that the damage to the carpet is impotent in Heyne’s Case and, therefore, the suggestion that her Honour erred by failing to have her attention directed to that, rather falls away.

MR KELL:   Yes, and we say ‑ ‑ ‑

BELL J:   What I am putting to you is that the history is not necessarily all on your side. 

MR KELL:   Yes.  But when one looks at Heyne’s Case, and this was also the conclusion reached by Justice Leeming in the Court of Criminal Appeal below, is that the means to damage – the jury was directed on the question of malicious damage to property by three different means, one of which was the matter which my learned friend raised which is really dousing the carpet with petrol. 

The second was any permanent staining of the carpet and as made clear by the judgment, the third, which was a separate limb, a separate particular that was put to the jury, was the temporary functional derangement of the house because of the presence of the petrol.  So this is separate from the pouring of the petrol onto the carpet, and it caused a temporary functional derangement by making it unusable until the vapour disappeared. 

BELL J:   Yes.

MR KELL:   So it was the vapour, the physical interference by someone coming into the house and then the damage on that third limb, third and separate limb was the temporary inoperability because of the vapour that had gone throughout the house.  So it is, in our submission, on its proper analysis, it is different from what my friend has put. 

BELL J:   Yes.

MR KELL:   That was the way it was understood.

BELL J:   Much depends on the concept of “derangement”.

MR KELL:   Yes. 

BELL J:  Yes.

MR KELL:   It does.  If your Honours look at the text of section 195(1), it – which is at application book 16 - it of course looks to whether a person:

intentionally or recklessly destroys or damages property –

So the verb being “to damage” here, and we submit that the plain and ordinary meaning of the verb “to damage”, does not require physical derangement and that is consistent with the judgment below.  The definitions that refer to an “impairment of the use of”, or the “usefulness of” something - and we have included reference to the Macquarie Dictionary - and that the text of the provision does not support ‑ ‑ ‑

BELL J:   Again that brings us back to the notion of impairing the usefulness of the thing.

MR KELL:   Yes.

BELL J:   Making a thing inoperable because a protestor is attached to harmful machinery may, on one view, not impair the usefulness of the thing.  One can understand why it is that it prevents the thing being used.

MR KELL:   Yes.

BELL J:   But there is a distinction one might think, between impairing the usefulness of the machine and the circumstance that the machine is not used while a protestor is in front of a door attached to it. 

MR KELL:   Yes.  Well, in part that may be answered here by the stated case, the limitations to which I have referred, but it is an impairment of the use, or the usefulness, we say and it could not be used while that occurred.  Really, what the applicant’s ultimate submission is, is really to put an impermissible gloss on that provision, so if one looks at section 195, it is really ‑ it is really just to say to this Court that it should be construed as “a person who intentionally or recklessly destroys property or destroys or damages property belonging to another”, et cetera, et cetera, and then really adding “provided that the property is the subject of physical derangement”. 

Those words are not part of the statute and they are not consistent with the history of the provision that, as I said dates back in terms of the cases that we have analysed over 150 years.  In addition to the matters in the written submissions, those are the key matters I wish to rely upon. 

KIEFEL CJ:   Thank you.

MR KELL:   Thank you, your Honour.

KIEFEL CJ:   We do not need to hear further from you, Mr Game.  There will be a grant of special leave in this matter.  Would the parties please ensure that their instructing solicitors see the Deputy Registrar and obtain the timetable?

The Court will adjourn to reconstitute.

AT 9.48 AM THE MATTER WAS CONCLUDED