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Hammond v R

Hammond v R

Case [2013] NSWCCA 93 10 May 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hammond v R [2013] NSWCCA 93
Hearing dates: 11 March 2013
Decision date: 10 May 2013
Jurisdiction: Criminal
Before: Hoeben CJ at CL at [1]
Slattery J at [2-79]
Bellew J at [80]
Decision:
Question of law on stated case answered in the negative. The facts set out in the case stated do not support a finding of guilt for an offence contrary to Crimes Act 1900 s 195(1)(a), in particular the evidence is not capable of proving beyond reasonable doubt that the applicant's conduct had damaged the seat in question. Applicant's conviction quashed pursuant to Criminal Appeal Act 1912 s 5B(3).

Catchwords: CRIMINAL LAW - case stated from District Court under Criminal Appeal Act 1912 s 5B - applicant convicted of one count of malicious damage to property under Crimes Act 1900 s 195(1)(a) - applicant spat on a stainless steel seat in police dock - whether evidence supports the element in the charge that the applicant had damaged the seat - meaning of "damages" in Crimes Act 1900 s 195(1)(a).
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules
Supreme Court Act 1970 (NSW)
Cases Cited: "A" (a Juvenile) v R [1978] Crim L Rev 689
Australian Gaslight Co v The Valuer-General (1940) 40 SR (NSW) 126
City of Hawthorn v Victorian Welfare Association [1970] VR 205
Collins v State Rail Authority of NSW (1986) 5 NSWLR 209
Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531
Director of Public Prosecution v Fraser and O'Donnell [2008] NSWSC 244
Edwards v Bairstow [1956] AC 14
Elias v Director of Public Prosecutions (NSW) [2012] NSWCA 302
Foster (1852) 6 Cox 25
Hardman v Chief Constable of Avon & Somerset Constabulary [1986] Crim LR 330
Industrial Equity Limited v Corporate Affairs Commission(Vic) [1990] VR 780
King v Lees (1948) 65 TLR 21
Lavorato v R [2012] NSWCCA 61
Morphitis v Salmon (1990) Crim Law Reports 48
R v Bowden (1957) (3) SA 148
R v. Fisher (1865) L.R. 1 C.C.R. 7
R v Hayne, Court of Criminal Appeal (18 September 1998) CCA 60496/97
R v Henderson & Battley Court of Appeal (Crim Div) (Unrep 29/11/84)
R v Madden (1995) 85 A Crim R 367
R v Rigby [1956] HCA 38; 100 CLR 146
R v. Tracey (1821) Russ. & Ry. 452; 168 E.R. 893
R v Zischke (1982) Qd. R. 240
Ranicar v Frigmobile Pty Limited [1983] Tas R 113
Re Van der Lubbe (1949) 49 SR (NSW) 309
Samuels v Stubbs (1972) 4 SASR 200
Talay v R [2010] NSWCCA 308
Category: Principal judgment
Parties: Dion John Hammond (applicant)
Director of Public Prosecution (respondent)
Representation: Counsel:
M Dennis (Applicant)
H M Wilson (Respondent)
Solicitors:
Aboriginal Legal service
S. Kavanagh - Solicitor for Public Prosecutions

File Number(s): 2012/13873
Decision under appeal

Date of Decision:

2012-09-20 00:00:00

Before:

Lerve DCJ

File Number(s):

2012/13873

Judgment

HOEBEN CJ AT CL:…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hammond v R

Details

AGLC: Hammond v R [2013] NSWCCA 93
Case: [2013] NSWCCA 93
Decision Date: 10 May 2013

CaseChat Overview and Summary

The case before the court involved a conviction of an individual for malicious damage to property. The applicant, who was present in the police dock, spat on a stainless steel seat, leading to a charge under section 195(1)(a) of the Crimes Act 1900. The District Court convicted the applicant, and the matter has been referred to a higher court under section 5B of the Criminal Appeal Act 1912. The primary issue for the court was whether the evidence sufficiently supported the claim that the applicant's actions constituted damage to the seat, particularly in light of the definition of "damage" as set out in the Crimes Act 1900.

The court was tasked with interpreting the meaning of "damages" within the context of section 195(1)(a) of the Crimes Act 1900. This required an analysis of the nature of the alleged damage and whether the applicant's actions met the threshold required by the statute. The court had to consider the objective circumstances of the case, including the condition of the seat before and after the applicant spat on it, and whether any observable or measurable harm had resulted from the action. The court examined whether the term "damage" should be understood in a narrow, physical sense, or if it could encompass more abstract or intangible harm.

Upon reviewing the evidence and relevant statutory provisions, the court determined that the applicant's actions did not constitute "damage" as defined in section 195(1)(a) of the Crimes Act 1900. The court found that the act of spitting on the seat did not result in any physical or observable harm that would meet the legal criteria for damage. Consequently, the conviction was deemed to be unsupported by the evidence, leading to the quashing of the applicant's conviction. The court ordered the District Court to enter a verdict of not guilty on the charge of malicious damage to property.

Orders