The State of Western Australia v Parkes
[2024] WADC 51
•14 JUNE 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PARKES [2024] WADC 51
CORAM: GETHING DCJ
HEARD: 10 JUNE 2024
DELIVERED : Ex tempore
FILE NO/S: IND 232 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
ANTHONY JOHN PARKES
Catchwords:
Criminal trial - Criminal damage - Whether criminal damage can be unlawful if accused destroys or damages property of which he is a joint owner
Legislation:
Criminal Code (WA), s 441, s 444
Result:
Application dismissed
Representation:
Counsel:
| The State of Western Australia | : | Mr P Dixon |
| Accused | : | Mr J J Morris & Mr A S Skinner |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Morris Law Pty Ltd |
Case(s) referred to in decision(s):
R v Cox [1986] 2 Qd R 55
Singh v Kaur Bal [No 2] [2014] WASCA 88
GETHING DCJ:
[This decision was delivered extemporaneously on 10 June 2024 and edited from the transcript.]
The accused, Anthony John Parkes, is charged with two counts of unlawfully damaging property pursuant to Criminal Code s 444(1)(a). Specifically, the indictment reads:
1.On 1 May 2020 at Ranford Anthony John Parkes wilfully and unlawfully destroyed property, namely a house.
And that the house was destroyed by fire.
2.On the same date at the same place Anthony John Parkes wilfully and unlawfully damaged property, namely a shed.
And that the shed was damaged by fire.
The house and the shed, the subject of the indictment, are jointly owned by the accused and his ex-wife. Specifically, it is not in issue that the property on which both the house and the shed were constructed is one of which both the accused and his estranged wife, Narelle Jane Parkes, were registered proprietors. The certificate of title is in the brief.
The accused seeks an order pursuant to the Criminal Procedure Act 2004 (WA) s 98(1)(c) that he has no case to answer because the property which he is alleged to have damaged was his own property.
As to when destroying property is unlawful, the Criminal Code, s 441(1) relevantly provides:
1.An act which causes injury to the property of another, and which is done without his consent, is unlawful unless it is authorised, or justified, or excused by law.
2.It is immaterial that the person who does the injury is in possession of the property injured, or has a partial interest in it.
The law in relation to the nature of a joint tenancy is set out in some detail in the judgment of Murphy JA (with whom Pullin JA and Newnes JA agreed) in Singh v Kaur Bal [No 2].[1] I respectfully adopt this analysis.
[1] Singh v Kaur Bal [No 2] [2014] WASCA 88 [29] - [44] (Murphy JA, with whom Pullin JA and Newnes JA agreed).
It is helpful in understanding the application of the civil law concepts of joint tenancy to pose the following hypothetical. Two brothers jointly own a piece of land. There is a house on the land. They go to a civil court with this dispute. Brother A says that he wants to destroy the house on the land by fire and burn it down. Brother B opposes this on the basis that the house has sentimental value; he does not want it burnt down. The question in the civil context is one to which, on my limited research to date, I have not been able to find any case directly on point. The answer to me, in that scenario, is in the words of Murphy JA who observes that, each 'is fully seized of the whole estate or interest in [the] land'.[2] This means the land is the property of each joint tenant. In that situation it would seem to me that the correct application of the principles in relation to joint tenancy is that, unless both joint owners consented, the court could not make a declaration in the civil context that brother A was entitled to burn the house down. That, of course, provides only background context for the issue that needs to be determined.
[2] Singh v Kaur Bal [No 2] [33].
It seems to me that there are two possible ways to characterise land owned jointly for the purposes of Criminal Code s 441. The first is to characterise the land as being owned by both joint tenants. Again, this echoes the words of Murphy JA that each 'is fully seized of the whole estate or interest in [the] land'. This means that the land is as much the property of the accused as it is the property of the other joint tenant. In applying s 441(1), it is 'the property of another', being the joint tenant, as well as being the property of the accused at the same time. Critically then, the act is unlawful unless the other joint tenant consents.
The second possible way to characterise it is the accused and the other registered proprietor each have a 'partial interest' in the land. That term is relevant because by Criminal Code s 441(2), the fact that the accused has a partial interest in the land is immaterial. The nature of the 'partial interest' is not defined. In my view, it cannot be limited in its context to an interest as a tenant in common. What this means is that the 'property of another' for the purposes of Criminal Code s 441(1) is the partial interest which the other registered proprietor has in the land. Applying Criminal Code s 441(2), the fact that the accused has a partial interest in the land by way of an interest as joint tenant is immaterial. Again, we reach the conclusion that the act is unlawful unless the person with the other partial interest in the land consents.
The policy evident when Criminal Code s 441(1) and s 441(2) are read together is that the act is unlawful unless all persons with a relevant partial interest in the property consent. That interpretation is consistent with the decision of the Queensland Court of Appeal in R v Cox.[3] That case considered the equivalent positions of the Criminal Code (Qld) to sections in our Criminal Code, s 441 and s 444. The court there held that a person who is the sole registered proprietor of land on which a house had been constructed could properly be convicted of the offence where the land was held in trust for beneficiaries who were unable to consent to its destruction.[4]
[3] R v Cox [1986] 2 Qd R 55.
[4] R v Cox (59) (McPherson J, with whom Andrews CJ agreed), (67) - (69) (Thomas J).
Combining both those alternatives, we end up with a situation in which the destruction of property is unlawful unless all persons who own the property, or have a relevant partial interest in it, consent. In my view, this is an outcome which can properly be regarded as the intention of Parliament.
This means that the accused in the present case may be convicted on the indictment which the State has presented. As to the element of unlawfulness, it would be sufficient for the State to prove that the other joint owner did not consent to the doing of the act which caused the injury to the property. That is a question of fact for the jury.
For those reasons, I am of the view that the application by the accused that he has no case to answer is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
EC
Associate to Judge Gething
14 JUNE 2024
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