MALICIOUS DAMAGE | DAMAGE PROPERTY | SECTION 195 CRIMES ACT
DESTROY PROPERTY | DAMAGE PROPERTY
Destroying or damaging property is a serious criminal offence under section 195 Crimes Act 1900 which states:
A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable:
- to imprisonment for 5 years, or
- if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years.
WHAT THE PROSECUTION NEED TO PROVE?
To secure a guilty verdict for destroy/damage property, the prosecution bears the onus and must prove beyond a reasonable doubt that, the accused:
- Intentionally or recklessly,
- Destroyed or damaged,
- Property belonging to another or property belonging to the accused and another.
RECKLESSNESS
When recklessness is alleged, the prosecution must prove foresight of harm to property. Further, the necessary foresight, where recklessness is alleged, is not confined to foresight of damage to or destruction of that specific property. It is sufficient that the foresight be in relation to property more generally.
STANDARD OF PROOF
Section 141 Evidence Act 1995 states:
In criminal proceedings, all the elements of an offence must be proved beyond a reasonable doubt by the prosecution.
The Courts have held that the expression “proved beyond reasonable doubt” mean exactly what they say – proof beyond reasonable doubt.
This is the highest standard of proof known to the law. The test in a criminal case is not whether the accused is guilty. In a criminal case the prosecution must prove the accused’s guilt beyond reasonable doubt. A suspicion, even a strong suspicion, that the accused may be guilty is not enough. Further a decision that the accused has probably committed the offence also falls short of what is required to prove an offence beyond reasonable doubt.
SELF DEFENCE
The law recognises that in some cases, a person who commits what would otherwise be an offence should be excused for committing the offence. The law recognises that sometimes people do not have a choice, and their choices have been overborne by a serious threat to either them or their family.
To establish duress, the following three elements must be satisfied:
- because of threats of death or really serious injury to them or a member of their family,
- being threats of such a nature that a person:
- of ordinary firmness and strength of will, and
- of the same maturity and sex as the accused, and
- in the accused’s position,
- would have given in to them and committed the crime demanded of them.
DURESS
The law recognises that in some cases, a person who commits what would otherwise be an offence should be excused for committing the offence. The law recognises that sometimes people do not have a choice, and their choices have been overborne by a serious threat to either them or their family.
To establish duress, the following three elements must be satisfied:
- Because of threats of death or really serious injury to them or a member of their family,
- Being threats of such a nature that a person:
- Of ordinary firmness and strength of will, and
- Of the same maturity and sex as the accused, and
- In the accused’s position,
- Would have given in to them and committed the crime demanded of them.
For a consultation with a Criminal Lawyer, call AMA Legal on (02) 8610 3764.
