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Chapter 25: Wilful Damage or Destruction

Table Of Contents 

[25.0] Introduction 

This chapter will examine the offences of 'Wilful and Unlawful Damage', as provided for by section 326(1) of the Penal Code (Ch. 26). As regards 'Special Cases of Wilful and Unlawful Damage' reference should be made to the other subsections of section 326. 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

[25.1] Offences 

Section 326(1) of the Penal Code (Ch. 26) states: 

'Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour, and he shall be liable, if no other punishment is provided, to imprisonment for two years.'

[25.2] Wording Of Charges 

'[Name of Defendant] at [Place] on [Date] did wilfully and unlawfully [destroy or damage] property to wit [specify the property] the property of [specify the name of the complainant].'

[25.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Wilfully 

E. Unlawfully 

F.         [i] Destroy; or 

[ii] Damage 

G. Property 

H. Complainant

[25.4] Wilfully 

The term 'Wilfully' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

In Pukari – Flabu v Hambakon – Sma [1965 – 66] P&NGLR 348 Frost J, sitting alone, held: 

'Wilfully' means 'intentionally', or 'deliberately' or 'recklessly' or 'maliciously', but not 'accidentally' or 'negligently'.

In R v M K [1973] PNGLR 204 Minogue CJ & Kelly J, in their joint judgment, stated at page 207: 

'By "wilfully" is meant that the act is done deliberately and intentionally, not by accident or inadvertence.' 

In R v Lockwood, Ex parte Attorney – General [1981] QdR 209 the Court of Criminal Appeal held: 

The word 'wilfully' requires the prosecution no more proof, so far as that element is concerned, than that the defendant deliberately did an act, that is, that it was a willed act, aware at the time he/she did it, that the result charged was a likely consequence of his/her act and that he/she recklessly did the act regardless of the risk. 

See also: McIntosh & McIntosh v Lowe (1982) 8 ACrimR 471. 

Intention which is a state of mind, can never be proved as a fact, it can only be inferred from other facts which are proved, see Sinnasamy Selvanayagam v R [1951] AC 83 at page 87, if there are no admissions. 

If there are no admissions, to be found guilty of the offences as provided for in section 326 of the Penal Code (Ch. 26), 'the only rational inference open to the Court to find in the light of the evidence' must be that the defendant intended to either destroy or damage the property in question', see R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999; Muria CJ; at page 22). 

The law relating to 'Circumstantial Evidence' is examined commencing on page 183. 

Intentional or unintentional intoxication may be considered for the purpose of determining whether the defendant had the necessary 'intent' at the time of the commission of the offence, see section 13(4) of the Penal Code (Ch. 26). 

The defence of 'Intoxication' is examined commencing on page 444.

[25.5] Unlawfully 

The term 'Unlawfully' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The prosecution needs to prove absence of consent either by: 

·                    the calling of evidence from the complainant, see R v McClymont, Ex parte Attorney - General [1987] 2 QdR 442; 

·                    by an admission, see R v McClymont; Ex parte Attorney - General (supra); or 

·                    inference in appropriate circumstances, such as damage to a court house, see R v Stevenson (1996) 90 ACrimR 259.

In R v Stevenson (supra) Ambrose J stated at page 267: 

'Merely to state the ground highlights its absurdity. It is true that absence of consent is an element of the offence […]. However that absence of consent may be inferred and the only proper inference which could have been drawn in this case was the Director – General did not consent to the door and window of the courthouse being destroyed by a shotgun blast.' 

Property belonging to other people may be lawfully damaged or destroyed, provided it was damaged or destroyed by an act that was either authorised, justified or excused by law. The mere possession of property does not enable a person to damage or destroy property without consent of the owner/s, unless it is authorised, justified or excused by law. 

The law relating to 'Criminal Responsibility Generally' is examined commencing on page 428. 

As regards husbands and wives damaging or destroying their own property refer to section 260 of the Penal Code (Ch. 26) which is examined on page 471.

[25.6] Destroy 

The term 'Destroy' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The 'natural and ordinary' meaning of that term in the context of this section would include 'elements of finality and totality about it, ie., unable to be repaired', see Barnett London Borough Council v Eastern Electricity Board [1973] 2 AllER 319.

[25.7] Damage 

The term 'Damage' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

To 'damage' means to cause 'an injury impairing value or usefulness', see Cox v Riley (1986) 83 CrAppR 54 at page 57. 

In R v Zischke [1983] QdR 240 the Court of Criminal Appeal examined the meaning of the term 'damage'. In that case the defendant painted a number of slogans on the surface of buildings, footpaths and walls in the Townsville Mall. In order to remove a large number of the slogans money and trouble had been expended by or on behalf of the owners in restoring or attempting to restore their property. 

That Court held: 

(1) Property is 'damaged' when it is rendered imperfect or inoperative; and 

(2) It is not necessary to establish that expenditure of money was required to restore property in order to prove 'damage'. 

In Samuels v Stubbs (1972) 4 SASR 200 the Court held that a police officer's cap was 'damaged' when it was crushed as a result of being jumped on, notwithstanding that it might have been restored to its original state and without physical damage being caused to it. At pages 203 – 204 Walters J stated: 

'It seems to me that it is difficult to lay down any very general and, at the same time, precise and absolute rule as to what constitutes "damage". One must be guided in a great degree by the circumstances of each case, the nature of the article, and the mode in which it is affected or treated. 

Moreover, the meaning of the word "damage" must as I have already said, be controlled by its context. The word may be used in the sense of "mischief done to property". 

I have come to the conclusion that the constable's cap was damaged, in that it was injured or harmed in such a way to cause temporary derangement of its function and of the purpose which it was normally to serve.' (emphasis added) 

In H M Advocate v Wilson [1984] SLT 117 the Scottish High Court of Judiciary held that 'damage' included shutting off a power station thereby stopping power being produced. In that case no physical damage was caused but there was economic loss. 

See also: Hardman & others v Chief Constable of Avon & Somerset Constabulary [1986] CrimLR 330; Kathness v Police [1984] NZ Recent Law 127 & Griffiths v Morgan [1972] TasSR 279.

[25.8] Property 

The term 'Property' is defined in section 4 of the Penal Code (Ch. 26) as including: 

'any description of real and personal property, money, debts and legacies, and all deeds and instruments relating to or evidencing the title or right to any property, or giving a right to recover or receive any money or goods, and also includes not only such property as has been originally in the possession or under the control of any person, but also any property into or for which the same has been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.' 

Reference should also be made to subsections (2) to (7) of section 326 of the Penal Code (Ch. 26) as regards 'Malicious Injuries To Property In Special Cases'.

[25.9] Jurisdiction 

The jurisdiction of the courts in respect of the offences of 'Wilful Damage Or Destruction' is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of that offence is examined commencing on page 918.

[25.10] Related Offences 

The following are related offences as provided for in the Penal Code (Ch. 26): 

·                    'Attempts To Destroy Property By Explosives', section 327 of the Penal Code (Ch. 26); and 

·                    'Wilful Damage, etc, To Survey & Boundary Marks', section 330 of the Penal Code (Ch. 26).