How Are Elements of Criminal Offences Proven? (ACT)

In a recent ACT Magistrates Court decision, a man has been found not guilty of both menacing driving and property damage despite the court finding he committed many elements of both those offences. The decision sheds light on how elements of criminal offences are required to be proven in the course of a contested criminal hearing.

Lauren Stone v Trinity Cook

In the ACT Magistrates Court case of Lauren Stone v Trinity Cook [2021] ACTMC 5, the defendant was charged with menacing driving, property damage and assault. He was found to have followed a woman in his car, crossed to the wrong side of the road and gone over a median strip at some speed to park in front of her, yell at her, punch her headlight and bend her windscreen wiper out of shape. The case involved close analysis of the intention required to constitute menacing driving and demonstrated the comprehensive way in which a prosecution must cover each element of each offence.

The court accepted that the cars driven by the woman and the man had crashed at a stop sign, with the man’s car coming into the rear of the woman’s. The woman had then driven off and the man had followed. While the man was found not guilty of menacing driving and property damage, it should be noted he was found guilty of common assault.

Chief Magistrate Walker found that that the man “followed [the woman] from their first contact at a stop sign on Ainslie Avenue and that at one point he got very close to the rear of her vehicle. Other vehicles came between them in the traffic before [the man] travelled on to the wrong side of the road at the Limestone Avenue and Chisholm Street intersection, where he approached [the woman’s] vehicle at some speed, crossing a cement median strip in order to position himself closely in front of her vehicle. I am satisfied that he got out of the Pulsar yelling amongst other things that she had damaged his car and must not be allowed to leave; that he then approached her vehicle, punched a headlight, grabbed at a windscreen wiper and pulled it into a position that rendered it inoperable, and then punched at her driver-side window at about her head height.”

Menacing driving

As there is no definition of “menacing driving” in the Road Transport (Safety and Traffic Management) Act 1999, the prosecution relied on the Macquarie Dictionary, which defines “menace” as “something that threatens to cause evil, harm or injury”, or, as Chief Magistrate Walker put it, “essentially a threat”.

The prosecution submitted the woman was menaced by a threat of personal injury or damage to property because of the defendant’s conduct and behaviour. The defendant’s intention could be inferred from his conduct.

The defence submitted that it was the driving itself which must be menacing, contending that the man’s driving between the initial impact and second event was such that he had had every opportunity to come into physical contact with the woman’s car but “in fact seems to have cleverly avoided it”, which demonstrated a lack of intention to menace.

The Chief Magistrate found both inferences reasonably available on the evidence and so the prosecution had not proved the element of intent beyond reasonable doubt.

It should be noted that the prosecution in this case could have charged the man with an offence under another subsection of the provision relating to menacing driving which carries the same maximum penalty. That subsection provides only that “a person must not drive a motor vehicle on a road or road-related area in a way that menaces someone else if the person ought to have known that the other person might be menaced”. There would seem little doubt that such a prosecution would have succeeded in this case as no actual intent would have had to be proven.

Property damage

The property damage charge in this case failed for the simple reason that the prosecution failed to place a value on the damage alleged to have been caused. This failure occurred in spite of there having been an argument about whether “damage” was “the loss of ordinary use” of an item, or if it  had to be particular damage to a particular item.

Section 166 of the Crimes Act spells out the elements of property damage. To be found guilty of this offence each of these elements must be satisfied.

• A person must destroy or damage property;
• The property must belong to someone else;
• The person must intend to damage it, or be reckless about doing so;
• The damage to the property must not exceed $5000 (previously $1000).

In spelling out why the prosecution failed in this case, Her Honour said, “As to the value of the property damage, I am bound by the decision of Hanel v Shoemark [2011] ACTCA 16, in which their Honours found firstly that the $1,000 value then referred to in s116(3) “relates to the property damaged, not to the damage that has been caused” and secondly that proof of the value of the damaged property is an element of the offence which must be established beyond reasonable doubt. In this case, there is no such proof in the absence of repair having been effected.

“Regardless of the issues of particularisation of the object of the damage and whether or not the harm suffered meets the definition of damage, absent evidence of value, the charge is not made out,” she said.

Common assault

Common assault was the one offence that the defendant in this case was found guilty of. An assault does not have to involve physical contact from perpetrator to victim, as the Chief Magistrate noted. As was found in R v Bailiff [2002] ACTSC 79:

“An offence of assault is constituted by any act committed intentionally, or possibly recklessly, which causes another person to apprehend immediate and unlawful violence. If force is actually applied, either unlawfully or without the consent of the recipient, then a battery is committed. In the absence of any such application of force, there must be some threatening act sufficient to raise in the mind of the person threatened a fear or apprehension of immediate violence.”

Looking to the facts of the instant case, Her Honour concluded: “I am satisfied beyond reasonable doubt that [the man’s] punching of the driver’s side window of [the woman’s] vehicle whilst she was seated inside it was intended to, and did, cause her to apprehend immediate violence.”

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