Able-Don Foote

0902903

Criminal damage is the offence of intentionally or recklessly destroying or

damaging any property belonging to another without a lawful excuse. It is
punishable by up to ten years imprisonment. There is also an aggravated
offence under criminal damage which is punishable by a maximum sentence
of life imprisonment; this is towards damage of property (even one’s own) in
such a way as to endanger someone’s life, either intentionally or recklessly.
Related offences are those of threatening to destroy or damage property and
of possessing anything with the intention of destroying or damaging property
with it.

The issue is whether or not Kerry is guilty of any criminal offence, in

particular malicious injury to property. Malicious injury to property is when
an individual is guilty of malicious injury to property if he: knowingly and
maliciously causes physical damage to the property of another, public or
private, under circumstances not amounting to malicious mischief in first or
second degree. Malicious injury to property is a gross misdemeanor if the
damage to the property is not substantial. Thus meaning the full extent of
Kerry’s liability would be dependent upon how much damage is done
towards the dress, but like any other criminal damage offence the actus reus
and mens rea must be present. In terms of the actus reas both at common
law and at statute the requirement is that, at the very least, the offender
must have:

(1) Destroyed or
(2) Damaged
(3) Property belonging to another (even if offender has possession)
(4) Without lawful excuse in doing so
In the case of SAMUELS v. STUBBS [1972] SASRS 200, Walters J
attempted to formulate a definition for key terms damage and destroy. He
said:

“It seems to me it is difficult to lay down any very general … precise and
absolute definition as to what constitutes ‘damage’. One must be guided to a
great degree by the circumstances of each case, the nature of the article
and the mode in which it is affected or treated…In order to constitute
damage it is unnecessary to establish such definite or actual damage as
renders the property useless, or prevents it from serving its normal
function…”

In terms of the mens rea which is necessary the statutory provisions

suggest that the act which causes damage must be unlawfully and
maliciously done.

The meaning of “maliciously” in the equivalent context under the English

Malicious Damage Act 1861 was addressed by Professor Kenny in the first
edition of his book Outlines of Criminal Law, published in 1902, in terms
which were adopted by Lord Bingham of Cornhill in the House of Lords in R v
G [2003] UKHL 50, [2004] 1 AC 1034, 1044, para 9:

“ … in any statutory definition of a crime, ‘malice’ must, as we

have already seen, be taken – not in its vague common law
sense as ‘wickedness’ in general, but – as requiring an actual
intention to do the particular kind of harm that in fact was done
… For it is essential to arson that the incendiary either should
have intended the building to take fire, or, at least, should have
recognised the probability of its taking fire and have been
reckless as to whether or not it did so.”

So after deciphering the aforementioned facts it can be

conclusively stated that Kerry’s liability for criminal damage is
evident but the extent of her demise is dependent upon how
much damage is done to the dress, therefore if the damage is
not substantial it would considered as a misdemeanour.