Wilful damage in Queensland

The three elements

A person commits wilful damage if they wilfully and unlawfully damage property. Each word does work.

Wilful

The act that caused the damage has to have been done deliberately. Genuine accidents are not wilful damage.

That said, whether something was an accident is often the very thing in dispute. Punching a wall in anger is a deliberate act even if you did not intend to put a hole in it.

Property

Damage to a person is dealt with by the assault provisions, not this one. See our guides to common assault and assault occasioning bodily harm.

Unlawful

Unlawful means not authorised, justified or excused. The most common route to lawful damage is the consent of the owner.

Consent, and why it needs to be explicit

If the owner consented to property being damaged in a particular way and you cause that damage, there is no offence.

If you are respraying someone’s car and the first step is sanding the panels back, the owner will have difficulty complaining that you wilfully and unlawfully damaged the paintwork.

Two things complicate that.

• Consent is often implied rather than stated, and its boundaries are rarely defined. Damage that goes beyond what the owner contemplated puts you back in scope.
• The starting presumption on a wilful damage charge is that the owner did not consent. In practice you will be the one raising and supporting the consent argument.

The practical answer for anyone working on someone else’s property is to say so in advance and in writing. If damage may be necessary to do the job, make that explicit rather than assuming it is obvious.

The special cases

Section 469 sets out a list of special cases attracting higher maximum penalties. Some of them are obscure. Some of them come up more often than you would expect, particularly damage to registers and to vessels.

The list is longer than this. If the property damaged is anything other than ordinary personal property, check whether a special case applies before assuming a five year ceiling.

Where the defences are

• Was the act wilful. If the damage was genuinely accidental, the element is not made out. This is the most common real defence.
• Consent. Express or implied, and the scope of it.
• Emergency or necessity. Breaking a car window to remove an infant from a hot vehicle is the standard example, and the Criminal Code provides for extraordinary emergencies.
• Claim of right. Where property is dealt with under an honest claim of right and without intention to defraud, that can be a defence.
• Identification. Damage frequently occurs at night, in groups, and with no direct witness.
• Was there damage at all. Damage requires some impairment of value or usefulness. Something that can be wiped off may not qualify.

Why it is worth taking seriously

Wilful damage is often dealt with in the Magistrates Court and often resolved with a modest penalty and restitution. That leads people to plead guilty at the first mention without advice.

Two reasons not to.

First, whether a conviction is recorded is a separate question under section 12 of the Penalties and Sentences Act 1992 (Qld), and a recorded conviction for a property offence follows you into employment checks.

Second, wilful damage charges very frequently arise in a domestic context, where the property damaged belongs to a partner or former partner. In that setting the charge is a domestic violence offence, it is noted as such on the record, and it interacts with any protection order or police protection direction in force.

See our page on wilful damage charges.