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Criminal Damage

Criminal Damage in Victoria: Understanding the Offence:

Criminal Damage in Victoria is defined under Section 197 of the Crimes Act 1958. The offence occurs when a person intentionally or recklessly damages or destroys another person’s property without lawful excuse.

Elements of Criminal Damage:

  1. Damage or Destruction: The defendant damaged or destroyed property.
  2. Intent or Recklessness: The accused purposely damaged or destroyed the property or knew/ believed that damage or destruction was likely.
  3. Endangerment of Life (if charged under Section 197(2)): The accused purposely endangered the life of another person by causing the damage, or knew/believed that life was likely to be endangered.
  4. No Lawful Excuse: The accused had no lawful excuse for damaging or destroying the property.
Maximum Penalties:
  1. Section 197(1) or (3): Level 5 offence – maximum 10 years imprisonment.
  2. Section 197(2): Level 4 offence – maximum 15 years imprisonment.

Venue for Hearing: A Criminal Damage charge is typically heard in the Magistrates’ Court. If the value of property damage exceeds $100,000, the case may be elevated to the County Court.

Possible Defences:
  1. Challenge to Elements: Question whether the prosecution can prove all elements of the charge.
  2. Legal Claim to Property: If the accused has a legal claim to the property, it may justify the damage.
  3. Ownership Belief: If the accused believed they were the sole owner of the property.
  4. Unintentional Damage: Demonstrating that the damage was unintentional.
  5. Diversion: Explore diversion options to avoid a criminal record.

Understanding the elements, potential defences, and the venue for hearing is crucial for individuals facing Criminal Damage charges in Victoria. Seeking legal advice is essential to assess the specific circumstances and develop an effective defence strategy.

Key Facts

Maximum Penalty

2 – 5 years imprisonment

 

Possible Defences

The victim consented;
The act was not a voluntary act;
You were acting in self-defence;
You were acting in defence of another; or
You were defending your property.
Duress
Necessity/emergency
Mental impairment

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Frequently asked questions

How long do offences stay on my record?

https://www.legalaid.vic.gov.au/criminal-records

Is it mandatory to attend a court date?

https://www.mcv.vic.gov.au/going-court/can-i-change-my-court-date

Should I speak to the police without representation?

Exercising Police Powers: Know Your Rights

When dealing with police questioning, it is crucial to be aware of your rights and safeguards to avoid self-incrimination.

Refusing to answer police questions generally cannot lead to legal consequences.

Rights Before Questioning:

Before questioning, police must inform you that you have the right to remain silent, and anything you say may be used as evidence.

You can contact a friend, relative, or lawyer before the interview proceeds.

Police must allow you reasonable time for these contacts and ensure privacy during discussions with your lawyer.

Duration of Detention:

If arrested, police have a reasonable time for questioning and investigations.

The concept of “reasonable time” varies based on factors like the complexity of the case and the time taken for legal consultations.

Commonwealth law has a specific time limit of four hours for investigations, excluding certain activities.

Offences Related to Answering Questions:

Giving your name and address when asked is mandatory, with a fine of about $700 for non-compliance.

Witness summons related to organized crime offenses under specific laws may require answering questions, with a maximum penalty of 5 years imprisonment.

Generally, for other police questions, exercising the right to silence by saying “no comment” is a legal right.

Decision to Participate in an Interview:

The decision to take part in a police interview involves considering the advantages and disadvantages based on the unique circumstances of each case.

Refusing to answer questions during official questioning cannot result in an unfavourable inference by the court.

Understanding your rights, such as the right to remain silent, consulting with a lawyer, and the right to privacy during legal discussions, is essential when dealing with police questioning. Legal advice is recommended for navigating individual cases effectively.

 

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