New South Wales Court of Criminal Appeal CITATION: REGINA v JACONA [2005] NSWCCA 69 HEARING DATE(S): 25 February 2005 JUDGMENT DATE: 25 February 2005 JUDGMENT OF: Spigelman CJ at 1, 21; Wood CJ at CL at 19; Barr J at 20 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL APPEALS - s247 Crimes Act 1900 - Whether open to jury to final element of malice - Whether open to jury to dismiss defence of reasonable action LEGISLATION CITED: Crimes Act 1900: s247 Regina PARTIES: John Chatfield Jacona FILE NUMBER(S): CCA 2004/2678 Self Represented (Appellant) COUNSEL: P Barrett (Respondent) Self Represented (Appellant) SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/41/0099; 03/51/0003 LOWER COURT JUDICIAL OFFICER: Goldring DCJ - 5 - IN THE COURT OF CRIMINAL APPEAL 2004/2678 SPIGELMAN CJ WOOD CJ at CL BARR J Friday 25 February 2005 REGINA v John Chatfield JACONA Judgment 1 SPIGELMAN CJ: The Appellant was convicted on 31 March 2004 after trial, before his Honour Judge Goldring and a jury, of two counts of maliciously injuring property, contrary to s247 of The Crimes Act 1900. The charges arose from the destruction of two sheds left on the Appellant's property at Thirroul by the State Rail Authority of New South Wales. One shed was owned by that Authority and the other was owned by Wreckair Plant Hire. 2 There was no issue at the trial that the Appellant had done the acts that caused the damage to the sheds by pushing them with a bulldozer over and down sloping ground. It was also accepted that the sheds were on his property unlawfully. The issue left to the jury was whether the Appellant, having found the sheds on his property, was taking reasonable steps to remove them. 3 The Appellant asserted that there was no evidence on the basis of which the jury could conclude that the defendant was guilty of the offences as charged. He submitted that, in particular, there was no evidence which could satisfy the element of malice and that there was evidence that he was exercising a legal right to remove the trespass and that his actions in doing so were not unreasonable. 4 Goldring DCJ had directed the jury that where an owner of property finds something on the property that should not be there, he or she may take reasonable steps to remove it. The State Rail Authority had been in dispute with the Appellant over some damage caused by him in excavating a roadway at the southern embankment of the main South Coast railway line near Stanwell Park Station. That act gave rise to legal proceedings. 5 On 1 May 1986 the Authority wrote to Mr Jacona indicating that it intended to proceed to reinstate the railway embankment and would exercise its statutory right of access across his land to do so. In the course of preparing to carry out these works, the State Rail Authority placed two sheds on the Appellant's land. It was not authorised to do so. The sheds had been placed on the edge of a slope. As indicated above, it was not in dispute that Mr Jacona used a bulldozer to push the two sheds down the slope. Damage was done to them as they proceeded down that slope. 6 In the letter of 1 May, the State Rail Authority referred to earlier proceedings against Mr Jacona in both the Land and Environment Court and in the Equity Division of the Supreme Court. With respect to the remedial work it proposed to undertake, it indicated that it would sue Mr Jacona for damages to recover the costs of those works. 7 The Appellant gave evidence at his trial. He said that on 15 June 1986 he paid a visit to the property and noticed that the two sheds were situated at a bend at the start of a steep incline. He said that he had come to the property on that day to work at that location with certain earth-moving machinery. He said that he decided to move the sheds out of the path of his work by pushing them with that machinery. However, the machinery was not up to the task. He had another piece of machinery which was more powerful. He commenced to use it for the purpose of the excavation he had come to do. The Appellant gave the following evidence: "In excavating this, the sheds were hit by several large rocks, as was the loader, and in danger of being demolished by the falling trees. I elected then to fully remove the sheds off the property. In doing so, by pushing both together - that's two sheds together in line east towards Lawrence Hargrave Drive, which is the entry roadway or avenue - they snagged, buckled and veered down the side slope. I then went back to excavating, removing three or four large trees, a quantity of soil and rock for about twenty minutes at the most before rain stopped work for the day." 8 He also gave evidence that he wished to push the sheds all the way off his property. He said: "I wanted them right out of the way. Two reasons: I wanted them out of a workway for concurrent works and, secondly, my natural instinct was to take them off the property anyhow. I felt that they were on my property, it was my responsibility had been transferred from the SRA to myself. When the SRA placed those sheds on my property, I became responsible for them, apparently. There was nobody else seemed to have been responsible for them or is accepting responsibility for them." 9 In the course of his cross-examination, he was challenged about his evidence that he had done work for his own purposes on the road. It was suggested to him that the photographic and other evidence indicated that there was no such work and that all he had done was to interfere with the work that the State Rail Authority had done on its access road and pushed the sheds down the slope. Whether or not the evidence supported his case in this respect was, of course, a matter for the jury. 10 He was also challenged on his credit on the basis that he had informed the police shortly after the incident that: "It was the kids that did it. It wasn't me." Goldring DCJ directed the jury on the use of lies. 11 During the course of his cross-examination, the Appellant also accepted that he had said on the previous occasion: "I only did it because the Railways are trying to sue me for the cost of building a road. But," he said, "that was only one of the reasons." He also said that "the Railways were trying to sue me for damages" and referred to the letter of 1 May 1986. The following also appeared in the course of the cross-examination: "Q. What I'm suggesting to you is that you were trying to move the sheds to do work. You were just trying - sorry, annoyed that the State Railway was suing you, and that's why you did what you did. In other words, damaged the road and pushed the sheds off the embankment? A. Yes, but I didn't damage the road. I did move the sheds for three reasons: one is because they threatened to sue, but hadn't actually sued me; second reason was I needed to work there; and the third reason was the sheds needed to be moved off the property." 12 He also accepted that, when he had been interviewed by a police officer who had asked him "Why did you wreck the two work sheds?", he had said, "Seemed like the right thing to do at the time to get back at them for trying to sue me." When challenged on the fact that he did not say anything to the policeman about needing to move the sheds to conduct any work, the Appellant said that it was not necessary to have done that. 13 In this Court, Mr Jacona, who appeared in person, asserted that there was no evidence that he had acted maliciously or that he was doing anything other than acting under a belief that he had a right to do what he did. He said that the evidence relied on as indicating malice was no more than an intention to move the sheds. He said that he was acting reasonably to bring about that result, as was his right as the owner of the property. 14 The issues that have arisen on this appeal are quintessentially issues for the jury at a criminal trial. There are circumstances in which this Court will intervene with a jury's findings of fact, but those circumstances are very limited. The issues posed in the trial are the same as the issues posed to this Court. They were issues that it was not up to the judge to resolve, nor is it up to this Court to resolve. They were issues to be resolved, and which were resolved, by the Appellant's fellow citizens sitting as a jury. 15 The issues clearly put to the jury included whether or not the Appellant was in fact acting as he said he was to conduct some kind of work at the very location where the sheds were located. His own comments immediately after the event, including the reference to "the kids" having done it, and his failure to refer to conducting any such work when interviewed by the police, were matters for the jury to assess as to whether they would accept his version of the facts that he was there to conduct work. 16 Similarly, it was for the jury to decide, on the basis both of the photographic evidence and the Appellant's own evidence, as to whether or not he was acting maliciously or acting reasonably to bring about the result of removing the sheds. The very fact that he chose a piece of heavy machinery to move the sheds and push them down a slope in circumstances where the act of pushing would have been obviously likely to cause the damage that resulted was something for the jury to assess. 17 Similarly, it was for the jury to give such weight as it wished to the statements made by the Appellant himself that he had additional reasons for acting in the way he did. That is, additional to his own assertion that he had to conduct some work. Both in the police interview and his own evidence in the trial, he acknowledged that he was motivated in part because the Railways were trying to sue him. That motive was a matter which was able to be taken into account by the jury in deciding that he was acting maliciously and, when rejecting his assertion that he was acting reasonably in order to bring about a result that it was his right to bring about, namely, the removal of the sheds. 18 These were matters which were properly before the jury. In my opinion, there was evidence which it was open to the jury to accept that would result in his conviction. In my opinion, the appeal should be dismissed. 19 WOOD CJ at CL: I agree. 20 BARR J: I also agree. 21 SPIGELMAN CJ: That is the order of the Court, Mr Jacona. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.