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Arson > Arson > Flashcards

Arson Flashcards

1
Q

What are the two specific types of intent?

A

Intent to commit the act and intent to get a specific result

Deliberate act, to obtain a specific result

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2
Q

What is a deliberate act?

A

Intent means that the act or omission must be done deliberately. Must be more than involuntary or accidental.

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3
Q

What is Intent to produce a specific result?

A

Aim, object, or purpose. (Simester, Brookbanks)

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4
Q

R v Collister

A

Offenders intent can be inferred from the circumstances. including:
-the offenders actions and words before, during, after the event,
-the surrounding circumstances,
-the nature of the act itself

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5
Q

What is recklessly?

A

Consciously and deliberately taking an unjustified risk

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6
Q

Cameron v R

A

Recklessness is established if:
- the defendant has recognised that there was a real possibility his/her actions would bring about the proscribed result
- that the proscribed circumstances exsisted
- and having regard to that risk, those actions were unreasonable

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7
Q

Part (a) of the Cameron v R test

A

Is subjective. A real possibility is substantially the same as “could well happen”. Defendant recognises the risk the offence anticipates as being possible but does not need to consider the risk significant

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8
Q

Part (b) of Cameron v R

A

Looks at if the defendants actions were objectively reasonable given the risk the defendant understood.

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9
Q

No social utility V high social utility

A

Game of Russian roulette with a risk of serious injury or death V surgeon undertaking risky but potentially life saving surgery

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10
Q

R v Tipple

A

Offender has a conscious appreciation of relevant risk and makes a Deliberate decision to run the risk

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11
Q

What must be proved for recklessness element of offence?

A

1) the defendant consciously and deliberately ran a risk
2) that the risk was unreasonable to take in the circumstances

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12
Q

R v Archer

A

Property may be damaged if it suffers permanent or temporary physical harm or permanent of temporary impairment of its value

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13
Q

Damages by fire of explosive

A

Involves burning, charring, melting, blistering of paint, or significant smoke damage (it is not necessary property is actually set alight)

Heat damage, melting, oxidation and smoke damage may be sufficient and including burning and charring.

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14
Q

What is fire?

A

Fire is a result of combustion. A chemical reaction between fuel and oxygen, triggered by heat. For fire to start and continue, these three elements must be present in the right proportions.

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15
Q

How is fire created?

A

Fuel is heated to its ignition temperature, it releases gases which then react with oxygen molecules. This results in the release of heat and light energy and other by-products which are visible as flames.

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16
Q

What is property?

A

Section 2 Crimes Act,
- includes real and personal property, and any estate or interest in any property, money, electricity, and debt, anything in action, any other right or interest.

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17
Q

What can be damaged by fire?

A

Only tangible property can be damaged by fire or explosive. However intangible property can be damaged indirectly. Eg information stored on a computer when it is damaged by fire

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18
Q

Arson 267(1)(a)

A
  • Intentionally OR recklessly
  • Damages by fire OR damages by means of any explosive
  • Any property
  • If he or she knows or ought to know danger to life is likely to ensue
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19
Q

Arson s267(1)(b)

A
  • Intentionally OR recklessly
  • Without claim of right
  • Damages by fire OR damages by means of any explosive
  • Any immovable property OR vehicle OR ship OR aircraft
  • In which that person has no interest
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20
Q

Arson s267(1)(c)

A
  • Intentionally
  • Damages by fire OR damages by means of any explosive
  • Any immovable property OR vehicle OR ship OR aircraft
  • With intent
  • To obtain any benefit OR cause loss to any other person
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21
Q

Danger to life

A

Life means human life and danger to life must be to the life of someone other than the defendant

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22
Q

Knows or ought to know

A

Means- Knowing or correctly believing” Simester and Brookbanks

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23
Q

Knows or ought to know subjective and objective test

A

Subjective- what was the defendant thinking at the time? Did the defendant know that human life would likely to be endangered by his actions?

Objective test- what would a reasonable person would have thought in the same circumstances? Would they have recognised the risk?

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24
Q

Definition of claim of right

A

Means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed

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25
Q

Nature of belief required for claim of right

A

1) belief must be a belief in proprietary and possessory right in property. Must be a belief that relates to the ownership of the property in question or a right to take or retain possession of it. Does not have to be believe he or she has relevant possessory or proprietary interest- as opposed to a belief such a right exists.

2) The belief must be about rights to “the property in relation to which the offence is alleged to have been committed”. Any belief in rights to other property will not be relevant or sufficient.

3) belief must be held at the time of alleged offence

4) the belief must be actually held by the defendant.

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26
Q

What was held in Hayes v R
(Nature of belief)

A

In Hayes v R the court held that the belief is not required to be reasonable or be reasonably held and may be based on ignorance or mistake.

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27
Q

What is immovable property

A

Relates to buildings and land, and things growing on land, such as forests.

Property is considered immovable if it is fixed in place unable to be moved, even though it may be possible to move it.

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28
Q

Aggravating factor of s267(1)(b)

A

Property damaged belongs to another person and is of a kind that is generally higher in value

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29
Q

What is a vehicle?

A

a) object equipped with wheels, tracks, or revolving runners on which it moves or is moved
b) hovercraft, skateboard, in line skates and roller skates

30
Q

What is a ship?

A

Vessel used in navigation, however propelled, includes lighter, dinghy, raft, any ship belonging to or used as a ship of the armed forces

31
Q

What is a aircraft?

A

Means any machine that can derive support in the atmosphere from the reactions of the air, against the surface of the earth. Includes any aircraft used by the armed forces in any other country other then NZ

32
Q

What is interest in a property?
R v Wilson

A

Courts have held that the tenancy of a property constitutes an interest in it.

R v Wilson - court of appeal ruled defendant could not be convicted of arson under 267(1)(b) as his tenancy of the property was an interest in that property therefore provided him with a defence.

33
Q

What was the Alternative charge to consider in R v Wilson?

A

S12(1) of the MODA. Crown could have pointed to the destruction of the house as an aggravating factor at sentencing and obtained a more suitable sentence length to the degree of offending.

34
Q

What is obtained?

A

Obtain, in relation to any person, means to obtain or retain for himself or herself or for any other person.

35
Q

What is benefit?

A

Any benefit, pecuniary advantage, privilege, property, service or valuable consideration.

36
Q

What is “cause loss”?

A

Financial detriment.

37
Q

R v Morley

A

Loss is assessed by the extent to which the complainants position prior to the offence has been diminished or impaired.

38
Q

What was held in R v Morley

A

In a deception case, court of appeal reviewed the nature of loss and held that criminality could only arise from direct loss;

indirect losses such as expectation loss (loss of a bargain) and loss if anticipated future profits are not included.

39
Q

What is a person?

A

Person, owner, include crown, any public body or local authority, any board, society, or company, incorporated or not.

(Person who sets fire to police car, intent is to cause loss to police organisation, which is a person)

40
Q

Arson 267(2)(b)

A
  • Intentionally OR Recklessly
  • Without claim of right
  • Damages by fire OR by means of any explosive
  • Any property
  • In which the person has no interest in
41
Q

Arson s267(2)(b)

A
  • Intentionally OR Recklessly
  • Damages by fire OR by means of any explosive
  • Any property
  • With intent to obtain any benefit OR with intent to cause loss to any person
42
Q

Distinction between 267(1) & (2)

A

The type of property damaged, subsection (2) deals with damage to property that is generally less valuable, in circumstances where there is no risk to life.

(2) relates to forms of property OTHER THAN immovable property, vehicles, ships, aircrafts

(1)- 14yrs
(2)- 7yrs

43
Q

Recklessness under 267(2)(b)

A

Difficult to see how recklessness is a form of mens rea under 267(2)(b).

If an offender has damaged property with intent to obtain a benefit or cause loss, then he must have caused the damage deliberately for the purpose of achieving that result. A reckless act that results in property damage seems inconsistent with the requirement for specific intent as to the outcome of the act.

44
Q

Arson s267(3)

A
  • Intentionally
  • Damages by fire OR by means of any explosive
  • Any property
  • With reckless disregard for the safety of other property

5yrs / relates to any property regardless of value

45
Q

Attempted Arson s268

A
  • Attempts
  • To commit arson
  • I’m respect of any immovable property OR any vehicle OR ship OR aircraft

10yrs

46
Q

To be guilty of an attempt to commit and offence a person must:

A
  • intend to commit the offence, and
  • take a real and substantial step towards achieving the aim
47
Q

To prove intent to commit offence of arson:

A

The crown must prove that the defendant intended to commit the full act of arson, and acted as he or she did for the purpose of achieving that aim

48
Q

To be guilty of an attempt:

A

The defendant must have progressed past the stage of preparation and commenced a process intended to lead to the commission of the full offence

His conduct must be sufficiently proximate to the offence. Ie he must have taken a real and practical step towards committing it

49
Q

S268- Sufficiently proximate definition

A

The court will analyse the defendants conduct at the relevant time, evidence of his or her intent based on the circumstances and any steps taken leading up to that point

50
Q

Police v Wylie Findings (sufficiently proximate)

A

Court of appeal analysed the defendants conduct at the drug dealing house, and took into account earlier events in which their intent to commit the full offence could be inferred. Eg phone calls, driving to house, cash, comms, discussion of price

51
Q

R v Harpur (findings)

A

(sexual offending against hypothetical 4yr old in Police sting)

  • attempts includes a act or omission constituting a substantial step in the course of committing a crime

Court of appeal held
- Harpurs conduct was sufficiently proximate to the full offence
- his actions need not be considered in isolation, sufficient evidence was his intent was available from the events leading up to that point

52
Q

R v Harpur

A

The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops… the defendants conduct may be considered in its entirety. Considering how much remains to btw done is always relevant, though not determinative.

53
Q

Court of appeal in R v Harpur in regards to s72 CA

A
  • applies to hundreds of offences and an infinite variety of factual situations. Impossible for parliament to predict.
  • so no criteria or case law set down to assist in determining an attempt, each scenario must be assessed on a case by case basis
54
Q

American penal code examples of attempts to commit and offence-

s72 (R v Harpur)

A
  • lying in wait, searching for or following the victim
  • enticing the victim to go to the scene
  • reconnoitring the scene of the contemplated crime
  • unlawful entry of a structure, vehicle, or enclosure where contemplated crime will take place
  • possession, collection, or fabrication of materials to be employed of commission of crime
  • soliciting an innocent agent to engage in conduct constituting an element of the crime
55
Q

Legally you are allowed to set fire to your own property, unless you:

A
  • intend to cause loss to someone else as a result of a fire
  • know or ought to know that fire will endanger life
  • know that the fire is likely to destroy or damage someone else’s property as a consequence
56
Q

The fire service specialist fire investigator will liaise with police in relation to four specific matters:

A
  • handover of the fire scene
  • access to the fire scene
  • process for examination and investigation
  • identification and collection of evidence at the fire scene
57
Q

In determining the he seat of the fire the specialist fire investigator will consider:

A
  • witness reports
  • when they first saw the fire and where they were at the time
  • the state of the fire at the time
  • wind direction and speed, weather
  • the direction of spread
  • the colour of the flames and smoke
  • severity of damage
  • depth of charring
  • the presence of starting devices
  • reports and opinions and other specialists
58
Q

Intentional damage s269(1)

A
  • Intentionally OR Recklessly
  • Destroys OR Damages
  • Any Property
  • If he or she knows OR ought to know that danger to life is likely to result

10yrs

59
Q

Intentional damage s269(2)(a)

A
  • Intentionally OR Recklessly
  • without claim of right
  • destroys OR damages
  • any property
  • in which that person has no interest

7yrs

60
Q

Intentional damage s269(2)(b)

A
  • Intentionally OR recklessly
  • without claim of right
  • destroys or damages
  • any property
  • with intent to obtain any benefit OR with intent to cause loss to any person

7yrs

61
Q

Intentional damage s269(3)

A
  • Intentionally
  • Destroys OR damages
  • Any property
  • With reckless disregard for the safety of any other property

7yrs

62
Q

Intentional damage offences

A

Damage to property by any means whatsoever other then arson. Separated by external circumstances or particular states of mind.

63
Q

s272 Providing explosives to commit an offence

A
  • knowingly has in his or her possession OR makes any explosive substance OR any dangerous engine instrument or thing
  • with intent to use OR enable another person to use the substance, dangerous engine, instrument, or thing
  • to commit an offence
64
Q

R v Hallam

(knowledge around s272)

A

Defendant was charged with knowingly possessing explosives. In his defence he believed the substance was soap. The court decided prosecution must prove that the defendant knew what the substance was.

The court held that- on a charge of knowingly having possession of an explosive substance, it must be proved that the offender knowingly had the substance in his possession and also that he knew it to be an explosive substance.

65
Q

Definition of Explosives, dangerous engine, instrument, thing

A

Could extend to any weapon or tool which could be used in criminal offending.

Engine & instrument- nature of the device intended to explode or cause fire or emission of noxious things. The word thing must be read in a restricted but similar fashion.

66
Q

Definition of possession of explosive or device

A

It’s a requirement that the defendant makes either the explosive or the engine etc or have it in his or her possession. As to possession, defendant must intend the explosive or device to be used by another person to commit and offence, but there is no need for him to be aware either of the identity of person who will ultimately use the explosive or device, or of the precise nature of the offence to be committed.

67
Q

Examples of carelessness that might result in a fire could include:

A
  • misusing electricity
  • children playing with matches, lighters
  • burning off paint
  • vagrant lighting fires
  • welding and other industrial processes
  • leaving clothes near heating
  • wrapping up live ashes in paper
  • ironing
  • setting off fireworks
  • using or storing flammable materials
  • burning rubbish
  • using domestic or camp fires
  • leaving a stove or heater on
  • leaving fat unattended while cooking
  • smoking
68
Q

Materials used to start a fire include:

A
  • readily available combustible material- rubbish
  • Molotov cocktails
  • candles
  • chemical igniters
  • timing devices
  • electric matches
  • electrical apparatus
  • matches and cigarettes
  • trailers
69
Q

The police responsibilities at a fire scene examination and investigation are:

A
  • conduct the criminal investigation and coronial enquiry
  • undertake the responsibility for the protection, collection and recording of forensic evidence
  • the collection and removal of material from a fire crime scene will only be done by police or other agencies with the authority to remove evidence
  • the preservation, analysis and subsequent disposition of any such material is the responsibility of police or other agency
70
Q

The powers conferred by s42 of the Fire and Emergency New Zealand Act 2017 on the person in charge of the fire service at the fire site are:

A

a) enter any land, building or structure
b) break into any building or structure that may be on fire or otherwise endangered or that is near the emergency
c) take or send any equipment or machine required to be used into, through, or upon any land, building, or structure
d) remove any land, building or structure that is on fire or otherwise endangered, or that is near the emergency, any flammable, combustible, explosive, or dangerous material found in the building or structure
e) cause any building or structure that is on fire or otherwise endangered, or that is adjacent to or in the vicinity of any building or structure that is on fire or otherwise endangered, to be pulled down or shored up (either in whole or in part)
f) cause any building or structure to be pulled down or shored up (either in whole or in part) at the time of the emergency or within a reasonable time afterwards

71
Q

Difference between a gas explosion and someone setting explosives:

A
  • explosions caused by gas generally cover a wide area than those caused by explosives, and they do not leave a crater. Lighter than air gases such as hydrogen will create an outward blow at the top of a wall, whereas heavier than air gases blow out at the bottom of a wall. There are a number of other tell tale signs like implosion of cabinets

Arson (3 decks)

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