Arson

Question 1

Intentionally Meaning

Answer 1

Deliberate act:
“Intent” means that act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.

Intent to produce a result:
The second type of intent is an intent to produce a specific result. In this context result means “aim, object, or purpose”. Simester and Brookbanks

Question 2

Proving Intent

Answer 2

The onus is generally on the prosecution to prove an offender’s intent beyond reasonable doubt.

While an offender’s admissions as to their intent are potentially good evidence, it is good practice to support these with circumstantial evidence from which their intent can also be inferred.

In R v Collister2 two Police officers were charged with demanding with menaces after causing a man to believe he would be arrested for soliciting homosexual acts unless he paid them money. Although no express demand for money was made, it was held that the defendants’ intent could be inferred from the circumstances

Question 3

Recklessness

Answer 3

Acting “recklessly” involves consciously and deliberately taking an unjustifiable risk.

It must be proved not only that the defendant was aware of the risk and proceeded regardless (a subjective test), but also that it was unreasonable for him to do so (an objective test).

In R v Harney3 the defendant was convicted of murder after stabbing the victim in the stomach during an altercation. He argued unsuccessfully that he had been aiming for the victim’s leg knowing he could have seriously injured the man, but denied wanting to kill him.

Question 4

Proving Recklessness

Answer 4

When Recklessness is an element in an offence the following must be proved:

1. That the defendant consciously and deliberately ran a risk (a subjective test)
2. That the risk was one that was unreasonable to take in the circumstances as they were known to the defendant (objective test – based on whether a reasonable person would have taken the risk).

Question 5

Types of fire damage

Answer 5

Although fire damage will often involve burning or charring, it is not necessary that the property is actually set alight; melting, blistering of paint or significant smoke damage may be sufficient.

Question 6

What is fire?

Answer 6

Fire is the result of the process of combustion, a chemical reaction between fuel and oxygen, triggered by heat. For fire to start or continue, each of the three elements - fuel, oxygen and heat - must be present in the correct proportions.

Question 7

Definition of an explosive

Answer 7

Section 2 Arms Act 1983
Explosive
(a) Means any substance or mixture or combination of substances which in its normal state is capable either of decomposition at such rapid rate as to result in an explosion or of producing a pyrotechnic effect; and
(b) Without limiting paragraph (a) of this definition, includes gunpowder, nitroglycerine, dynamite, gun-cotton, blasting powder, fulminate of mercury or of other metals, coloured flares, fog signals, fuses, rockets, percussion caps, detonators, cartridges, and ammunition of all descriptions; and
(c) Without limiting paragraph (a) or paragraph (b) of this definition, includes any device, contrivance, or article, which uses any substance or mixture or combination of substances to which paragraph (a) or paragraph (b) of this definition applies as an integral part of it for the purposes of producing an explosion or a ballistic or pyrotechnic effect; but does not include a firearm; and
(d) Does not include any firework as defined in section 2 of the Hazardous Substances and New Organisms Act 1996.

Question 8

Definition of Property

Answer 8

Section 2 Crimes Act 1961
Interpretation
Property includes real and personal property, and any estate or interest in any real or personal property, [money, electricity,] and any debt, and any thing in action, and any other right or interest

Question 9

Property under s267(1)(a)

Answer 9

Matters such as the nature, value and ownership of the property are not relevant; it is the risk to another person’s life that raises this offending to the highest category of arson.

Question 10

Property under s267(1)(b) & (c)

Answer 10

By contrast, paragraphs (b) & (c) deal only with property that is, in general, higher in value - immovable property, vehicles, ships and aircraft. It is the value of these items that raises the offending to the higher category.

Question 11

Knows or ought to know meaning

Answer 11

The first question (the subjective test) is: what was the defendant thinking at the time? Did the defendant know that human life was likely to be endangered by his actions?

If there is insufficient evidence that the defendant was conscious of the risk, the next question (the objective test) is: what would a reasonable person have thought in the same circumstances? Would a reasonable person have recognised the risk?

Question 12

Danger to life

Answer 12

“Life” in this context means human life, and the danger must be to the life of someone other than the defendant.

Question 13

Without claim of right definition

Answer 13

Section 2, Crimes Act 1961
Interpretation
claim of right, in relation to any act, 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]], although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.]

Question 14

Nature of belief required for without claim of right

Answer 14

First the belief must be a belief in a proprietary or possessory right in property. That is, there must be a belief that relates to an element of ownership of the property in question or a right to take or retain possession of it. In this context “property” may include, in appropriate cases, intangible property which cannot be possessed but may be owned.

Secondly the belief must be about rights to the “property in relation to which the offence is alleged to have been committed”. A belief that the defendant had proprietary or possessory rights in relation to other property and was therefore in some way justified in taking or dealing with the property in regard to which the offence was allegedly committed will not be relevant or sufficient.

Thirdly the belief must be held at the time of the conduct alleged to constitute the offence.
Fourthly, the belief must be actually held by the defendant. In Hayes v R7 the Court held that the belief is not required to be reasonable or be reasonably held and may be based on ignorance or mistake. However the reasonableness of the belief may be relevant in determining whether the defendant’s assertion of the belief is credible.

Question 15

Immovable property meaning

Answer 15

Property will be considered immovable if it is currently fixed in place and unable to be moved, even though it may be possible to make it movable. Therefore, for example, a relocateable building which is currently fixed to foundations is “immovable” even if, with the expenditure of labour, it could be released from its foundations and transported elsewhere.

Question 16

Vehicle definition

Answer 16

Section 2 Land Transport Act 1998
Interpretation
Vehicle—
Means a contrivance equipped with wheels, tracks, or revolving runners on which it moves or is moved;

Question 17

Ship deifnition

Answer 17

Section 2 Crimes Act 1961
Interpretation
Ship means every description of vessel used in navigation, however propelled; and includes any barge, lighter, dinghy, raft, or like vessel; and also includes any ship belonging to or used as a ship of the armed forces of any country

Question 18

Aircraft definition

Answer 18

Section 2 Crimes Act 1961
Interpretation
Aircraft has the same meaning as in the [Civil Aviation Act 1990]; and includes any aircraft for the time being used as an aircraft of any of the armed forces of any country other than New Zealand

Section 2 Civil Aviation Act 1990
Interpretation
Aircraft means any machine that can derive support in the atmosphere from the reactions of the air otherwise than by the reactions of the air against the surface of the earth

Question 19

Interest definition

Answer 19

“Interest” in property is not defined by legislation, however the courts have held that tenancy of a property constitutes an interest in it.

Question 20

Obtain definition

Answer 20

Section 217 Crimes Act 1961
Interpretation
obtain, in relation to any person, means obtain or retain for himself or herself or for any other person.

Question 21

Benefit definition

Answer 21

The term “benefit” is defined in s267(4).
Section 267 Crimes Act 1961
Arson
(4) In this section and in section 269, benefit means any benefit, pecuniary advantage, privilege, property, service, or valuable consideration.

Question 22

Cause loss meaning

Answer 22

The term “loss” is not defined by statute, but in most cases will involve financial detriment to the victim.

Question 23

Person definition

Answer 23

Section 2 Crimes Act 1961
Interpretation
Person, owner, and other words and expressions of the like kind, include the Crown and any public body or local authority, and any board, society, or company, and any other body of persons, whether incorporated or not, and the inhabitants of the district of any local authority, in relation to such acts and things as it or they are capable of doing or owning:

Question 24

Attempts definition

Answer 24

Section 72, Crimes Act 1961
Attempts
(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
(2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

Question 25

Intent for Attempts

Answer 25

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.

Question 26

Does or omits an act for the purpose of accomplishing his object

Answer 26

To be guilty of an attempt 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, although he does not need to have taken all the necessary steps to do so.

In R v Harpur it was discussed that an attempt includes an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

Question 27

What is sufficiently proximate

Answer 27

In assessing proximity, the Court will analyse the defendant’s conduct at the relevant time, in conjunction with evidence of his or her intent based on the circumstances and any steps taken leading up to that point.

This cumulative assessment may allow the Court to infer that the defendant had intended to commit the full offence and had started to do so, even though he or she may still have been several steps removed from the ultimate act.

In concluding that Harpur’s conduct was sufficiently proximate to the full offence, the Court of Appeal held that his actions need not be considered in isolation; sufficient evidence of his intent was available from the events leading up to that point.

Question 28

Acts that may be sufficiently proximate

Answer 28

The Court of Appeal in Harpur14 observed that s72 of the Crimes Act applies to “hundreds of offences and an infinite variety of factual situations, the metes and bounds of which it was impossible for Parliament to predict.”

For this reason there are no criteria set down in legislation or case law to assist in determining whether a defendant’s actions did or did not amount to an attempt; each scenario must be analysed on a case-by-case basis.

However, the Court did refer to the American Model Penal Code as providing examples of acts that may constitute an attempt to commit an offence, such as:
• lying in wait, searching for or following the contemplated victim
• enticing the victim to go to the scene of the contemplated crime
• reconnoitring the scene of the contemplated crime
• unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed
• possession, collection or fabrication of materials to be employed in the commission of the crime
• soliciting an innocent agent to engage in conduct constituting an element of the crime.

Question 29

Providing explosives to commit an offence

Answer 29

Providing explosives to commit an offence
Section 272 Crimes Act 1961

Every one is liable to imprisonment for a term not exceeding 2 years who 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.

Question 30

Providing explosive meaning

Answer 30

It is not limited to the provision of explosives but extends to any dangerous “engine”, “instrument”, or “thing”. While the words of the section could be construed as extending to almost any weapon or tool which could be used in criminal offending, it is suggested the headnote and the history of the provision mean that both “engine” and “instrument” have a special meaning, in the nature of a device intended to explode or cause fire or emission of noxious things. It is further suggested that the word “thing” must be read in a restricted but similar fashion.

Question 31

Possession of explosive or device

Answer 31

The section requires that the defendant makes either the explosive or the engine etc, or have it in his or her possession. As to possession generally, the defendant must intend the explosive or device to be used by another person to commit an offence, but, it is suggested, there is no need for the defendant to be aware either of the identity of the person who will ultimately use the explosive or device, or of the precise nature of the offence to be committed.

Question 32

Process for control, investigation and handover of fire scenes

Answer 32

1. Fire service has control while fire is in progress. Once extinguished and any threat to life or property no longer exists, fire service must hand over control to appropriate agency. In certain circumstances this will be police.
2. The fire service will notify police if it considers that a fire may have been deliberately lit, or is suspicious. FS will also notify police of all incidents where fatalities or serious (LT) injuries occurred.
3. Where police attend fire scene and seek authority to take control of scene. The police investigating officer will confer will incident controller to confirm the hand over process
4. Fire service will not hand over scene until danger to life, structural collapse, exposure to dangerous products of combustion or other fire related hazards have been identified, eliminated, isolated or minimised.
5. For any fire scene invoking multiple agencies, all agencies will consult with each other prior to any investigation or scene exam to develop a plan
6. The investigation plan will include an outline of how the investigation will proceed and the role of each agency.