Arson Case Law Flashcards
Proving intent
R v Collister
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.
Recklessness
R v Harney
Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.
R v Tipple
The court suggested as a general rule recklessness is to be given the subjective meaning. The concept is subjective in that it requires that the offender know of, or have a conscious appreciation of the revelant risk, and it may be said that it requires a deliberate decision to run the risk.
Damages by fire or explosive
R v Archer
Property may be damaged if it suffers permanent or temporary physical harm or permanent or temporary impairment of its use or value.
The Court of Appeal held that, in general terms, any change in an object that impairs its value or usefulness may constitute damage; whether or not such a change amounts to damage is a matter of fact and degree to be determined on a case by case basis.
Nature of belief required
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. However the reasonableness of the belief may be relevant in determining whether the defendant’s assertion of the belief is credible.
Interest
R v Wilson
The defendant was attempting to manufacture methamphetamine at his rented property, when the clan lab ignited and the house burned down. In addition to drugs charges, Wilson was charged with recklessly damaging the house by fire under section 267(1)(b).
The Court of Appeal ruled that he could not be convicted of arson as his tenancy of the property was an interest in that property, and therefore provided him with a defence.
Section 267 provides that:
(a) where the Crown alleges that the damage by fire is intentional a tenant may be convicted if he or she caused loss to any other person (subs (1)(c));
(b) where the Crown alleges that the damage by fire is either intentional or reckless a tenant may be convicted if he or she knew that danger to life was likely to ensue (subs (1)(a)); and
(c) a tenant otherwise cannot be convicted of recklessly damaging the tenanted property by fire (subs (1)(b)).
An alternative charge to consider
The Crown were advised that a better course of action would have been to file a charge of permitting premises to be used (s.12(1), Misuse of Drugs Act). This charge would have sufficiently covered the alleged criminality. Upon conviction, the Crown could legitimately have pointed to the destruction of the house as an aggravating feature at sentence and obtained a sentence length which more appropriately encapsulated the degree of offending in this matter.
Interest in property is not defined by legislation, however the courts have held that tenancy of a property constitutes an interest in it.
Cause loss
R v Morley
Loss… is assessed by the extent to which the complainant’s position prior to the offence has been diminished or impaired.
Court of Appeal on review of the nature of loss held that criminality could only arise from direct loss; indirect loss such as expectation loss (loss of bargain) and loss of anticipated future profits are not included.
Does or omits an act for the purpose of accomplishing his object
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.
Sufficiently proximate
Police v Wylie
Two men caught at a drug dealing house, and attempted to procure cocaine from a plain clothes police officer who was there executing a search warrant.
The Court of Appeal analysed the defendants’ conduct at the drug dealing house, and took into earlier events from which their intent to commit the full offence could be inferred.
The analysis took into account that the defendants had:
- phoned the address in advance and enquired about purchasing drugs
- driven to the house without delay
- taken a substantial sum of cash with them
- confirmed verbally that they wanted coke
- discussed the price
- asked to see the capsules
The Court had no difficulty in finding, in this case, that the two men were attempting to procure cocaine.
Sufficiently proximate continued
R v Harpur
The defendant was involved in a series of text messages with a woman in which he described, in explicit detail, sexual acts that he wanted to perform on the woman’s 4-year old niece. He arranged for the girl tobe brought to him for that purpose, however when he turned up at the agreed time and place he found that the girl did not in fact exist, and the arrangements were part of a sting operation by Police.
Harpur was charged with attempted sexual violation of the hypothetical 4-year old, as well as numerous sexual offences relating to other children.
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.
R v Harpur (2010) 24 CRNZ 909
The Court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops…. the defendant’s conduct may be considered in its entirety. Considering how much remains to be done… is always relevant, though not determinative.
Knowledge
R v Hallam
The defendant was charged with knowingly possessing explosives. In his defence he said that he had believed the substance to be soap powder. The court decided the prosecution must prove that the defendant knew what the substance was.
In Hallam 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 the knew it to be an explosive substance.
