Arson - case law / definitions

Question 1

R v HARNEY

Answer 1

Recklessness is the conscious and deliberate taking of an unjustified risk. In NZ, it involves proof that the complained of consequence could well happen, together with an intention to continue the course of conduct regardless of the risk.

Question 2

R v ARCHER

Answer 2

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

Question 3

R v HARPUR

Answer 3

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

Question 4

R v MORELY

Answer 4

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

Question 5

INTENT

Answer 5

Deliberate act
Intent means that the act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.
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 6

Recklessness

Answer 6

Acting “recklessly” involves consciously and deliberately taking an unjustified 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)

Question 7

Damages by fires

Answer 7

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 8

Danger to life

Answer 8

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

Question 9

Explosive - sec 2 AA83

Answer 9

sec 2 Arms Act 1983
Explosive
a) means any substance or mixture or combination of substances which in its normal state is capable of decomposition at such as a rapid rate as to result in an explosion or of producing a pyrotechnic effect.
- includes ammunition, gunpowder, dynamite
- does not include any firework

Question 10

Property sec 2 CA61

Answer 10

Property includes any real or personal property, and includes any estate or interest in any real or personal property, money, electricity and any debt, and anything in action, and any other right or interest

Question 11

Knowledge/Ought to know

Answer 11

Simester and Brookbanks
Knowing means knowing or correctly believing… the defendant may believe something wrongly but cannot know something that is false”

Question 12

Claim of Right sec 2 CA61

Answer 12

Claim of right in relation to any act, means a belief at the time of at the act in a proprietary or possessory right in the 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 any matter of law other that the enactment against which the offence is alleged to have been committed

Question 13

Immovable property

Answer 13

Property will be considered immovable if it is currently fixed in place and unable to be moved, even through it may be possible to make it moveable. Therefore, for example, a relocatable building which is currently fixed to the foundations will still considered “immovable”

Question 14

Vehicle - sec 2 LTSA98

Answer 14

Vehicle means:

A contrivance equipped with wheels, tracks or revolving runners on which it moves or is moved

Question 15

Ship - sec 2 CA61

Answer 15

Ship means every description of vessel used in navigation, however propelled, and includes any barge, lighter, dinghy, raft or like vessel, and include any ship belonging to or used as a ship of the armed forces or any country

Question 16

Aircraft - sec 2 CA61

Answer 16

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 17

Interest

Answer 17

Not defined by legislation, however the Courts have held that tenancy of a property constitutes an interest in it

Question 18

Obtain - sec 217 CA61

Answer 18

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

Question 19

Benefit sec 267(4) CA61

Answer 19

In this section and in 269, benefit means any benefit, pecuniary advantage, privilege, property, service or valuable consideration

Question 20

Causes loss

Answer 20

the term loss is not defined by statute but in most cases will involve finical detriment to the victim.

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