1. Arson

Question 1

What are the two specific types of intention, and provide detail regarding each?

Answer 1

1. Intention to commit the act (must be done deliberately, no involuntary or accidental).
2. Intention to produce a specific result (aim, object or purpose),

Question 2

In relation to proving intent, who is the onus on and what is the burden required, furthermore what is the case law for proving intent?

Answer 2

The onus is on the prosecution to prove offenders intent beyond reasonable doubt.

Case Law (Proving intent): R v Collister

Circumstantial evidence from which an offenders intent may be inferred can include the:

• offenders actions and words before, during and after the event
• surrounding circumstances
• nature or the act itself

Question 3

What is the case law, Cameron V R?

Answer 3

Cameron v R:

Recklessness is established if:

(a) defendant recognised that there was a real possibility that:
(i) his or her actions would bring about the proscribed result, and/or
(ii) that proscribed circumstances existed, and
(b) having regard to that risk those actions were unreasonable

Question 4

Acting recklessly involves what?

Answer 4

Acting recklessly involves consciously and deliberately taking an unjustified risk.

Question 5

What tests relate to part (a) and part (b) of the case law Cameron V R?

Answer 5

Part (a) : completely subjective (defendant recognised the risk the offence anticipates as being possible)

Part (b) : Subjective and objective (actions of the defendant were objectively reasonable given the risk the defendant understood)

Question 6

Provide examples of no social utility and high social utility?

Answer 6

No social utility: Russian roulette

High social utility: Surgeon undertaking a risk but potentially lifesaving surgery

Question 7

When recklessness is an element in an offence, what must be proved?

Answer 7

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

Question 8

What is the case law R v Archer?

Answer 8

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.

Question 9

Fire damage will often involve burning or charring, it is not necessary that property is actually set alight, what are some other examples of fire damage?

Answer 9

Melting, blistering of paint and significant smoke damage.

Question 10

Usefulness may constitute damage, whether or not such a change amounts to damage is ?

Answer 10

A matter of fact and degree to be determined on a case by case basis.

Question 11

What are the three elements for a fire to start or continue?

Answer 11

Fire is the result of the process of combustion.

It is a chemical reaction between fuel, oxygen**, triggered by **heat.

Question 12

What is the definition of explosive (Section 2 (a), Arms Act 1983)

Answer 12

Explosive:

(a) any substance, mixture or combination of substances** which in its **normal state is capable either of decomposition** at such a rapid rate as to **result in an explosion or of producing a pyrotechnic effect.

Question 13

What is not included under the definition of explosive?

Answer 13

Does not include:

Firearm

Any firework defined in section 2 or the hazardous substances and new organisms act 1996.

Question 14

What is the definition of property (Section 2, Crimes Act 1961)?

Answer 14

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

Question 15

What is the definition of property (Section 2, Crimes Act 1961)?

Answer 15

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

Question 16

Tangible and intangible property may be damaged, what is the difference to how they can be damaged?

Answer 16

Tangible property** is capable of being **damaged directly by fire or explosive.

Intangible property may be damaged indirectly, ex information on a computer that becomes irretrievable when damaged by fire.

Question 17

In relation to knows or ought to know, what does simester and brookbanks suggest? what is the defintion of knowing and what is the test used and provide detail?

Answer 17

Simester and Brookbanks:

“the defendant may believe something wrongly,** but **cannot “know” something that is false”

Knowing means “knows or correctly believes”

This provision involves a subjective and objective test as to degree of knowledge.

First question (Subjective): what was the defendant thinking at the time? did the defendant know that human life was likely to be endangered by his actions?

Second, if there is insufficient evidence that the defendant was conscious of the risk, (Objective) what would a reasonable person have thought in the circumstances? would a reasonable person have recognised the risk?

Question 18

What is the definition of life ?

Answer 18

Life means human life**, the **danger must be to the life of someone other than the defendant.

Question 19

What is the definition of claim of right?

Answer 19

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 20

In relation to the nature of the belief required, claim of right is broken down into 4 stages, discuss these?

Answer 20

1. Belief must be a belief in proprietary or possessory right in property. (may include intangible property which cannot be possessed but may be owned)
2. Belief must be about rights to the property in relation to which the offence is alleged to have been committed.
3. Belief must be held at the time of the conduct alleged to constitute the offence
4. Belief must be held by the defendant. (Hayes V R “belief is not required to be reasonable or be reasonably held and may be based on ignorance or mistake, however may be relevant in determining credibility of the defendant).

Question 21

What is the aggravating factor relating to S.267 (1)(b)?

Answer 21

That the property damaged belongs to another person and the property is of a kind that is generally high in value.

Question 22

What is the definition of immovable property?

Answer 22

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.

Immovable is not defined, however in general, relates to buildings and land and things growing on land, such as forests.

Question 23

What is the definition of a vehicle?

Answer 23

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

Question 24

What is the definition of a ship?

Answer 24

Means every description of vessel used in navigation, however propelled, and includes any barge, lighter, dinghy, raft or like vessel, and also includes amy ship belonging to or used as a ship of the armed forces of any county.

Question 25

Definition of aircraft?

Answer 25

Same meaning as in Civil aviation act 1990 (below), includes any aircraft for the time being used as an aircraft of any of the armed forces of any country other than New Zealand.

Aircraft means any machine that can derive support in the atmosphere from the reactions of the air otherwise then by the reaction of the air against the surface of the earth.

Question 26

Definition of Interest?

(relates to “any immovable property or any vehicle, ship or aircraft in which that person has no interest”)

Answer 26

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

Question 27

Definition of Obtain?

Answer 27

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

Question 28

Definition of benefit?

Answer 28

Benefit means any benefit, pecuniary advantage, privilege, property, service or valuable consideration.

Section (1)© includes damage to the defendants own property if its one with the intent to obtain benefit (insurance fraud).

Question 29

What is the definition of loss and the relevant case law?

Answer 29

Loss is not defined by statue, but in most cases involves financial detriment to the victim.

Loss only relates to direct loss, indirect losses such as expectation loss (loss of a bargain) and loss of anticipated future profits are not included.

R v Morley:

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

Not necessary that the victims loss result in benefit to offender

Question 30

Definition of person?

Answer 30

Gender neutral, proven by judicial notice or circumstantial evidence.

Legislation provides a wide definition of the term “person” that incorporates not only real people, but also companies and other organisations.

Example, by deliberately setting fire to a Police car, under S.267(1)© intent to cause loss to Police organisation, which is a person under the wider definition.