Section 267(3)
Everyone is liable for imprisonment who intentionally damages by fire or damages by means of explosive any property with reckless disregard for the safety of other property.
5years
What to prove for attempted arson? 268
Prove the identity of the defendant
-attempted to commit arson
-attempted arson was of any immovable property, vehicle, ship or aircraft
Must prove intent - mere recklessness cannot suffice
What does Defendant need to prove intent?
A conscious appreciation of the risk and elect to take it.
Must be intention to:
-commit act
-get specific result
Difference between intent and motive
Intent refers to state of mind, mental attitude - inferred from words/actions before during after and circumstances
Motive prompts a person to act or to fail
Deliberate act
Intent means an act or omission must be done deliberately
Second type of intent
To produce a specific result
Means “aim, object, purpose” - semester and brookbanks
Proving intent
Onus is on prosecution to prove an offenders intent beyond reasonable doubt l.
Recklessness
Conscious and deliberate taking of unjustified risk.
Recklessness in relation to injury
It is necessary to prove the defendant foresaw the risk of injury to others, it is not necessary that they recognised the extent of the injury that would result.
Part a of the Cameron test
“Real possibility” is substantively the same as something that “could well happen”. Defendant needs to realise the risk as possible. Does not need to consider it significant.
Subjective and objective test
Was the risk objectively reasonable given the risk the defendant understood.
Would a reasonable and prudent person have taken that risk.
What must you prove for recklessness?
Defendant recognised there was a real possibility that:
-his actions would bring proscribed results
-proscribed circumstances existed
Having regard to that risk those actions were unreasonable.
Is damage defined in the act?
No and there is no case law. Will be specific to each case and degree to which property has changed as a result of the fire or explosives.
Damage
Must be casually related to a fire or use of explosives.
Melting l, blistering of paint or significant smoke damage can be sufficient.
Definition me fire and explosive
Fire- prices of combustion m, fuel and oxygen triggered by heat
Explosive- substance/combination of substances in its normal state capable of rapid decomposition to result in explosion or pyrotechnic effect.
Hazardous substances and new organism act definition of explosive
Means capable of sudden expansion owing to a release of internal energy and includes the capability to generate a) deflagrating or b) pyrotechnic effects
Are molotove cocktails explosive?
No it is a crude incidental device - appropriate charge damages by fire
Knows or ought to know
Subjective - what was the defendant thinking at the time?
Objective test – what would a reasonable person have thought in the same circumstances?
Life
In this context means human life. Defined an RV Smith.
Likely to ensue
The use of likely means that a defendant merely has to know that there is a chance or a risk of danger to life. Therefore, this is a form of recklessness rather than strict knowledge.
When is the objective recklessness test relevant.
It is relevant when a defendant has a less mental capacity than an average person.
RV Can is caselaw - the level against which other persons knowledge is examined will be that of an ordinary person with ordinary mental capability.
Four steps of nature of belief
Firstly belief must be a proprietary of possessory right in property.
Secondly believe must be about property in relation to what the offence is at least to have committed.
Thirdly, the belief must be held at the time of the conduct lead to constitute the offence.
Fourthly the belief must be actually held by the defendant.
R V Hayes
The belief is not required to be reasonable or be reasonably held and maybe based on ignorance or mistake.
Cause loss
The term loss is not defined by statute but in most cases will involve financial detriment to the victim.
RV Morely
It is not necessary that the victims loss results in any benefit to the offender.
