Elements of arson

The prosecution must prove several elements, beyond reasonable doubt, for a jury to find an accused person guilty of arson under sections 197(1) to 197(3) of the Crimes Act 1958.

The elements of each offence are addressed separately below.

Arson causing criminal damage – s197(1)

To be convicted for ‘arson causing criminal damage endangering life’, the prosecution must prove the following:

1. The accused damaged or destroyed property by fire;
2. The accused purposely damaged or destroyed the property, or knew or believed that damage or destruction was the likely result of their actions;
3. The accused purposely endangered the life of another person through the damage or destruction of property or knew or believed that the life of another was likely to be endangered by that damage or destruction;
4. The accused had no lawful excuse for damaging or destroying the property.

Arson causing criminal damage with a view to gain – s197(3)

To be convicted for ‘arson causing criminal damage with a view to gain’, the prosecution must prove the following elements beyond reasonable doubt:

1. The accused damaged or destroyed property by fire;
2. The accused did so dishonestly; and
3. The accused did so with a view to gain.

Understanding the elements

Property, damage by fire and ownership

For these offences, property includes any real or tangible property (i.e. buildings, vehicles, etc.).

The Courts have considered the terms “destroy” and “damage” as follows:

• Destruction requires the property to be rendered useless for its intended purpose;
• Damage involves a permanent or temporary alteration to the physical integrity of the property – merely interfering with its use or operation is not sufficient (Grajewski v DPP [2019] HCA 8, [13]).

The prosecution is not required to establish specific ownership of the property, simply that a form of custody or right is held over the property by a legal entity (for example, a person, trust (s196(3)), or corporation (s196(4)).

Intention or purpose, knowledge and belief

The prosecution must prove that the accused had the required intention at the time of the relevant act or omission (Royall v R).

The requirement of intention, knowledge, or belief pertaining to the elements of ‘damage or destruction of property’, or ‘endangering of the life of another’, requires the specific intent, knowledge, or belief to do so by the use of fire (R v Cooper (G) and Cooper (Y) [1991] CLR 524).

An accused only intends to destroy or damage property if:

• One of the accused’s purposes is to destroy or damage property;
• The accused knows or believes that the conduct is more likely than not to result in destruction of or damage to property by fire (s197(4)).

An accused only intends to endanger the life of another person if:

• One of the accused’s purposes is to endanger the life of another by the damage or destruction by fire; or
• The accused knows or believes that the life of another is more likely than not to be endangered by the damage or destruction (s197(5)).

For the criminal damage offence of ‘arson endangering the life of another’ specifically, the intent relates to the danger caused by damage or destruction of property not danger caused by fire itself (R v Steer [1988] AC 111).

Section 197(4)(b) and 197(5)(b) of the Crimes Act 1958 extends the accused’s intent to include their knowledge or belief that it was more likely than not that the damage/destruction or life endangerment would result by their use of fire. In proving this, the prosecution need only prove that the defendant knew or believed it was more than 50% likely; this is comparable to similar tests for recklessness, which simply require a consequence be probable.

‘Dishonestly’ and ‘gain’

For the offence of ‘criminal damage with a view to gain, the prosecution must prove that the accused acted dishonestly (Crimes Act 1958 s197(3)).

This requires proof that the accused’s intent, knowledge, or belief about the damage or destruction caused made their conduct dishonest (Macleod v R).

‘Dishonesty’ adopts its regular meaning and is assessed according to the standards of an ordinary, decent person (Peters v R; Macleod v R).

In addition to acting dishonestly, the prosecution must prove that the accused acted with a view to gain, either for themselves or another (s197(3)).

‘Gain’ is interpreted generally and is not limited to monetary gain (DPP Reference (No 1 of 1988) [1989] VR 857). However, the view to gain must have existed at the time of the offending conduct.