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Chapter 26: Arson

Table Of Contents 

[26.0] Introduction 

This chapter will examine the offences of: 

·                     'Arson', as provided for by section 319 of the Penal Code (Ch. 26); and 

·                     'Attempts To Commit Arson', provided for by section 320 of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added)

[26.1] Arson

[26.1.1] Offence 

Section 319 of the Penal Code (Ch. 26) states: 

'Any person who wilfully and unlawfully sets fire to – 

(a)                any building or structure whatever, whether completed or not; or 

(b)               any aircraft, vehicle or vessel, whether completed or not; or 

(c)                any stack of cultivated vegetable produce, or of mineral or vegetable fuel; or 

(d)               a mine, or the workings, fittings or appliances of a mine, 

is guilty of a felony, and shall be liable to imprisonment for life.' 

[26.1.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did wilfully and unlawfully set fire to [a building, a structure, an aircraft, a vehicle, a vessel, a stack of (cultivated vegetable produce, mineral or vegetable fuel), a mine or the [workings, fittings or appliances of a mine])] the property of [specify the name of the complainant].' 

[26.1.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Wilfully 

E. Unlawfully 

F. Sets Fire To 

G.        [i] Building; 

[ii] Structure; 

[iii] Aircraft; 

[iv] Vehicle; 

[v] Vessel; 

[vi] Stack Of 

[1] Cultivated Vegetable Produce; 

[2] Mineral; 

[3] Vegetable Fuel; 

[vii] Mine; Or 

[viii]     [1] Workings; 

[2] Fittings; or 

[3] Appliances 

Of A Mine 

H. Property Of Complainant

[26.1.4] Wilfully 

The term 'Wilfully' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

In Pukari – Flabu v Hambakon – Sma [1965 – 66] P&NGLR 348 Frost J, sitting alone, held: 

'Wilfully' means 'intentionally', or 'deliberately' or 'recklessly' or 'maliciously', but not 'accidentally' or 'negligently'. 

In R v M K [1973] PNGLR 204 Minogue CJ & Kelly J, in a joint judgment, stated at page 207: 

'By "wilfully" is meant that the act is done deliberately and intentionally, not by accident or inadvertence.' 

In R v Lockwood, Ex parte Attorney – General [1981] QdR 209 the Court of Criminal Appeal held: 

The word 'wilfully' requires the prosecution no more proof, so far as that element is concerned, than that the defendant deliberately did an act, that is, that it was a willed act, aware at the time he/she did it, that the result charged was a likely consequence of his/her act and that he/she recklessly did the act regardless of the risk. 

See also: McIntosh & McIntosh v Lowe (1982) 8 ACrimR 471. 

Intention which is a state of mind, can never be proved as a fact, it can only be inferred from other facts which are proved, see Sinnasamy Selvanayagam v R [1951] AC 83 at page 87, if there are no admissions. 

If there are no admissions, to be found guilty of the offence of 'Arson', 'the only rational inference open to the Court to find in the light of the evidence' must be that the defendant intended to set fire to the property in question', see R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999; Muria CJ; at page 22). 

The law relating to 'Circumstantial Evidence' is examined commencing on page 183.

Intentional or unintentional intoxication may be considered for the purpose of determining whether the defendant had the necessary 'intent' at the time of the commission of the offence, see section 13(4) of the Penal Code (Ch. 26). 

The defence of 'Intoxication' is examined commencing on page 444.

[26.1.5] Unlawfully 

The term 'Unlawfully' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The prosecution needs to prove absence of consent either by: 

·                     the calling evidence from the complainant; 

·                     by an admission; or 

·                     inference in appropriate circumstances, such as the 'arson' of a court house. 

As regards the property of husbands and wives, refer to section 260 of the Penal Code (Ch. 26) which is examined on page 471.

[26.1.6] Sets Fire To 

The term 'Sets Fire To' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

In R v B [1997] 2 QdR 459 Macrossan CJ and Davies JA of the Court of Appeal, with whom Moynihan J concurred, stated at pages 463 – 464: 

'A different matter in respect of which some statutory amendment to the section could be considered relates to what is involved in the concept of "sets fire to". This phrase appears to have been adopted at a time when the principal building material which would be employed for internal use was wood and grave dangers were associated with it should it become ignited, whereas some modern structures can be damaged by the application of fire or heat without their burning in the sense of oxidising or having their chemical composition altered. Some modern materials may, however, be melted and effectively destroyed. Other common law jurisdictions have moved away from inviting the sterile debates that can be involved in determining whether any part of a structure has been consumed by fire as opposed to being simply scorched: note the tension that is involved between two longstanding decisions dating from an earlier time: R v Parker (1839) Car & P 45; 173 ER 733 and R v Russell (1842) Car & M 541; 174 ER 626. Thus, the Crimes Act 1900 (NSW), s. 195(b) refers to damage "caused by means of fire" and the Criminal Damage Act 1971 (UK) s1(3) refers to "damaging property by fire". In this context some illustration of the manner in which judicial interpretation can deal with the problem is provided by the decision of the California Court of Appeal in People v Mentzer 209 Cal Rptr 549 (1985). There the offence was arson and under the Penal Code it had to be shown that structure was burned. The defendant had set a fire in a cemetery against a mausoleum and it was shown that the marble floor was broken, buckled and cracked from the heat and that the plaster walls were chipped. It was held that supported a conclusion that within the meaning of the Penal Code the structure was burned. It was said that an item is "consumed" if it is destroyed or devastated in whole or in part by fire and that if an item is ravaged or ruined by fire, it is "consumed" although not reduced to ashes.' (emphasis added) 

In R v Jorgenson (1955) 3 CCC 30 the defendant had set out a fire in a concrete fireproof building in order to destroy its contents. Although the contents were consumed the only damage to the building itself was that the walls were blackened or scorched and the paint blistered. The Court held that that did not amount to arson and that the term 'sets fire to' has a legal meaning and means 'to burn' in the sense that the word is used in the common law definition of arson. At common law there must be an actual consuming by fire before the material is 'burned'. Charring, that is the carbonisation of the material, constitutes burning but not mere scorching, blackening or blistering by heat.

[26.1.7] Building Or Structure 

The terms 'Building' and 'Structure' are not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

In London County Council v Tann [1954] 1 AllER 389 Lord Goddard CJ, with whom the other members of the Court concurred, stated at page 390: 

'I think the learned magistrate was wrong in saying that he must construe the term "structure" as ejusdem generis with the term "building". There is no genus, and it is obvious that the Act is meant to include something wider than a building. If you had simply to construe the word "structure" ejusdem generis with the word "building" and say that "structure" meant a building, there would have been no necessity for the legislature to use both words.' 

The 'Ejesdum Generis' or 'Class' Rule in statutory interpretation is examined on page 57. 

See also: Springham v R (1964) 3 CCC 105 at page 109; British Columbia Forest Products Ltd v Minister of National Revenue (1971) 19 DLR(3d) 657 & R v Bedard (1976) 31 CCC (2d) 559. 

The 'natural and ordinary' meaning of the term 'structure' in the context of this section would include 'what is constructed; and involves the notion of something which is put together, consisting of a number of different things which are so put together or built together, constructed as to make one whole, which is then called a structure', see Hobday v Nichol [1944] 1 AllER 302, per Humphries J at page 303. 

In R v B [1997] 2 QdR 459 Macrossan CJ and Davies JA of the Court of Appeal, with whom Moynihan J concurred, held: 

Section 461(a) [ie., the equivalent Queensland provision] does not require that a 'structure' be a substantial construction or of any particular economic value or a fixture. There may be involved some restriction to a constructed entity which either serves a purpose of protecting from the elements in support of some human activity, or of confining or containing things to be held within it or, in terms of its size, is ordinarily expected to function with a substantial degree of contact with the ground.

[26.1.8] Vessel 

The term 'Vessel' is defined in section 4 of the Penal Code (Ch. 26) as including: 

'any ship, a boat and every other kind of vessel used in navigation either on the sea or in inland waters, and includes aircraft.'

[26.2] Attempts To Commit Arson

[26.2.1] Offences 

Section 320 of the Penal Code (Ch. 26) states: 

'Any person who – 

(a)                attempts unlawfully to set fire to any such thing as is mentioned in the last preceding section; or 

(b)               wilfully and unlawfully sets fire to anything which is so situated that any such thing as is mentioned in the last preceding section is likely to catch fire from it, 

is guilty of a felony, and shall be liable to imprisonment for fourteen years.'

[26.2.2] Wording Of Charges 

Section 320(a) 

'[Name of Defendant] at [Place] on [Date] did attempt unlawfully to set fire to [a building, a structure, an aircraft, a vehicle, a vessel, a stack of (cultivated vegetable produce, mineral or vegetable fuel), a mine or the [workings, fittings or appliances of a mine])] the property of [specify the name of the complainant].'

Section 320(b) 

'[Name of Defendant] at [Place] on [Date] did wilfully and unlawfully set fire to a thing to wit [specify the thing] which was so situated to [a building, a structure, an aircraft, a vehicle, a vessel, a stack of (cultivated vegetable produce, mineral or vegetable fuel), a mine or the (workings, fittings or appliances of a mine)] the property of [specify the name of the complainant] that it was likely to catch fire from the said thing.'

[26.2.3] Elements

Section 320(a) 

A. Defendant 

B. Place 

C. Date 

D. Attempt 

E. Unlawfully 

F. Set Fire To 

G.        [i] Building; 

[ii] Structure; 

[iii] Aircraft; 

[iv] Vehicle; 

[v] Vessel; 

[vi] Stack Of 

[1] Cultivated Vegetable Produce; 

[2] Mineral; 

[3] Vegetable Fuel; 

[vii] Mine; Or 

[viii]     [1] Workings; 

[2] Fittings; or 

[3] Appliances 

Of A Mine 

H. Property Of Complainant

Section 300(b) 

A. Defendant 

B. Place 

C. Date 

D. Wilfully 

E. Unlawfully 

F. Set Fire To 

G. Thing 

H. Which Was So Situated To 

[i] Building; 

[ii] Structure; 

[iii] Aircraft; 

[iv] Vehicle; 

[v] Vessel; 

[vi] Stack Of 

[1] Cultivated Vegetable Produce; 

[2] Mineral; 

[3] Vegetable Fuel; 

[vii] Mine; Or 

[viii]     [1] Workings; 

[2] Fittings; or 

[3] Appliances 

Of A Mine 

I. Property Of Complainant 

J. Likely To Catch Fire From The Said Thing

[26.2.4] Attempt 

The law relating to 'Attempts To Commit Offences' is examined commencing on page 398.

[26.2.5] Set Fire To Anything So Situated 

In R v Webb, Ex parte Attorney – General [1990] 2 QdR 275 the Court of Criminal Appeal held: 

It is not necessary to prove that the thing set fire to was the property of some person and that the setting fire to it was done with consent of that person; and 

In relation to the element of 'wilfulness', it is necessary to prove that the defendant realised that there was a likelihood of a second thing catching fire or that the defendant acted recklessly in disregard of that prospect. 

Macrossan CJ, with whom Lee J concurred, stated at page 282: 

'[T]he subsection should be taken as proscribing the setting fire to anything while wilfully contemplating an unlawful result that a thing within the classes specified within section 461 would catch fire from the first – mentioned thing. This meaning restricts the operation of the proscribed intention and the unlawfulness so that they qualify only the burning or possible burning of items specified in section 461 and, in this respect, the construction suggested is consistent with the plan appearing in sections 461 and 462(1) which deal with the cases of arson and attempted arson.' 

Refer also to the section which examines the term 'Sets Fire To' commencing on page 526.

[26.3] Jurisdiction 

The jurisdiction of the Courts in respect of the offences of 'Arson' and 'Attempted Arson' is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of those offences are examined commencing on page 918.

[26.4] Related Offences 

The following offences are related to offences of 'Arson' and 'Attempts To Commit Arson' as provided for in the Penal Code (Ch. 26): 

·                     'Setting Fire To Crops And Growing Plants', section 321 of the Penal Code (Ch. 26); and 

·                     'Attempting To Set Fire To Crops, etc', section 322 of the Penal Code (Ch. 26).