R v Wilson
[2008] NZCA 505
•28 November 2008
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA501/2008
[2008] NZCA 505THE QUEEN
v
GARRY WILSON
Hearing:13 November 2008
Court:William Young P, Ronald Young and Fogarty JJ
Counsel:C B Wilkinson-Smith for Appellant
A Markham for Crown
Judgment:28 November 2008 at 10.30 am
JUDGMENT OF THE COURT
ON THE COUNT OF ARSON, THE APPEAL IS ALLOWED AND THE CONVICTION IS QUASHED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
[1] The appellant rented a house at Pouto Road, Dargaville from 9 June 2005. Twelve days later, the house burnt down. The Crown case was that Mr Wilson was attempting to manufacture methamphetamine in the house and during the manufacturing process the house caught fire. The jury found Mr Wilson guilty of attempting to manufacture methamphetamine and arson. The arson count was laid under s 267(1)(b) of the Crimes Act 1961.
[2] The appellant now challenges the conviction for arson. He maintains that:
(a)he had an interest in the property at Pouto Road property as a tenant and, therefore, could not have been convicted of arson pursuant to s 267(1)(b); and
(b)Cooper J, the trial Judge, failed to direct the jury properly on how the appellant could be guilty as a party to arson.
Because we propose to allow the appeal on the first of these grounds, we need not address the second.
Background
[3] The appellant arrived in Dargaville in June 2005 and initially stayed with an old friend. He mentioned he was looking for a house to rent. His friend introduced him to the owner of the Pouto Road house. An agreement was reached regarding the appellant’s lease of the property. The appellant paid (in cash) a month’s rent and a bond equivalent to a further month’s rent. The tenancy commenced on 9 June 2005. On 12 June 2005 the appellant had difficulties with the water supply, which the landlord (who saw the appellant that day) fixed. Shortly afterwards the landlord went overseas.
[4] Nine days later on 21 June 2005 tourists travelling along Pouto Road noticed the house was on fire and called the fire brigade. The firemen were reluctant to enter the house because they saw two pots and a camp stove on the floor in the bathroom. They suspected it was being used as a methamphetamine lab.
[5] ESR, engineering and fire experts gave evidence at trial. They established that the probable source of the fire was the hot plate with two pots in the bathroom, which had somehow ignited. The ESR found pseudephedrine (a precursor for methamphetamine manufacture) in one of the pots. In the kitchen there was another similar heating element which had traces of methamphetamine.
[6] The appellant disappeared about a week after the fire. Some 18 months later he was found and interviewed by the police. He denied he had been a tenant of the property and denied any involvement in either manufacturing methamphetamine or the fire.
Discussion – the arson conviction
[7] The appellant had been committed for trial on a charge of attempting to manufacture methamphetamine. But before trial the Crown sought an order under s 345D of the Crimes Act 1961 to add a count of arson. The proposed count alleged the appellant had recklessly damaged the house by fire.
[8] Section 267(1) of the Crimes Act provides as follows:
267 Arson
(1)Every one commits arson and is liable to imprisonment for a term not exceeding 14 years who—
(a)intentionally or recklessly damages by fire or by means of any explosive any property if he or she knows or ought to know that danger to life is likely to ensue; or
(b)intentionally or recklessly, and without claim of right, damages by fire or by means of any explosive any immovable property, or any vehicle, ship, or aircraft, in which that person has no interest; or
(c)intentionally damages by fire or by means of any explosive any immovable property, or any vehicle, ship or aircraft, with intent to obtain any benefit, or to cause loss to any other person.
[9] The appellant opposed the application on the basis that he could not be guilty of arson under s 267(1)(b) because he had an interest in the property as a tenant and, therefore, could not be said to have “no interest” in the property.
[10] Wylie J granted the application to add the count of arson. He reasoned that the interest referred to in s 267(1)(b) was “an interest which entitles the person to damage their [sic] own property” and concluded that a tenancy agreement “did not confer on the tenant any right to damage the property”. At trial the Crown alleged the appellant was either a principal or a party to recklessly setting fire to the house.
[11] The Crimes Act contains no definition of “interest” in property. It is well established a tenancy is an interest in land: Hinde McMorland and Sim Land Law in New Zealand (looseleaf) at [11.001]. The respondent did not submit otherwise. The appellant submits, therefore, that s 267 provides:
(a)where the Crown alleges that the damage by fire is intentional a tenant may be convicted if the or she has caused loss to any other person (subs (1)(c));
(b)where the Crown alleges that the damage by fire is either intentional or reckless a tenant may be convicted if he or she knew that danger to life was likely to ensue (subs (1)(a)); and
(c)a tenant otherwise cannot be convicted of recklessly damaging the tenanted property by fire (subs (1)(b)).
[12] Read literally s 267(1)(b) supports the appellant’s case that a tenant cannot be convicted of recklessly causing damage by fire to the tenanted property. And the relevant legislative history makes it clear that it should be construed as meaning what it says.
[13] The draft Criminal Code of 1879 and the relevant sections in the Criminal Code Act 1893 and the Crimes Act 1908 are all similar. For present purposes it is sufficient to focus on the 1908 Act.
[14] Sections 328 and 329 of that Act provided as follows:
328What constitutes mischief
(1)For the purposes of sections 329 to 341 hereof, every one who causes any event by an act which he knew would probably cause it, being reckless whether such event happens or not, shall be deemed to have caused it wilfully.
(2)Nothing shall be a crime under any provision contained in those sections unless it is done without legal justification or excuse, and without colour of right.
(3)Where the crime consists in an injury to anything in which the offender has an interest, the existence of such interest, if partial, shall not prevent his act being a crime, and, if total, shall not prevent his act being a crime if done with intent to defraud.
329Arson
Every one commits arson and is liable to imprisonment… for life who wilfully sets fire to any building, erection, or structure whatever fixed to the soil, whether such building, erection, or structure is completed or not, or to any stack of vegetable produce, or of mineral or vegetable fuel, or to any mine, or to any ship or vessel or aircraft whether completed or not.
Section 328(3) distinguished between a partial and a total interest. A partial interest did not prevent damage to property being a crime but a total interest in the property did, unless the additional element of intent to defraud was present.
[15] Sections 328 and 329 of the 1908 Act came before this Court in R v Evans [1957] NZLR 1128. Evans was the registered proprietor of land on which there was a building, which he burnt down. He was charged with arson. The majority, Barrowclough CJ and McGregor J, concluded that the existence of a mortgage over the land subtracted from the totality of Evan’s interest such that he had only a partial and not a total interest in the land. In the circumstances, therefore, he could be convicted of arson. In his dissenting judgment F B Adams J took the view that a mortgagor is still the owner of an entire property that is mortgaged and, therefore, had a total interest in the property.
[16] The law changed in 1961 with the new Crimes Act. Sections 293 and 294 provided as follows:
293What constitutes criminal damage
(1)For the purposes of sections 294 to 305 of this Act, every one who causes any event by an act which he knew would probably cause it, being reckless whether that event happens or not, shall be deemed to have caused it wilfully.
(2)Nothing shall be an offence against any of the provisions of those sections unless it is done without lawful justification or excuse, and without colour of right.
(3)Where the act done results in the destruction of or any damage to anything in which the person charged has an interest, whether total or partial, the existence of that interest shall not prevent his act being a crime if it is done with intent to defraud or to cause loss to any other person. For the purposes of this subsection, where any property is subject to any mortgage or charge, each of the parties to the mortgage or charge shall be deemed to have a partial interest in that property.
294Arson
Every one commits arson and is liable to imprisonment for a term not exceeding 14 years who wilfully sets fire to, or damages by means of any explosive,–
(a)Any building, erection, or structure, or any ship or aircraft, or any well of any combustible substance, or any mine, or any bush, forest, or plantation; or
(b)Any property, whether he has an interest in it or not, if he knows or ought to know that danger to life is likely to ensue.
[17] The commentary in Adams (2nd ed 1971) at 584 perhaps unsurprisingly (given the author of the text) suggested the law had been changed to reflect F B Adams J’s dissenting judgment in Evans. Section 293 abolished the distinction between partial and total interest. It provided that if a person charged had any interest in land he could only be convicted of arson if the act was done to defraud, to cause loss or with knowledge, actual or constructive, that danger to life was likely to ensue (“the aggravating features”).
[18] In 2003 this part of the Crimes Act (Part 10) was rewritten and introduced in its current form on 1 October 2003. The explanatory note to the Crimes Amendment Bill (No 6) made it clear that Parliament intended to simplify and consolidate the existing law relating to arson and other damage to property.
[19] The current section reverses the formulation of the text from the 1961 section but the effect remains the same. The 1961 section provided that if the defendant had an interest in the land he or she would only commit a crime if the damage by fire were done with the aggravating features. The current section provides if a person charged has no interest in land then he or she may be convicted of intentionally or recklessly damaging property by fire.
[20] So we see the legislative history as supporting a literal reading of s 267. Where, as here, the Crown alleges that damage by fire has been caused recklessly and the person charged is a tenant of the property (or holds another qualifying interest) then, in the absence of any of the aggravating features, that person cannot be convicted of arson.
The outcome
[21] The appellant was sentenced to cumulative terms of imprisonment of two and a half years on the attempt to manufacture charge, 18 months on the arson charge and six months on an unrelated forgery charge. The effect of quashing the conviction on the arson charge reduces this sentence to three years’ imprisonment.
[22] We consider charges of attempting to manufacture methamphetamine (s 6(1)(b) of the Misuse of Drugs Act 1975) and/or permitting premises to be used (s 12(1) of the Misuse of Drugs Act) would have sufficiently covered the alleged criminality here. Upon conviction, the Crown could legitimately have pointed to the destruction of the house as an aggravating feature at sentence and the appellant could have expected to receive a total sentence in excess of the three year effective sentence which he must now serve. So, ironically, he has benefited from the inclusion in the indictment of the rather forced count of arson.
[23] On the count of arson, the appeal is allowed and the conviction is quashed.
Solicitors:
Crown Law Office, Wellington
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