The offence of intentionally or recklessly causing a bushfire has the following three elements:
The accused caused a fire;
The accused caused the fire intentionally or recklessly;
The accused was reckless as to the spread of the fire to vegetation on property belonging to another
The Crimes Act 1958 defines causing a fire as including:
Lighting a fire;
Maintaining a fire;
Failing to contain a fire, except if the fire was lit by another person or the fire is beyond the control of the person who lit the fire (Crimes Act 1958 s201A(4)).
The special definition of intention that applies to offences in s197 does not apply to this offence. The words ‘intentionally or recklessly’ should therefore be given their conventional meaning.
Recklessness as to the Spread of Fire
The Act does not contain any affirmative definition of recklessness. It is likely that the conventional legal meaning of that word applies. The prosecution must prove that the accused foresaw the probability that the fire would spread to vegetation on property belonging to another. See Recklessness.
However, the Act contains a partial negative definition of recklessness that exempts a person who engages in fire prevention or fire suppression activity in accordance with provisions made under an Act or Code of practice and who honestly believes that his or her conduct was justified in the circumstances (Crimes Act 1958 s201A(2), (3)).
The spread of the fire, for the purpose of the third element, is defined as spread of the fire beyond the capacity of the person who caused the fire to extinguish it (Crimes Act 1958 s201A(4)).