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7.5.21.1 - Charge: Intentionally or Recklessly Causing a Bushfire

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When to Use this Charge

This charge should be used when the accused is charged with intentionally or recklessly causing a bushfire under Crimes Act 1958 s201A.

Related Charges

If the accused is charged with an offence under Crimes Act 1958 s197(1), use Charge: Criminal Damage.

If the accused is charged with an offence under Crimes Act 1958 s197(2), use Charge: Criminal Damage Intending to Endanger Life.

If the accused is charged with an offence under Crimes Act 1958 s197(3), use Charge: Criminal Damage with a View to Gain.

If the accused is charged with an offence under Crimes Act 1958 s197(6), use Charge: Arson.

If the accused is charged with an offence under Crimes Act 1958 s197A, use Charge: Arson Causing Death.

 

I must now direct you about the crime of intentionally or recklessly causing a bushfire. To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt:

One – That the accused caused a fire;

Two – That the accused caused the fire intentionally or recklessly;

Three – That the accused was reckless as to the spread of the fire to vegetation on property belonging to another;

I will now explain each of these elements in more detail. [1]

Causing a fire

The first element that the prosecution must prove is that the accused caused a fire.

The law states that a person causes a fire when s/he [add the following where relevant:

[Summarise relevant evidence and arguments.]

Intentionally or recklessly causing a fire

The second element relates to the accused’s state of mind. The prosecution must prove that s/he caused the fire intentionally or recklessly.

[If recklessness is in issue, add the following shaded section]

To prove that NOA acted recklessly, the prosecution must prove that s/he was aware that his/her acts would probably cause a fire. It is not sufficient for NOA to have known that it was possible that s/he would cause a fire. S/he must have known that that consequence was probable.

In determining this element, you must be satisfied that NOA him/herself actually knew of the probability of causing a fire. It is not enough that you, or a reasonable person, would have recognised that likelihood in the circumstances.

[Summarise relevant evidence and arguments.]

Recklessness as to spread of fire

The third element also relates to the accused’s state of mind. The prosecution must prove that at the time of lighting the fire, the accused was reckless as to the spread of the fire to vegetation on property belonging to another. [2]

To prove that NOA was reckless as to the spread of fire to vegetation on property belonging to another, the prosecution must prove that the fire would probably spread to vegetation on property belonging to another. It is not sufficient that NOA knew it was possible that it would do so.

In determining this element, you must be satisfied that NOA him/herself actually knew of the probability of the fire spreading to vegetation on property belonging to another. It is not enough that you, or a reasonable person, would have recognised that likelihood in the circumstances.

This element is only concerned about the spread of fire beyond the capacity of the accused to extinguish. Proof that the accused thought s/he could extinguish fire if it did spread to vegetation on property belonging to another is not sufficient to prove this element. The prosecution must prove that the accused foresaw the probability that the fire would spread to vegetation on property belonging to another and that s/he would be unable to extinguish it.

[Summarise relevant evidence and arguments.]

Summary

To summarise, before you can find NOA guilty of intentionally or recklessly causing a bushfire, the prosecution must prove to you, beyond reasonable doubt:

One – That the accused caused a fire;

Two – That the accused caused the fire intentionally or recklessly;

Three – That the accused was reckless as to the spread of the fire to vegetation on property belonging to another.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of intentionally or recklessly causing a bushfire.

 

Notes

[1] If an element is not in issue it should not be explained in full. Instead, the element should be described briefly, followed by an instruction such as: "It is [admitted / not disputed] that NOA [describe conduct, state of mind or circumstances that meets the element], and you should have no difficulty finding this element proven."

[2] This charge does not address the negative definition of recklessness in Crimes Act 1958 s201A(2) and (3). The judge will need to direct the jury on that definition if it is relevant in the case.

 

Last updated: 2 July 2020

See Also

7.5.21 - Intentionally or Recklessly Causing a Bushfire

7.5.21.2 - Checklist: Intentionally or Recklessly Causing a Bushfire