VIC Charged with Arson in Victoria

[Dylan1844]

I am on here hoping to get some direction for possible defences for an upcoming case. I have seen a lawyer though we are waiting to get a full brief back before she will give me any specific advice.

The charge is relating to burning a wooden pallet valued at $50. The charge is an indictable offence.

My confusion over the charge is that this wooden pallet the police have described in the summons as the owner of the property is unknown. My research so far on the charge is that the prosecutor must prove that the property belonged to someone.

There is also a second charge of lighting a fire during a fire danger period.

Thank you in advance to any advice people can offer.

 

[DMLegal]

Here are the elements of the offence:

1. The accused destroyed or damaged property;
2. The property belonged to another;
3. The accused intended to destroy or damage property;
4. The damage or destruction occurred by fire;
5. The accused intended to damage or destroy the property by fire;
6. The accused did not have a lawful excuse for his or her actions

Here are some circumstances where the arson could be considered lawful:

• That the accused believed that the property belonged solely to himself or herself;
• That the accused believed he or she held a right or interest in the property which authorised him or her to engage in the conduct;
• The people he or she believed were entitled to consent to the destruction or damage had consented, or would have consented if they had known the circumstances of the destruction or damage;

Here are some defences:

• Was the property damaged or destroyed (applying each of these words relevant meaning)?
• Was the thing damaged or destroyed considered property for the purposes of the CA?
• Did the property belong to another or the accused and another?
• Can the prosecution prove the accused intended to destroy or damage the property? Can the prosecution prove the accused knew or believed his conduct was more likely than not to result in damage or destruction of the property?
• Can the prosecution prove the accused intended to damage or destroy the property by fire? Was it an accident?
• Did the accused have a lawful excuse?
  • Did the accused believe the property belonged solely to himself or herself?
  • Did the accused believe he was authorised to engage in the conduct?
  • Did the accused believe it necessary for him or her to have engaged in the conduct to protect property?
• Did the accused believe the owner consented to the damage or destruction of the property?

It would seem that if the property did not belong to any person you might be able to defend the charge. Seems as though the threw the book at you, bit harsh if you ask me.

Btw the above should be credited to - Arson - definition, elements, possible defences

 

[Bill Murray]

It can be heard summarily so it's not a huge issue but just negotiate it down to criminal damage.

They might not have a prove an owner, just that it was owned.

 

[DMLegal]

How could you prove it was owned without identifying an owner?

 

[Bill Murray]

They just need to prove that someone owned it - but not the identity of the owner.

An example I guess would be in a delivery yard that receives deliveries from multiple different companies. They could have a variety of pallets in their yard all belonging to the respective companies but only stored on their property for safe keeping till they are taken away. The delivery yard does not own the pallet however the existence of the pallet in the delivery yard indicates that someone owned it. If it is burnt to the point of being unidentifiable then the identity of the owner wouldn't be able to be proven but you could prove that it was owned.

I receive deliveries from multiple companies - the deliveries come in plastic crates. Those crates are stored in my shed and removed at the next delivery (they remove the old one). I never taken ownership of them, the contract is clear I do not own them. I don't even keep track of them, the delivery companies do it for me. Should one of them be destroyed by fire I would not be able to tell the Police who owned the specific one burnt but I could confirm that someone owned them.

The example (first one) is hypothetical. The second one is a factual description of how we receive some of our deliveries at our house.

It'd be hard - but I can't see it being impossible. Unless the OP gives a whole lot more info we're just guessing as to the circumstances.

 

[DMLegal]

Touché

 

[Dylan1844]

Hi DMLegal and Bill Murray,

Thank you for your responses on this matter.

Firstly, what do you mean by summarily. The type of offence listed on the charge sheet summons is indictable. Do you mean I should be trying to negotiate this down? The fact that it is to be heard in a magistrates court does this mean it is seen as a less serious offence?

In regards to defences from what I have read so far a possible defence was that the property must be proved it was owned. DMLegal, thank you for your example. In my instance though this was not a crate that was in a shipping yard it was a pallet that had been left behind in a park. Does that make a difference?

In regard to the property being damaged prior to it being burnt is it I that has to prove it was damaged or is it the prosecution that has to prove beyond reasonable doubt that it wasn't damaged before it was burnt? If it is the latter how would they do that?

Regards,

Dylan

 

[DMLegal]

Hi Dylan,

No problem at all.

As with most defences you have the evidential burden, which means you need to raise it as a defence, to the extent that a jury (or magistrate), acting reasonably, could entertain a doubt as to whether it’s true or not, then the prosecution must disprove the defence beyond reasonable doubt. The prosecution have the harder job, you just need to make it a possibility, often it is enough just to mention it.

In WA you wouldn’t be able to negotiate it down, not sure about Vic, so not quite sure what Bill was referring to.

Magistrates Court is always ‘less serious’ than the higher courts, but still serious.

The fact it was in a park helps, makes it almost certain that it wasn’t owner by anyone, would appear to be abandoned. Make sure your lawyer considers this as part of your defence.

 

[Dylan1844]

Thanks again, really appreciate it.

I hope to have the full brief this week and see my lawyer again as well so will know more then.

 

[DMLegal]

No worries, hope it all goes well.