‘playing with Fire’: Contemporary Fault Issues in the Enigmatic Crime of Arson

The decision of the New South Wales (‘NSW’) Court of Appeal in CB v Director of Public Prosecutions (NSW) has brought the mental element for ‘arson-type’ offences into sharp focus. These are offences involving damage to, or destruction of, various types of property or injury to, or the death of, persons from intentional or reckless acts of fire-setting. They may be structural fires or bushfires. The subjective mental state of recklessness was interpreted in CB in light of the principles established by the NSW Court of Criminal Appeal in Blackwell v The Queen, but in the specific context of the offence of causing damage to, or destruction of, property by fire. Essentially, the Court of Appeal reasoned to a broad interpretation of recklessness as a fault element in the context of this offence, requiring the prosecution to prove that the accused had foresight only of the possibility ‘of harm to property to any degree from minor damage to destruction’. Foresight of the possibility of the specific type of property damage or its magnitude resulting from the act of fire-setting does not have to be established. The actual property that is damaged or destroyed is regarded as a particular, rather than an integral part of the elements of the offence. It will be contended that the decision in CB resulted in a misinterpretation of recklessness as a fault element in ‘arson-type’ offences. Alternatively, it is argued that the legislature should reformulate these offences to narrow the fault element