R v Joinbee

In this matter the appellant was convicted of arson and grievous bodily harm. The count of arson arose out of the destruction by fire of the appellant’s residence.  He shared that residence with his de facto, Ms Lofts.  The count of grievous bodily harm arose out of the burns sustained by Ms Lofts in the fire.  The offence of arson is found in s 461(1)(a) of the Criminal Code which relevantly provides that any person who wilfully and unlawfully “sets fire to” a building or structure is guilty of the crime of arson.  The appellant did not dispute, on the appeal, that he had spread ignitable fuel around the house nor that he did that with the intention of setting set fire to the house.  However, he asserted that, given the circumstantial nature of the case and the expert evidence that a spark from an electrical appliance could have been the source of the ignition, the jury could not have been satisfied that the appellant “set” the fire.  Both Philippides and Boddice JJ held that the meaning of the expression “set fire to” in s 461 refers to conduct which causes a building to be set on fire and that applied even if the conduct in question did not include the act of physically applying fire to the building.  Philippides J noted that the proper direction to the jury in such a case necessitated a direction that they were “required to be satisfied of the element that the defendant “set fire to” the building” and in that respect “it was necessary to direct the jury that they were required to be satisfied that the alleged conduct of spreading accelerant through the house was conduct which caused the building to be set on fire”. The second part of the decision concerned “intention” in the commission of the two offences.  It was held that the question of intention was not the same for arson and grievous bodily harm in the circumstances of this case.  Consequently, whilst it was not appropriate to leave the question of “accident” to the jury in relation to arson it was appropriate in relation to the latter offence.