Two years ago a fire inside our client’s home caused a moderate amount of heat, smoke and damage to our client’s property and that of his boarder, with whom his intimate relationship ended over 15 years prior. The boarder occupied the upstairs area, paid weekly rent, but after several years of accumulating items retrieved from verge sides and op shops, she had managed to take over most of the house. Our client, a hard working, laidback FIFO clean skin, was due to the state of his home, ashamed to have friends and family over. During his rostered weeks off, he found solace and peace in his ‘local’, which became an escape from the unbearable living situation created by the boarder. He had asked her to move out over several months prior to the fire but the boarder insisted that she had an equitable interest the house and was staying put. She had threatened to make false allegations of violence in order to have him kicked out of his own home. Three days before the fire, police attended in response to her complaint but after realising our client was the owner of the house, issued the boarder with a police order.
The boarder eventually returned and started to make enquires for alternative accommodation and to pack some belongings. That night, our client returned home from his local and an argument about her leaving commenced, the boarder insisting she would not be moving out after all. Frustrated and at the end of his rope, our client retrieved a jerry can of fuel from his man cave and poured it on the floor near the lounge. The boarder bolted and called ‘000’ from a nearby phone box, telling them she was riddled with worry about the cats she had left inside. A short time later, a fire commenced inside the house.
Our client was arrested at the scene and charged with Criminal Damage by Fire. We were able to secure bail despite strong opposition from the prosecution and scepticism from the Magistrate that our client had a viable defence. We successfully persuaded the ODPP to drop that charge on the basis that it is not unlawful for a person to damage his own property. However, the ODPP decided to initiate a charge of wilfully lighting a fire under the Bushfires Act and an obscure and archaic provision of the Criminal Code, namely threat toward dwelling with intent to intimidate. At a pre-trial directions hearing, we argued that our client could not be found guilty at law of the offences, detailing the background of the provisions, the importance of adopting a purposive interpretation and the legislative intent. The Court disagreed and adopted a ‘plain and clear’ approach to the text of the provisions, and so, the matter was listed for trial. We offered to accept responsibility for damaging the boarder’s property but the ODPP rejected it.
Forcing our hand, we had no choice but to play a costly, but what we were confident was a necessary, hand – bringing in the experts. We engaged a duo at the top of their game. Not only did their meticulous analysis reveal significant deficiencies and an altogether delinquent arson investigation, but critically, that the cause and origin of the fire could not be determined and accordingly, the prosecution was doomed to fail on a charge of wilfully lighting a fire.
Within 5 days of disclosing the expert report to the ODPP, a decision was made to discontinue the charges, vacate the trial and resolve the matter by a plea on negotiated facts to a fresh charge of threats to damage property.
Not without some extensive and impassioned argument, we were able to persuade the sentencing Magistrate to impose a fine and a spent conviction order for the offence. Suffice to say, our client is looking forward to a drink in the peaceful and spacious existence he now has at home.
