[1979] KILR 53

HIGH COURT OF THE GILBERT ISLANDS

Criminal Case No 22 of 1979

REGINA

v

TEIAUA TIMEON
AND
TWO OTHERS

(O'BRIEN QUINN C.J.)

Betio: 23rd and 24th April 1979

Criminal law - arson - "sets fire to" - section 312(d) of Penal Code (Cap 8) - What constitutes setting fire to - attempted arson - section 313(a) of Cap 8 - "appliance" - section 312(d) or (b) - is an excavator a vehicle or an appliance - section 158 of the Criminal Procedure Code (Cap 7).

In this case, in which the three accused were charged with arson of an appliance namely setting fire to an excavator at a British Phosphate Commissioners' site on Ocean Island (Banaba), on 15th February 1979, it was argued, among other points, that the accused were not guilty of arson as they did not set fire to, but merely, placed fire against and did not burn the excavator in question and that as the excavator was a vehicle, it was not an appliance and the charge should have been framed under section 312(b) not section 312(d) of Cap 8. This case is reported only on these two points.

HELD: (1) That arson contrary to section 312(d) of the Penal Code had not been not made out as to set fire to means more than merely to put fire against but that attempt arson contrary to section 313(a) had been made out and the accused were found guilty and convicted accordingly;

(2) That an excavator, which was stated in evidence to be for the purpose of digging phosphate is in the nature of an appliance and not a vehicle, particularly as digging or excavating are the essence of the mining process and the Crown was, therefore, correct to have charged the offence under paragraph (d) rather than paragraph (b) of section 312 of the Penal Code.

Authorities referred to:-

Penal Code (Cap 8) sections 312 and 313 (a)
Criminal Damage Act 1971 (U.K.)
Kenny's Outlines of Criminal Law 17th Edition, paragraph 206
Malicious Damage Act 1861
R v Russell (1842) C & M 541
Stroud's Judicial Dictionary, 4th Edition
R v Stallion 1 Moody, 298
Oxford Illustrated Dictionary
Criminal Procedure Code (Cap 7) section 158

M. Takabwebwe, Crown Counsel, for the Crown
K.C. Ramrakha, Barrister, for the accused

O'BRIEN QUINN C.J.:-

With regard to the point of arson not having been proved I have had occasion to give the matter more study and I have been addressed by both Counsel on the matter. Section 312 uses the words "sets fine to" while the Criminal Damage Act 1971 in the United Kingdom uses the words "destroyed" and "damaged" and therefore I have had to consider the earlier law on the subject. Looking at Kenny's Outlines of Criminal Law, 17th Edition, the history of arson is traced from the Common Law through the Statutes to the Malicious Damage Act 1861where the words "set fire to" appear, in paragraph 206, that "set fire to" is regarded as meaning not merely "place fire against" but actually "set on fire". It has been held not to be sufficient that the action of the fire has scorched some of the wood to blackness, if no part of it has actually been consumed. R v Russell (1842) C and M 541 is cited for this proposition. Further, in Stroud's Judicial Dictionary, 4th Edition, it states that "In arson" as to what constitutes 'setting fire' it is not necessary that flame should be seen (R v Stallion 1 Moody, 398), but it is not sufficient that wood should be scorched black (R v Russell C & M 541). Relying on these authorities I consider that I must hold that arson has not been made out but that attempted only has been proved contrary to section 313 (a) of Cap 8 as the place where the fire was, was made of steel and was not damaged although there were tongues of flame even after the cardboard box had been removed but these could only have been caused by some of the remaining benzene and not by any burning of the machine itself.

(2) With regard to point that the excavator was a vehicle or something else but not an appliance of a mine I have examined the word "appliance" carefully and contrasted it with the word "vehicle". A vehicle, it would seem is primarily for the carrying of something, as the derivation of its name from the French "vehere" implies, while an "appliance" is a machine or instrument for doing or carrying out something. The Oxford Illustrated Dictionary defines a "vehicle" as "Carriage or conveyance for persons or goods, any means of transport, especially by land" while it defines an "appliance" as "Applying; thing applied as means to an end." Thus, I consider that must hold that an excavator, which was stated in evidence to be for the purpose of digging phosphate, is in the nature of an appliance and not a vehicle, particularly as digging or excavating are the essence of the mining process. The Crown was, therefore, correct to have charged the offence under paragraph (d) rather than paragraph (b).

(After dealing with other points the learned Chief Justice then continued)

3. I, therefore, find that the first, second and third accused persons are guilty, not of arson as charged, but of attempted arson of an excavator called a "Ruston Bucyrus" RB. 23 on the date and at the place and in the manner alleged in the original particulars of the offence, contrary to section 313 (a) of the Penal Code (Cap 8) and I make this finding under the powers given to me by section 158 of the Criminal Procedure Code (Cap 7).

4. I, therefore, convict all three accused of attempted arson contrary to section 313(a) of Cap 8.

Editorial Note: The appeals of all three appellants against this decision were dismissed by the Kiribati Court of Appeal on the 19th October 1979 in Criminal Appeal No 4 of 1979.