Miller, a vagrant, after consuming "a few drinks" went back to a house he was squatting in, lit a cigarette and fell asleep. Upon waking and seeing that the mattress he was lying on was on fire he got up, went into the next room and went back to sleep. When he awoke again, the house was on fire.
- Is the actus reus of the offence of arson present when a defendant accidentally starts a fire and thereafter, intending to destroy or damage property belonging to another or being reckless as to whether any such property would be destroyed or damaged, fails to take any steps to extinguish the fire or prevent damage to such property by that fire?
Appeal dismissed, original conviction upheld.
Diplock, writing for the court, states that the actus reus can be deemed to have occurred, because Miller created a situation that would result in harm if he recklessly failed to prevent the harm. As the appellant created the liability himself it would make no sense to excuse him of criminal liability.
An omission can be treated as actus reus if a person creates a situation in which harm to a person or property will occur, and he or she intentionally or recklessly fails to take steps to prevent the harm; if the accused does not live up to the created duty, then it is a crime by omission.