Rex v Castrucci (Cr. App. No. 66/1937) [1937] EACA 195 (1 January 1937)

### APPELLATE CRIMINAL

### BEFORE LUCIE-SMITH, AG. C. J. AND WEBB, J.

## REX (Respondent) v.

# C. CASTRUCCI, Appellant (Original Accused) Cr. App. No. 66/1937

Fire-Burning "crops, stubble, grass, etc.", with the authority of the occupier of the land-Leaving fire lighted or used in the open air before the same shall be thoroughly extinguished—Employee of occupier charged—Careless Use of Fire Prevention Ordinance (Cap. 76) section 2.

The appellant, with the authority of his employer, set fire to and burned a large acreage of grass on land owned or occupied by the latter. It was alleged that he failed to extinguish these fires, with the result that they spread in to adjoining land and did damage. He was charged with having left a fire which he had lighted in the open air before the same was thoroughly extinguished, and was convicted.

Held (28-9-37).—That the words "fire which he has lighted or used" in the portion of sec. 2 under which the appellant was convicted refer to a camp fire or the like and not to the burning of "crops, stubble grass, etc." which is dealt with in the rest of the section; as the appellant was not the occupier<br>of the land on which the fire started he was not liable under the last part of the section.

Figgis, K. C. (with him Cresswell) for the appellant:-

The first part of section 2 deals with the case of a trespasser. setting fire to grass, etc., on the land of another; then comes the provision making it an offence for any person to leave a fire which he has lighted or used in the open air before it is extinguished; and finally, there is the provision which makes the occupier liable if he fails to prevent a fire started with his authority or consent on land occupied by him from spreading or causing damage. The words "fire which he has lighted or used" must refer to some kind of fire other than burning grass, etc., and the words "any person" must mean any person other than the owner or occupier, otherwise the rest of the section becomes unnecessary. Section 3 specifically authorizes an occupier to burn grass, etc. on his own land: he is not bound to wait and extinguish it, but is only liable if it spreads on to other land.

### Dennison, Crown Counsel, for the Crown: -

"Any person" includes the owner or occupier: this part of the section is intended to protect a person from the possibility of damage from a fire of any kind lighted by his neighbour and left burning: he may be put to trouble and expense in order to prevent it reaching. his own land.

JUDGMENT (delivered by Webb, J): —The appellant was convicted under section 2 of the Careless Use of Fire Prevention Ordinance (Cap. 76). Admittedly he, with the authority of his employer, set fire to and

burned a large acreage of grass on land owned or occupied by the latter, and it is alleged that he failed to extinguish these fires with the result that they spread on to the adjoining land and did damage.

The first question that arises is whether, in any circumstances. he was properly charged under that section. The Ordinance, which is a penal one, providing penalties of fine or imprisonment up to three months, creates three offences: (1) where any person, without the consent of the owner or occupier of any land, wilfully or negligently burns any crops, stubble, grass, trees, bush, or herbage thereon (section 2): (2) where any person leaves any fire which he may have lighted or used in the open air before the same shall be thoroughly extinguished (section 2); and (3) where an occupier of land fails to prevent a fire started on the land occupied by him with his authority or consent from extending beyond the boundary of such land or from causing damage to the property of any other person (section 3 (2). It was for the second offence that the appellant was convicted, the learned Resident Magistrate holding that an offence was committed whenever any person failed to extinguish a fire which he had lighted, whether on his own or his employer's land, and whether or not it spread or did damage to other land. It was argued before him that the words "without the consent of the owner or occupier" applied to both parts of section 2. He rejected this argument and in our opinion he was right in so doing. Grammatically these words apply only to the first offence, while the sentence dealing with the second offence is perfectly general in its terms.

But, as has been pointed out on behalf of the appellant, the interpretation put by the learned Resident Magistrate upon the second part of section 2 involves the difficulty that it renders section 3 $(2)$ almost wholly unnecessary, because obviously if an owner or occupier, who has set fire to grass, etc., on his land, is careful to extinatish it thoroughly, it cannot extend beyond his boundary, and, conversely, if it does extend beyond his boundary it can only be because he has failed to extinguish it; and, further, it would render liable to prosecution an owner or occupier who set fire to grass, etc., on his own land, so situated that by no possibility could it spread or cause damage, if he left before it was thoroughly extinguished. It would only be if sparks were carried and set fire to something at a distance that he could be liable under section 3 (2) for having "caused damage" and this liability could arise equally even if he stood by ready to extinguish the fire whenever it had burned away whatever was desired to be burned.

Endeavouring to give some distinct meaning to each of the different provisions of the two sections we have come to the conclusion that the first part of section 2 and section 3 $(2)$ must have been intended to deal with one type of fire, namely, setting fire to grass, etc.. and the second part of section 2 with a different type, namely, lighting a camp fire or the like. Admittedly this would make it an offence for a person, who, for example, had lighted a fire on his own land for a pic-nic, to leave that fire unextinguished, but we have found it impossible to construe the language used by the draftsman in such a way as not to involve some absurdity, and this seems to be, at all events, a lesser absurdity than to say that an owner or occupier, who

has been expressly authorized by section 3 (1) to burn grass, etc., on his land, must stand by and extinguish it in any event, and that he has committed an offence under section 2 if he leaves it burning, even though it should subsequently go out without having extended beyond his boundary or caused any damage.

We, therefore, hold that the appellant, who is not the owner or occupier of the lands upon which the fires were lighted, was wrongly charged under section 2. In the circumstances it becomes unnecessary to consider the somewhat confused and sometimes conflicting evidence as to the facts.

The conviction is set aside and it is ordered that the fines, if paid, be refunded.

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