Judge Kevin Phillips decided Yuji Kubota had no case to answer and dismissed the charge in the Dunedin District Court on Wednesday.
His counsel, Len Andersen, yesterday said the case should never have reached court and would not have if a police policy not to grant diversion to fire-lighters in the student quarter was not in place.
Kubota was originally charged by arresting officers with criminal nuisance. A further charge of intentional damage with reckless disregard for safety was laid with the court. That was amended to intentional damage and the charge of criminal nuisance was withdrawn.
Police have backed the decisions: ``The final charge was the most appropriate based on the facts that were established,'' police said, in an emailed statement to the ODT.
``Those facts were assessed and carefully considered against the Solicitor-general's prosecution guidelines.
``There was no mistake in withdrawing the original charges. The police prosecution service takes matters of fairness and national consistently very seriously. The final charge passed both the Solicitor-general's evidential and public interest tests.''
When asked yesterday, whether police believed there was a legislative gap in relation to minor nuisance fires where no property is damaged and there is no risk of injury or death, a spokesman replied: ``The role of police is to enforce the law. Any questions regarding legislation should be directed to the Government''.
The University of Otago, where Kubota studies zoology, would not comment about whether the Japanese student had been or would be punished in relation to the incident.
``The university doesn't discuss discipline action taken against individual students,'' university proctor Dave Scott said, in an emailed statement.
``However, it can be expected to take action in all cases of fire-lighting of which it is aware.
When asked whether he considered there was a legislative gap in such cases, Mr Scott said: ``The university hasn't formed a view on the particular issues regarding the legislative framework as it relates to the prosecution of persons involved in lighting fires''.
``However, its code of student conduct allows it to take action against those involved in fire-lighting independently of the matter of criminality. Accordingly, this decision does not appear to impact on the university's ability to respond to fire-lighting issues.''
