13. Firearms Flashcards
Define “firearm”
Anything from which any shot, bullet, missile, or other projectile can be discharged by force of explosion.
Includes and items that are adapted OR not yet complete OR dismantled.
Also any specially dangerous air gun.
Define “airgun”
Includes any:
a) air rifle
b) air pistol
c) any other weapon from which the use of compressed air any shot, bullet, missile, or other projectile can be discharged.
What is “intent” comprised of?
Split into two elements:
1) a deliberate act done voluntarily, AND
2) an intention to produce a specific result (“aim, object, purpose” - Simester and Brooks).
Define “discharge”
To fire or shoot
Define “any person”
Gender neutral term. Proved by judicial notice or circumstantial evidence.
Define “explosive”
Any substance or mixture which is capable of rapid decomposition resulting in an explosion or pyrotechnic effect.
Does not include fireworks.
Define “injurious substance or device”
Covers a broad range of things capable of causing harm to a person.
Define “property”
Any real and personal property, any any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest.
Includes both tangible and intangible property.
Define “injure”
To cause actual bodily harm.
Define “recklessly”
The conscious and deliberate taking of an unjustified risk.
Define “Constable”
A Police employee who holds the office of Constable.
Explain “acting in the course of duty” in regards to s198A of the Crimes Act 1961.
The officer must be acting in the course of their duty, I.e.
- Protecting life/property,
- Preventing/detecting offences,
- Apprehending offenders,
- Keeping the peace.
Can include off duty officers in the right circumstances.
Unlawful actions won’t be held as “acting in the course of duty”
Can someone be charged with s198A Crimes Act 1961 (using firearm against law enforcement officer) if the officer was committing an unlawful act?
No. Unlawful actions won’t be held as “acting in the course of duty” which is an element required for the offence under s198A.
Define “knowing”
Cite the relevant source.
Correctly believing - Simester and Brookbanks
Define “imprisonable offence”
An offence punishable by a term of imprisonment.
Define “prima facie”
At first appearance
Define “pistol”.
What is the maximum length of a pistol.
A firearm designed or adapted to be fired by one hand.
Includes any firearm less than 762mm in length.
Define “restricted weapon”
Any weapon declared by the Govenor-General to be a restricted weapon.
Define “specially dangerous airgun”
Any airgun declared by the Governor-General to be a specially dangerous airgun.
What does s198(1)(a) of the Crimes Act 1961 relate to?
What are the elements of the offence?
What is the maximum penalty?
Discharging a firearm or doing a dangerous act with intent (1).
- With intent to do GBH
- Discharges any firearm OR airgun OR other similar weapon
- At any person.
14 years imprisonment.
What does s198(1)(b) of the Crimes Act 1961 relate to?
What are the elements of the offence?
What is the maximum penalty?
Discharging firearm or doing dangerous act with intent (2)
- With intent to do GBH
- Sends to any person OR delivers to any person OR puts in any place
- Any explosive OR injurious substance.
14 years imprisonment.
What does s198A(1) of the Crimes Act 1961 relate to?
What are the elements of the offence?
What is the maximum penalty?
Using any firearm against law enforcement officer etc (1).
- Uses any firearm in any manner whatsoever
- Against any Constable OR traffic officer OR prison officer
- Acting in the course of his OR her duty
- Knowing that OR being reckless whether or not, that person is a Constable OR traffic officer OR prison officer or so acting.
14 years imprisonment.
What does s198A(2) of the Crimes Act 1961 relate to?
What are the elements of the offence?
What is the maximum penalty?
Using any firearm against law enforcement officer etc. (2)
- Uses any firearm in any manner whatsoever
- With intent to resist the lawful arrest OR detention of himself, herself OR any other person.
10 years imprisonment.
What does s198B(1)(a) of the Crimes Act 1961 relate to?
What are the elements of the offence?
What is the maximum penalty?
Commission of crime with firearm. (1)
- In committing any imprisonable offence
- Uses any firearm.
10 years imprisonment.
What does s198B(1)(b) of the Crimes Act 1961 relate to?
What are the elements of the offence?
What is the maximum penalty?
Commission of crime with firearm. (2)
- While committing any imprisonable offence
- has any firearm with him OR her
- in circumstances that prima facie show an intention to use it in connection with that imprisonable offence.
10 years imprisonment.
What is s18 of the Search and Surveillance Act 2012?
What grounds are required to invoke it?
What does it entitle you to do?
Warrantless search for arms.
RGTS:
- Breach of the Arms Act 1983, or
- Physical/mental condition, incapable of proper control over them, or may kill.
- PO/PSO is in effect, or there are grounds to make an application.
- Cat 3/4 offence, or offence against the Arms Act 1983 has/is/will happen.
- EM in relation to cat 3/4 offence, or offence against the Arms Act 1983.
Can enter, Search any person/place, seize Arms and firearms licence.
What does s66 of the Arms Act 1983 relate to?
Presumption of possession.
An occupier of any land/building OR driver of any vehicle where a firearm is found is deemed to be in possession of it.
UNLESS they prove it is someone else’s property and in the possession of another person.
What does s198(2) of the Crimes Act 1961 relate to?
What is the maximum penalty?
Discharging firearm/doing dangerous act with intent.
- Discharges firearm/airgun/similar weapon at person OR
- Sends/delivers to any person/puts in any place and explosive/injurious substance, OR
- sets fire to any property.
Where there is an intent to INJURE or where there is RECKLESS DISREGARD for the safety of others. [Not GBH as per s198(1)]
7 years imprisonment.
What is the difference between s 198(1) and s198(2) of the Crimes Act 1961?
Intent is the difference between the two.
s198(1) there is an intent to cause GBH, hence why it’s 14 years imprisonment.
s198(2) is where there is an intent to INJURE or where there is RECKLESS DISREGARD for the safety of others.
Under s198(1)(a) of the Crimes Act 1961 (discharging a firearm/doing dangerous act with intent), is it sufficient to prove the accused recklessly discharged the weapon in the direction of the victim?
Cite relevant case law
No it is not sufficient to show a reckless discharge of the weapon in the general direction of the person who happened to be hit.
For s198(1) you need to show intent to shoot at that person.
Recklessly discharging a firearm could be captured under s198(2).
R v Pekepo - a reckless discharge of a firearm in the general direction of a passer-by who happens to be hit is not sufficient proof. An intention to shoot that person must be established [for a successful charge under s198(1)(a)]
What is the mens rea associated with s198 of the Crimes Act 1961?
- Intent to do GBH [s198(1)(a&b)]
- Intent to injure [s198(2)]
- Reckless disregard for the safety of others [s198(2)].
What is the actus reus under s198 of the Crimes Act 1961?
- Discharging a firearm/airgun/other weapon at a person [s198(1)(a)]
- Delivering/sending/putting in place explosives [s198(1)(b)]
- Sets fire to any property [s198(1)(c)]
What is the criminal liability under s198 of the Crimes Act 1961 based on?
It is based on the intentions and actions of the offender rather than the outcome.
It’s not necessary to prove the victim suffered actual bodily harm under this enactment. Where actual bodily harm occurs, a wounding/injuring charge (s188/s189 CA61) would be more appropriate.
Under s198(1)(a) of the Crimes Act (discharging a firearm or doing a dangerous act with intent) when is the offence completed?
The actual discharge of a firearm at a person.
Under s198(1)(b) of the Crimes Act (discharging a firearm or doing a dangerous act with intent) when is the offence completed?
When the explosive/injurious substance has been sent/delivered or put in place
NOTE: the substance must have the capacity to explode or cause injury.
What does the element “uses in any manner” under s198A of the Crimes Act 1961 (using any firearm against law enforcement officer) mean?
Cite relevant case law.
Widens the meaning of “use” (I.e. shoot) to include a range of acts that stop short of shooting at an officer.
I.e. conveying a threat (not necessarily presenting at them), or using firearm as a club.
Police v Parker - “use in any manner whatsoever” is to contemplate a situation short of actually firing the weapon and to present a rifle too is equivalent, or means the same thing.”
For a charge under s198A(2) of the Crimes Act 1961 (using any firearm against law enforcement officer), do you have to prove the offender knew he was being arrested or detained?
Yes - it is a core element of the offence (“with intent to resist lawful arrest or detention).
Therefore without this knowledge, the offenders mens rea is lacking.
Define “uses any firearm” in relation to s198B of the Crimes Act 1961.
Narrower meaning than s198A (uses any firearm in any manner whatsoever).
May include firing, presenting, displaying in a menacing manner, but not use as a club.
Do you have to prove that the offender knowingly had the firearm with them in relation to s198B of the Crimes Act 1961?
Cite relevant case law.
Yes - have to prove the offender knowingly had the firearm with them in the commission of an offence.
R v Kelt - having a firearm with him requires a very close physical link and a degree of immediate control over the weapon by thr man alleged to have the firearm with him.
R v Manapouri - more than one person may have the same weapon with him at one time if each person had a physical link and the necessary control.
Under s198B(1)(b) of the Crimes Act 1961 (commission of crime with firearm), is possession sufficient to prove a charge under this enactment?
No. Mere possession is not sufficient. There must be accompanying circumstances which show a prima facie intention to use the firearm in the commission of an offence.
Case law:
R v Collister
Offenders intent can be inferred from:
- their actions and words before/during/after the event,
- The surrounding circumstances,
- The nature of the act itself.
Case law:
DPP v Smith
Grevious bodily harm is harm that is “really serious”.
Case law:
R v Pekepo
A reckless discharge of a firearm in the general direction of a passer-by who happens to be hit is not sufficient proof.
An intention to shoot that person must be established (for a successful charge under s198(1)(a)).
Case law:
R v Donovan
Bodily harm includes any hurt or injury that interferes with the health or comfort of the victim. It need not be permanent, but must be more than transitory or trifling.
Case law:
R v Chan-Fook
The body includes all parts of the body, including organs, nervous system, and brain.
Accordingly bodily harm is capable of including psychiatric injury.
Case law:
Cameron v R
Recklessness is established if:
a) the defendant recognised that there was a real possibility that:
(i) his or her actions would bring about the proscribed result; and/or
(ii) that the proscribed circumstances existed; and
b) having regard to that risk those actions were unreasonable.
Case law:
Police v Parker
Regarding s198A CA61
“Use in any manner whatsoever” is to contemplate a situation short of actually firing the weapon and to present a rifle too is equivalent to or means the same thing.
Case law:
R v Kelt
Regarding s198B(1)(b)
Having a firearm “with him” requires a very close physical link and a degree of immediate control over the weapon by the man alleged to have the firearm with him.
Case law:
R v Manapouri
Regarding s198B(1)(b)
More than one person might have the same weapon “with him” at one time if each had a physical link to it and the necessary control.
Case law:
Tuli v Police
Regarding s198B(1)(b)
Prima facie circumstances are those which are sufficient to show or establish an intent in the absence of evidence to the contrary.
