Crimes Involving Firearms

Question 1

What are the “must know” case laws for crimes involving firearms?

Answer 1

R v Mohan
R v Waaka
DPP v Smith
R v Pekepo
R v Donovan
R v Harney
Police v Parker
R v Kelt
Tuli v Police

Question 2

What is the section, ingredients and penalty for Discharging a Firearm with Intent?

Answer 2

Section 198(1)(a), Crimes Act 1961
Penalty: 14 Years 

With intent to do GBH / Discharges any firearm, airgun or similar weapon / at any person.

Question 3

What are the three optional forms of Mens Rea with regard to Section 198, that dictate the offences?

Answer 3

Intent to do GBH.

Intent to Injure.

Reckless Disregard for the Safety of Others.

Question 4

What are the three optional acts forming the Actus Reus element of the Section 198 offences?

Answer 4

Discharging a Firearm at a Person.

Delivering Explosives.

Setting Fire to Property.

Question 5

Where is the criminal liability based for the Section 198 offences?

Answer 5

On the intentions and actions of the offender, as opposed to the outcome or consequences (e.g. bodily injury of the victim).

Question 6

Do you need to prove that a victim suffered bodily harm for a Section 198 offence? What difference would it make to your charging decision if your victim suffered bodily harm?

Answer 6

No. Where actual bodily harm results, the appropriate charge could range from injuring or wounding with intent, right up to manslaughter or murder depending on the outcome.

Question 7

What does Simester & Brookbanks: Principles of Criminal Law state regarding intent?

Answer 7

A person “intends to do an action (or to bring about some consequence) if he:

1. Wants to do that action (or bring about that consequence); or
2. Believes it is possible for him to achieve something he wants by doing that action (or bringing about that consequence); and
3. Behaves as he does because of his desire or belief.”

Question 8

What does R v Mohan state regarding intent?

Answer 8

Intent involves a decision to bring about, in so far as it lies within the accused’s power, the commission of the offence.

Question 9

What does R v Waaka state regarding intent?

Answer 9

A “fleeting or passing thought” is not sufficient, there must be a “firm intent or a firm purpose to effect an act.”

Question 10

What is a secondary intent/secondary outcome? Example?

Answer 10

A person may also have intended a secondary outcome, albeit a collateral one to his primary aim, if that outcome was forseen as certain to occur. An example would be a man who plants a bomb on a plane intending to blow it up and claim insurance money - not his aim to kill the passengers but their deaths are a “moral certainty” - Glanville Williams, The Mental Element in Crime.

Question 11

What does R v Wentworth state regarding intent?

Answer 11

Intention is normally taken to embrace both ultimate (desired) consequences and incidental (undesired but foreseen) consequences, so long as the latter are forseen with sufficient certainty when the course of action is deliberately embarked upon.

Story: Pharmacist sells large quantities of codeine to a woman knowing that it was to be used in the manufacture of homebake heroin - his (unsuccessful) argument was that his intention had been simply to help her because he felt sorry for her.

Question 12

How can intent be proved, apart from the offenders’ admissions?

Answer 12

Circumstantial evidence from which intent can be inferred, which can include:

• Offenders actions before, during and after event.
• The surrounding circumstances.
• The nature of the act itself.

Question 13

What does R v Collister state regarding intent?

Answer 13

The demeanor of the prisoner and the circumstances of the case were such that an ordinary reasonable man would understand that a demand for money was being made on him.

Story: Two Police officers were charged with demanding with menaces after causing a man to believe he would be arrested for soliciting homosexual acts unless he paid them money.

Question 14

What does DPP v Smith state regarding Grievous Bodily Harm?

Answer 14

“Bodily harm” needs no explanation and “grievous” means no more and no less than “really serious”.

Question 15

Does GBH necessarily need to involve life threatening or permanent injury?

Answer 15

No - as long as the harm is serious.

Question 16

What does “discharge” mean?

Answer 16

To fire or shoot.

Question 17

What is a “firearm”?

Answer 17

Anything from which any shot, bullet, missile or other projectile can be discharged by force of explosive, and includes:

• Anything adapted so it can act as above,
• Anything which for the time being is not capable of the above, but by completion/repair etc would be,
• Anything as above but which for the time being is dismantled or partially dismantled.
• Any especially dangerous airgun.

Question 18

What is an “airgun”?

Answer 18

Any air rifle, air pistol, and any weapon from which, by the use of gas or compressed air (not by force of explosive) any shot, bullet, missile or other projectile can be discharged.

Question 19

What is the definition of “any person”?

Answer 19

Gender neutral, proven by judicial notice or circumstantial evidence. Age of the victim is not relevant for these offences.

Question 20

Under Section 198(1)(a), is it sufficient for the prosecution to show a reckless discharge of the weapon in the general direction of the person who happened to be hit?

Answer 20

No - there must be an intention on the part of the defendant to shoot at THAT person.

Question 21

What does R v Pekepo state in relation to intent?

Answer 21

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.

Question 22

What is the meaning of “sends” or “delivers”?

Answer 22

The terms “send” and “deliver” take their ordinary meanings, and may include situations where the victim receives a dangerous thing by mail or courier, such as in the case of a “letter bomb”.

Question 23

What is the definition of “explosive”?

Answer 23

“Explosive” means (a) any substance or mixture or combination of substances which in it’s normal state is capable of either decomposition at such a rapid rate as to result in an explosion or of producing a pyrotechnic effect; and

(b) without limiting paragraph (a) of this definition, includes gunpowder, nitroglycerine, dynamite, gun cotton, blasting powder, fulminate of mercury or of other metals, coloured flares, fog signals, fuses, rockets, percussion caps, detonators, cartridges and ammunition of all descriptions; and
(c) without limiting paragraph (a) or paragraph (b) of this definition, includes any device, contrivance or article, which uses any substance or mixture or any combination of substances to which paragraph (a) or paragraph (b) of this definition applies as an integral part of it for the purposes of producing an explosion or a ballistic or pyrotechnic effect, but does not include a firearm; and
(d) does not include any firework as defined in section 2 of the Hazardous Substances and New Organisms Act 1996.

Question 24

What is an “injurious substance or device”?

Answer 24

The term “injurious substance or device” covers a range of things capable of causing harm to a person; for example a letter containing anthrax powder that is mailed to a political target.

Question 25

What does R v Fitzgerald state regarding devices likely to cause injury?

Answer 25

The accused set up a perimeter fence around a gang headquarters, consisting of barbed wire connected to an electric fence unit. His conviction was quashed as the unit was not operating at the time, however it was acknowledged that, if plugged into the mains power supply, the fence would have been a device likely to cause injury.

Question 26

When is an offence complete under Section 198(1)(b)?

Answer 26

It is not necessary for an explosion to occur, the offence is complete when an explosive or an injurious substance or device is sent, delivered or put in place. However, the substance must have the capacity to explode or cause injury.

Question 27

What does R v Sheppard state regarding an explosive?

Answer 27

A bottle containing gunpowder and with a wick in theneck did not come within the words “gunpowder or other explosive substance” unless the fuse was lighted when the bottle was thrown, though it was unnecessary that the light should pass from the fuse to the powder. Merely to throw a bottle containing gunpowder which could not cause an explosion was not within the relevant statute.

Question 28

What is the definition of “property”, and where is it found?

Answer 28

S2 CA1961 - Property includes real and personal property, and 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.

Question 29

Does the term “setting fire to property” relate to tangible items, intangible items or both?

Answer 29

While the statutory definition of property is wide and will involve a range of intangible things, the term “setting fire to property” will involve tangible items.

Question 30

What is the definition of “injure”, and where is it found?

Answer 30

S2 CA1961 - To injure means to cause actual bodily harm.

Question 31

What does the term “actual bodily harm” include?

Answer 31

Actual bodily harm may be internal or external, and it need not be permanent or dangerous. It can include psychiatric injury, if medical evidence confirms an identifiable clinical condition - emotions such as fear, distress or panic do not suffice, expert evidence should be called identifying a recognised psychiatric illness.

Question 32

What does R v Donovan state with regard to injury?

(Man was charged with caning a 17 year old girl for the purposes of sexual gratification - the doctor examining the girl’s body found marks consistent with a “fairly severe beating”)

Answer 32

“Bodily harm” includes any hurt or injury calculated to interfere with the health or comfort of the victim… It need not be permanent, but must, no doubt, be more than merely transitory and trifling.

Question 33

What does R v McArthur state with regard to injury?

Answer 33

The accused hit a pedestrian with his motor vehicle, knocking the man to the ground and dazing him, however in the absence of bruising, cuts or lacerations it was held that there was no “injury”.

Question 34

What does R v Chan-Fook state with regard to psychiatric injury?

Answer 34

The body of the victim includes all parts of his body, including his organs, his nervous system and his brain. Bodily injury therefore may include injury to any of those parts of his body responsible for his mental and other faculties.. accordingly the phrase actual bodily harm is capable of including psychiatric injury.

Question 35

What is “recklessness”?

Answer 35

Acting “recklessly” involves consciously and deliberately taking an unjustifiable risk. It must be proved not only that the defendant was aware of the risk and proceeded regardless (a subjective test) but also that it was unreasonable for him to do so (an objective test).

Question 36

What does the UK Law Commission state with regard to recklessness?

Answer 36

A person is reckless if, (a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk; and (b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present.

Question 37

What does R v Harney state with regard to recklessness?

(The defendant was convicted of murder after stabbing the victim in the stomach during an altercation. He argued unsuccessfully that he had been aiming for the victim’s leg knowing he could have seriously injured the man, but denied wanting to kill him.)

Answer 37

Recklessness involves a “foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk”.

Question 38

What does R v Campbell state with regard to recklessness?

(The defendant was charged with reckless injuring after firing a .44 Magnum handgun at a man who intervened during a domestic argument. The man was hit in the head and suffered serious injuries, It was held that foresight that serious injury MIGHT occur was not sufficient for recklessness.)

Answer 38

The appropriate test to apply is that it is possession of foresight that injury probably will result that must be proved.

Question 39

What does R v Tipple state with regard to recklessness?

Answer 39

As a general rule “recklessness” is to be given the subjective meaning… which requires that the accused had a conscious appreciation of the relevant risk.

Question 40

What must be proven with regard to “reckless disregard for the safety of others”?

Answer 40

It is necessary to prove that the defendant foresaw the risk of injury to others, however it is not necessary that he recognized the extent of the injury that would result.

Question 41

What does R v Mowatt state with regard to foresight?

Answer 41

It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the section, i.e. a wound or serious physical injury. Foresight that some physical harm to some person, albeit of a minor character, might result is all that is required.

Question 42

Name the Act, Section, Ingredients and Penalty for Uses Any Firearm Against Law Enforcement Officer.

Answer 42

Act/Section: S198A(1), CA1961

Penalty: 14 Years

Ingredients: Uses any firearm in any manner whatever /

against any Constable OR any traffic officer OR any prison officer acting in the course of his or her duty /

knowing that OR being reckless whether or not that the person is a Constable OR traffic officer OR prison officer so acting.

Question 43

What is the meaning of “uses in any manner whatever”?

Answer 43

This definition includes a range of acts that stop short of actually shooting an officer - it is sufficient if the defendant has handled or manipulated the firearm so as to convey an implied threat of it’s further use against the officer - it is not necessary that it be presented or discharged, however possession of a firearm alone does not in itself constitute “use”. These words can also include the use of firearms in ways in which they are not normally used, such as where a firearm is used as a club.

Question 44

What does R v Swain state with regard to “use”?

(The defendant, when confronted by a Constable, removed a sawn-off shotgun from a bag, saying “dont be stupid”, causing the officer to fear for his safety. Although he didn’t point the gun at the officer, it was held that his actions in taking the shotgun out of the bag in plain view of the Constable amounted to the “use” of the firearm in an intimidating and threatening manner against him.)

Answer 44

To deliberately or purposely remove a sawn-off shotgun from a bag after being confronted by or called upon by a Police Constable amounts to a use of that firearm within the meaning of S198A CA1961.

Question 45

What does Police v Parker state with regard to “use”?

(The defendant, when confronted by Police, produced a loaded sawn-off shotgun and aimed it at a Constable. A struggle ensued and the weapon was again aimed at the officer with the offender’s finger on the trigger. The weapon was finally thrown to the ground without being fired.)

Answer 45

“Use in any manner whatever” is to contemplate a situation short of actually firing the weapon and to present a rifle too, I think, is equivalent to or means the same thing.

Question 46

What is the definition of a “Constable”, and where does it come from?

Answer 46

Policing Act 2008, S4 (Interpretation)

“Constable” is a Police employee who:

Holds the office of Constable (whether appointed as a Constable under the Police Act 1958 or this Act) and includes a constable who holds any level of position within the New Zealand Police.

Question 47

What does “acting in the course of duty” mean?

Answer 47

The term includes every lawful act a constable does while on duty, both under statute and common law, and may includes acts done where the circumstances create a professional obligation for a constable to exercise policing duties while off duty.

Question 48

Does “acting in the course of duty” cover any unlawful actions of an officer?

Answer 48

No. If an officer is acting unlawfully, e.g. using excessive force during an arrest, interfering with a person’s liberty without legal justification, or trespassing on private property without authority, cannot be said to be “acting in the course of his or her duty”.

Question 49

What does “knowing” that the person is a member of the Police or so acting mean?

Answer 49

The defendant must KNOW the victim is a Police officer and KNOW that the officer is acting in the course of his or her duty, or be reckless as to those facts - if the defendant’s knowledge or recklessness in this regard cannot be proven beyond reasonable doubt, a charge should be considered under one of the other related provisions depending on the circumstances.

Question 50

What does “Simester and Brookbanks: Principles of Criminal Law” state regarding “knowing”?

Answer 50

Knowing means “knowing or correctly believing”… The defendant may believe something wrongly, but cannot “know” something that is false.

Question 51

Name the Act, Section, Ingredients and Penalty for Doing Dangerous Act With Intent (Explosive)

Answer 51

Act/Section: 198(1)(b) CA 1961

Penalty: 14 Years

Ingredients: With intent to do GBH / sends or delivers to any person OR puts in any place / any explosive OR injurious substance or device

Question 52

Name the Act, Section, Ingredients and Penalty for Doing Dangerous Act With Intent (Fire)

Answer 52

Act/Section: 198(1)(c) CA 1961

Penalty: 14 Years

Ingredients: With intent to do GBH / sets fire / to any property

Question 53

What does “intent to resist lawful arrest or detention” mean?

Answer 53

It must be proved that the Defendant knew an attempt was being made to arrest or detain him or the person he was assisting.

Question 54

What does Fisher v R state regarding resisting arrest?

(The defendant had discharged a firearm several times in a building, but refused to come out when called on by the AOS. He fired a further shot from the building, although there was insufficient evidence that it was directed at Police. While it was accepted that Fisher must have known he had committed offences for which he was liable to arrest, there was no evidence of an attempt to arrest or detain him at the time he fired the shot.)

Answer 54

It is necessary in order to establish a charge under Section 198A (2) for the Crown to prove that the accused knew someone was attempting to arrest or detain him because otherwise the element of mens rea of intending to resist lawful arrest or detention cannot be established.

Question 55

When “using firearm with intent to resist arrest etc”, does this firearm have to be used against a law enforcement officer?

Answer 55

No. It can be used in any manner against any person, as long as the offender has the necessary intent to resist arrest or detention.

Question 56

Name the Act, Section, Ingredients and Penalty for Commission of an Imprisonable Offence with a Firearm.

Answer 56

Act/Section: 198B(1)(a) CA 1961

Penalty: 10 Years

Ingredients: In committing any imprisonable offence / uses any firearm

Question 57

What is the definition of “imprisonable offence”, and where does it come from?

Answer 57

S5, Criminal Procedure Act 2011

In the case of an individual, an offence punishable by imprisonment for life or by a term of imprisonment.

Question 58

For the purposes of S198B, what is the meaning of “uses any firearm”?

Answer 58

The words “uses any firearm” in this section are not accompanied by “any manner whatever” and therefore have a narrower meaning - so the term includes firing or presenting a firearm, or displaying it in a menacing manner, but may not extend to the use of a firearm as a club.

Question 59

What is the meaning of “has any firearm with him or her”?

Answer 59

The offender must knowingly have the firearm with them, and also that it was at the time available and at hand for him or her to use while committing the imprisonable offence.

Question 60

What does R v Cugullere state with regard to possession?

(The defendant was stopped by Police while driving a stolen van in which three pickaxe handles (offensive weapons) were located. The defendant argued successfully that it was not his van and that he had no knowledge that the illegal items were in it.)

Answer 60

The words “has with him..” must mean “knowingly has with him…”

Question 61

What does R v Kelt state with regard to having a firearm?

Answer 61

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”.

Question 62

Can two or more people be charged in relation to a single firearm that each “had with him”?

Answer 62

Yes, if each had an appropriate degree of control over it.

Question 63

What does R v Manapouri state with regard to possession of a weapon?

Answer 63

More than one person might have the same weapon “with him” at the one time if each had the physical link and the necessary control.

Question 64

To fulfill “in circumstances that prima facie show an intention to use it in connection with that imprisonable offence”, what are “circumstances”? Is possession sufficient?

Answer 64

Mere possession is not sufficient - there must be accompanying circumstances showing a prima facie intention to use the firearm in the commission of the imprisonable offence.

Question 65

What is the meaning of “prima facie”?

Answer 65

In this context - “at first appearance”.

Question 66

What does Tuli v Police state with regard to prima facie circumstances?

Answer 66

Prima facie circumstances are those which are sufficient to show or establish an intent in the absence of evidence to the contrary.

Question 67

What is a “Military Style Semi-Automatic” firearm, and where does the definition come from?

Answer 67

S2 Arms Act 1983

A firearm (other than a pistol) that is:

(a) a semi-automatic firearm that has one or more of the following features:
(i) a folding or telescopic butt,
(ii) a magazine designed to hold 0.22-inch rimfire cartridges that -
(A) is capable of holding more than 15 cartridges; or
(B) is detachable, and by it’s appearance indicates that it is capable of holding more than 15 cartridges;
(iii) a magazine (other than above) that -
(A) is capable of holding more than 7 cartridges; or
(B) is detachable, and by its appearance indicates that it is capable of holding more than 10 cartridges:
(iv) has bayonet lugs;
(v) a flash suppressor;
(vi) a component of a kind defined or described by an order under section 74A as a pistol grip for the purposes of this definition, or;
(b) a semi-automatic firearm of a make and model declared by an order under section 74A to be a military style semi-automatic firearm for the purposes of this Act, or;
(c) a semi-automatic firearm of a description declared by an order under section 74A to be a military style semi-automatic firearm for the purposes of this Act, or;
(d) a semi-automatic firearm that has a feature of a kind defined or described in an order under section 74A as a feature of military style semi-automatic firearms for the purposes of this Act

Question 68

What is a “pistol”, and where does the definition come from?

Answer 68

S2 Arms Act 1983 -

A pistol is any firearm that is designed or adapted to be held and fired with one hand, and includes any firearm that is less than 762mm in length.

Question 69

What is a “restricted weapon”, and where does the definition come from?

Answer 69

S2 Arms Act 1983 -

A restricted weapon means any weapon, whether a firearm or not, declared by the Governer-General, by order in Council made under S4 of this Act, to be a restricted weapon.

Question 70

What are some examples of weapons declared restricted weapons as per the Schedule to the Arms (Restricted Weapons and Specially Dangerous Airguns) Order 1984?

Answer 70

Anti-tank projectors, and ammunition therefor,
Grenade dischargers/launchers and explosive grenades,
Incendiary grenades e.g. Molotov cocktails,
Machine or submachine carbines or guns/pistols,
All weapons capable of automatic fire,
Mines of an explosive nature,
Mortars of all military kinds,
Rocket launchers and ammunition,
Every device designed to discharge a stupefying substance, and any material intended or adapted for use with that device.

Question 71

What is a “specially dangerous airgun”, and where does the definition come from?

Answer 71

S2 Arms Act 1983

Any airgun declared by the Governer-General, by order in Council made under S4 of this Act, to be a specially dangerous airgun.

Question 72

What is a “specified pre-charged pneumatic air rifle”, and where does the definition come from?

Answer 72

Clause 1A Arms (Restricted Weapons and Specially Dangerous Airguns) Order 1984 Interpretation:

Pre-charged pneumatic air rifles that are not for use in airsoft or paintball sports.

Question 73

What does S66 of the Arms Act 1983 state with regard to occupier possession?

Answer 73

For the purposes of this Act every person in occupation of any land or building or the driver of any vehicle on which any firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive is found shall, though not to the exclusion of the liability of any other person, be deemed to be in possession of that firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive, unless he proves that it was not his property and that it was in the possession of some other person.