Discharging firearm or doing dangerous act with intent

Question 1

Discharging firearm or doing dangerous act with intent:

Act/Section/Penalty

Answer 1

CA61; S198(1)(a-c):
14 years imprisonment

CA61; S198(2):
7 years imprisonment

Question 2

Discharging firearm with intent or doing dangerous act with intent - legislation

Answer 2

(1) With intent to do GBH, -

(a) Discharges any firearm, airgun, or other similar weapon at any person; or
(b) Sends or delivers to any person, or puts in any place, any explosive or injurious substance or device; or
(c ) Sets fire to any property.

(2) With intent to injure, or with reckless disregard for the safety of others, does any of the acts referred to in ss(1) of this section.

Question 3

With intent to do GBH

Answer 3

Intent - There are two specific types of intent. Firstly there must be an intention to commit the act, and secondly an intention to get a specific result.

GBH can be defined as harm that is really serious.

Relevant case law around intent: R v Collister

Specifically around this legislation: R v Pekepo

Question 4

Grievous Bodily Harm

Answer 4

Harm that is really serious.

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

Question 5

DPP v Smith

Answer 5

Bodily harm needs no explanation and ‘grievous’ means no more and no less than really serious.

Question 6

R v Pekepo

Answer 6

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 7

Discharge

Answer 7

To fire or shoot

Question 8

Firearm

Answer 8

Arms Act 1983; S2:

Firearm -

a) means anything from which any shot, bullet, missile, or other projectile can be discharged by force of explosive; and
b) includes -
i) anything that has been adapted so that it can be used to discharge a shot, bullet, missile, or other projectile by force of explosive; and
ii) anything which is not for the time being capable of discharging any shot, bullet, missile, or other projectile but which, by its completion or the replacement of any component, part or parts or the correction or repair of any defect or defects, would be a firearm within the meaning of paragraph (a) or subparagraph (i); and
iii) anything (being a firearm within the meaning of paragraph (a) or subparagraph (i)) which is for the time being dismantled or partially dismantled; and
iv) any specially dangerous airgun

Question 9

Airgun

Answer 9

AA83; S2:

Airgun includes -

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

Question 10

Sends to or delivers

Answer 10

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 11

Explosive

Answer 11

AA83; S2:

Any substance or mixture or combination of substances which in its normal state is capable of decomposition at such rapid rate as to produce an explosive or pyrotechnic effect.

Includes: gun powder, gelignite, detonators

Does not include: firearms, fireworks

Question 12

Injurious substance or device

Answer 12

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 13

When offence is complete for doing dangerous act with intent

Answer 13

198(1)(b) - 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 - which is why Fitzgerald’s conviction was quashed.

Question 14

R v Fitzgerald - Injurious device

Answer 14

The offender 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 15

Sets fire

Answer 15

It is not necessary that the property is set alight. Melting, blistering of paint or significant smoke damage may be sufficient to prove the offence.

R v Archer:
Property may be damaged if it suffers permanent or temporary physical harm or permanent or temporary impairment of its use or value.

Question 16

Define the term property

Answer 16

CA61; S2:

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.

Only tangible property is capable of being damaged by fire or explosive

Question 17

Intent to injure

Answer 17

To injure means to cause actual bodily harm:

R v Donovan:
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 or trifling.

Question 18

Reckless disregard for the safety of others

Answer 18

• R v Cameron
• R v Tipple

Question 19

What definitions and/or case laws should be included in your discussion of the liability of

• S198(1)(a-c) and (2) - Discharging firearm or doing dangerous act with intent

Answer 19

Definition of intent: 2 specific types of intent; R v Collister; R v Pekepo;

Do GBH - a person causes GBH if their actions make them criminally responsible for it;

Definition of GBH: harm that is really serious; DPP v Smith;

Definition of discharge: to fire or shoot;

At any person: R v Pekepo;

Definition of firearm/airgun/other similar weapon: S2 AA83;

Definition of sends/delivers: have their ordinary meaning;

Definition of person: S2 CA61; gender neutral;

Definition of explosive: S2 AA83;

Definition of injurious substance or device: a thing capable of causing harm to a person;

When offence complete for placing injurious substance or device: when it is sent, delivered, or put in place however it must have the capacity to cause injury.

Definition of sets fire to: R v Archer; fire damage will often involve burning or charring, it it not necessary that the property is set alight. Melting, blistering of paint or significant smoke damage may be sufficient to prove the offence;

Definition of property: S2 CA61 - includes real and personal property, and any estate or interest in any real or personal property, money, electricity, debt, and any thing in action, and any other right or interest;

Definition of injure: cause actual bodily harm; R v Donovan;

Reckless disregard for the safety of others: Cameron v R; R v Tipple;