Firearms

Question 1

Discharging firearm or doing dangerous act with intent (1)

Section and elements

Answer 1

Section 198 (1)

• With intent to do GBH

(a) Discharges any firearm, airgun, or other similar weapon at any person

(b) Sends or delivers to any person or puts in any place, any explosive or injurious substance or device

(c) Sets fire to any property

14 years

Question 2

Discharging firearm or doing dangerous act with intent (2)

Section, Elements and Penalty

Answer 2

Section 198 (2)

• With intent to injure or with reckless disregard for the safety of others

(a) Discharges any firearm, airgun or other similar weapon at any person

(b) Sends or delivers to any person or puts in any place, any explosive or injurious substance or device

(c) Sets fire to any property

7 years

Question 3

Three optional forms of mens rea in Section 198 offences

Answer 3

• Intent to do GBH
• Intent to injure
• Reckless disregard for the
  safety of others

Question 4

Three optional forms of actus reus in Section 198 offences

Answer 4

• Discharging a firearm at a
  person
• Delivering explosives
• Setting fire to property

Question 5

What is the criminal liability based on in Section 198?

Answer 5

Based on the intentions and actions of the offender, rather than the outcome or consequences

Question 6

Explain bodily harm in regards to Section 198

Answer 6

Unlike other serious violent offences, it is not necessary to prove the victim suffered bodily harm.

Where actual bodily harm results, the appropriate charge would be 188, 189, murder or manslaughter depending on outcome.

Question 7

R v Pekepo

Answer 7

Section 198

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 8

Discharge definition

Answer 8

To fire or shoot

Question 9

Firearm definition

Answer 9

Means anything from which any shot, bullet, missile or other projectile can be discharged by force of explosive

Question 10

Explosive definition

Answer 10

Substance/mixture which in normal state can explode or produce pyrotechnic effect (gun powder, dynamite, flares)

Question 11

Airgun definition

Answer 11

• any air rifle
• air pistol
• 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 12

Injurious substance

Answer 12

Things capable of causing harm i.e. anthrax

Offence complete when sent but substance needs to be capable of causing injury (not fake)

Question 13

R v Fitzgerald circumstances

Answer 13

The offender set up a perimeter fence consisting of barbed wire connected to an electric fence unit.
Conviction quashed as the unit was not operating at the time.

Question 14

Property definition

Answer 14

Includes any real and personal property, and any estate or interest in any real or personal property, money, electricity and any debt and any other right or interest

Question 15

Using any firearm against law enforcement officer (1)

Section and Elements

Answer 15

Section 198A (1) CA

• Uses any firearm in any matter
  whatever
• Against any Constable, 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
  member of Police or Traffic
  Officer or Prison Officer

14 years

Question 16

Using any firearm against law enforcement officer (2)

Section, Elements, Penalty and of note

Answer 16

Section 198A (2) CA

• Uses any firearm in any matter
  whatever
• With intent to resist the lawful
  arrest or detention of himself
  or of any other person

10 years

Of note: Using the firearm does not have to be against the person attempting the arrest or detention

Question 17

Uses in any matter whatever meaning

Answer 17

It is sufficient if the Defendant has handled or manipulated the firearm so as to convey an implied threat

Question 18

R v Swain

Answer 18

To deliberately or purposely remove a sawn-off shotgun from a bag after being confronted by a Constable amount to a use of that firearm within S198A

Question 19

Police v Parker circumstances

Answer 19

The defendant, when confronted by Police produced a loaded sawn-off shotgun and aimed it at a Constable. A struggle ensued, eventually thrown to the ground without being fired.

Court suggested ‘use in any manner whatever’ is to contemplate a situation short of actually firing the weapon

Question 20

Examples of when an Officer is NOT acting in the course of their duty in terms of Section 198A

Answer 20

• Using excessive force during
  an arrest
• Interfering with a persons
  liberty without legal
  justification
• Trespassing on private
  property without authority

Question 21

Simester and Brookbanks

Answer 21

Knowing means “knowing or correctly believing”…the defendant may believe something wrongly but cannot ‘know’ something is false

Question 22

Fisher v R

Answer 22

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 or intending to resist lawful arrest or detention cannot be established

Question 23

Commission of an imprisonable offence with firearm (1)(a)

Section, Elements and Penalty

Answer 23

Section 198B (1)(a) CA 1961

• In committing any
  imprisonable offence
• Uses any firearm

10 years

Question 24

Commission of an imprisonable offence with firearm (1)(b)

Section and Elements

Answer 24

Section 198B (1)(b) CA 61

• While committing any
  imprisonable offence
• Has any firearm with him
• In circumstances that prima
  facie show an intention to use
  it in connection with that
  imprisonable offence

10 years

Question 25

‘Has with him’ explanation

Answer 25

Following R v Cox both a physical and mental component must be proved.

Physical - Actual or potential custody or control

Mental - Combination of both knowledge that the person possesses the item and intention to possess.

Question 26

R v Manapouri circumstances

Answer 26

2 or more people can be charged in regards to a single firearm, that each ‘had with him’, if each had an appropriate degree of control over it

Question 27

Pistol meaning:

Answer 27

Any firearm that is designed or adapted to be held or fired with one hand and is less than 762mm in length

Question 28

Restricted weapon meaning:

Answer 28

Any weapon, whether a firearm or not, declared by the Governor General to be a restricted weapon

Question 29

Section 66 Arms Act

Answer 29

Occupier of premises or driver of vehicle deemed to be in possession of firearms, airgun, pistol, imitation firearm, restricted weapon or explosive

Question 30

Explain recklessness in terms of firearms offences

Answer 30

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

Question 31

Define ‘uses in any matter whatever’

Answer 31

Possession alone does not constitute ‘use’ but handling or manipulating in a manner that conveys implied threat may suffice.

Not necessary that the firearm was presented or discharged.

Question 32

Tuli v Police

Answer 32

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