Firearms

Question 1

Elements for discharging firearm or doing dangerous act with intent

Answer 1

Section 198(1)
With intent to do GBH
a. Discharges any firearm or airgun or other similar weapon at any person.
b. Sends to or delivers to any person or puts in any place any explosive or injurious substance or device.
c. Sets fire to any property.

Section 198(2)
With intent to injure OR With reckless disregard for the safety of others
a. Discharges any firearm or airgun or other similar weapon at any person.
b. Sends to or delivers to any person or puts in any place any explosive or injurious substance or device.
c. Sets fire to any property.

Question 2

Intent for discharging a firearm

Answer 2

R v Pekepo
A reckless discharge of a firearm in the general direction of a passerby who happens to be hit is not sufficient proof. An intention to shoot that person must be established.

Question 3

Element for using any firearm against law enforcement officer

Answer 3

Section 198A(1)
Uses any firearm in any manner whatever
Against any constable, traffic officer or prison officer
Acting in the course of his/her duty
Knowing that or being reckless whether or not that person is a member of Police or a traffic officer or a prison officer so acting

Section 198A(2)
Uses any firearm in any manner whatever
With intent to resist the lawful arrest or detention of him/herself or of any other person

Question 4

Uses in any manner whatever

Answer 4

Sufficient that a defendant has handled or manipulated the firearm so as to convey an implied threat or its further use. It is not necessary that the firearm was discharged or presented.

Question 5

Case law for uses in any manner whatever

Answer 5

R v Swain
To deliberately or purposely remove a sawn off shotgun from a bag when confronted or called upon by a police constable amounts to a use of that firearm within the meaning of section 198A.

Question 6

Case law for intent to resist arrest

Answer 6

Fisher v R
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 elements of mens rea of intending to resist lawful arrest or detention cannot be established.

Question 7

Elements for commission of an imprisonable offence with a firearm

Answer 7

Section 198B(1)(a)
In committing any imprisonable offence
Uses any firearm

Section 198B(1)(b)
While committing any imprisonable offence
Has any firearm with him/her
In circumstances that prima facie show an intention to use it in connection with that imprisonable offence

Question 8

Has with him or her

Answer 8

Must knowingly have the firearm with them, mere possession is not sufficient. There must be evidence that the defendant not only had possession, knowingly had custody or control of a firearm, but also that it was at the time available and at hand for him or her to use while committing the imprisonable offence.

Question 9

Prima facie

Answer 9

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

Question 10

Initial action

Answer 10

Guard
Control
Freeze
Preserve