Firearms

Question 1

What is legislation for Discharging Firearm or Doing Dangerous Act with Intent (s198)?

Answer 1

1. Everyone is liable to imprisonment for a term of 14 years who, 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. Everyone is liable to a term of 7 years who With intent to injure, or with reckless disregard for the safety of others, does any of the acts referred to in subsection (1) of this section.

Question 2

What is the mens rea and actus reus for s198?

Answer 2

Mens rea:
•With intent to do GBH
•With intent to injure
•With reckless disregard for the safety of others

Actus reus:
•Discharges a firearm at any person
•Sends or delivers to any person explosives
•Sets fire to property

Question 3

What is the case law around intent of discharging a firearm?

Answer 3

(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.
(This applies to s198(1)(a), not s198(2))

Question 4

When is an offence complete under s198(1)(b)?

Answer 4

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

Question 5

What is the definition of ‘sets fire’?

Answer 5

although fire damage will often involve burning or charring, it is not necessary that the property is actually set alight; melting, blistering of pain or significant smoke damage may be sufficient.

Question 6

What is the legislation for Using any Firearm against Law Enforcement Officer, etc (s198A)?

Answer 6

1. Everyone is liable for a term of 14 years who 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 person is a member of the Police or a traffic officer or a prison officer so acting.
2. Everyone is liable to a term of 10 years who uses any firearm in any manner whatever with intent to resist the lawful arrest or detention of himself or herself or of any other person.

Question 7

What is meant by ‘in any manner whatever’?

Answer 7

The primary meaning of the word “use” in relation of a firearm is to fire it, but the words “in any manner whatever” widen the definition to include a range of acts that stop short of an actual shooting. It is sufficient that the defendant has handled or manipulated the firearm so as to convey the implied threat of its further use against an officer.

Question 8

What is the case law used regarding ‘using in any manner whatever’?

Answer 8

(R v Swain)
To deliberately or purposefully remove a swan-off shotgun from a bag after being confronted or called upon by a police constable amounts to a use of that firearm within the meaning of s198A Crimes Act 1961.

Question 9

What is the definition of a Constable?

Answer 9

a Police employee who holds the office of constable and holds a position within the NZ Police.

Question 10

What is the definition of ‘acting in the course of duty’?

Answer 10

Police duties arise under statute and common law. The term includes every lawful act a constable does while on duty.

Question 11

What must be proved regarding an intention to arrest or detain? What is the case law?

Answer 11

(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 element of mens rea of intending to resist lawful arrest or detention cannot be established.

Question 12

What is the legislation for Commission of an Imprisonable Offence with a Firearm (s198B)?

Answer 12

1. Everyone is liable to a term of 10 years who-
   a. In committing any imprisonable offence, uses any firearm; or
   b. 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.

Question 13

What is meant by ‘has with him’?

Answer 13

defendants must not only have possession, in that they had custody or control of a firearm, but also that it was available and at hand for use.

Question 14

What is held re mere possession for s198B?

Answer 14

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

Question 15

What is the definition of a pistol?

Answer 15

any firearm fired with one hand and is less than 762mm.

Question 16

What are the definitions of firearm and airgun

Answer 16

Firearm – means anything from which any shot, bullet, missile, or other projectile can be discharged by force of explosive.

Airgun – includes any air rifle, air pistol, and any weapon from which, by the use of gas or compresses air, any shot, bullet, missile or other projectile can be discharged.

Question 17

What is the definition of explosive?

Answer 17

means any substance or mixture or combination of substances which in its normal state is capable either of decomposition at such rapid rate as to result in an explosion or of producing a pyrotechnic effect.

Question 18

What is the definition of discharge?

Answer 18

to discharge means to fire to shoot

Question 19

What are the elements of s198?

Answer 19

• with intent to do GBH
• discharges any firearm, air gun or similar weapon / sends or delivers to any person or puts in any place / sets fire
• at any person / any explosive or injurious substance or device / to any property

Question 20

What are the elements of s198A(1)?

Answer 20

• uses any firearm in any matter whatever
• against any Constable, any traffic officer, 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 21

What are the elements of s198B?

Answer 21

• in committing any imprisonable offence

- uses any firearm

Question 22

What are the elements of s198A(2)?

Answer 22

• uses any firearm in any manner whatever

- with intent to resist the lawful arrest or detention of himself or of any other person