Firearms Flashcards
What is the difference between an 198(1) offence and a 198(2) offence
The offenders intent.
198(1) - Intent to GBH
198(2) - Intent to injure or reckless disregard for safety of others
198(1)(a) - must be an intention on the part of the defendant to shoot at that person (cannot be reckless)
Definition of “discharge”
To fire or shoot
Definition of “firearm” and the difference between a firearm and an airgun
As defined by Section 2, Arms Act 1983
Firearm - acts by force of explosive
Airgun - acts by force of compressed air or gas
Definition of “sends or delivers”
Take on their ordinary meaning
May include receiving a dangerous thing by mail or courier (eg. letter bomb)
Definition of “explosive”
As defined by Section 2, Arms Act 1983
Definition of “injurious substance or device”
Covers a range of things capable of causing harm to a person (eg. letter containing anthrax powder in the post)
When is a s198(1)(b) offence complete
When an explosive or injurious substance or device is sent, delivered, or put in place. Must have the capacity to explode or cause injury
Definition of “sets fire to”
Will often involve burning or charring, it’s not necessary that the property is actually set alight, melting, blistering of paint or significant smoke damage may be sufficent
Definition of “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
Definition of “Uses firearm in any manner whatever”
To fire it or to include a range of act acts that stop short of actually shooting
Can include using the firearm as a club
Definition of “Constable”
Constable means a Police employee who
a) holds the office of constable (whether appointed as a constable under the Police Act 1958 or this act) and
b) includes a constable who holds any level of position within the New Zealand Police
Definition of “Acting in the course of duty”
Acting in the course of his or her duty. Includes every lawful act a constable does while on duty and may include acts done whilst off duty
Definition of “Knowing”
Knowing means knowing or correctly believing…..the defendant may believe something wrongly but cannot know something that is false
Definition of “Imprisonable offence”
Any offence which is punishable by a term of imprisonment
Definition of “Uses any firearm”
Includes firing or presenting a firearm or displaying it in a menacing manner.
May not extend to the use of a firearm as a club
Definition of “Has with him”
Must knowingly have the firearm with them. Physical and mental element
R v Cox
Definition of “Prima facie”
At first appearance
Circumstances are those which are sufficient to show or establish an intent in the absence of evidence to the contrary
Military style semi-automatic firearm
Means a firearm (other than a pistol) that is -
(a) a semi-automatic firearm having 1 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 its appearance indicates that it is capable of holding more than 15 cartridges
(iii) a magazine (other than one designed to hold 0.22 inch rimfire cartridges) 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) 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 purpose 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 purpose 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 purposed 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 purpose of this act
Definition of “Pistol”
Means any firearm that is designed or adapted to be held and fired with one hand and includes any firearm that is less than 763mm in length
Definition of “Restricted weapon”
Means any weapon, whether a firearm or no declared by the governor general by order in council made under section 4 of this act to be a restricted weapon
Restricted weapon schedule
(1) anti-tank protectors and ammunition
(2) grenade discharges, grenade launchers and grenades containing explosives
(3) incendiary grenades, including the type commonly known as a molotov cocktail and consisting of
(a) a container or containers the only principal contents of which is an inflammable liquid or mixture
(b) a means of ignition of the inflammable substance or mixture, whether that means is a wick an explosive or other device a fuse or a chemical
(4) machine carbines or guns, submachine carbines or guns and machine pistols of any kind whatsoever including those operated by gas or compressed air and including all other firearms capable of full automatic fire
(5) mine of an explosive nature
(6) mortars of military kinds and ammunition
(7) rocket launchers and ammunition
(8) every firearm, weapon and device dsigned for the purpose of discharging any lachrymatory, deleterious or toxic gas, smoke or other stupefying or overpowering thing capable of rendering any person either wholly or partially incapable of resistance (other than any device designed and intended solely for any medical, surgical, veterinary, scientific, agricultural, industrial or other similar lawful purpose)
(9) any gas, substance, material or thing specifically intended or adapted for use in conjunction with any firearm, weapon or device specified in clause 8 of this schedule
Specially dangerous airguns
Means any airgun declared by the governor general by order in council made under section 4 of this act to be a specially dangerous airgun
Specified pre-charged pneumatic air rifles
Means pre-charged pneumatic air rifles that are not for use in airsoft paintball sports
Occupier or driver deemed to be in possession
For the purpose 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
Liability
Discharging Firearm or Doing Dangerous Act with Intent
Section 198
Crimes Act 1961
Section 198(1)(a)
- Intent to do GBH
- Discharges any firearm, airgun or similar weapon
- At any person
Section 198(1)(b)
- Intent to do GBH
- Sends or delivers to any person OR puts in any place
- Any explosive OR Injurious substance or device
Section 198(1)(c)
- Intent to do GBH
- Sets fire
- To any property
Section 198(2)
- Intent to injure OR reckless disregard
- Does any of the acts referred to in subsection 1 of this section
Liability
Using a Firearm Against Law Enforcement Officer
Section 198A
Crimes Act 1961
Section 198A(1)
- Uses any firearm in an manner whatever
- Against any Constable OR traffic officer OR prison officer acting in the course of their duty
- Knowing that OR being reckless whether or not that person is a constable OR traffic officer OR prison officer
198A(2)
- Uses any firearm in an manner whatever
- Intent to resists the lawful arrest or detention of
- Him/herself or any other person
Liability
Commission of an Imprisonable Offence with a Firearm
Section 198B
Crimes Act 1961
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
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
R v Swain
To deliberately or purposely remove a sawn-off shotgun from a bag after being confronted by or called by a police constable amounts to a use of that firearm within the meaning of s198A crimes act 1961
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
