Firearms

Question 1

What is the difference between an 198(1) offence and a 198(2) offence

Answer 1

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)

Question 2

Definition of “discharge”

Answer 2

To fire or shoot

Question 3

Definition of “firearm” and the difference between a firearm and an airgun

Answer 3

As defined by Section 2, Arms Act 1983

Firearm - acts by force of explosive

Airgun - acts by force of compressed air or gas

Question 4

Definition of “sends or delivers”

Answer 4

Take on their ordinary meaning

May include receiving a dangerous thing by mail or courier (eg. letter bomb)

Question 5

Definition of “explosive”

Answer 5

As defined by Section 2, Arms Act 1983

Question 6

Definition of “injurious substance or device”

Answer 6

Covers a range of things capable of causing harm to a person (eg. letter containing anthrax powder in the post)

Question 7

When is a s198(1)(b) offence complete

Answer 7

When an explosive or injurious substance or device is sent, delivered, or put in place. Must have the capacity to explode or cause injury

Question 8

Definition of “sets fire to”

Answer 8

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

Question 9

Definition of “property”

Answer 9

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

Question 10

Definition of “Uses firearm in any manner whatever”

Answer 10

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

Question 11

Definition of “Constable”

Answer 11

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

Question 12

Definition of “Acting in the course of duty”

Answer 12

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

Question 13

Definition of “Knowing”

Answer 13

Knowing means knowing or correctly believing…..the defendant may believe something wrongly but cannot know something that is false

Question 14

Definition of “Imprisonable offence”

Answer 14

Any offence which is punishable by a term of imprisonment

Question 15

Definition of “Uses any firearm”

Answer 15

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

Question 16

Definition of “Has with him”

Answer 16

Must knowingly have the firearm with them. Physical and mental element

R v Cox

Question 17

Definition of “Prima facie”

Answer 17

At first appearance

Circumstances are those which are sufficient to show or establish an intent in the absence of evidence to the contrary

Question 18

Military style semi-automatic firearm

Answer 18

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

Question 19

Definition of “Pistol”

Answer 19

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

Question 20

Definition of “Restricted weapon”

Answer 20

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

Question 21

Restricted weapon schedule

Answer 21

(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

Question 22

Specially dangerous airguns

Answer 22

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

Question 23

Specified pre-charged pneumatic air rifles

Answer 23

Means pre-charged pneumatic air rifles that are not for use in airsoft paintball sports

Question 24

Occupier or driver deemed to be in possession

Answer 24

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

Question 25

Liability

Discharging Firearm or Doing Dangerous Act with Intent
Section 198
Crimes Act 1961

Answer 25

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

Question 26

Liability

Using a Firearm Against Law Enforcement Officer
Section 198A
Crimes Act 1961

Answer 26

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

Question 27

Liability

Commission of an Imprisonable Offence with a Firearm
Section 198B
Crimes Act 1961

Answer 27

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 28

R v Pekepo

Answer 28

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 29

R v Swain

Answer 29

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

Question 30

Fisher v R

Answer 30

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