Serious Assaults - Firearms Flashcards
How does S198 create criminal liability?
Created based on the intentions and actions of the offender rather then the outcome or consequences
What is not relevant to prove under S198?
That the victim suffered actual bodily harm. It is only necessary to prove that the offender did a specified act with a specified intent.
What do you charge with if the action/intention results in an injury?
Depending on the outcome a charge under s188 or 189 or even murder/manslaughter
Discharge
to fire or shoot
sends or delivers
sends and delivers take their ordinary meaning and may include situations where the victim receives a dangerous thing by mail or courier eg a letter bomb
Injurious substance or device
covers a range of things capable of causing harm to a person
Under section 198(1)(b) when is the offence complete?
It is not necessary for an explosion to occur, once the explosive/injurious substance is sent, delivered or put in place the offence is complete as long as it has the capacity to explode or cause injury
Sets fire
although fire damage will often involve burning or charring, it is not necessary that the property is actually set alight, melting, blistering of paint or significant smoke damage may be sufficient
Property
Includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and anything in action, and any other right or interest
use in any manner whatever
The primary meaning of the word use in relation to a firearm is to fire it, but the words in any manner what ever widen the definition to include a range of acts that stop short of actually shooting at an officer.
What is sufficient to constitute in any manner what ever?
If the defendant handled or manipulated the firearm so as to convey an implied threat of its use against a police officer. It is not necessary that the firearm was presented at the officer or that it be discharged.
Constable
Under the Policing Act 2008 Means a police employee who
(a) holds the office of constable (whether appointed under the Police Act 1958 or this act) and
(b) includes a constable who holds any level of position within the New Zealand Police
When is a constable acting in the course of their duty?
When they are protecting life, property, preventing death, detecting crime, apprehending offenders and keeping the peace.
What happens when a constable takes lawful action while off duty?
They are still considered as acting in the course of their duty where acts are done in circumstances that create a professional obligation for a constable to exercise policing duties while off duty.
Knowledge
knowing means knowing or correctly believing, the defendant may believe something wrongly but cannot know something that is false
What two things must the defendant know to be guilty under s198A
must know the victim is a police officer and must know they are acting in the course of their duty or be reckless ass to those facts
What must be proven under s198A(2)
That the defendant knew an attempt was being made to arrest or detain them or the person they were assisting.
Under s198A(2) what needs to be done with a firearm?
The firearm can be used in any manner against any person and does not need to be used against a law enforcement officer so long as the offender has the necessary intent to resist arrest or detention.
What the key difference between S198A and s198B in relation to using a firearm
s198B does not include the phrase in any manner whatever and therefore has a narrower meaning
What evidence is required for has with him under s198B
That the defendant not only had possession but also that at the time it was available and at hand for them to use while committing the imprisonable offence
To satisfy the element has with him under s198B what two two components are required and what are they?
The phycisal component which requires the physical custody or control over the item in question and can be actual or potential
and
the knowledge component which requires a combination of both knowledge that the person has the thing in question in their control and an intention to possess the item
What is actual possession
when the thing in question is in the persons physical custody or control
What is potential possession
arises when the person has the potential to have the thing in question in their control
Under s198B why is mere possession not enough?
there must be accompanying circumstances showing a prima facie intention to use the firearm in the commission of an imprisonable offence
What does prima facie mean
at first appearance
