Using any firearm against law enforcement officer

Question 1

Using firearm against law enforcement officer

Act/Section/Penalty

Answer 1

CA61; S198A(1):
14 years imprisonment

CA61; S198A(2):
10 years imprisonment

Question 2

Using any firearm against law enforcement officer

198A(1) elements

Answer 2

1. Uses any firearm in any manner whatever
2. Against any constable, OR any traffic officer, OR any prison officer
3. Acting in the course of his or her duty
4. Knowing that OR being reckless whether or not, that person is a constable or a traffic officer or a prison officer so acting

Question 3

Using any firearm against law enforcement officer

S198A(2) elements

Answer 3

1. Uses any firearm in any manner whatever
2. With intent to resist the lawful arrest or detention of himself or herself or of any other person.

Question 4

Uses in any manner whatever

Answer 4

The primary meaning of the word ‘use’ in relation to a firearm, is to fire it. However the words ‘in any manner whatever’ widen the definition to include a range of acts that stop short of actually shooting at an officer.

Although possession of a firearm alone does not in itself constitute ‘use’, handling or manipulating the firearm in a manner that conveys an implied threat may suffice.

Question 5

R v Swain

Answer 5

To deliberately or purposely remove a sawn-off shotgun from a bag after being confronted by or called upon by a police constable amounts to a use of that firearm within the meaning of S198A CA61.

Question 6

Firearm

Answer 6

Arms Act 1983; Section 2:

Firearm -

a) means anything from which any shot, bullet, missile, or other projectile can be discharged by force of explosive; and
b) includes -
i) anything that has been adapted so that it can be used to discharge a shot, bullet, missile, or other projectile by force of explosive; and
ii) anything which is not for the time being capable of discharging any shot, bullet, missile, or other projectile but which, by its completion or the replacement of any component, part or parts or the correction or repair of any defect or defects, would be a firearm within the meaning of paragraph (a) or subparagraph (i); and
iii) anything (being a firearm within the meaning of paragraph (a) or subparagraph (i)) which is for the time being dismantled or partially dismantled; and
iv) any specially dangerous airgun

Question 7

Against any Constable

Answer 7

Policing Act 2008; S4 Interpretation

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 8

Acting in the course of duty

Answer 8

The term includes every lawful act which a Constable does while on duty, and may include acts done where the circumstances create a professional obligation for a Constable to exercise policing duties while off duty.

Question 9

Knowing

Answer 9

Simester and Brookbanks - Knowing means “knowing or correctly believing” … the defendant may believe something wrongly but cannot know something that is false.

If recklessness cannot be proved beyond reasonable doubt, consider a different charge depending on the circumstances.

Question 10

Recklessness

Answer 10

• Cameron v R
• R v Tipple

Question 11

Intent to resist lawful arrest or detention

Answer 11

It is necessary 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.

Note: ss2 does not require the use of a firearm against a law enforcement officer specifically.

Question 12

Fisher v R

Answer 12

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 13

What definitions and/or case laws should be included in your discussion of the liability of

• Using any firearm against any law enforcement officer

Answer 13

Definition of intent: 2 specific types of intent; R v Collister;

Definition of firearm: AA83; S2 - anything from which any shot, bullet, missile or other projectile can be discharged by force of explosive;

Definition of uses in any manner whatever: The primary meaning of the word ‘use’ in relation to a firearm, is to fire it. However the words ‘in any manner whatever’ widen the definition to include a range of acts that stop short of actually shooting at an officer.; R v Swain;

Definition of constable: PA08; S4

Definition of acting in the course of duty: The term includes every lawful act which a Constable does while on duty, and may include acts done where the circumstances create a professional obligation for a Constable to exercise policing duties while off duty.

Definition of knowing: Simester and Brookbanks;

Definition of recklessness: Cameron v R; R v Tipple;

Definition of intent to resist lawful arrest or detention: must prove the defendant knew an attempt was being made to arrest or detain him or her, or the person he or she was assisting; Fisher v R;