Using any Firearm Against Law Enforcement Officer

Question 1

What is the section and penalty?

Answer 1

Section 198A(1) and 14 years imprisonment

Question 2

What are the ingredients for Se tion 198A(1)

Answer 2

1. Uses in any manner whatever
2. Any firearm
3. Against a Constable or Prison Officer or Traffic Officer
4. Acting in the Course of his or her duty
5. Knowing that, or being reckless whether or not,
   that person is a member of the Police or Traffic
   Officer or a Prison Officer so acting.

Question 3

What is R v Swain?

Answer 3

To deliberately and purposely pull out from a bag a sawn- off shot after being confronted or called upon by a police constable amounts to a use of that firearm within the meaning of s 198A Crimes Act 1961.

Question 4

Can a Constable act in an unlawful manner when the offender uses a firearm? `

Answer 4

No, in order for this charge to be fulfilled the Officer needs to be acting lawfully.

Question 5

Knowing?

Answer 5

The offender must know or is reckless as to whether the person is a Constable acting in the course of their duty.

Question 6

What is the penalty and elements for 198A(2)?

Answer 6

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

10 years imprisonment

Question 7

R v Fisher? (in relation to intent to resist lawful arrest or detention.)

Answer 7

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 determined.

Question 8

Does the use of a firearm have be specifically against a law enforcement officer?

Answer 8

No as long as the offender has the necessary intent to resist arrest or detention.