Using Firearm Against Law Enforcement

Question 1

Criminal Liability for Using Firearm With Intent to resist

Answer 1

Using any firearm against law enforcement officer - 198A(2) Crimes Act 1961

• Uses
• Any Firearm
• In any manner whatever
• With intent
• to resist
• the lawful arrest (or) detention
• of himself or herself or of any other person.

Question 2

Criminal Liability for Using Firearm Against LE Officer (course of duty)

Answer 2

Using any firearm against law enforcement officer - 198A(1) Crimes Act 1961

• Uses
• Any Firearm
• In any manner whatever
• Against any constable (or) any traffic officer (or) any prison officer
• Acting in the course of his or her duty
• knowing that (or) being reckless whether or not
• that person is a member of the Police or a traffic officer or a prison officer so acting.

Question 3

Uses in any manner whatever

Answer 3

It is sufficient if the defendant has handled or manipulated the firearm so as to convey an implied threat of its further use against the police officer. It is not necessary that the firearm was presented at the officer or that it was discharged.

Question 4

R v Swain

Answer 4

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 s 198A Crimes Act 1961.

Question 5

Constable

Answer 5

constable means a Police employee who holds the office of constable and
includes a constable who holds any level of position within the New Zealand Police

Question 6

Acting in the course of duty

Answer 6

Police duties arise under both statute and common law and in general terms they include protecting life and property, preventing and detecting crime, apprehending offenders and keeping the peace.

The term includes every lawful act 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 7

Knowing

Answer 7

“knowing or correctly believing”

Question 8

Intent to resist lawful arrest or detention

Answer 8

It must be proved that the defendant knew an attempt was being made to arrest or detain him or her, or the person he or she was assisting.

Question 9

Fisher v R

Answer 9

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.