Using Firearm Against Law Enforcement Officer

Question 1

Uses any Firearm Against Law Enforcement Officer

Section penalty ingredients

Answer 1

Uses any Firearm Against Law Enforcement Officer
Section 198A(1) Crimes Act 1961
14 years imprisonment

1) Uses any firearm in any manner whatever
2) Against any constable or any traffic officer or any prison officer acting in the course of his or her duty
3) Knowing that
or
Being reckless whether or not that the person is a constable or traffic officer or prison officer so acting

Question 2

Firearm

Answer 2

Section 2 Arms Act 1983

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; and
ii) Anything which is not for the time being capable of, but which, by its completion or replacement of any component, or repair of any defect would be a firearm; and
iii) Anything dismantled or partially dismantled; and
iv) Any specially dangerous airgun

Question 3

Police v Parker

Use in any manner

Answer 3

Use in any manner whatever is to contemplate a situation short of actually firing the weapon

and to present a rifle too, I think, is equivalent to or means the same thing.

Question 4

R v Swain

To deliberately or…

Answer 4

R v Swain

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 CA 61.

Question 5

Against any Constable

Answer 5

Sec 4 Police Act 2008

Constable means a police employee who-

a) hold the office of constable (whether appointed as a constable under the Police Ac 1958 or this Act); and
b) includes a constable who holds any level of position within the New Zealand Police.

Question 6

Acting in the course of his or her duty

The term includes…

Answer 6

The term includes every lawful act which a constable does while on duty,

Of note

and may include acts done where the circumstances create a professional obligation for a Constable to exercise policing duties while off duty.

However, an officer who is acting unlawfully, cannot be said to be “acting in the course of his or her duty.”(only if it relates to the scenario)

Question 7

3) Knowing that
OR
Being Reckless whether or not that the person is a constable so acting.

Of note only

Answer 7

Knowing that the person is a member of the police so acting:

The accused must know the victim is a police officer an know that the officer is acting in the course of his or her duty, or be reckless to those facts.

Question 8

Simester and Brookbanks: Principles of Criminal Law

Answer 8

Knowing means knowing or correctly believing.

The belief must be correct,

if the belief is wrong you cannot know something.

Question 9

S198A(2) CA61

Answer 9

Everyone is liable to imprisonment for a term not exceeding 10 years who 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 10

Fisher v R

Establishing a charge under S198A(2)

Answer 10

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 11

Cameron v R

Answer 11

Cameron v R

Recklessness is established if:

(a) the defendant recognised that there was a real possibility that:
(i) his or her actions would bring about the proscribed result; and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.