Using Firearm Against Law Enforcement Officer - S198A Flashcards
Using firearm against law enforcement officer (1)
Section/Penalty/Elements
CA61; S198A(1):
14 years imprisonment
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
Using firearm against law enforcement officer (2)
Section/Penalty/Elements
CA61; S198A(2):
10 years imprisonment
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.
Define - 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.
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.
Case law:
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 CA61.
Against any Constable
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.
Define:
Acting in the course of his or her duty
Note: 198A(1)
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)
Define:
Knowing that OR Being Reckless whether or not that the person is a constable so acting.
Note: 198A(1)
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.
Case law:
Police v Parker
Note: Uses any Firearm in any manner whatever
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.
Case law:
Fisher v R
Note: 198A(2) With intent to resist the lawful arrest or detention of himself or herself or of any other person.
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.
Firearm Definition
Arms Act 1983; S2:
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
