Using Firearm Against Law Enforcement Officer Flashcards
Uses any Firearm Against Law Enforcement Officer
Section and Penalty
Sec 198A(1) Crimes Act 1961
14 years imp
Uses any Firearm Against Law Enforcement Officer
Ingredients
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
Firearm
Sec 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
Police v Parker
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.
R v Swain
Removing sawn off
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.
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.
Acting in the course of his or her duty
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)
3) Knowing that
OR
Being Reckless whether or not that the person is a constable so acting.
Of note only
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.
Simester and Brookbanks: Principles of Criminal Law
Knowing means knowing or correctly believing.The belief must be correct, if the belief is wrong you cannot know something.
R v Harney
“Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.”
S198A(2) CA61
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.
Fisher v R
Establishing a charge under S198A(2)
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.
