Violence - Discharging Firearm or Doing Dangerous Act

Question 1

What is s198 of the Crimes Act 1961?

Answer 1

Answer:

Discharging firearm or doing dangerous Act with intent.

Question 2

What are the elements for s198(1) (a),(b),(c) Crimes Act 1961
Discharging firearm or doing dangerous Act with intent?

What is the penalty?

Answer 2

Answer:
- With intent

• To do grievous bodily harm
• Discharges any firearm, airgun, or other similar weapon at any person
  Or
• Sends or delivers to any person, or puts in any place, any explosive or injurious substance or device
  Or
• Sets fire to any property

Answer:
Max 14 years imprisonment

Question 3

What are the elements for s198(1)(a) Crimes Act 1961
Discharging a Firearm with intent?

What is the penalty?

Answer 3

• With intent to do grievous bodily harm
• Discharges any firearm, airgun, or other similar weapon
• at any person

Answer:
14 years imprisonments

Question 4

What are the elements for s198(1)(b) Crimes Act 1961
Doing Dangerous Act with intent?

What is the penalty?

Answer 4

Answer:

1. With intent
2. To do grievous bodily harm-
3. Sends or delivers to any person or puts in any place, any explosive or injurious substance or device

Question 5

What are the elements for s198(1)(c) Crimes Act 1961
Doing Dangerous Act with intent?

What is the penalty?

Answer 5

Answer:

1. With intent
2. To do grievous bodily harm-
3. Sets fire to any property

Answer:
Max 14 years imprisonment

Question 6

What are the elements for s198(2) Crimes Act 1961
Discharging firearm or doing dangerous Act with intent?

What is the penalty?

Answer 6

Answer:

1. With intent
2. To injure any person or with reckless disregard for the safety of others-
3. Does any of the acts referred to in subsection (1) of this section

Answer:
Max 7 years imprisonment

Question 7

Under s198 of the Crimes Act 1961

What is the case law for Grievous Bodily Harm?

Answer 7

Answer:
DPP v Smith
“bodily harm needs no explanation and grievous means no more and no less than really serious.”

Question 8

What does grievous bodily harm mean?

Answer 8

Answer:
GBH can be defined as “harm that is really serious”

As long as the harm is serious it need not involve life threatening or permanent injury.

Question 9

Define intent in relation to s198 CA 1961?

Answer 9

Answer:
Subsections (1) and (2) both relate to the same range of actus reus - discharging a firearm at a person, delivering explosives or setting fire to property

In subs(1) the intent is to cause grievous bodily harm
In subs (2) the intent is only to injure the victim or acts with reckless disregard for the safety of others

Question 10

What is the definition of actual bodily harm?

What is the relevant case law?

Answer 10

Answer:
Actual bodily harm may be internal or external, and it need not be permanent or dangerous.

Answer:
Case law is R v Donovan
“Bodily harm …includes any hurt or injury calculated to interfere with the health or comfort of the victim .. it need not be permanent, but must be more than merely transitory or trifling.

Question 11

Define recklessness?

What is the relevant case law for recklessness?

Answer 11

Answer:
Acting recklessly involves consciously and deliberately taking an unjustifiable risk.

Answer:
R v Harney
“Recklessness means the conscious and deliberate taking of an unjustified risk. In NZ it involves proof that the consequence complained of could well happen together with an intention to continue in the course of conduct regardless of risk.”

Question 12

When recklessness is an element What must be proved?

Answer 12

Answer:
- that the defendant consciously and deliberately ran a
risk (subjective test)
- That the risk was one that was unreasonable in the circumstances as they were known to the defendant (objective test - based on whether a reasonable person would have taken the risk)

Question 13

In reckless disregard for the safety of others what is it NOT necessary to prove?

Answer 13

Answer:
While it is necessary to prove that the defendant foresaw risk of injury to others, it is not necessary that he recognised the extent of the injury that would result

Question 14

What are the three optional forms of mens rea for s198 CA 1961?

Answer 14

Answer:

• Intent to do grievous bodily harm (GBH)
• Intent to injure
• reckless disregard for the safety of others

Question 15

What are the three optional acts of actus reus for s198 CA 1961?

Answer 15

Answer:

• discharging a firearm at a person
• delivering explosives
• setting fire to a property

Question 16

What is it not necessary to prove under s198?

Answer 16

Answer:
Unlike some of the other violence offences. It is not necessary to prove that the victim suffered actual bodily harm.
What is relevant is that the offender did one of the specified acts , with one of the specified intents.

Question 17

Under s198(1)(a) CA 1961 is it sufficient for the prosecution to show a reckless discharge the weapon in the general direction of the person who happened to be hit?

Answer 17

Answer:

No it is not sufficient. There must be an intention on the part of the defendant to shoot at that person.

Question 18

What case law relates to s198 CA 1961 relating to intent?

Answer 18

Answer:
R v Pekepo
“A reckless discharge of a firearm in the general direction of a passer-by who happens to be hit is not sufficient proof. An intention to shoot that person must be established.”

Question 19

What is discharge?

Answer 19

Answer:

To discharge means “to fire or shoot”

Question 20

Define the term firearm?

Answer 20

Answer:
Firearm and airgun are defined by section 2 Arms Act 1983
The primary difference being that a firearm acts by force of explosive and an airgun acts by force of compressed air or gas.

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

Question 21

Define sends or delivers?

Answer 21

Answer:
The terms sends or delivers take their ordinary meanings and may include situations where the victim receives a dangerous thing by mail or courier
Eg, such as in the case of a letter bomb

Question 22

fine the term explosive?

Answer 22

Answer:
As defined by s2 of the Arms Act 1983

explosive—
(a)
means any substance or mixture or combination of substances which in its normal state is capable either of decomposition at such rapid rate as to result in an explosion or of producing a pyrotechnic effect; and
(b)
without limiting paragraph (a), includes gunpowder, nitroglycerine, dynamite, gun-cotton, blasting powder, fulminate of mercury or of other metals, coloured flares, fog signals, fuses, rockets, percussion caps, detonators, cartridges, and ammunition of all descriptions; and
(c)
without limiting paragraph (a) or paragraph (b), includes any device, contrivance, or article, which uses any substance or mixture or combination of substances to which paragraph (a) or paragraph (b) applies as an integral part of it for the purposes of producing an explosion or a ballistic or pyrotechnic effect; but does not include a firearm; and
(d)
does not include any firework as defined in section 2 of the Hazardous Substances and New Organisms Act 1996

Question 23

What does injurious substance or device mean?

Answer 23

Answer:
It covers a range of things capable of causing harmto a person
E.g - a letter containing anthrax powder mailed to a political target

Question 24

Under s198 CA 1961 When is the offence complete?

Answer 24

Answer:
When a firearm is discharged at a person under s198(1)(a)
It is not necessary for an explosion to happen under s198(1)(b). The offence is complete when an explosive or injurious substance or device is sent, delivered or put in place
The substance must have the capacity to explode or cause injury.

Question 25

What is meant by “sets fire”?

Answer 25

Answer:
Fire is a result of the process of combustion, a chemical reaction between fuel and oxygen, triggered by heat

Although fire damage will often involve burning or charring, it is not necessary that the property is actually set alight. Melting, blistering of paint or significant smoke damage may be sufficient.

Question 26

What is Property defined by in s2 CA 1961?

Answer 26

Answer:
As defined in s2:
Property is any real and personal property or any estate in real or personal property (includes money electricity, any debt or anything in action and any other right or interest)

Question 27

What is meant by injury?

Answer 27

Answer:
The term to injure means to cause actual bodily harm
Bodily injury may include injury to any of the parts of a persons body responsible for mental and other faculties. Includes nervous system, organs and brain

Actual bodily harm is defined by R v Donovan.