VIOLENCE - FIREARMS

Question 1

Name the firearms liabilities you must remember

Answer 1

Section 198(1)(a) - Discharging Firearm or doing dangerous act with intent (firearm)

Section 198(1)(b) - Discharging Firearm or Doing Dangerous Act With Intent (sending explosives)

Section 198A(1) - Using Any Firearm Against Law Enforcement Officer (acting in duty)

Section 198A(2) - Using Any Firearm Against Law Enforcement Officer (resist arrest)

Section 198B (1)(a) - Commission Of Crime With Firearm (uses it in commission of crime)

Section 198B (1)(b) - Commission Of Crime With Firearm (possesses while committing a crime)

Question 2

Name the key firearms case laws

Answer 2

R v Pekepo - (must be intention to shoot)
R v Cameron - (recklessness)
R v McArthur - (injury)
R v Swain - (uses firearm)
Police v Parker - (uses firearm)

Question 3

Define firearm

Answer 3

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 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) of this definition or subparagraph (i) of this paragraph, and
(iii) Anything (being a firearm within the meaning of paragraph (a) of this definition or subparagraph (i) of this paragraph) which is for the time being dismantled or partially dismantled, and
(iv) Any specially dangerous airgun

Question 4

Define explosive

Answer 4

Section 2, Arms Act 1983

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.
Includes: gun powder, gelignite, detonators
Does not include: firearms, fireworks

Any substance or mixture capable of producing an explosion.

Question 5

R v Cameron

Answer 5

Recklessness is established if:

A) The defendant recognised that there was a real possibility that his or her actions could bring about the result and/or those circumstances existed.
B) having regard to that risk, those actions were unreasonable.

(Recklessness)

Question 6

Define airgun

Answer 6

An airgun acts by force of compressed air or gas

Question 7

List the three forms of Mens Rea for 198(1)

Answer 7

• Intent to do grievous bodily harm.
• Intent to injure.
• Reckless disregard for the safety of others.

Question 8

List the three forms of Actus Reus for 198(1)

Answer 8

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

Question 9

Define the discharge of a firearm

Answer 9

To discharge means to fire or shoot.

Question 10

Give 3 forms of circumstantial evidence from which an offender’s intent may be inferred

Answer 10

• actions before, during and after the event.
• surrounding circumstances.
• the nature of the act itself.

Question 11

Define injurious substance

Answer 11

The term ‘injurious substance or device’ covers a range of things capable of causing harm to a person; for example a letter containing anthrax powder that is mailed to a political target.

Question 12

When is an explosives offence complete?

Answer 12

When an explosive or an injurious substance or device is sent, delivered or put in place. The substance must have the capacity to explode or cause injury.

Question 13

R v Pekepo

Answer 13

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.

(Intent to shoot victim)

Question 14

R v McArthur

Answer 14

Bodily harm has an effect on the health of comfort of the victim. Must be more than merely transitory and trifling.

(Injury)

Question 15

Police v Parker

Answer 15

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

(Uses in any manner)

Question 16

Police v Parker

Answer 16

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

(Uses in any manner)

Use can include the use of firearms in ways in which they are not normally used (such as using it as a club).

Question 17

R v Swain

Answer 17

To deliberately or purposely remove a swan-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 a 198A Crimes Act 1961
(Uses in any manner)

Question 18

For 198A charges, what knowledge must the defendant have about the victim being a Police officer

Answer 18

The defendant must know the victim is a police officer

and

know that the officer is acting in the course of his or her duty or be reckless as to those facts.

Question 19

What does it mean to be acting in the course of duty

Answer 19

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 20

Define pistol

Answer 20

Pistol means any firearm that is designed or adapted to be held and fired with one hand; and includes any firearm that is less than 762 millimetres in length.

Question 21

What does Fisher v R say about what the Crown must prove to prove a 198A(2) charge (using a firearm to resist arrest)?

Answer 21

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 men’s rea of intending to resist lawful arrest or detention cannot be established.

Question 22

What does R v Kelt say about what it is to have a firearm ‘with him’

Answer 22

Having a firearm “with him” requires “a very close physical link and a degree of immediate control over the weapon by the man alleged to have the firearm with him”.

(Has any firearm with them)