Violence - Using Firearm Against Law Enforcement Officer Flashcards
What are the elements of S198A(1) Crimes Act 1961 - Using any firearm against law enforcement officer?
What is the Penalty?
Answer:
1. Uses any firearm in any manner whatever
- Against any Constable OR
any traffic officer OR
any prison officer
acting in his course of his or her duty - Knowing that OR Being reckless whether or not that
the person is a Constable or Traffic officer or Prison
officer so acting
Answer:
Max 14 years imprisonment
What are the elements of S198A(2) Crimes Act 1961 - Using any firearm against law enforcement officer?
What is the Penalty?
Answer:
- Uses any firearm in any manner whatever
- With intent
- To resist the lawful arrest or detention of himself or herself or any other person.
Answer:
10 years imprisonment
What is meant by “use in any manner whatever”?
Answer:
The primary meaning for 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 it at the officer.
What is the definition of firearm?
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
In the definition of firearm what are the main references identifying a firearm?
Answer:
Means anything from which any shot, bullet, missile or other projectile can be discharges by force or explosive; an includes
- Anything that has been adapted
- Anything which is not for the time being capable
- but which by its completion
- or the replacement of any component
- repair of any defect
- would be a firearm
- Anything dismantled or partially dismantled and
- Any specially dangerous airgun
What is the definition of Constable?
Answer:
As per Policing Act 2008 s4 Interpretation
Constable means police employee who-
a) holds the office of Constable (whether appointed as a constable under the Police Act 1958 or this Act) and
b) includes a Constable who holds any level of position within the NZ police
What is meant by “acting in the course of his or her duty”?
Answer:
The term includes every lawful act which the 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.
An officer who is acting unlawfully cannot be said to be “acting in the course of his or her duty.”
E.g Excessive for during an arrest, interfering with a person liberty without legal justification, or trespassing on private property without authority cannot be said to be acting in the course of their duty.
What is the meaning of “knowing” according to Simester and Brookbanks?
In the context of s198A (1) What does knowing mean?
Answer:
Simester & Brookbanks states “Knowing means knowing or correctly believing…the defendant may believe something wrongly but cannot know something that is false”
Answer:
The defendant must know the victim is a police officer
and know the officer is acting in the course of his or her duty, or be reckless to those facts.
With intent to resist,
What must be the prosecution prove in relation to the defendant being arrested or detained?
Answer:
It must be proved that the defendant knew an attempt was being made to arrest or detain him or her or the person he or she was assisting.
What is the case law relating to the knowledge of when defendant resisting arrest or detention?
Answer:
R v Fisher
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
Possession alone does not constitute “use” of a firearm. What must be shown to be done to satisfy “use”
Answer:
Handling or manipulating the firearm in a manner that conveys an implied threat may suffice
What is the case law relating to using a firearm in whatever manner?
Answer:
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 with the meaning of s198A Crimes Act 1961
