Using any firearm against Law Enforcement officer, etc S198A(1) CA61 Flashcards
What are the elements of Uses any firearm against law Enforcement officer, etc S198A(1) CA61
- Uses any firearm in any manner whatever
- Against any Constable/Traffic officer/prison officer
- Acting in the course of his/her duty
- Knowing that, or being reckless whether or not that the person is a constable/traffic officer/ prison officer so acting.
Define Firearm S2 Arms Act 83
Means anything from which any shot, bullet, missile, or other projectile cane be discharged by force of explosive
Define Firearm and Airgun
As defined in S2 Arms Act 83, the primary difference between the two are that a firearm acts by force of explosive whereas an airgun acts by force of compressed air
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.
It is sufficient if the defendant has handled or manipulated the firearm so as to convey an implied threat of its further use against the police officer. It is not necessary that the firearm was presented at the officer or that it was discharged.
In the matter of R v Swain, the court suggested to “use in any matter whatever” is to contemplate a situation short of actually firing the weapon and would include presenting it.
It also includes the use of firearms in ways in which they are not normally used, such where a firearm is used as a club.
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
Define Constable S4 Police Act 2008
- Holds the office of constable
- Includes a constable who holds any level of position within the NZ police
Define “Acting in the course of duty”
In general terms they include protecting life and property, preventing, and detecting crime, apprehending offenders an keeping the peace. Includes act done, where the circumstances create a professional obligation to exercise policing duties while off duty.
Note: An officer acting unlawfully such as excess force or trespassing cant be said to be acting in the course of his/her duty.
Define “Knowing” regarding S198A CA61
Knowing means “Knowing or correctly believing” the defendant may believe something wrongly, but cannot know something that is false.
The defendant must KNOW the victim is a police officer and KNOW the officer is acting in the course of their duty or be reckless as to those facts
Define Reckless Disregard
While it is necessary to prove the defendant foresaw the risk, it it not necessary that he/she recognised the extent of the injury that would result
What must be proved regarding recklessness
Subjective test: The defendant was aware of the risk and proceeded regardless
Objective test: It was unreasonable for him/her to run that risk.
Cameron v R
Recklessness is established if:
(a) The defendant recognised that there was a real possibility that
(i) His/her actions would bring about a proscribed result and/or
(ii) The prescribed circumstances existed and
(b) Having regard to that risk, those actions were unreasonable
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
