Serious Assaults - Firearms

Question 1

How does S198 create criminal liability?

Answer 1

Created based on the intentions and actions of the offender rather then the outcome or consequences

Question 2

What is not relevant to prove under S198?

Answer 2

That the victim suffered actual bodily harm. It is only necessary to prove that the offender did a specified act with a specified intent.

Question 3

What do you charge with if the action/intention results in an injury?

Answer 3

Depending on the outcome a charge under s188 or 189 or even murder/manslaughter

Question 4

Discharge

Answer 4

to fire or shoot

Question 5

sends or delivers

Answer 5

sends and delivers take their ordinary meaning and may include situations where the victim receives a dangerous thing by mail or courier eg a letter bomb

Question 6

Injurious substance or device

Answer 6

covers a range of things capable of causing harm to a person

Question 7

Under section 198(1)(b) when is the offence complete?

Answer 7

It is not necessary for an explosion to occur, once the explosive/injurious substance is sent, delivered or put in place the offence is complete as long as it has the capacity to explode or cause injury

Question 8

Sets fire

Answer 8

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 9

Property

Answer 9

Includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and anything in action, and any other right or interest

Question 10

use in any manner whatever

Answer 10

The primary meaning of the word use in relation to a firearm is to fire it, but the words in any manner what ever widen the definition to include a range of acts that stop short of actually shooting at an officer.

Question 11

What is sufficient to constitute in any manner what ever?

Answer 11

If the defendant handled or manipulated the firearm so as to convey an implied threat of its use against a police officer. It is not necessary that the firearm was presented at the officer or that it be discharged.

Question 12

Constable

Answer 12

Under the Policing Act 2008 Means a police employee who

(a) holds the office of constable (whether appointed under the Police Act 1958 or this act) and
(b) includes a constable who holds any level of position within the New Zealand Police

Question 13

When is a constable acting in the course of their duty?

Answer 13

When they are protecting life, property, preventing death, detecting crime, apprehending offenders and keeping the peace.

Question 14

What happens when a constable takes lawful action while off duty?

Answer 14

They are still considered as acting in the course of their duty where acts are done in circumstances that create a professional obligation for a constable to exercise policing duties while off duty.

Question 15

Knowledge

Answer 15

knowing means knowing or correctly believing, the defendant may believe something wrongly but cannot know something that is false

Question 16

What two things must the defendant know to be guilty under s198A

Answer 16

must know the victim is a police officer and must know they are acting in the course of their duty or be reckless ass to those facts

Question 17

What must be proven under s198A(2)

Answer 17

That the defendant knew an attempt was being made to arrest or detain them or the person they were assisting.

Question 18

Under s198A(2) what needs to be done with a firearm?

Answer 18

The firearm can be used in any manner against any person and does not need to be used against a law enforcement officer so long as the offender has the necessary intent to resist arrest or detention.

Question 19

What the key difference between S198A and s198B in relation to using a firearm

Answer 19

s198B does not include the phrase in any manner whatever and therefore has a narrower meaning

Question 20

What evidence is required for has with him under s198B

Answer 20

That the defendant not only had possession but also that at the time it was available and at hand for them to use while committing the imprisonable offence

Question 21

To satisfy the element has with him under s198B what two two components are required and what are they?

Answer 21

The phycisal component which requires the physical custody or control over the item in question and can be actual or potential

and

the knowledge component which requires a combination of both knowledge that the person has the thing in question in their control and an intention to possess the item

Question 22

What is actual possession

Answer 22

when the thing in question is in the persons physical custody or control

Question 23

What is potential possession

Answer 23

arises when the person has the potential to have the thing in question in their control

Question 24

Under s198B why is mere possession not enough?

Answer 24

there must be accompanying circumstances showing a prima facie intention to use the firearm in the commission of an imprisonable offence

Question 25

What does prima facie mean

Answer 25

at first appearance