Discharging firearm or doing dangerous act with intent (1)
Section and elements
Section 198 (1)
- With intent to do GBH
(a) Discharges any firearm, airgun, or other similar weapon at any person
(b) Sends or delivers to any person or puts in any place, any explosive or injurious substance or device
(c) Sets fire to any property
14 years
Discharging firearm or doing dangerous act with intent (2)
Section, Elements and Penalty
Section 198 (2)
- With intent to injure or with reckless disregard for the safety of others
(a) Discharges any firearm, airgun or other similar weapon at any person
(b) Sends or delivers to any person or puts in any place, any explosive or injurious substance or device
(c) Sets fire to any property
7 years
Three optional forms of mens rea in Section 198 offences
- Intent to do GBH
- Intent to injure
- Reckless disregard for the
safety of others
Three optional forms of actus reus in Section 198 offences
- Discharging a firearm at a
person - Delivering explosives
- Setting fire to property
What is the criminal liability based on in Section 198?
Based on the intentions and actions of the offender, rather than the outcome or consequences
Explain bodily harm in regards to Section 198
Unlike other serious violent offences, it is not necessary to prove the victim suffered bodily harm.
Where actual bodily harm results, the appropriate charge would be 188, 189, murder or manslaughter depending on outcome.
R v Pekepo
Section 198
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.
Discharge definition
To fire or shoot
Firearm definition
Means anything from which any shot, bullet, missile or other projectile can be discharged by force of explosive
Explosive definition
Substance/mixture which in normal state can explode or produce pyrotechnic effect (gun powder, dynamite, flares)
Airgun definition
- any air rifle
- air pistol
- any weapon from which, by
the use of gas or compressed
air (and not by force of
explosive) any shot, bullet,
missile or other projectile can
be discharged.
Injurious substance
Things capable of causing harm i.e. anthrax
Offence complete when sent but substance needs to be capable of causing injury (not fake)
R v Fitzgerald circumstances
The offender set up a perimeter fence consisting of barbed wire connected to an electric fence unit.
Conviction quashed as the unit was not operating at the time.
Property definition
Includes any real and personal property, and any estate or interest in any real or personal property, money, electricity and any debt and any other right or interest
Using any firearm against law enforcement officer (1)
Section and Elements
Section 198A (1) CA
- Uses any firearm in any matter
whatever - Against any Constable, Traffic
Officer or Prison Officer - Acting in the course of his or
her duty - Knowing that or being reckless
whether or not that person is a
member of Police or Traffic
Officer or Prison Officer
14 years
Using any firearm against law enforcement officer (2)
Section, Elements, Penalty and of note
Section 198A (2) CA
- Uses any firearm in any matter
whatever - With intent to resist the lawful
arrest or detention of himself
or of any other person
10 years
Of note: Using the firearm does not have to be against the person attempting the arrest or detention
Uses in any matter whatever meaning
It is sufficient if the Defendant has handled or manipulated the firearm so as to convey an implied threat
R v Swain
To deliberately or purposely remove a sawn-off shotgun from a bag after being confronted by a Constable amount to a use of that firearm within S198A
Police v Parker circumstances
The defendant, when confronted by Police produced a loaded sawn-off shotgun and aimed it at a Constable. A struggle ensued, eventually thrown to the ground without being fired.
Court suggested ‘use in any manner whatever’ is to contemplate a situation short of actually firing the weapon
Examples of when an Officer is NOT acting in the course of their duty in terms of Section 198A
- Using excessive force during
an arrest - Interfering with a persons
liberty without legal
justification - Trespassing on private
property without authority
Simester and Brookbanks
Knowing means “knowing or correctly believing”…the defendant may believe something wrongly but cannot ‘know’ something is false
Fisher v R
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 or intending to resist lawful arrest or detention cannot be established
Commission of an imprisonable offence with firearm (1)(a)
Section, Elements and Penalty
Section 198B (1)(a) CA 1961
- In committing any
imprisonable offence - Uses any firearm
10 years
Commission of an imprisonable offence with firearm (1)(b)
Section and Elements
Section 198B (1)(b) CA 61
- While committing any
imprisonable offence - Has any firearm with him
- In circumstances that prima
facie show an intention to use
it in connection with that
imprisonable offence
10 years
