Using a firearm to resist arrest

What does it mean to be charged with using a firearm to assist arrest?

Using a firearm or imitation firearm to resist or prevent lawful apprehension is a serious indictable offence under section 29 of the Firearms Act 1996 (FA). A person found guilty of this act faces significant legal consequences.

Examples of Using a Firearm to Resist Arrest

• A person points a gun at police officers to prevent another person’s arrest.
• A person points a gun at police to avoid their own apprehension.
• A person displays an imitation firearm at police to hinder their lawful actions.

Police Interview

If police allege that you have used or attempted to use a firearm or imitation firearm with the intent to resist lawful apprehension, you will be taken to a police station for questioning. During this interview, you have the right to contact our office for legal advice before participating. This step is crucial to avoid common mistakes that could hinder your defence. The interview will be recorded, with police asking questions about the circumstances leading to the alleged use of the firearm. While you are not required to cooperate, doing so is usually in your best interest.

What does the prosecution need to prove?

Establishing whether you used or attempted to use a firearm or imitation firearm requires considering the following elements of the offence:

• Did you make use of or attempt to use a firearm or imitation firearm?
  • Definition of a Firearm: Includes components like the barrel, breech, frame, and others capable of forming part of a firearm.
  • Definition of an Imitation Firearm: Any item that appears to be a firearm, regardless of its capability to discharge a projectile (s 29(3)(b) Crimes Act 1958 (CA)).
• Did you intend to resist or prevent the lawful apprehension or detention of yourself or another person?

Additionally, evidence of prior similar behaviour may affect the outcome in court.

Penalties for using a firearm to assist arrest:

Typically, these matters are dealt with summarily in the Magistrates’ Court of Victoria. However, if there are prior offences or aggravating factors, the case may be escalated to the County Court of Victoria.

Severe penalties can include:

• A term of imprisonment (Level 5, maximum 10 years).
• Financial fines (Level 5, maximum 1200 penalty units, approximately $193,000).

Note: 1 penalty unit equals $161.19.

To assess whether the conduct was a serious contravention, factors like the nature of the offence, planning level, and any aggravating circumstances will be evaluated.

Questions and Next Steps:

When considering your defence for using a firearm to resist arrest, ask yourself the following:

• Has the prosecution provided sufficient particulars of the charges?
• Does the prosecution have a strong case, establishing all elements of the offence?
• Did you possess a real or imitation firearm?
• Did you use it to resist arrest?
• Were you resisting your own or another person’s lawful arrest by police?
• Should you plead guilty or not guilty, and what are the implications of each?
• What are the details and context of the incident?
• Have you faced similar charges previously?
• What options exist to minimise your penalty?
• Do you have a lawful defence for your actions?

Our lawyers can assist you in answering these questions and preparing a robust defence.

Defences to consider:

If you are pleading not guilty to the charge of using a firearm or imitation firearm to resist arrest, potential defences depend on the specifics of your case. Possible defences include:

• The prosecution cannot prove all elements of the offence.
• You were unaware police were attempting to arrest you.
• Factual disputes or wrongful identification.
• Lack of possession of the firearm; another person may be responsible.
• The arrest was not lawful.
• Honest and reasonable mistake of fact.
• Necessity or duress.
• Sudden or extraordinary emergency.
• Self-defence.

The prosecution must disprove at least one element of the defence beyond a reasonable doubt for a conviction to be secured (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645). Our experienced criminal defence lawyers are equipped to navigate your charge and ensure you are informed about the process, possible outcomes, and strategies for your defence. We have successfully avoided convictions and reduced penalties by scrutinising police evidence, obtaining relevant documentation, and engaging with witnesses who can assist your case.

What happens next?

After your initial consultation with our criminal defence lawyers, we will thoroughly review the details of your case and the evidence presented against you. We will develop a strategic defence plan tailored to your unique circumstances, ensuring that all potential defences are considered. You will be guided through the legal process, including the preparation for any upcoming court appearances or interviews with law enforcement. Our team will engage in negotiations with the prosecution to explore possible plea deals or diversion programs that may reduce the severity of the charges. Throughout this process, we will keep you informed and involved, ensuring you understand each step and the implications of your decisions. If your case proceeds to trial, we will vigorously advocate on your behalf, presenting a robust defence to achieve the best possible outcome. You can rest assured that you have a dedicated legal team fighting for your rights and striving to minimise any potential penalties.

Contact Us

For free legal advice 24/7, contact our experienced team of criminal defence lawyers at 1800 130 120 or via email at marcus@mklawfirm.com.au.