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Any person who possesses a loaded firearmis guily of an offence

This article will provide an overview on how the offence of use or possession of weapon resist arrest is committed, the concept of arrest, offensive weapon, the defences available to the accused and the penalty imposed upon the convicted offender.

The offence of use or possession weapon to resist arrest is punished under the Crimes Act 1900 because of the disregard or disrespect of the person in authority in the performance of their official duty. This article discusses about the consequence that entails the offender in using or possessing an offensive weapon while a person in authority is performing their duty to make an arrest.

The Offence

The offence of use or possession of weapon to resist arrest involves several elements that must be present during its commission. The elements of the offence are:

1. An arrest is going to take place
2. The offender uses or possesses a weapon
3. The offender uses or possesses a weapon with the intention to resist arrest.

The abovementioned elements are important to complete the offence of use or possession of weapon to resist arrest. We will discuss briefly each element to better understand the offence.

Arrest

An arrest is a forcible deprivation of the liberty of a person by a police officer to bring him in custody of law to answer a criminal charge brought before the court. The arrest to be made by the police officer must be a valid arrest. It means that it is either by virtue of a warrant of arrest or a valid arrest without a warrant under the exceptional circumstances.

Weapon

The law requires that the weapon used or possessed by the offender must be an offensive weapon. Under Section 4 of Crimes Act 1900, an offensive weapon means:

(a) a dangerous weapon, or
(b) any thing that is made or adapted for offensive purposes, or
(c) any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm.

Use or possession of weapon

This element must be coupled with intention to resist the arrest. It presupposes that a resistance was made when the police officer was about to make an arrest. The intention of the offender in using or possessing the offensive weapon must be for the sole purpose of resisting the arrest.

The law

Any person who uses, attempts to use, threatens to use or possesses an offensive weapon or instrument, or threatens injury to any person or property, with intent to commit an indictable offence or with intent to prevent or hinder the lawful apprehension or detention either of himself or herself or any other person or to prevent or hinder a police officer from investigating any act or circumstance which reasonably calls for investigation by the officer commits an offence. (Section 33B (1) of Crimes Act 1900)

The scope of the offence is so wide that it did not only cover one particular act. The law did not only envision the actual resistance as constituting the offence, it also includes the threat to inflict physical injury to other person or property and the act of preventing or hindering a police officer from conducting an investigation for an act.

The defence

The commission of this offence is contingent upon the nature of the arrest. The accused may allege in his defence that the arrest to be taken upon his person was an invalid arrest. A person may be justified in resisting an arrest by all means if the arrest was not by virtue of a warrant. Since an arrest means a deprivation liberty, a person has full right to repel such arrest he or she has reasonable ground to believe that the arrest was invalid.

The Penalty

As a consequence of using or possessing a weapon to resist arrest, the law punishes the offender upon conviction. The maximum penalty to be imposed upon the convicted offender depends on the manner and attending circumstance in the commission of the offence. The penalty may either 12 years or 15 years of imprisonment.

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Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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