It’s safe to say that the suburbs are not what they use to be. Many of us, particularly at night, find ourselves looking over our shoulder to check for suspicious activity. In an attempt to feel safer, individuals are choosing to carry a weapon on their person for protection.
We know that Australia has strict gun laws, but what about a knife or pepper spray? Is it illegal to carry these items in our pocket or handbag? Let’s find out.
IS CARRYING A KNIFE ILLEGAL?
Pursuant to Section 11C of the Summary Offences Act 1988 (NSW), having custody of a knife in a public place is illegal. For criminal offences, the prosecution has the burden of proof. This means that police must prove that the accused is guilty beyond reasonable doubt. For custody of a knife charges, the prosecution must prove that:
1. You had a knife in your custody; and
2. It was at the time you were in a public place or school; and
3. You did not have a reasonable excuse.
Under the Summary Offences Act 1988 (NSW), a knife includes a knife blade, razor blade or any other blade. Public places refer to space that is open to the public, even if the space is not ordinarily used.
PENALTY NOTICE VS. COURT ATTENDANCE NOTICE
Section 29A of the Summary Offences Act 1988 (NSW) allows police officers to exercise their discretion and issue a ‘penalty notice’ as opposed to a ‘court attendance notice’.
What is the difference?
Penalty Notice: If an accused is issued with a penalty notice for having custody of a knife in a public place, he/she will receive a fine of $550. This means that the accused is not required to appear before Court. If the accused does not wish to pay the fine, then he/she may elect to go to Court and enter a plea of guilty or not guilty.
Under Section 29A, a police officer has the option of issuing a penalty notice:
– If it appears to the police officer that this offence has been committed; and
– It is not desirable to have the case determined in court; and
– The person accused has not previously been dealt with for a knife-related offence.
Court Attendance Notice (CAN): If the accused is issued with a CAN, he/she is required to attend Court. If the accused is found guilty of the charge, a criminal conviction will be imposed. The maximum penalty for custody of a knife in a public place is a $2,200 fine and/or 2 years imprisonment.
Section 179 of the Criminal Procedure Act 1986 (NSW) also states that proceedings for a summary offence must be commenced within 6 months from the date the offence was allegedly committed. If you have been charged for a custody of a knife offence 6 months after the alleged incident date, it is imperative that you seek legal advice. If this is you, click here to speak with the experienced team at National Criminal Lawyers®.
DEFENCES
Section 11C(2) provides a list of reasonable excuses which may be used as a defence for custody of a knife charges. These include:
i. the lawful pursuit of the person’s occupation, education or training,
ii. the preparation or consumption of food or drink,
iii. participation in a lawful entertainment, recreation or sport,
iv. the exhibition of knives for retail or other trade purposes,
v. an organised exhibition by knife collectors,
vi. the wearing of an official uniform,
vii. genuine religious purposes.
A defence may also be available if custody of a knife in public is reasonably necessary during travel to, from or incidental to one of the activities listed above.
WHY IS SELF-DEFENCE NOT A REASONABLE EXCUSE?
As you can see from the list above, self-defence is not a reasonable excuse! This means that if you are in possession of a knife in a public place, and the reason for your possession does not fall under Section 11C(2), you may be charged with a criminal offence.
Why doesn’t legislation accommodate for self-defence? Don’t we have the right to feel safe?
Over the years, statistics have shown that knife-crime is on the rise in Australia. For example, in New South Wales, the number of homicide victims increased from 102 in 2018 to 116 in 2019. Almost two-thirds of recorded homicides used a weapon (74 victims), most commonly a knife (47 victims).
In response, Parliament has recognised the need for strict laws. States have also recognised the importance of education campaigns and greater enforcement measures to protect Australian communities. In Sydney, police officers from all commands in the South West Metropolitan Region (SWMR) have recently combined with specialist units as part of Operation Saber II. This two-day operation led to over 91 charges with police seizing 20 knives. Acting Assistant Commissioner White released the following statement:
“We won’t tolerate violent or predatory behaviour in the community and police will actively engage and arrest people who possess weapons in public places”.
Do you agree that criminalising the possession of knives in public will help to reduce crime?
Or do you believe that the use of weapons for self-protection should outweigh potential legal benefits?
OTHER PROHIBITED WEAPONS
An additional item often carried by individuals for protection is pepper spray. As per Schedule 1 of the Weapons Prohibition Act 1998 (NSW), any device that is designed as a defence or anti-personnel spray and is capable of discharging any irritant matter is prohibited in New South Wales. This means that carrying pepper spray or capsicum spray in your handbag is illegal and you may be charged with a criminal offence unless you are authorised by way of a permit. Even those with a permit may be charged under Section 7 if he/she possesses or uses a prohibited weapon outside the conditions of the permit. The maximum penalty for possessing or using a prohibited weapon is 2 years imprisonment (if heard in the Local Court) and 14 years imprisonment (if heard in the District Court).
It is understood that many persons fear for their safety when travelling alone, in the dark or in unfamiliar suburbs. If you are carrying a weapon, or thinking of carrying a weapon, first click here to confirm whether it is prohibited in New South Wales. If you reside in another Australian State, please ensure that you review the relevant legislation for your jurisdiction.
HOW CAN I PROTECT MYSELF?
An effective alternative to carrying a weapon is learning martial arts or some form of hand-to-hand combat. Examples include Karate or Jiu-Jitsu. These self-defence techniques will teach individuals how to defence themselves against larger or armed opponents by targeting their most vulnerable points.
CONTACT US
National Criminal Lawyers® have successfully defended numerous custody of a knife charges with several of those matters resulting in non-convictions. If you have been charged for having custody of a knife or other prohibited weapon, click here to contact National Criminal Lawyers® for the best defenders of your rights.