Physically Possessing a Knife in a Public Place

Section 51(1) of the Weapons Act 1997 says that a person must not physically possess a knife in a public place, or a school, without a reasonable excuse. It is important that, for the purposes of this offence, a knife includes anything with a sharpened blade or point which is capable of wounding someone. This definition could include objects such as a sharpened stick or a metal spike.

An offence against this provision carries a maximum penalty of 1 year imprisonment and/or a 40 penalty unit fine.

What is a Reasonable Excuse?

The reasonable excuses for physically possessing a knife in a public place or a school are contained within Section 51(2) which states:

“It is a reasonable excuse for subsection (1) to physically possess a knife:

• To perform a lawful activity, duty or employment; or
• To participate in a lawful entertainment, recreation or sport; or
• For lawfully exhibiting the knife; or
• For use for a lawful purpose.”

Physically possessing a knife for self-defence purposes is, expressly, not a reasonable excuse.

The manner in which the knife is being held, including when and where it is being held, also determines whether a reasonable excuse can be justified.

What Actions Might Constitute Possessing a Knife in a Public Place?

• Walking down a street carrying a knife in a backpack days after using that backpack whilst fishing.
• Driving on a public road with a knife sitting on the back seat of your car.
• Walking through school grounds with a sharpened stick in your hand.

Will a Criminal Conviction be Recorded for Possessing a Knife?

Depending on the circumstances of your possession of a knife, it might be possible to argue that the court should not record a conviction against you. If you are found guilty of the offence you should, however, presume as a starting point that you will be convicted and the conviction will be recorded.

What the Police Must Prove

In order to convict you of this offence it must be proved that:

• You physically possessed a knife; and
• You did so in a public place, or a school; and
• You did not have a reasonable excuse for possessing the knife.

Possible Defences to Possessing a Knife in a Public Place

Other than proving you had a reasonable excuse, you could successfully defend the charge if you can prove:

• you were not aware that you were in possession of the knife;
• the implement said to be a knife is not found to be a knife under the definition in the Act.

Which Court Will Hear Your Matter?

An offence of physically possessing a knife in a public place or school will be heard and determined in the Magistrates Court.

Types of Penalties

Imprisonment: Even though it is not a sentence of last resort (as it is in some other states) imprisonment is the most serious penalty which a court can impose upon a person. At its most severe a sentence of imprisonment means that a person must spend a specified period of time within a correctional facility, also called a prison, a jail or a gaol.

Intensive corrections order (ICO): An Intensive Corrections Order is, technically, a form of imprisonment but which is served wholly in the community. This means that a person who is made subject to an ICO will not spend any time in prison but will, instead, be required to adhere to a number of requirements that the court will order.

Probation: A court can make a Probation Order either by itself, meaning the whole of the sentence is probation, or as a component of a sentence of imprisonment, meaning that a person is ordered to serve a period of time (not longer than 1 year) in prison and is then subject to a probation requirement upon release.

Community service order (CSO): As the name implies, a Community Service Order is an order which requires a person to perform unpaid work, normally at some kind of community facility, for a stated number of hours (to a maximum of 240) within a nominated time (usually 6 or 12 months).

Recognisance: A recognisance is a promise which a person makes to be of good behaviour for a stated period of time. A court is empowered to release a person who enters into a recognisance, either with a surety, which is a sum of money which the person agrees to pay if they breach the recognisance, or without one.

Fines: A court is empowered to impose a fine, which is a sum of money which a person is required to pay to the State, for any offence regardless of whether the law creating it nominates a fine as part of the applicable penalty.

Section 19 dismissal: A court can discharge a person absolutely, or upon them entering into a recognisance, without recording a conviction against them, if it is satisfied that it is appropriate to do so.

In all cases where you are sentenced to a penalty other than jail, the court can choose not to record a conviction against you, meaning your criminal record will remain clear and any complications with work or travel may be avoided.

For advice or representation in any legal matter, please contact Armstrong Legal.