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  • Writer's pictureGeoff Harrison

Custody of Knives in Public Places or Schools

Updated: Nov 3, 2023


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Published by Geoff Harrison | 1 November 2023


The offence of carrying a knife in a public place or school is under s93IB of the Crimes Act 1900 ('the Act'). A first time adult offender can be dealt with by way of a penalty notice for knife related offences under Schedule 4 of the Criminal Procedure Regulations 2017. The maximum penalty for this offence is 40 penalty units ($4,400) and/or 4 years imprisonment. A person is not guilty of this offence if the accused can prove on the balance of probabilities that the knife was possessed in a public place/school with a reasonable excuse. It is not a reasonable excuse to possess a knife in a public place/school for the purpose of self defence: see s93IB(4) of the Act and Taikato v R. As to what can constitute a reasonable excuse is contained within s93IB(3) of the Act, in that it is reasonably necessary for:


(i) the lawful pursuit of the person's occupation, education or training, or

(ii) the preparation or consumption of food or drink, or

(iii) participation in a lawful entertainment, recreation or sport, or

(iv) the exhibition of knives for retail or other trade purposes, or

(v) an organised exhibition by knife collectors, or

(vi) the wearing of an official uniform, or

(vii) genuine religious purposes, or


(b) because it is reasonably necessary during travel to or from or incidental to an activity referred to in paragraph (a), or


(c) in circumstances prescribed by the regulations.


Given the definitions of a "public place" and "premises", a vehicle can be considered a public place.


Arguably, the most common and least successful defence heard by the court for this offence is that the accused had been fishing.


Other Sources:

Cases:

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Extracted Legislation:


CRIMES ACT 1900 - SECT 93IB

Custody of knives in public places or schools


(1) A person must not have in the person's custody a knife in a public place or a school.

Maximum penalty--40 penalty units or imprisonment for 4 years, or both.


(2) It is a defence to an offence under subsection (1) if the accused person proves the person had a reasonable excuse.


(3) A reasonable excuse includes the person having the knife in the person's custody--

(a) because it is reasonably necessary for--

(i) the lawful pursuit of the person's occupation, education or training, or

(ii) the preparation or consumption of food or drink, or

(iii) participation in a lawful entertainment, recreation or sport, or

(iv) the exhibition of knives for retail or other trade purposes, or

(v) an organised exhibition by knife collectors, or

(vi) the wearing of an official uniform, or

(vii) genuine religious purposes, or

(b) because it is reasonably necessary during travel to or from or incidental to an activity referred to in paragraph (a), or

(c) in circumstances prescribed by the regulations.


(4) It is not a reasonable excuse for the person to have a knife in the person's custody--

(a) for self-defence, or

(b) for the defence of another person.


CRIMES ACT 1900 - SECT 93IA

Definitions


In this division--


"blade" includes a knife blade and a razor blade.


"knife" includes a blade, but does not include a knife of a class prescribed by the regulations.


"public place" has the same meaning as in the Summary Offences Act 1988.


"school" has the same meaning as in the Summary Offences Act 1988.


SUMMARY OFFENCES ACT 1988 - SECT 3

Definitions


"public place" means--

(a) a place (whether or not covered by water), or

(b) a part of premises,

that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include a school.


"premises" includes a structure, building, vehicle, vessel or place, whether built on or not, and any part thereof.


"school" means--

(a) a government school or a registered non-government school within the meaning of the Education Act 1990 , and

(b) a school providing education (whether secular or religious) at a pre-school or infants' school level or at a primary or secondary level, and

(c) a place used for the purposes of an establishment commonly known as a child-minding centre or for similar purposes, and

(d) the land, and any building, occupied by or in connection with the conduct of such a school or place,

and includes any part of such a school or place, but does not include any building that is occupied or used solely as a residence or solely for a purpose unconnected with the conduct of such a school or place.


CRIMES ACT 1900 - SECT 93IC

Using or carrying knives in public places or schools


(1) A person must not use a knife, or carry a knife that is visible, if the use or carrying occurs--

(a) in the presence of a person, and

(b) in a public place or a school, and

(c) in a way that is likely to cause a reasonable person to reasonably fear for the person's safety.

Maximum penalty--100 penalty units or imprisonment for 4 years, or both.


(2) It is a defence to an offence under subsection (1) if the accused person proves the person had a reasonable excuse.


SUMMARY OFFENCES ACT 1988 - SECT 11D

Parents who allow children to carry knives


(1) The parent of a child, being a child--

(a) who is under the age of 18 years, and

(b) who commits an offence against the Crimes Act 1900, section 93IB,

is guilty of an offence if the parent knowingly authorised or permitted the child to commit the offence.

Maximum penalty--5 penalty units.


(2) The parent of a child may be proceeded against and dealt with under this section whether or not the child has been proceeded against or dealt with under the Crimes Act 1900, section 93IB.


(3) Nothing in this section affects the liability of the parent's child for an offence committed by the child against the Crimes Act 1900, section 93IB.


(4) If an act or omission constitutes an offence--

(a) under this section, and

(b) under section 11 of the Children (Protection and Parental Responsibility) Act 1997,

the offender is not liable to be punished twice in respect of the act or omission.


(5) In this section,

"parent" of a child has the same meaning it has in the Children (Protection and Parental Responsibility) Act 1997.


SUMMARY OFFENCES ACT 1988 - SECT 11F

Sale of knives to children


(1) A person who sells a knife to a child under the age of 16 years is guilty of an offence.

Maximum penalty--50 penalty units.


(2) It is a defence (proof of which lies on the person) to a prosecution for an offence under this section that the person selling the knife believed on reasonable grounds that the child was of or above the age of 16 years.


(3) If an employee contravenes subsection (1), the employer is taken to have contravened that subsection, whether or not the employee contravened the provision without the employer's authority or contrary to the employer's orders or instructions.


(4) It is a defence to a prosecution against an employer for such a contravention if it is proved--

(a) that the employer had no knowledge of the contravention, and

(b) that the employer could not, by the exercise of due diligence, have prevented the contravention.


(5) An employer may be proceeded against and convicted under subsection (1) by virtue of subsection (3) whether or not the employee has been proceeded against or convicted under subsection (1).


(6) The regulations may provide that this section does not apply to or in relation to any specified class or description of knife.






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