Is it legal to carry pepper spray or mace?

by Ugur Nedim

Pepper spray or ‘mace’ is a ‘dangerous article’ for the purposes of 93FB Crimes Act 1900 (NSW) headed ‘Possession of Dangerous Articles Other Than Firearms’.

The section makes it illegal to possess anything (other than a firearm) in a public place that is capable of discharging any irritant or other substance capable of causing bodily harm, or any fuse or detonator capable of use with an explosive, unless it is established that there was a ‘reasonable excuse’ or ‘lawful purpose’ for possessing the item, including ‘self defence’ that is ‘reasonable in the circumstances’.

Accordingly, possession of pepper spray is illegal if there is insufficient justification for carrying it.

The law specifies four criteria relevant in determining whether possessing pepper spray, hair spray, lighter fluid or any similar item is legal in a particular situation.

Those criteria are:

(a) the immediacy of the perceived threat, and
(b) the time and location where the item was possessed, and
(c) the nature of the item possessed, and
(d) the age, characteristics and experiences of the person charged.’

Applying those criteria, it is likely to be illegal for an adult male to carry pepper spray in a safe neighbourhood in the daytime because there is little justification for any fear or apprehension of danger.

On the other hand, it is likely to be legal for a female to carry pepper spray in a known crime area at night, particularly if she had previously been exposed to threats or danger in that area.

Breaking Down the Four Criteria

Although the four criteria are assessed as a whole, they can be understood as follows:

1. Immediacy of the perceived threat.

This means the extent to which the threat is imminent or apprarent.

For example, if the person was told the same day that he or she would be attacked later that night there is a higher likelihood that a court would find that the threat was ‘immediate’ than a threat that occurred a year earlier.

2. The time and location where the item was possessed.

Carrying pepper spray late at night in Kings Cross is more likely to be justified than in the daytime in a low crime area in Sydney’s North Shore.

3. Nature of the item possessed.

Section 93FB doesn’t only relate to pepper spray, but to any irritant capable of cauing bodily harm such as lighter fluid, hair spray, poisonous sprays etc.

The type, purpose and amount of the substance is relevant to determining whether its possession is legal.

4. Age, characteristic and experiences of the persons charged.

Elderly persons or younger females are generally at greater risk of victimisation and it is more likely that such persons would be justified in carrying pepper spray.

A person’s previous experiences may be highly relevant in determining whether carrying pepper spray is legal.

For example, the fact that the person was previously attacked or threatened in the same area would be relevant in assessing whether carrying the spray was legal.

Such circumstances can be a ‘reasonable excuse’ (rather than a ‘lawful purpose’) to justify possession.

The maximum penalty for illegally possessing pepper spray is 2 years imprisonment and/or a fine of $5,500.

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Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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