The Offence of Having Custody of a Knife in a Public Place or School

Being in possession of a knife in a public place or school without a reasonable excuse is an offence under the Crimes Act 1900 (NSW)(‘the Act’).

Under section 93IB of the Act, such conduct carries a maximum penalty of  a fine of $4,400, imprisonment for 4 years, or both.

This offence carries a maximum penalty up to $11,000, imprisonment for 4 years, or both.

A ‘knife’ is includes a knife blade and a razor blade.

A ‘public place’ includes any place or 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.

A statutory defence (which is an offence relating specifically to the offence) exists for both offences if  the accused person establishes ‘on the balance of probabilities’ (in other words, more likely than not) that he or she had a reasonable excuse for carrying the knife.

Under the Act, a reasonable excuse is where it was necessary to carry or use the knife for:

•  The lawful pursuit of the person’s occupation, education or training, or
• The preparation or consumption of food or drink, or
• Participation in a lawful entertainment, recreation or sport, or
• The exhibition of knives for retail or other trade purposes, or
• An organised exhibition by knife collectors, or
• The wearing of an official uniform, or
• Genuine religious purposes, or
• During travel to or from or incidental to any of these activities.

Stabbing

The exception relation to religious implements has recently come under the spotlight  after a 14 year old allegedly stabbed a 16 year old student in the playground of Glenwood High School using a “religious knife”, reportedly in response to being bullied by the older teen.

The young teen is facing two counts of wounding or causing grievous bodily harm with intent, which is an offence under section 33 of the Crimes Act 1900 carrying a maximum penalty of 25 years in prison.

Police allege he stabbed the older boy in the stomach and back with a knife known as a kirpan.

What is a kirpan?

A kirpan is a small replica sword worn around the waist under the clothes. It is an article of faith that devout Sikhs must always wear. It is regarded as a ceremonial item, not a weapon of aggression, and symbolises readiness to fight oppression. It is considered highly sacred, and some Sikhs don’t even remove the kirpan when they sleep.

Religion versus safety

But in the wake of the alleged stabbing, New South Wales Education Minister Sarah Mitchell decreed a blanket ban on students carrying any knives in all schools across the state.

The move was met with fierce criticism from some members of the Sikh community, and the Minister backtracked as a result. She now says the ban is only temporary until appropriate measures can be put in place which acknowledge the Sikh religious custom, as well as ‘put the safety of teachers and students first’.

The Sikh community has been divided over the ban, with some seeing it as discriminatory and ‘heavy handed’.

Others, including the Secretary of the Sikh Council of Australia, Bawa Singh Jagdev, said the ban is long overdue and that children should not be carrying the kirpan because they do not have the ‘maturity’ to handle it with care.

A solution yet to be found

Sarah Mitchell has since met with Community leaders to facilitate discussions to resolve the issue. Potential solutions include allowing the kirpans at school, so long as they are not removed from the protective sheath, or that students carry mock daggers.

Going to court for having custody of a knife?

If you have been charged with possessing a knife, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free conference with an experienced defence lawyer who will advise you of your options and the best way forward.