Possessing a Dangerous Article Other Than a Firearm

Possessing a dangerous article other than a firearm is an offence under section 93FB of the Crimes Act 1900, which carries a maximum penalty of 2 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You possessed an item capable of discharging an irritant in liquid, powder, gas, chemical or dense smoke form, or a substance capable of causing bodily harm, or a fuse capable of being used with an explosive or detonator, or a detonator, or a distress signal or flare that operates by emitting a bright light
2. You possessed the item in a public place, and
3. The item was not a firearm

A ‘public place’ includes any place that is publicly owned as well as privately owned property that is open to members of the public, such as:

1. Restaurants, pubs and clubs
2. Shopping centres and shops, and
3. Sporting venues and cinemas

A ‘firearm’ is defined as:

A gun, or other weapon, that is or was, capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include a paintball marker.

The definition includes an ‘imitation firearm’ which is an object that, regardless of its colour, weight or composition, or the presence or absence of any moveable parts, substantially duplicates a firearm in appearance, but is not a firearm. The definition does not include an object produced and identified as a children’s toy.

You are not guilty of the offence if you are able to establish, ‘on the balance of probabilities’, that:

1. You had a reasonable excuse for possessing the item
2. You possessed it for a lawful purpose, or
3. You possessed it for self-defence and it was reasonable to possess it for that purpose

In determining whether it was reasonable to possess the item for self-defence the court must take into account:

1. The immediacy of any threat you perceived
2. The circumstances in which the item was possessed including the time and location
3. The nature of the item possessed, and
4. Your age, characteristics and experiences

Other defences include duress and necessity.