What Happens if you are Charged with Being in Custody of a Knife in Public?

By Sahar Adatia and Jimmy Singh.

On October 30 2018, a man was charged following an incident at Tweed Heads Hospital following reports that he began threatening hospital workers.

According to police, at about 9pm, officers were called to the Powell Street facility, where the 37-year-old was discovered verbally abusing the staff. He also allegedly carried a knife and produced a replica firearm.

Security staff at the hospital were forced to detain the man themselves before officers from the Tweed/Byron Police District arrived at the scene and arrested him.

He was then taken to Tweed Heads Police Station where he was charged with being in custody of a knife in a public place, unauthorised possession of a firearm as well as two counts of stalking/intimate with intent to cause fear of physical or mental harm.

The man was refused bail and appeared before Tweed Heads Local Court the following day.

There were no injuries during the incident.

Union Appeals for Tightened Security at Tweed Heads Hospital Rather than Relying on “Luck”

In the aftermath of the incident, the Health Services Union (HSU) urged for security to be increased and a greater priority at Tweed Heads Hospital.

Speaking of the 37-year-old man’s arrest, the union’s NSW Secretary, Gerard Hayes, said the occurrence underscored the “serious deficiencies in the security arrangements at the hospital”.

“Hospitals must be places where patients, their families and workers can be safe,” Mr Hayes said.

“We urgently need to see more security staff, an increase in the use of CCTV security cameras.”

He also said it was lucky the confrontation ended without anyone getting hurt, however, also expressed that the system cannot merely continue to “rely on luck”.

“We must make sure our hospitals are as safe as possible,” he said.

Northern NSW Local Health District Reassures of Sufficient Security in Place

According to Chief Executive of the Northern NSW Local Health District, Wayne Jones, a full complement of security staff had been rostered on at the time the incident occurred. The staff followed standard protocols in hand with the Emergency Department personnel.

“Across the Northern NSW Local Health District there are 58 full time equivalent security officers and health and security positions, as well as casual staff,” Mr Jones said.

He also reassured that across NSW, a significant investment of $19 million had been placed to improve security in emergency departments at public hospitals.

“The Northern NSW Local Health District has implemented a range of security improvements across the District, including a recent increase in security staff at the Tweed Hospital.

“Over $1.4 million has been invested to ensure appropriate staff have access to personal mobile duress alarms, where they are mandated to wear while on duty.”

In conjunction with the ongoing investment into security staff and apparatus, he highlighted other safety measures in place, including the installation of fixed duress alarms as well as personal duress alarms, Violence Prevention Management Training, de-escalation training for all staff working in high risk areas within smaller facilities, as well as two Safety Culture Coordinators working alongside hospital staff in the Northern NSW Local Health District as part of a comprehensive safety culture initiative.

The Northern NSW Local Health District encompasses 14 hospitals and a variety of community health centres from Tweed Heads to Grafton, an area spanning 20,732 square kilometres.

The District delivers an expansive scope of health services in advanced facilities, with access to both general and specialist services.

The Use and Carriage of Knives in Australia

Knife crime attracts a great deal of community concern.

According to the Australian Institute of Criminology, while the use of firearms has declined by more than half since 1990, there has been an upward trend in the use of knives and sharp instruments in recent years.

In the case of homicides, for example, there has been a pronounced change in the apparatus used and knives feature as one of the most commonly used weapons.

Similarly, in incidences of armed robbery, knives also indicate the most commonly used weapon being used against at least half of all victims, regardless of age or gender. In particular, women aged between 40 to 44 years have been noted as victims of robberies where a knife has been used more often than any other age category.

Furthermore, in 2010, the Australian Bureau of Statistics published national data on the use of knives in sexual assault, revealing that approximately one percent of cases between 2001 and 2009 involved knives. Meanwhile, knives were also utilised in seven to 10 percent of kidnapping and abduction cases.

Interestingly, in a survey carried out by the Drug Use Monitoring in Australia (DUMA) program, the response to the question, ‘What is your main reason for owning or possessing a knife?” the most common justification given was protection of self-defence.

What Happens if you are Charged with Being in Custody of a Knife in a Public Place in NSW?

In NSW, while being in custody of a knife in a public place is considered a less-serious criminal offence, it can still leave you with a criminal conviction.

A person guilty of a charge of having custody of a knife in a public place or school can face a criminal conviction, penalty of up to $2,200 fine and/or imprisonment of up to 2 years if dealt with by a Magistrate in the Local Court. See section 11C of the Summary Offences Act 1988 (NSW).

Police Discretion to Issue a ‘Penalty Notice’ instead of ‘Court Attendance Notice’

The charge of having custody of a knife in public is a ‘summary offence’ which can only be dealt with in the Local Court as opposed to the District, Supreme or High Court.

The offence of having custody of a knife in public is an offence that can be dealt with as an alternative by way of a ‘penalty notice’ instead of a ‘court attendance notice’.

A ‘court attendance notice’ issued by police to an accused person will require the person accused of the offence to attend court. If guilty, then he/she can receive a criminal conviction with the above-mentioned maximum penalties.

A ‘penalty notice’ issued by police to an accused person for this offence allows the accused person to simply pay the fine without being required to attend court at all. If the fine is paid, then no criminal conviction is imposed. Payment of the fine will generally not have any consequence of liability or prejudice as a result.

Certain charges and offences allow for a penalty notice to be issued instead of a ‘court attendance notice’.

The amount of fine for a penalty notice for having custody of a knife in public is $550 pursuant to regulation 15 of the Summary Offences Regulation 2015 (NSW).

Under section 29A of the Summary Offences Act 1988 (NSW), a police officer has the option of issuing a penalty notice (instead of requiring you to attend court) for having custody of a knife in public if:

1. If appears to the police officer that this offence has been committed; and
2. It is not desirable to have the case determined in court; and
3. The person accused has not previously been dealt with for a knife-related offence.

If you given a ‘penalty notice’ for having custody of a knife in public, you may still choose to not pay it by electing to go to court to have the Magistrate in the Local Court decide. If you choose a ‘court election’, you will be required to then attend court and either plead guilty or plead not guilty.

Time Limit of When Police Can Charge You for Having Custody of Knife

The police are not allowed to proceed with a charge against an alleged offender if the charge is laid more than 6 months after the date of the alleged offence of having custody of a knife in public. See section 179 of the Criminal Procedure Act 1986 (NSW).

What is the Law on Having Custody of a Knife in Public?

You will be guilty of a charge of having custody of a knife in public pursuant to section 11C of the Summary Offences Act 1988 (NSW) if the police can prove each of the following elements of this crime:

1. You have custody of a knife; and
2. At that time, you were in a public place or a school.

A ‘public place’ is a place (including water) or part of a premises that’s open to or used by the public. A public place also includes a place where the public that it is open to consists only of a limited class of persons.

A ‘school’ includes a government, registered non-government school within the meaning of the Education act 1990, secular or religious school, pre-school, infant’s school, primary school, secondary school, child-mining centres, land and any building occupied in connection with the conduct of a school. It does not include a building occupied or used solely as a residence or for purposes unconnected with the conduct of such as school or place.

A ‘knife’ includes a knife blade, razor blade or any other blade.

Defences to a Charge of Having Custody of a Knife in Public

A person charged with having custody of a knife in public or school will be ‘not guilty’ if any one of the following defences apply:

(A) Reasonable excuse: an accused person will not be guilty if he/she had custody of the knife for a reasonable excuse, including any of the following ‘reasonable excuses’ expressed in section 11C(2) of the Act:

• The accused person had it in his/her custody because it was reasonably necessary in all the circumstances for any of the following reasons:
  1. Genuine religious purposes;
  2. Wearing of an official uniform;
  3. An organised exhibition by knife collectors;
  4. The exhibition of knives for retail or other trade purposes;
  5. Participation in lawful entertainment, recreation or sport;
  6. Preparation or consumption of food or drink;
  7. Lawful pursuit of an occupation, education or training.

• The accused person had it in his/her custody because it was reasonably necessary in all the circumstances during travel to or from (or incidental to any of the activities referred to above).

(B) Duress or Necessity.

Importantly, having custody of a knife solely for the purpose of self-defence (or for the defence of another) is not considered a ‘reasonable excuse’ under section 11C(3) of the Act.

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