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NSW Knife Legislation

This article discusses recent amendments to NSW knife legislation.  In 2023 the NSW Government increased the penalties for various knife-related offences in response to several serious knife related incidents in 2022 and 2023.  Possession of a knife in a public place or school is now an offence under section 93IB of the Crimes Act 1900 (NSW) and carries a maximum penalty of a fine of $4,400.00 and/or imprisonment for 4 years.  A further offence applies if a person uses or carries a knife that is visible, if the use or carrying occurs:

  • In the presence of a person; and
  • In a public place or a school; and
  • In a way that is likely to cause a reasonable person to reasonably fear for the person’s safety.

This further offence carries a maximum penalty of up to $11,000.00, imprisonment for 4 years, or both, (pursuant to section 931C of the Crimes Act 1900 (NSW)).

2023 Amendment to Crimes Act 1900

On 20 June 2023, the New South Wales Government introduced The Criminal Legislation Amendment (Knife Crimes) Bill 2023 , which doubled the maximum penalties for possessing or wielding a knife in a public place. The Crimes Act was subsequently amended to include the offences of having a knife in a public place or school and wielding a knife in a public place or school.

The maximum jail term for those offences increased from two to four years while the maximum fine for possessing a knife increased from $2200 to $4400, and for wielding a knife to $11,000. The amendment aims to send a strong message to offenders about the seriousness of knife-related crime and attempt deter future offenders by imposing harsher penalties. New South Wales Attorney General Michael Daley noted that the amendments to the Crimes Act aims to strike “the right balance with these reforms, sending an important message to people engaging in criminal behaviour of this kind but also not being overly punitive in its application.” 

In light of these changes, both offences are now Table 1 offences, meaning that the accused will be tried summarily or in court, unless the prosecution or defendant elects otherwise.

It is important to note that a penalty infringement notice may still be issued to an adult for a first offence for knife possession, meaning that the person would not need to attend court.

What Does the Prosecution Have To Prove?

In order to be convicted for custody of a knife, the prosecution must prove beyond a reasonable doubt that you

  • Had in your custody an implement considered a knife ; and
  • Were in a public place; and
  • Had no reasonable excuse.

Section 93IA of the Crimes Act 1900 (NSW) further defines the newly inserted knife offence, so that:

  • A knife includes a knife blade or a razor blade.
  • A public place includes any place or part of a premises that is open to the public, used by the public or used by a limited class of persons, such as a school

Statutory Defences for NSW Knife Legislation

A statutory defence is a defence relating specifically to the offence and  exists if the accused person establishes ‘on the balance of probabilities’ that they had a reasonable excuse for carrying the knife.  These reasonable excuses include:

Work-related purposes

People who require knives as part of their occupation, such as tradespeople or chefs, may carry knives as long as they are being used for their intended trade purpose. 

Recreational activities

Individuals engaging in recreational activities that necessitate the use of a knife, such as camping or fishing, are generally allowed to carry knives for those purposes.

Religious or cultural reasons

Some cultural or religious practices, such as the Sikh religion, require the carrying of a knife as part of customary dress or rituals. This can include carrying a ceremonial knife for genuine religious purposes or ceremonies.

Legal obligations

Individuals who are required by law to carry a knife, such as law enforcement officers or emergency responders, are exempt from this offence.

Transportation purposes

Carrying a knife for the purpose of transporting it from one location to another, such as moving it from a store to one’s home, can also be considered a lawful excuse.

It’s important to note that the burden of proof lies with the accused to demonstrate that they had a lawful excuse for carrying the knife. This means that if you are charged with custody of a knife in a public place, you will need to provide evidence to support your claim of a valid reason for carrying the knife.

Criminal Law Defences

Duress

If the accused can show that they were compelled to commit an otherwise unlawful act in order to prevent a greater harm. This typically applies in situations where the individual faced an imminent threat or danger and reasonably believed that their actions were necessary to avoid the harm.

Necessity

If the accused can show that they committed the act that would normally amount to a criminal offence because of an extreme situation in which they or another person were in danger of being seriously harmed if they did not commit the act.  Notably, legislation stipulates that carrying a knife for the purposes of self-defence or defence of another is not a reasonable excuse.

Why BSM Lawyers?

Our highly experienced criminal team understand that being charged with a knife offence is understandably stressful.  Our lawyers can assist you with your charge.  We will carefully listen to you, liaise with the police and prosecution and work out the best defence strategy for you.  Our experienced criminal lawyers have extensive experience with weapons charges, including those resulting from the NSW knife legislation charges.  We are proud of the excellent results that we achieve for our clients.

Our expert criminal defence team are able to run most court matters without the added expense of a barrister. However, for serious criminal matters we have a panel of expert barristers who we frequently engage. 

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Brander Smith McKnight are conveniently located in Sutherland, Sydney CBD, Parramatta and Wollongong.

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