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Local Court 7 May 2012

Police v O'Brien

[2012] NSWLC 7

Firearms & weapons
CRIMINAL LAW CUSTODY OF KNIFE IN PUBLIC PLACE SUMMARY OFFENCES ACT 1988 MEANING OF 'KNIFE' WHETHER A PAIR OF SCISSORS IS A KNIFE STATUTORY CONSTRUCTION

Citation: Police v O'Brien [2012] NSWLC 7
Court: NSW Local Court
Date: 7 May 2012
Judge: Magistrate J Favretto

Background

Police approached the accused in a public park in Surry Hills after observing him smoking cannabis. Officers found a pair of metal-bladed scissors sitting on top of a sports bag in front of him. The accused was charged with custody of a knife in a public place under s 11C(1) of the Summary Offences Act 1988.

When the accused initially pleaded guilty at Central Local Court, the court refused to accept the plea. The recorded facts made clear that the item in question was a pair of scissors, not a conventional knife, and the magistrate had previously held in separate proceedings that scissors did not fall within the statutory definition of "knife." The prosecution sought an adjournment to prepare legal submissions on the point.

The accused failed to appear at the subsequent hearing. The court proceeded in his absence, and the matter was determined on the prosecution's brief of evidence as a purely legal question of statutory construction.

  • Whether a pair of scissors constitutes a "blade" and therefore a "knife" within the meaning of ss 3 and 11C(1) of the Summary Offences Act 1988.
  • What principles of statutory construction apply to resolving the scope of the definition of "knife," including the permissible use of extrinsic materials such as Second Reading Speeches and Parliamentary debates.

Decision

Section 3 of the Act defines "knife" to include a knife blade, a razor blade, or "any other blade." The prosecution's case relied on the proposition that scissors, having blades, fell within the phrase "any other blade." The court rejected this broad literal reading and applied a purposive approach to construction.

Magistrate Favretto examined the legislative history of the knife custody provisions, including Second Reading Speeches and Parliamentary debates stretching back through multiple amending Acts. That material revealed a consistent parliamentary focus on combating "knife culture," specifically the carrying of items understood in ordinary usage as knives. There was no suggestion that Parliament contemplated items such as scissors or screwdrivers when legislating against knife possession in public places and schools.

The court drew support from English Court of Appeal authority, particularly R v Davis, which cautioned against giving knife possession offences an "extremely wide ambit" and noted that because possession creates a reverse onus (requiring the accused to establish a reasonable excuse), clear statutory language should be required before such a burden is imposed. The court also noted the absurdity that would follow from reading the provision broadly: children routinely carry scissors at school for legitimate educational purposes, and it would defy common sense to treat such conduct as falling within an anti-knife-culture regime.

Construing the definition of "knife" as referring to items that are intrinsically knives or fall within the broad category of a knife, the court held that a pair of scissors did not meet that description. The charge was found not proven.

Orders Made

  • The accused was found not guilty.
  • The Court Attendance Notice was dismissed.

Key Takeaways

  • A pair of scissors is not a "knife" within the meaning of ss 3 and 11C(1) of the Summary Offences Act 1988, at least on the facts and construction adopted in this decision.
  • Purposive construction governs the interpretation of the knife custody provisions: the definition of "knife" should be read to capture items that are intrinsically knives or fall within the broad category of a knife, not every object that happens to have a blade.
  • Extrinsic materials, including Second Reading Speeches and Parliamentary debates, were considered permissible aids to construction under the Interpretation Act 1987 and were instrumental in identifying the legislature's focus on combating knife culture specifically.
  • Where a statutory offence places a reverse onus on the accused to establish a reasonable excuse, courts require clear statutory language before extending the offence's reach to items not ordinarily understood to fall within it.
  • The full ambit of the definition of "knife" under s 3 remains to be worked out on a case-by-case basis; this decision establishes that scissors fall outside it, but does not exhaustively define what other objects might or might not qualify.

Legislation and Cases Referenced

Legislation:
- Summary Offences Act 1988 (NSW), ss 3, 11B, 11C, 11D, 11E, 11F
- Summary Offences Regulation 2010 (NSW), cl 11
- Interpretation Act 1987 (NSW), s 33
- Criminal Procedure Act 1986 (NSW), ss 196, 199
- Crimes Legislation Amendment (Police and Public Safety) Act 1998 (NSW)
- Crimes Legislation Amendment (Possession of Knives in Public) Act 2009 (NSW)
- Summary Offences Amendment Act 1997 (NSW)
- Prohibited Weapons Act 1989 (NSW)
- Firearms Act 1996 (NSW)

Cases:
- DPP v Starr [2012] NSWSC 315
- Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
- CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
- Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
- Commissioner of Police v Kennedy [2007] NSWCA 328
- R v Maclay (1990) 19 NSWLR 112
- Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126
- R v Bolton; Ex parte Bean (1987) 162 CLR 514
- R v Davis [1998] Crim LR 564 (CA)
- R v Deegan [1998] EWCA Crim 385
- R v Qayum [2010] EWCA Crim 2237
- Brooker v Director of Public Prosecutions [2005] EWHC 1132 (Admin)