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District Court 12 May 2025

Abbas v R

[2025] NSWDC 218

Public order & justice offences
CRIMINAL LAW CONVICTION APPEAL SENTENCE APPEAL DOMINION AND CONTROL OVER THE KNIFE MENTAL INTENT FOR POSSESSION

Citation: Abbas v R [2025] NSWDC 218
Court: District Court of New South Wales
Date: 12 May 2025
Judge(s): Bennett SC ADCJ

Background

The appellant was a person facing criminal proceedings who attended the Downing Centre as an accused in a judge-alone District Court trial. On 30 November 2023, sheriff's officers detected a knife in his bag at the security screening point. The knife was approximately 18 cm long with a 9 cm blade.

Through his solicitor, the appellant explained that the previous afternoon he had attended a contact centre in Fairfield to spend time with his children, and he had brought the knife to cut fruit and other food for them. He said he had forgotten the knife was in his bag when he arrived at court the following day.

The appellant was charged with possessing a knife (not a prohibited weapon) in court premises, contrary to section 8(1)(b) of the Court Security Act 2005. A magistrate found him guilty and imposed a fine. He appealed both the conviction and the sentence to the District Court.

  • Whether the appellant possessed the knife within the meaning of the Court Security Act 2005, including whether the mental element of possession was established.
  • Whether the appellant had a "reasonable excuse" for possessing the knife in court premises.
  • Where the onus of proof lay on the reasonable excuse question: whether the prosecution had to disprove a reasonable excuse beyond reasonable doubt, or whether the appellant bore the burden of proving it on the balance of probabilities.
  • Whether, if the conviction appeal failed, the sentencing discretion under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 should be exercised to dismiss the charge without proceeding to conviction.

Decision

The District Court dismissed the conviction appeal. The parties agreed on the material facts and confined their arguments to the reasonable excuse question. The court noted the competing positions on where the onus of proof lay but declined to resolve that question definitively. Instead, the court found that, whichever party bore the burden, the result was the same: the explanation given did not amount to a reasonable excuse for having the knife in court premises in the circumstances.

On the onus question, the court acknowledged the significance of the point raised by senior counsel but determined it was unnecessary to decide it in this case. Whether the appellant had to prove reasonable excuse on the balance of probabilities, or whether the prosecution had to disprove it beyond reasonable doubt, the court was not satisfied the explanation of having forgotten the knife after cutting fruit for children the previous day provided a reasonable excuse in these circumstances.

The sentence appeal was allowed. The prosecution did not oppose an application under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, in part because the magistrate had accepted the appellant's explanation for why the knife was in his possession, even though that explanation did not reach the threshold of a reasonable excuse. The court agreed this was an appropriate exercise of the discretion and directed that the charge be dismissed without proceeding to conviction, setting aside the original conviction and fine.

Orders Made

  • Conviction appeal dismissed.
  • Sentence appeal allowed.
  • Conviction set aside.
  • Pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, the charge dismissed without proceeding to conviction.

Key Takeaways

  • Possession of a knife in court premises under section 8(1)(b) of the Court Security Act 2005 requires proof of both dominion and control over the item and the mental element of possession.
  • A plausible and accepted explanation for why a knife came to be in a person's bag does not automatically constitute a "reasonable excuse" for its presence in court premises; the reasonableness of the excuse is assessed in light of the circumstances at the time and place of possession.
  • The District Court left open the question of where the onus of proof lies on the reasonable excuse element under the Court Security Act 2005, finding it unnecessary to resolve the point because the outcome was the same on either standard.
  • Under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, a court retains a discretion to dismiss a charge without proceeding to conviction even where a conviction appeal has failed, and prosecutorial concession does not deprive the court of that discretion.
  • Findings by the sentencing court that accepted an accused's explanation, even where that explanation fell short of a legal defence, were treated as relevant to the exercise of the section 10 discretion on appeal.

Legislation and Cases Referenced

Legislation
- Court Security Act 2005 (NSW), s 8(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(a)
- Crimes Act 1900 (NSW), s 93IB, s 417A
- Summary Offences Act 1988 (NSW), s 11B
- Supreme Court Act 1970 (NSW)

Cases
- He Kaw Teh v The Queen [1985] HCA 43
- Lunney v DPP [2021] NSWCA 186
- Police v Peter Melbourne Kennedy (1998) 71 SASR 175
- Proudman v Dayman [1941] HCA 28
- R v Martindale [1986] 1 WLR 1042
- Sherras v De Rutzen [1895] 1 QB 918