Abbas v The King

[2025] NSWDC 218

District Court

New South Wales

Medium Neutral Citation:

Abbas v R [2025] NSWDC 218

Hearing dates:

12 May 2025

Date of orders:

12 May 2025

Decision date:

12 May 2025

Jurisdiction:

Criminal

Before:

Bennett SC ADCJ

Decision:

Appeal from Conviction Dismissed.

Sentence Appeal allowed.

Conviction is set aside and pursuant to s10(1)(a) Crimes (Sentencing Procedure) Act without proceeding to conviction the charge is dismissed.

Catchwords:

CRIMINAL LAW - Conviction Appeal - Sentence Appeal - Possession of a knife (not a prohibited weapon) in Court premises – Dominion and control over the knife – Mental intent for possession

Legislation Cited:

Court Security Act 2005.

Crimes (Sentencing Procedure) Act 1999.

Crimes Act 1900.

Supreme Court Act 1970

Cases Cited:

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 [95] 1 QB 918

Texts Cited:

Cambridge Dictionary

Oxford Languages

Category:

Principal judgment

Parties:

Appellant: Ali Abbas.
Respondent: Director of Public Prosecutions (NSW)

Representation:

Counsel:
Greg James QC: Appellant
Solicitors:
One Group Legal : Appellant
Officer of the Director of Public Prosecutions (NSW): Crown Respondent

File Number(s):

2024/00007657

 Decision under appeal 

Court or tribunal:

Local Court, The Downing Centre

Jurisdiction:

Criminal

Date of Decision:

30 October 2024

Before:

Magistrate C Farnan

JUDGMENT

Introduction

1. Ali Abbas appealed to the District Court from the decisions of a magistrate on 12 October 2024 finding that he was guilty of an offence that he between 9:30am and 12:00pm on 30 November 2023 possessed of a knife (not a prohibited weapon) in the premises of the Downing Centre Local Court, contrary to s 8(1)(b) Court Security Act 2005, thereupon convicting him and imposing a fine. [1]

   1. 8 Possession of restricted items in court premises [

2. I heard the appeals on 12 May 2025 and dismissed the appeal from conviction but allowed the appeal from sentence, set aside the conviction, and pursuant to s 10(1)(a), Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction directed that the charge be dismissed,

3. The Crown conceded that this was within the discretion of the court considering the findings by the magistrate including acceptance of the appellant’s explanation for possession of the knife in the court premises.

4. The parties assisted the court with the determination of the appeals by identifying the issues upon which they were advanced. They each acknowledged their agreement regarding the material facts and confined their argument to the issue of whether the appellant had a reasonable excuse for his possession of the knife.

5. Senior Counsel raised the question whether the prosecution had the onus of proof that the appellant did not have a reasonable excuse for the knife in his possession. After considering the submissions and the decision by the magistrate I expressed the view that regardless of where the onus of proof fell, I would not accept that the explanation given provided a reasonable excuse for the appellant to have possession of the knife in the circumstances, either upon the balance of probabilities if the onus was upon the appellant, or upon the basis that the prosecution had met the burden to prove beyond reasonable doubt that the explanation for possession of the knife in the circumstances was not reasonable.

6. The appellant sought the application of s 10 Crimes (Sentencing Procedure) Act 1999 with which the prosecution did not cavil and with which I agreed.

7. Due to the work before the court I indicated that I could not immediately provide a comprehensive judgement. The appellant’s counsel said that notwithstanding that it is desirable for the court to provide reasons for the decision reached, the appellant did not seek them. Nonetheless, I provided reasons in less comprehensive detail than I provide in this judgement, subsequently sought on behalf of the appellant by his solicitor in the days following. I ordered the transcript of the proceedings and the ex-tempore judgement, which I have not received at the time of these published reasons.

The Facts

8. The undisputed facts were that when the appellant attended the premises to appear in the District Court in the Downing Centre he was detected in possession of the knife. The event is conveniently described in statements tendered in the Local Court.

9. Constable Brayden Shawcross wrote:

4.   On the 30th November 2023 I was working with Cst Turnbull…. I was wearing full police uniform.

5.   About 11:00am we attended the Downing Centre Local Court in relation to someone attending the court with a knife. … the knife was detected in the x-ray, … it had been seized and that owner of the knife was currently with the court sheriffs.

6.   When we arrived we spoke with a court sheriff. They produced a 'Confiscated Item Receipt' which detailed the item seized, the responsible Sheriff and photos of the knife.

8.   I was advised by the Sheriffs that the owner of the knife was 'Ali ABBAS' and that he was currently in attendance at the District Court. At the time the court had adjourned and so I waited outside the courtroom for Mr ABBAS and his Lawyer to return.

9.   Cst Turnbull and I then spoke with Mr ABBAS' legal representative, Michael AYACHE from One Group Legal. He stated that the reason that Mr ABBAS had the knife was that he was cutting fruit with it the day prior, and had forgotten it was in his bag. This was the same version that was provided to the Court Sheriff.

10. The material tendered included a picture of the knife, about 18 cm long with a blade 9 cm long.

11. Jaxon Maclachan was the sheriff who found the knife. His statement included:

4.   On the 30th November 2023 I was rostered to work 8:30am to 4:30pm. My duties for that day were court security.

5.   About 9:50am a Probationary Sheriff's officer SMITH got my attention. He asked for my assistance. He pointed to a bag that was being displayed on the x ray and said something like "I think this is a knife".

6.   I picked up the bag that was associated with the x ray image. I walked to the end of the conveyor belt and asked who owned the bag.

7.   A man by the name of Ali ABBAS identified himself as the owner of the bag. I told Mr ABBAS of my name, rank and place of duty. I informed him that the reason for me speaking to him was because I believed there was a knife in the bag.

8.   I asked him to separate the knife and put it on a separate tray, he complied with the request.

9.   I then asked Mr ABBAS to provide me with some identification. He initially refused and only stated that he wanted to wait for his lawyer.

10.   I asked him a second time and he declined.

11.   I then cautioned him saying that he didn't have to say or do anything if he didn't want to. I placed under arrest for possession of a knife.

12.   A man approached me stating that he was Mr ABBAS' lawyer. He stated that they were in court for a trial. He told Mr ABBAS to give me his driver's licence.

13.   We then walked over to the seating area near the elevators.

14.   At this point Mr ABBAS' lawyer spoke to me on behalf of Mr ABBAS. He stated that the reason for having the knife was because he was cutting up fruit for his kids yesterday.

12. The evidence before the magistrate in addition to the statements and the picture of the knife included:

1. From Sheriff Jaxon MacLachlan commencing at page two of the transcript when he described his office, duties on the day, and produced his statement tendered without objection. Cross examination followed.

2. He conceded that the events described occurred within the ten minutes or so before 10:00 am. He recognised the appellant as a lawyer who frequently attended the premises. When he asked who owned the bag the appellant acknowledged that it was his. The Sheriff identified himself. The appellant did not immediately give his name. He learned the name later in the process, when he later showed his licence, after his lawyer prompted him to do so.

3. The appellant complied with the request that he separate the knife from the bag and place it in a separate tray, and the Sheriff took it and issued a receipt in due course.

4. The appellant’s lawyer told the Sherif that he was there to attend a trial in the District Court. After the appellant left the Sheriff confirmed that he was to appear in court. This was not to check the validity of what he was saying since he did not tell them anything, so they had to find most information elsewhere.

5. The Sheriff decided to arrest the appellant and caution him, and subsequently his supervisor decided to discontinue the arrest and the appellant was allowed to attend court.

6. The police later attended and received the items.

7. The appellant referred to cutting up fruit for his children. The Sheriff didn’t recall if the appellant said anything about access to his children the day before, though information in those terms, came from his lawyer. He did not recall if he was told that the appellant had forgotten that he had placed the knife in his bag.

13. The appellant gave evidence from page eight of the transcript.

14. In his examination in chief:

1. On 30 November 2023, he was the accused in defended judge alone criminal trial proceedings in the Downing Centre District Court in a court on the lower ground level. He was acquitted at the end of the trial.

2. He attended court daily for the most part from the 6^th or the 9^th October 2023. The proceedings commenced in October 2018.

3. On 20 November 2023 (sic) the appellant and his lawyer were at the Downing Centre. He carried his lap top bag and folders in another bag over his shoulder and a small luggage bag.

4. the day of 20 November 2023 (sic) he and his lawyer were at the security entrance to the Downing Centre courts together. He carried his laptop bag, and another bag over the shoulder with a few folders, and a small luggage bag with folders.

5. He had the knife in his bag. He identified the knife depicted in the photograph.

6. The previous afternoon in accordance with Family Court orders that, during the duration of my trial, he was to see his children every Wednesday at a contact centre in Fairfield, he saw them between 4:00 pm to 6.30 pm and took the knife to cut up fruit and other food, if required, that he prepared for the children.

7. He identified photographs of the food he provided. These were taken for the purposes of Family Court proceedings to demonstrate his capacity.

8. He identified photographs of the knife that as provided at the place where he saw his children, produced to demonstrate that it was unsuitable for purpose. It was the only knife available there. He had permission to take his own knife there, as long as it was kept secure when visiting the children.

9. He identified a photograph of his lap top bag with an apple and fork within taken on the day of the arrest outside the Downing Centre. The knife was in the lap top bag. This photograph was taken at lunch time.

10. The knife came to be in his bag because the previous afternoon when was with his children, the staff said as long as the knife is kept in a safe place, he could bring it, so I would put it in his laptop bag, and put it in a corner, where the children did not go, and he forgot it was in the bag. He brought the bag to Court the next day, as he did every day.

11. The visit with the children the day before did not go well. He took the laptop bag from the visit, put it into the boot of his car, and could not recall whether he took it from the car before the following day or left it there which he sometimes did.

12. He was shocked when told of the knife in the bag, he did not remember it being there, and when it was retrieved was willing to speak with the Sheriff though his lawyer when present.

15. In response to cross examination:

1. He acknowledged his status as a lawyer and the extent of his experience attending court. He knew of the rules concerned with what could or could not be brought into the court, including a knife.

2. The apple could have been left over from the evening before or might have been put there that morning. He could not recall either way.

3. He did not check the bag to not see the knife and simply forgot that it was there and was shocked when it was found.

4. He took the knife at every contact visit after which on occasions he was to attend court the following day. If he had gone to the laptop bag and seen the knife, he would have removed it before attending court.

16. He was re-examined but the evidence did not take the matter further other than to confirm that his evidence in court corresponded with what he told the Sheriff at the time.

17. Submissions followed.

18. The prosecutor referred to s 8(1)(b), Court Security Act 2005 which provides:

(1)    A person must not, without reasonable excuse, be in possession of a restricted item while in court premises.

Maximum penalty—

(a)  …, or

(b)  in the case of a knife that is not a prohibited weapon within the meaning of the Weapons Prohibition Act 1998—20 penalty units or imprisonment for 2 years (or both).

(2)    …

19. Her Honour sought confirmation upon whether the appellant sought to rely upon “reasonable excuse” and whether there was possession of the knife when the person had forgotten it was present. Her Honour did not have in mind He Kaw Teh v The Queen[1985] HCA 43

20. The appellant’s counsel submitted that the prosecution had the burden of proving possession at the time he entered the premises, at which point the appellant had not turned his mind to the question whether he was exercising dominion and control over the knife, whereupon it would be open to find that the prosecution had not proven the essential element of “mental intent for possession.”

21. Secondly, counsel submitted that the appellant had an honest and reasonable belief generated by all the previous occasions that did not include having the knife in his possession.

22. Either way, if these are not the relevant elements that the prosecution must prove, or alternatively if proven, the appellant had a reasonable excuse for having the knife in his possession, if he had it in his possession, namely that he had simply forgotten.

23. Thereafter the prosecutor advanced the following submissions:

1. R v Martindale.[1986] 1 WLR 1042 concerned drugs which though present in the applicant’s wallet, had been forgotten. Nonetheless, the court held were in possession for the purposes of the offence.

2. With reference to s 3 sch 2, and s 7, and s 417, Crimes Act 1900, and the South Australian Supreme Court decision of Police v Peter Melbourne Kennedy before Bleby J on 5 March 1998, (1998) 71 SASR 175 at page 4 dealing with knowledge of actual possession, there was no mistake as to the nature or the existence of the item, as conceded in cross-examination, and the appellant simply forgot the knife was in his bag, he had the bag containing the knife in his custody. There was therefore no issue that he had the knife in his possession.

3. The prosecution understood that the issue was whether he had a reasonable excuse arising from his failure to remember the presence of the knife. There were three reasons why it was not so:

1. His status as a solicitor and his experiences attending court with knowledge of the rules proscribing the possession of the knife in the court premises.

2. The appellant did not check the contents of his bag before bringing through the court security; and

3. The objects of the Court Security Act, include provision of secure court premises.

4. The appellant had an “evidentiary burden” pursuant to 417 Crimes Act 1900, to establish that there is a reasonable excuse for the presence of the knife in the bag when he entered the court premises.

5. S 417 Crimes Act 1900 [2] found in Part 11 of the Act, applied to the Court Security Act: s 3 and Schedule 2 Crimes Act 1900. [3]

   2. 417Proof of lawful authority or excuse

   3. 3 Application of certain provisions of Act

24. The appellant’s counsel submitted:

1. The offence charged under the Court Security Act was possession of restricted item in court premises.

2. With reference to s 8(1) of the Court Security Act, the offence of possession without reasonable excuse has three elements, including possession of the item, and the absence of reasonable excuse.

3. S 417 Crimes Act 1900 is not relevant because by its terms it applies to acts, or having an article or thing in possession without lawful excuse expressed to be an offence by “this Act”.

4. The terms of s 8(1) Court Security Act provide as an element of the offence the absence of a lawful (sic) excuse which must be negated by the prosecution.

5. With reference to the authority raised in the course of the prosecutor’s submissions to which I refer above, the decision in South Australia does not represent the law as given by the prosecutor, but if it did, it should not be followed.

6. S 7 Crimes Act is of no assistance because it substitutes the concept of custody for that of possession, and therefore the question of what amounts to custody arises. [4]

   4. “Possession” when criminal

7. Custody is not simply an alternative, or an antonym of possession, but if it was, knowledge of the item in the place it was at the time must be proven. Counsel referred to He Kaw Teh Ibid, and Sherras v De Rutzen.

8. Counsel accepted the proposition that determination of what is the mental element required consideration of the terms of the statute under consideration, including whether the statute has a provision for a reasonable excuse, or a reasonable cause.

9. In any event, it must be shown that the appellant knew he had the item before he could be criminally responsible for its presence. Belief in a state of facts, namely that he did not have the knife in the bag, which is mistaken, gives rise to the application of Proudman v Dayman [1941] HCA 28.

10. Whether approached from the perspective of mistaken belief or the judgement in Police v Peter Melbourne Kennedy ibid and Bleby J’s analysis of He Kaw Teh v The Queen ibid, and whether the absence of belief that the circumstances show innocence upon the balance of probabilities; or the prosecution have failed to show absence of reasonable excuse beyond reasonable doubt, the prosecution failed and the appellant was not guilty.

11. There was no challenge to the truth and accuracy of the appellant’s evidence. There is no evidence of an intent to breach the provision creating this offence, or an intention to possess the knife in court.

12. Counsel conceded that he did not say in his evidence that he had a belief, and that he did not turn his mind to the presence of the knife, but that he did not check the contents of the laptop bag, did not go to the reasonableness of his explanation that he had forgotten he had placed the knife in the bag. One would not check unless one thought it might be there, and if one did not think it was there at all, there was no reason whatsoever that one would check.

13. Upon the evidence he was not aware that there was any knife in the bag. Whether the approach is to find that therefore he was not in possession of the knife, or there was a reasonable excuse for the presence of the knife, or upon the principles for which Proudman v Dayman ibid stand, all come to the same result.

14. The appellant’s onus, if it was found to be, was upon the balance of probabilities. The specification of reasonable excuse in the provision took this offence from one of absolute or strict liability.

25. In response the prosecutor sought to address upon the law. In the course of the exchange:

1. Her Honour challenged the proposition that s 417 Crimes Act 1900 applied to the Court Security Act, and contrasted the comparable offence provided in the Summary Offences Act, which provided a defence of reasonable excuse where the onus is on the defendant. The prosecutor pressed the submission made and discussion followed with reference to the provisions to which I referred earlier, and s 417A Crimes Act 1900 [5] which were to be read in conjunction to the other provisions upon which the prosecutor relied.

   5. 417A Proof of exceptions

26. The accused’s counsel responded with reference to 417A Crimes Act which required a determination of what the elements of the statutory offence are, and what are exceptions, exemptions, provisos, and excuses, or qualifications, a notoriously difficult area as counsel thereafter sought to demonstrate. This was not the appropriate course in this case where the provision creating the offence required of the court a value judgment upon whether the prosecution has the onus of proof to negate reasonable excuse beyond reasonable doubt, or the defence with the opportunity to prove it on balance. The terms of s 417A(3) relieves the prosecution of having to disprove it as part of its case in chief where it has not been raised. It was raised from the outset and the appellant called evidence. On either view of where rests the burden of proof, in the absence of an affirmative conclusion beyond reasonable doubt that it was not reasonable for him to forget that he put the knife in his bag when coming into the Court, or to have that forgetful state of mind at that point of time, the appellant must be acquitted.

Her Honours Decision

27. Her Honour considered the terms of s 8(1) Court Security Act. And the penalties provided, reflecting the seriousness of the offence. Her Honour referred to the statutory exceptions, which did not extend to the case before her,

28. She commented upon the clear issue before her, noting that uncontroversial facts exposed by the evidence including the experience over time the appellant had accumulated attending court, aware that it was prohibited to bring knives into court premises, the discovery of the knife and resultant investigation, and the explanation given to the Sheriff that he had the knife from when he prepared fruit for his children the day before.

29. Her Honour referred to the appellant’s uncontested evidence which she accepted, confirming the reason for having the knife, and that when he went through security at the Downing Centre he had forgotten that the knife was in his possession. At the time there were orders extant in the Family Court which allowed him limited supervised contact with his children on Wednesday evenings, and he regularly went there and prepared food for the children with permission to use his knife because the knife provided was unfit for purpose.

30. Her Honour accepted that the knife was a knife well-suited to cutting up fruit; the Appellant’s evidence as to his purpose in having the knife the evening before attending court was unchallenged. There was no suggestion that the Appellant deliberately brought the knife to the court premises, which by necessary implication incudes her Honour accepting that the appellant had no nefarious purpose in doing so.

31. Against these facts, which I accept also, the issue was whether the appellant was nevertheless guilty of the offence.

32. Her Honour noted that the competing arguments upon the issue whether the exception provided by the phrase “without reasonable excuse” is an element of the offence to be proved by the prosecution, or an exception or a matter which, to use the relevant term in s 417 Crimes Act, was an excuse the onus of proof of which rests upon the accused person on the balance of probabilities.

33. Her Honour refined the question to whether forgetting that the knife was in possession could amount to a reasonable excuse for taking it into court premises and expressed the view that it made little difference where the burden or onus of proof lies. As I understand the judgement, this rests upon the premise that there was no issue regarding the facts available from the direct evidence or to be inferred from the circumstances in the trial including the Appellant’s state of mind.

34. Her Honour contrasted the comparable offence in the Summary Offences Act [6] . There is also an offence for possession of a knife provided in the Crime Act. [7] In both instances the burden of proof expressly rests upon the accused person.

    6. Section 11B, Summary Offences Act 1988 (NSW) provides,

    7. Section 93IB, Crimes Act 1900 (NSW) provides,

35. Her Honour opined that in the context of the Court Security Act offence there was at least an evidential burden of proof of the reasonable excuse upon an accused person; she added that for the purposes of her decision she accepted that the burden of proof on the issue rested upon the Crown beyond reasonable doubt at the same time accepting that as presently assisted it might be that she was in error on this question.

36. Her Honour referred to Police v Peter Kennedy ibid and R v Martindale ibid to which Belby J referred and the proposition for which the decisions stand, accepting the fundamental point that an item placed without the accused’s knowledge does not amount to possession, that mere forgetfulness that the accused had certain material objects in custody or control, previously known, is not sufficient to defeat proof of the state of knowledge arising from when the object was possessed, even though the accused’s memory of the item had disappeared before its presence was discovered.

37. Her Honour held that possession does not depend on alleged powers of memory and did not come and go as memory revived or failed. Were it otherwise, without more a person with a poor memory would be entitled to acquittal whilst good memory would lead to a finding of guilt which could not stand as a sound principle.

38. Her Honour found that on 30 November 2023 when the appellant attended court premises with the knife in his bag it was in his possession even though he had forgotten it was there.

39. Upon whether the prosecution proved that the accused’s failure to remember his possession of the knife at the time he entered the court premises was without reasonable excuse, Her Honour found against the Appellant, accepting the submission that the objects of the Court Security Act were relevant considerations. These include the provision of security and orderly operation of courts. The Appellant attended court almost daily in the period before the date of the offence and against his regular use of the knife to provide food for his children, including that he did so the evening before, he had an obligation to ensure that he attended court within the rules of which he was aware.

40. Her Honour accepted stress from his court appearances and the Family Law dispute as the reason for which he failed to ensure that the knife did not remain in the laptop bag but held that mere forgetfulness did not amount to a reasonable excuse.

41. Her Honour found the offence proved.

General Principles

42. The appeals are pursuant to the Crimes (Appeal and Review) Act 2001.

43. Section 11 provides relevantly:

(1)    Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both).

44. Section 18 provides relevantly:

(1)    An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19.

45. Section 20 provides relevantly:

(1)    The District Court may determine an appeal against conviction—

(a)  by setting aside the conviction, or

(b)  by dismissing the appeal, or

46. Sections 18 and 19 allow for witnesses to attend to give evidence on an appeal and for fresh evidence. There was no application for either.

47. There are principles of which I must be reminded.

48. First, the approach to appeals from convictions in the Local Court was the subject of decisions in the Court of Appeal including Dyason v Butterworth [2015] NSWCA 52; in which it was stated that an appeal from conviction is not an appeal de novo, that the approach to be taken is analogous to that taken on a civil appeal under s 75A Supreme Court Act 1970, the judge to reach judgment of the facts recognising the advantage of the Magistrate who heard and saw the witnesses in the Local Court, and that the powers of the District Court under s 18(1) are exercisable where an Appellant demonstrates the order the subject of the appeal is the result of legal, factual or discretionary error, in which case the court can substitute its own decision based on the facts and law as they then stand. The District Court is not compelled in every case to undertake a complete review of the whole of the evidence to form its own view regardless of the issues raised, and the extent of the review required will depend upon the circumstances of the case and the nature of the error alleged: Lunney v DPP [2021] NSWCA 186. (Note the discussion in Criminal Practice & Procedure NSW at [4-s 18.1]

49. By way of general directions, subject to the authorities to which I referred, and to the extent that they must be considered in reaching my findings of fact as to the circumstance in which the Appellant is said to have offended the provisions, I accept the following propositions:

1. It is for me to assess the evidence of the various witnesses and decide whether they are honest and accurate and therefore reliable.

2. The question is whether the prosecution has proven the guilt of the Appellant beyond reasonable doubt upon evidence admissible in the prosecution case.

3. I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.

4. These are criminal proceedings in which the prosecution has the onus of proof beyond reasonable doubt in respect of every element of the charge. I accept the position taken by the magistrate and proceed upon the premise that it was for the prosecution to prove the possession of the knife in the circumstances and that it was without reasonable excuse.

5. It is not for the Appellant to prove that he did not commit the offence, but for the prosecution to prove, beyond reasonable doubt, that he did. Suspicion is not a substitute for proof beyond reasonable doubt. The Appellant must succeed if any one of the essential ingredients of the charge has not been proved to my satisfaction, beyond reasonable doubt.

6. If I am unable to decide whether the prosecution has proved its case, beyond reasonable doubt, in relation to any essential ingredient, or if I am left unable to decide whether the prosecution has proved, beyond reasonable doubt, that the Appellant committed the offence, and even though I might suspect that the Appellant might have engaged in the conduct upon which the charge is brought, the Appellant is entitled to the benefit of that doubt, and I must allow the appeal. In this case there was no issue arising from the facts and circumstances other than the question whether in the absence of memory of the presence of the knife it was in the appellant’s possession, and if so, was there a reasonable excuse for him having it.

7. I may draw inferences from the direct evidence. They might be valid or invalid, justified, or unjustified, correct, or incorrect. I may only draw an inference adverse to the Appellant from proven facts if such inference is a reasonable inference that can be properly drawn from the proven facts. I should examine any possible inference to ensure that it is a justifiable inference. Upon the premise that the onus of proof is on the prosecution to prove beyond reasonable doubt every essential element or ingredient of the charges, and that the Appellant had the knife in his possession without reasonable excuse, any inference or conclusion from basic facts relied upon by the prosecution for this purpose must be a conclusion reached having taken into consideration the material presented on behalf of the prosecution and after having carefully considered the evidence presented by and on behalf of the Appellant, and the submissions of both.

8. I must first of all decide whether I am satisfied that the direct evidence establishes the basic facts. There is no issue between the parties as to the existence of the basic facts in this case. I must consider what inferences I might draw from those basic facts. There is no issue that the accused had forgotten the knife in his laptop bag, and no issue that he had no purpose, nefarious or otherwise, for bringing the knife to court.

9. The Appellant gave evidence before the Magistrate, as he was entitled to do without obligation to do so and attracting burden of proof in that decision, entitled to rely upon the presumption of innocence. If his evidence were rejected, guilt does thereupon follow. It remains that the appellant is innocent unless the evidence in the prosecution case establishes that he is guilty.

Consideration

50. The appellant’s guilt is proven beyond reasonable doubt. I am not persuaded that the magistrate’s findings and the consequent orders upon the finding the offence proved were the result of legal, factual, or discretionary error.

51. This is not an offence of strict or absolute liability. It is committed by one in possession of the knife in the court premises, unless it is or is to be an exhibit in proceedings before a court in court premises, in the possession of a person involved in the conduct of, or appearing in, the proceedings and is enclosed in a bag or other container of a kind prescribed by the regulations, if it is an item that a judicial officer has directed should be allowed to be brought into court premises, or is in the possession by a security officer when taken into possession or confiscated under this Act, or is in the possession by a police officer or custodial officer in the exercise of the officer’s functions under any Act or law, or in other kinds of circumstances as may be prescribed by the regulations: s 8(2) Court Security Act 2005. These provisions do not apply to the circumstances in which the appellant was possessed of the knife.

52. The appellant is relieved of liability however if he had a reasonable excuse for being in possession of the knife while in court premises. There is no further guidance in the Act for what might be a reasonable excuse. The word excuse is a plain English word to be given its ordinary meaning within the context of the legislation creating this offence, the purpose of which is to exclude from court premises such as these knives which have the potential for substantial harm if put to a nefarious purpose. Meanings given to the word excuse used as a noun include a reason or explanation given to justify a fault or offence: Oxford Languages; and a reason given to explain why one did something wrong: Cambridge Dictionary.

53. The argument for the appellant is that his reason for having the knife was reasonable in the circumstances where he forgot it was in his lap top bag. I do not accept that to be a reasonable excuse relieving the appellant of his liability for possession of the knife in the court premises, though I accept that his moral culpability is significantly reduced in what might be seen as objectively serious.

54. I accept that the appellant forgot the presence of the knife in his laptop bag when he attended court, but it remains that it was in possession whilst he had custody of the bag into which he knowingly placed it, and which he took with him to the court premises. I agree with the reasoning of the magistrate that mere forgetfulness does not lead to a conclusion that the knife was not in the appellant’s possession from the time when he placed the knife into the bag where subsequently found by the Sheriff’s officers.

55. The prosecution proved to the standard required of it that the appellant had no reasonable excuse for having possession of the knife in the court premises. Though he had no purpose nefarious or otherwise for taking the knife to the court premises, that he forgot the knife was in the bag is not an excuse reasonable or otherwise for having it in those circumstances.

56. The purposes of the legislation creating this offence is to provide for security of the court premises by excluding entirely any restricted item as defined other than those in the premises for the purposes of or in accordance with s 8(2) of the Court Security Act, or, where the person in possession has a reasonable excuse for having the restricted item in their possession. The circumstances provided in s 8(2) of the Act, do not apply here to explain the presence of knife which is defined to mean amongst other things any knife. The knife as a restricted item is in s.4, Court Security Act.

57. The explanation given is that the knife was in the bag, and he had forgotten to remove it from the bag. These are not circumstances to which the principle from Proudman v Dayman ibid applies. He did not hold a mistaken belief in a state of facts, namely, that he did not have the knife in the bag, for upon his evidence he did turn his mind to the presence of the knife before he came into the court premises Had he done so I accept that he would have removed it from the bag before coming to the court.

Decision

58. The appeal from conviction is dismissed and the finding of guilt by the magistrate is confirmed.

The Sentence Appeal

59. Against the appellant’s very limited antecedent record counsel asked her Honour to consider the pressures to which the appellant was subject on the day, including the Family Court proceedings and the supervised access to his children, and the commission of the offence in circumstances of human frailty. Counsel sought the application of s 10 Crimes (Sentencing Procedure) Act 1999. Her Honour chose not to take that course considering that the proceedings were defended.

60. The issue in the proceedings turned upon legal argument. There was evidence of remorse.

61. Her Honour accepted that the Appellant did not deliberately breach the law but held that benefits that might otherwise attach to a remorseful offender did not apply, the purpose of the Act was to ensure court security, and the matter would be dealt with by imposition of penalties appropriate to the circumstances. She proceeded to conviction and imposed a fine.

62. I am not persuaded that this was the appropriate outcome.

63. First, there was no issue of fact for determination in the proceedings. The issue turned upon a point of law. The Appellant should not be dealt with more harshly than required because he sought an interpretation of the provisions that might have favoured his predicament.

64. He facilitated the administration of justice in the conduct of the proceedings. S 22A, Crimes (Sentencing Procedure) Act 1999 provides for reduced penalties after trial proceedings where the accused person facilitated the administration of justice. This was not a trial, however the principle that an accused person should have the benefit of consideration of the extent to which the administration of justice was facilitated is a relevant matter in the assessment of the outcome required in the proceedings. Moreover, the appellant’s oversight, although not relieving him of liability, reduces his culpability for the offence. I do not overlook that the presence of the knife in the court premises is objectively serious and could not be said to be a trivial offence, but there is no suggestion that there was any improper purpose in having the knife. Indeed, there was no purpose at all in having the knife there which was the result of oversight and nothing more.

65. As permitted by s 10 of the Act, in particular s 10(3), considering the Appellant’s character, and antecedents, the nature of the offence including the diminished moral culpability and the extenuating circumstances in which he committed it, my decision was to allow the appeal from sentence, set aside the conviction and penalty, find the offence proved, and thereupon to dismiss the charge in accordance with s 10(1)(a) of the Act.

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Endnotes

(1) A person must not, without reasonable excuse, be in possession of a restricted item while in court premises.

Maximum penalty—

(a) in the case of a restricted item that is a prohibited weapon within the meaning of the Weapons Prohibition Act 1998 or a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996—100 penalty units or imprisonment for 2 years (or both), or

(b) in the case of a knife that is not a prohibited weapon within the meaning of the Weapons Prohibition Act 1998—20 penalty units or imprisonment for 2 years (or both).

(2) Subsection (1) does not apply with respect to any of the following—

(a) the possession of any restricted item that is (or is to be) an exhibit in proceedings before a court in court premises if—

(i) the item in the possession of a person who is involved in the conduct of, or appearing in, the proceedings, and

(ii) the item is enclosed in a bag or other container of a kind prescribed by the regulations,

(b) the possession of any restricted item that a judicial officer has directed should be allowed to be brought into court premises,

(c) the possession by a security officer of any restricted item that has been taken into possession or confiscated under this Act,

(d) the possession by a police officer or custodial officer of any restricted item in the exercise of the officer’s functions under any Act or law,

(e) the possession of such restricted items in such other kinds of circumstances as may be prescribed by the regulations.

Wherever, by this Act, doing a particular act or having a specified article or thing in possession without lawful authority or excuse, is made or expressed to be an offence, the proof of such authority or excuse shall lie on the accused

The Parts and sections mentioned in Schedule 2, so far as their provisions can be applied, shall be in force with respect to all offences, whether at Common Law or by Statute, whensoever committed and in whatsoever Court tried.

Schedule 2 Application of Act

Part 1.

Part 1A.

Sections 23, 34, 40, 61AA, 62 and 80AE (in Part 3).

Sections 116, 118–124, 128–130, 163, 183, 191, 193 and 194 (in Part 4).

Sections 250 and 251 (in Part 5).

Section 310B (in Part 6A).

Sections 345–347 and 351 (in Part 9).

Parts 10, 10A, 10B, 11 and 12.

Part 16.

Where by this or any other Act the unlawful receiving of any property, or its possession without lawful cause or excuse, is expressed to be an offence, every person shall be deemed to have such property in his or her possession within the meaning of such Act who—

(a) has any such property in his or her custody, or

(b) knowingly has any such property in the custody of another person, or

(c) knowingly has any such property in a house, building, lodging, apartment, field, or other place, whether belonging to or occupied by himself or herself or not, and whether such property is there had or placed for his or her own use, or the use of another.

(1) Any exception, exemption, proviso, excuse or qualification to the offence (whether or not it is in the same provision with a description of an offence in an Act or statutory rule or document creating the offence) need not be specified or negatived in an indictment or other process commencing proceedings.

(2) The exception, exemption, proviso, excuse or qualification may be proved by the accused person.

(3) If the exception, exemption, proviso, excuse or qualification is specified or negatived in the indictment, court attendance notice or other process commencing proceedings, the prosecutor is not required to prove it.

(1) A person shall not, without reasonable excuse (proof of which lies on the person), have in his or her custody an offensive implement in a public place or a school.

Maximum penalty—50 penalty units or imprisonment for 2 years.

(1) A person must not have in the person’s custody a knife in a public place or a school.

Maximum penalty—40 penalty units or imprisonment for 4 years, or both.

(2) It is a defence to an offence under subsection (1) if the accused person proves the person had a reasonable excuse.

(3) A reasonable excuse includes the person having the knife in the person’s custody—

(a) because it is reasonably necessary for—

(i) the lawful pursuit of the person’s occupation, education or training, or

(ii) the preparation or consumption of food or drink, or

(iii) participation in a lawful entertainment, recreation or sport, or

(iv) the exhibition of knives for retail or other trade purposes, or

(v) an organised exhibition by knife collectors, or

(vi) the wearing of an official uniform, or

(vii) genuine religious purposes, or

(b) because it is reasonably necessary during travel to or from or incidental to an activity referred to in paragraph (a), or

(c) in circumstances prescribed by the regulations.

(4) It is not a reasonable excuse for the person to have a knife in the person’s custody—

(a) for self-defence, or

(b) for the defence of another person.

Decision last updated: 17 June 2025