Police v O'Brien

[2012] NSWLC 7

Local Court

New South Wales

Medium Neutral Citation:	Police v O'Brien [2012] NSWLC 7
Hearing dates:	31/01/2012
Decision date:	07 May 2012
Jurisdiction:	Criminal
Before:	Favretto LCM
Decision:	A pair of scissors is not a knife within the meaning of ss and 11C of the Summary Offences Act 1988
Catchwords:	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 - use of extrinsic material - Second Reading Speeches and Parliamentary debates
Legislation Cited:	Crimes Legislation Amendment (Police and Public Safety) Act 1998 Crimes Legislation Amendment (Possession of Knives in Public) Act 2009 Firearms Act 1996 Interpretation Act 1987 Offences In Public Places (Further Amendment) Act 1987 Prohibited Weapons Act 1989 Summary Offences Act 1970 Summary Offences Act 1988 Summary Offences Amendment Act 1997
Cases Cited:	Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126 Brooker v Director of Public Prosecutions [2005] EWHC 1132 (Admin) CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Commissioner of Police v Kennedy [2007] NSWCA 328 DPP v Starr [2012] NSWSC 315 Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 R v Bolton; Ex parte Bean (1987) 162 CLR 514 R v Davis [1998] Crim L. R. 564 CA R v Deegan [1998] EWCA Crim 385 R v Maclay (1990) 19 NSWLR 112 R v Qayum [2010] EWCA Crim 2237
Texts Cited:	Macquarie Dictionary
Category:	Principal judgment
Parties:	Police Kade O'Brien (the accused)
Representation:	Snr Sgt J Tyler-Stott (for the Police) R Ikaafu, Legal Aid Commission (for the accused)
File Number(s):	2011/395990
Publication restriction:	Nil

Judgment

Introduction

1. This matter concerns the sole legal issue of whether a pair of scissors is a "blade" and therefore a "knife" within the meaning of ss 3 and 11C(1) of the Summary Offences Act 1988 ("the Act"). The accused is charged with the offence of custody of knife in public place contrary to s 11C(1) of the Act. The Court Attendance Notice does not particularise the type of knife.

1. On 12 December 2011 at Central Local Court the accused pleaded guilty to a number of offences including the offence of custody of knife in public place. Upon the facts being presented to the Court it refused to accept the plea of guilty because the facts recorded that the knife the subject of the charge was a pair of scissors. This court had previously held in an ex tempore judgment at Bourke Local Court in unrelated proceedings involving a different accused that a pair of scissors was not a knife within the meaning of the Summary Offences Act 1988. The prosecutor sought and was granted an adjournment so he could prepare legal submissions on the issue.

1. In the presence of the accused the matter was fixed for hearing on 31 January 2012 at Central Local Court part heard before me. The accused failed to appear at the hearing and the court determined pursuant to s 196 of the Criminal Procedure Act 1986 that the hearing should proceed in the absence of the accused. Given that the Court Attendance Notice did not particularise the knife the matter proceeded under s 199 with the tender of the prosecution brief of evidence (Exhibit 1).

1. The evidence is that about 12.17pm on 7 December 2011 police made observations of the accused seated and smoking "a bong" in Ward Park, Devonshire Street, Surry Hills. Police approached the accused and could smell a strong odour of cannabis. Next to the accused was a plastic take away food container containing chopped cannabis. In front of the accused was a dark blue sports bag and sitting on top of the dark blue sports bag was a pair of brown handled metal bladed scissors. Exhibit 1 contains a photograph of the scissors.

Summary Offences Act 1988 and Summary Offences Regulation 2010

1. Part 2, Division 2 - Dangerous behaviour of the Act relevantly provides:

Subdivision 1 Knives and offensive implements

11B Custody of offensive implement

(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.

(2) If a person is convicted of an offence under this section, the court may, in addition to any penalty it may impose, make an order that the offensive implement be forfeited to the Crown, and the implement is forfeited accordingly.

(3) In this section:

offensive implement means:

(a) anything made or adapted for use for causing injury to a person, or

(b) anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.

11C Custody of knife in public place or school

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

Maximum penalty: 20 penalty units or imprisonment for 2 years, or both.

(2) Without limitation, it is a reasonable excuse for the purposes of this section for a person to have custody of a knife, if:

(a) the custody is reasonably necessary in all the circumstances for any of the following:

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

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

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

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

(v) an organised exhibition by knife collectors,

(vi) the wearing of an official uniform,

(vii) genuine religious purposes, or

(b) the custody is reasonably necessary in all the circumstances during travel to or from or incidental to an activity referred to in paragraph (a), or

(c) the custody is of a kind prescribed by the regulations.

(3) However, it is not a reasonable excuse for the purposes of this section for a person to have custody of a knife solely for the purpose of self defence or the defence of another person.

(4), (5) (Repealed)

(6) The regulations may provide that this section does not apply to or in relation to any specified class or description of knife.

11D Parents who allow children to carry knives

(1) The parent of a child, being a child:

(a) who is under the age of 18 years, and

(b) who commits an offence against section 11C,

is guilty of an offence if the parent knowingly authorised or permitted the child to commit the offence.

Maximum penalty: 5 penalty units.

(2) The parent of a child may be proceeded against and dealt with under this section whether or not the child has been proceeded against or dealt with under section 11C.

(3) Nothing in this section affects the liability of the parent's child for an offence committed by the child against section 11C.

(4) If an act or omission constitutes an offence:

(a) under this section, and

(b) under section 11 of the Children (Protection and Parental Responsibility) Act 1997,

the offender is not liable to be punished twice in respect of the act or omission.

(5) In this section, parent of a child has the same meaning it has in the Children (Protection and Parental Responsibility) Act 1997.

11E Wielding of knives in a public place or school

(1) A person who, without reasonable excuse (proof of which lies on the person):

(a) uses a knife, or

(b) carries a knife that is visible,

in the presence of any person in a public place or a school in a manner that would be likely to cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of an offence.

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

(2) No person of reasonable firmness need actually be, or be likely to be, present at the scene.

11F Sale of knives to children

(1) A person who sells a knife to a child under the age of 16 years is guilty of an offence.

Maximum penalty: 50 penalty units.

(2) It is a defence (proof of which lies on the person) to a prosecution for an offence under this section that the person selling the knife believed on reasonable grounds that the child was of or above the age of 16 years.

(3) If an employee contravenes subsection (1), the employer is taken to have contravened that subsection, whether or not the employee contravened the provision without the employer's authority or contrary to the employer's orders or instructions.

(4) It is a defence to a prosecution against an employer for such a contravention if it is proved:

(a) that the employer had no knowledge of the contravention, and

(b) that the employer could not, by the exercise of due diligence, have prevented the contravention.

(5) An employer may be proceeded against and convicted under subsection (1) by virtue of subsection (3) whether or not the employee has been proceeded against or convicted under subsection (1).

(6) The regulations may provide that this section does not apply to or in relation to any specified class or description of knife."

1. Section 3 defines a knife as follows:

knife includes:

(a) a knife blade, or

(b) a razor blade, or

(c) any other blade,

but does not include anything that is of a class or description declared by the regulations to be excluded from this definition.

1. Clause 11 of the Summary Offences Regulation 2010 relevantly provides:

11 Exempt knives

For the purposes of section 11F (6) of the Act, section 11F of the Act does not apply to:

(a) plastic knives that are designed for eating purposes, or

(b) any blades (other than knife blades or a blade forming part of a machete, cleaver or sword).

Relevant principles of statutory construction

1. The court is required to prefer a construction which promotes the purpose or object of the Act to one that would not advance its purpose or object: Interpretation Act 1987, s33; DPP v Starr [2012] NSWSC 315 at [20] a decision concerning the analogous issue whether a "knuckle duster" was a prohibited weapon under the Weapons Prohibition Act 1998.

1. The Act does not contain a statement of its objects and purposes and the Long Title is in neutral terms providing: "An Act with respect to conduct in public and other places; to repeal the Offences in Public Places Act 1979, the Public Assemblies Act 1979 and the Prostitution Act 1979; and for other purposes".

1. In Kelly v The Queen [2004] HCA 12; 218 CLR 216 Justice McHugh in a dissenting judgment said of the modern approach to the statutory construction of the function of definitions in legislative instruments at [98] and [103] (footnotes omitted):

98. Purposive construction is the modern approach to statutory construction. Legislative enactments should be construed so as to give effect to their purpose even if on occasions this may require a "strained construction" to be placed on the legislation. The literal meaning of the legislative text is the beginning, not the end, of the search for the intention of the legislature. As Learned Hand J famously pointed out:

"Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning."

...

103. As I earlier pointed out, the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment.

1. In Commissioner of Police v Kennedy [2007] NSWCA 328, Basten JA (with Hislop J agreeing) said following on from McHugh J's observations at [44]:

44 A number of comments may be made about this approach. First, it is said to follow the approach of McHugh J in Kelly v The Queen (2004) 218 CLR 216 at [103] that "once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment". That may be so, but as his Honour continued, it is then necessary to construe the substantive enactment "in its context and bearing in mind its purpose and the mischief that it was designed to overcome". No doubt, as suggested by Pearce and Geddes, it is an excellent test of good drafting to read a definition into an operative provision to see if it fits comfortably in the text: Statutory Interpretation in Australia (6th ed, LexisNexis, 2006) at [6.55]. However, if the definition as enacted does not fit comfortably into the text, the exercise of construction will need to address any logical or grammatical infelicities that arise.

The purpose and objects of the Act

1. The Act does not contain a statutory statement as to its objects that would assist in its interpretation. Section 34(1)(b) of the Interpretation Act 1987 permits recourse to extrinsic material to determine the meaning of a provision if the provision is "ambiguous or obscure" (s 34(1)(b)(i)) or if its ordinary meaning "leads to a result that is manifestly absurd or is unreasonable" (s 34(1)(b)(ii)). However, s 34 does not permit the courts to ignore the language of the legislation and the intention of Parliament, apparent from Parliamentary Speeches, cannot be substituted for the precise terms of the Bill as enacted: R v Bolton; Ex parte Bean (1987) 162 CLR 514; Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126; R v Maclay (1990) 19 NSWLR 112.

1. The common law, independently of s 34, also permits a court to refer to extrinsic material in order to ascertain the mischief which a statute was intended to cure: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99, 112-3; [1997] HCA 53.

Legislative history of the offence and the related offence of "Custody of offensive implement" - ss 11B and 11C

1. In determining the meaning, object and purpose of the offence provision regarding custody of knives in a public place or school it is instructive to look at the legislative history of the offence and the related offence of custody of offensive implement in a public place or school. The following is materially relevant:

• The Summary Offences Act 1970 did not contain a similar provision. Section 51 of the Act made it an offence, inter alia, to have custody of an offensive weapon with intent to commit and indictable offence which was in similar terms to s 114(1)(a) of the Crimes Act 1990.
• The Offences in Public Places (Further Amendment) Act 1987 No 131 inserted into the substantive Act s 11A, custody of offensive implement in public place.
• The Summary Offences Act 1988 repealed the Offences in Public Places Act 1979. Section 10 of that Act provided for the offence of custody of offensive implement (since renumbered as s 1B).
• The Summary Offences Amendment Act 1997 No 148 expanded the offence of custody of offensive implement to include a school and increased the penalty for s10 (now s11B). Importantly that Act also inserted the offences of s 10AA, wielding of knives in a public place (since renumbered as s 11E), and s 10AB, sale of knives and knife blades to children under 16 years of age (since renumbered as s 11F). Section 10AB used the words "sells the knife or knife blade". No definition was provided by that amendment as to what was a "knife blade".
• The offence provision in question (s 11C) was inserted by the Crimes Legislation Amendment (Police and Public Safety) Act 1998 No 38. That Act also inserted the definition of "knife" and amended s 11F by deleting the words "or knife blade". That act also inserted Part 5 Police Powers for public protection in public places and schools (since repealed) which inserted search and confiscation powers for "dangerous implement" (s 28) defined to include a knife, or a firearm (within the meaning of the Firearms Act 1996), a prohibited weapon or prohibited article (within the meaning of the Prohibited Weapons Act 1989) or an offensive implement within the meaning of s 11B (since repealed but relevant for present purposes).

Use of extrinsic material in the interpretation of the Act

1. The word "or any other blade" in s 3 if given a literal meaning would lead to absurd and unreasonable results. A literal meaning would include a blade of grass, the blade of a cricket bat or an oar, rotor or propeller blades, the blade of a plough, the blade of a saw, shearing blades, the blades of secateurs, the blade of a paint scraper or the blade of a screwdriver to give as a number of examples.

1. The Explanatory note to the Summary Offences Amendment Bill 1997 is in neutral terms only making reference to a "knife" or "knife blade". The Second Reading Speeches (Agreed in Principle) by Ms Allan (Blacktown-Minister for the Environment) on behalf of Mr Whelan (Legislative Assembly, 26 November 1997) and the Hon J W Shaw (Attorney General, and Minister for Industrial Relations) (Legislative Council, 5 December 1997) both refer to the need for the increase in penalties and for the new provisions of "Wielding a knife in a public place" and "Sale of knives to children" because of "an increase in knife-related violent crimes... involving a knife or dagger... this Government will not tolerate the existence of a knife culture.". Regarding the new offence of "Wielding a knife in a public place" both said, "it will introduce an entirely new offence that applies to knives generally, rather than merely to knives or other implements that may be classified as offensive." In the debates that ensued the focus was primarily upon the provision banning the sale of knives to children and issue was taken that there was no definition of a "knife" or for that matter "knife blade." That issue was resolved by making provision for a regulation making power (s 10AB(6) now s 11F(6) and reg 11) to exclude any specified class or description of knife or knife blade. It is instructive to note that the new offences of s 10AA, wielding of knives in a public place (since renumbered as s 11E) and s 10AB, sale of knives and knife blades (since renumbered as s 11F) were specifically limited to a class being knives or knife blades. It could hardly be said that a pair of scissors would have fallen within the expression knife blade given the qualification to the word blade by "knife" and ordinarily a pair of scissors would not be regarded as a knife. To the ordinary citizen who walks into a shop and asks to buy a knife it would defy common sense that they would be given a pair of scissors and the converse applies.

1. The Explanatory note to the Crimes Legislation Amendment (Police and Public Safety) Bill 1998 is again in neutral terms only making a reference to "a knife". The Second Reading Speeches (Agreed in Principle) by Mr Whelan, Minister for Police (Legislative Assembly 28 April 1998) and by the Hon J W Shaw (Attorney General and Minister for Industrial Relations) (Legislative Council, 5 May 1998) again both make reference for the need to protect the community from the increase in knife related crime. The debate that ensued and now somewhat more heated was a continuation of the law and order policy issues before the Parliament in the 1997 Bill about the need for increased penalties and provisions to fight knife related crime and tackle gang culture in addition to the then standing provisions in the Act prohibiting the custody of offensive implements, wielding knives in public places and the sale of knives to children. There was no debate as to what the words "any other blade" meant which was inserted as part of the definition of a knife.

1. However, both Ministers in their Second Reading Speeches regarding the new provisions concerning the confiscation of "dangerous implements" said "By including "offensive implements", a term already defined in the Act, the reach of this provision will extend to items such as sharpened screwdrivers and blood- filled syringes." (Legislative Assembly page 3970; Legislative Council page 4276). Ordinarily, a screwdriver does have a blade (see R v Davis [1998] Crim L. R. 564 CA at [18]) and on a literal reading would fit into the definition "any other blade", but that was not intended by both Ministers.

1. During the very lengthy debates for the 1997 and 1998 Bills, particularly the latter, extensive references were made to the word knife or knives per se as well as to a variety of knives. References were made to the following knives: dagger, knife blade, flick knives, sheath knives, push daggers, butterfly knives, star knives, Demtel steak knives, butchers knife, carving knife, Swiss Army knives, plastic knives, kitchen knives, bread-and-butter knife, fishing knife, Stanley knife, surgical blades, cake knife, small knife, large knife, Bowie knife, pen knives, pocket knife, fold-up knife, Crocodile Dundee knives, hunting knife, Leatherman (with a saw and knife), catering knives, bartenders knife, machete, stiletto and small belt knife. There were only two references to scissors in the context of being in a Swiss Army pocket knife along with a small screwdriver, corkscrews and even toothpicks but not in the context of being a knife (Legislative Council 5 May 1998, p 4330 and 6 May 1998, p 4413).

1. It is apparent from the legislative history of the relevant provisions in Part 2 Division 2 of the Act and the extrinsic material that the mischief sought to be remedied was the increase in knife related crimes and the need for public safety. However, within the context of the Act as a whole a distinction was maintained between a knife and an offensive implement. While custody of a knife in a public place or school prohibited custody simpliciter the related offence of custody of an offensive implement requires an intended offensive purpose of causing injury or menace to a person or damage property in addition to its custody. During the debates reference was made to a number of other provisions, which deal with more serious offences involving the use of weapons or offensive implements such as armed robbery or the Weapons Prohibition Act. To suggest the test should be whether the scissors could be used to injure a person is not to focus on the meaning to be attributed to the word knife given the related offence under s 11B, otherwise s 11B would be otiose. Further, why limit the provision to knives and blades given that there is any number or other weapons or instruments, which could be used to injure persons. Both Ministers in their Second Reading Speeches after making reference to the existing offensive implement provision said:

However, existing law does not necessarily make it an offence to be somewhere like George Street on a Saturday night with a large knife in one's pocket. It depends on the type of knife or the ability of the police to prove some intent to use it. By introducing the measures in this bill the Government is taking tough decisions. It is making a fundamental change in the law so it will no longer be lawful for any person to go into a public place with a knife-any knife-unless that person has a lawful excuse. (Court's emphasis)

(Mr Whelan, Legislative Assembly 28 April 1998 at p 3969; see also the Hon J W Shaw (Attorney General, and Minister for Industrial Relations), Legislative Council, 5 May 1998 at p 4275 in almost similar words)

On 29 April 1998 Mr Whelan in reply to the earlier debates said (at pp 4160-61):

The new offence of possession of a knife in a public or school is a very wide provision and applies to any knife carried by any person in any public place. It will apply to bowie knives, carving knives and pen knives. It will apply to any knife carried without good cause in a public place in this State. If persons have more than an ordinary knife in their possession we will throw the book at them. If they have a prohibited weapon, such as a flick knife, in their possession they will face a penalty of up to 14 years in gaol... (Court's emphasis)

Given that the 1998 amendment included the definition provision of "knife" in question why the need to refer a "a knife- any knife... It will apply to bowie knives, carving knives and pen knives... more than an ordinary knife..." The context of both Ministers speeches indicates that they were intending to refer to what are intrinsically knives or fall within the broad category of a knife, for example a sword, machete or a meat cleaver (see also reg 11). However, as indicated earlier the courts cannot ignore the language of the legislation and the intention of Parliament, apparent from Parliamentary Speeches, cannot be substituted for the precise terms of the Bill as enacted.

1. The prosecutor in his written submissions has referred to the Second Reading Speech and Parliamentary debates for the Crimes Legislation Amendment (Possession of Knives in Public) Act 2009 No 80 which contain a number or references to scissors (screwdrivers are also referred to) being used in knife-related crime. The purpose of that Bill was to increase the penalty for an offence under s 11C where the offence is a second or subsequent offence (where the offence was under ss 11B-11C or any other offence punishable upon conviction by imprisonment for 2 years or more). The difficulty with that submission is twofold. Firstly, that extrinsic material relates only to an increase in penalty and not to creation of the offence and associated definition of knife and as such recourse to that extrinsic material is not permissible as it does not fall within the permissible categories in s 34(2)(e), (f) or (g), Interpretation Act 1987. Second, the increase in penalty also picked up prior offences under s 11B regarding offensive implements and the reference to scissors and screwdrivers (in addition to knife and sword) was in the context of the broad range of offences such as robberies. The prosecutor submits that a pair of scissors has all the characteristics of a knife and able to be used as a weapon (concealable; bladed; capable of inflicting catastrophic injury; and easily obtained) and therefore their inclusion in the definition advances the purpose of the mischief to be remedied.

1. A similar issue was dealt with by the United Kingdom Court of Appeal (Criminal Division) in R v Davis [1998] Crim L. R. 564 CA. The trial judge had held that a screwdriver was a bladed article within the meaning of s 139 of the Criminal Justice Act 1988. Section 139(2) provided that "this section applies to any article which has a blade or is sharply pointed except a folding knife." In holding that a screwdriver was not a bladed article the court said:

The article in question was a screwdriver. We have not seen it, but we are assured that it is correctly described in the ruling of the learned judge, which is to be found at page 4B of volume two of the transcripts before us. The judge said:

"It is common ground that this screwdriver is not sharply pointed, indeed no normal screwdriver would be suitable for its usual function, if it were.

However, in normal language and without straining the use of language, a standard screwdriver, has one or more blades usually angled and in positioned on each side of the driving head, which constitute a narrow and flattened ridge at the tip of the blade or blades. As such it is capable of causing injury to a third party if used offensively.

In my judgment any screwdriver and in particular the screwdriver which has been produced to me in this case, does constitute a bladed article to which section 139 of the Criminal Justice Act, as amended, applies."

So the judge's ruling was that the screwdriver, because it had what he described as "blades positioned on each side of the driving head" was a bladed article for the purpose of section 139.

...

However, in our judgement this is not a question of the interpretation of an ordinary English word in the terms adopted in the judgment of Lord Reid in the case of Brutus v. Cozens. It falls rather within the second category there recognised by Lord Reid, that is to say the construction of the terms of the statute. It necessarily follows that this must be a question of construction, in the terms in which the argument has been developed before us, because the issue here is not the simple etymological meaning of the word "blade", but whether this article, it being accepted at least for the purposes of this argument that it does have a blade, is the type of article with a blade that is intended to fall within the terms of section 139(2). That is a question of the construction of section 139, not a question of the meaning of the word "blade". To that extent, therefore, the judge was right in taking this burden upon himself.

We are, however, quite unable to agree with the conclusion to which he came. Firstly, we take up the argument advanced by Miss Deacon which also, so far as we can see, lies behind the judge's ruling. It is too simple to say that the mischief of this section is to deter the carrying of items that could cause injury. Preventing or deterring further offences in which injuries are caused is, we entirely accept, no doubt the longterm and perfectly understandable objective of Parliament in passing sections such as section 139. Such an objective was also behind the Prevention of Crime Act 1953 which, however, limited itself to objects made or intended for the purpose of causing injury. The contention here goes much wider: that any object that could be so used potentially falls within the section.

The objections to that are twofold. Firstly, it gives the section an extremely wide ambit. As soon as an object falls within this section and a citizen is found with it in his possession in public, he has to prove that he has a good excuse for having it. That is a very significant limitation on the citizen's freedom. It should not be assumed that it has been achieved except by the use of clear words.

Second, the degree to which Parliament thought it proper to interfere with the citizen's freedom in that way is demonstrated by the limitation in the section to articles, in section 139(2), which have a blade or are sharply pointed, except folding pocketknives. The common sense assumption that lies behind that section is that Parliament sought to prevent or deter the carrying of what might be broadly called sharp instruments in public, not any article that has a blade even if a screwdriver can be so described but an article with a blade that falls within the same broad category as a knife or a sharply pointed instrument. That follows not only as a matter of common sense, but by looking at the specific items that are mentioned in the section, that is to say sharply pointed instruments or folding pocketknives, and inferring from that what the nature of the bladed article is to which Parliament was referring.

It seems to us, in that comparison, that it would be quite unlikely, indeed in our view impossible, that Parliament intended an article such as a screwdriver, just because it has a blade, to fall into the same category as a sharply pointed item or a folding pocketknife.

Further, that that is the construction of the phrase "any article which has a blade" is strongly reinforced by referring to section 139(3), which we have already read. The section applies to a folding pocketknife if the cutting edge of its blade exceeds three inches. That section, in its very language, seems to assume that references to blades entail references to a cutting edge. That is how the expression is used in section 139(3). It is also, as we have said, the way in which the other items in section 139(2) seem to be described.

In our judgement, the test cannot be, as the judge suggested, whether the article is capable of causing injury. If that were the test there would be no need and no justification to do what Parliament has specifically done, and limit the section to bladed items and sharp instruments. If the objective was to outlaw the carrying of all items capable of causing injury there would be no explanation at all for why there was a limitation to articles which happen to have something that could be described as a blade.

For all those reasons, which at the end of the day come down to a matter of common sense, we consider that the judge's ruling on this matter was not correct and that therefore the conviction was incorrectly entered and should be quashed."

1. The words "bladed article" in s 139 and "any other blade" in s 3 are synonymous. It is trite to say that if a screwdriver is not a "bladed article" even more so would it not be "any other blade" for the purposes of s 11C if one follows the approach of the UK Court of Appeal (Criminal Division). Further, it was the obvious intention of both Ministers that a sharpened screwdriver was not a knife but an offensive implement. There is no logical distinction between a screwdriver and a pair of scissors for present purposes- both have blades and can be used to cause serious injury.

1. As the UK Court of Appeal (Criminal Division) rightly pointed out, to say that a citizen has a defence of lawful excuse does not mean they cannot be arrested and then are required to raise the defence in court. That of itself is a significant intrusion into the liberty of a citizen and any legislative intent to be found in s11C to apply to a blade other than what falls within the broad category of a knife is not to be so widely read unless there is a clear intention to do so.

1. The prosecutor also referred to a number of other UK decisions:

• Brooker v Director of Public Prosecutions [2005] EWHC 1132 (Admin) where the court held that a 10cm blade from a butter knife without a sharp edge, without a point and without a handle was a bladed article. There is no doubt that blade would be a knife within the ordinary sense of the word or for that matter a blade within the meaning or ss 3 and 11C of the Act.
• R v Deegan [1998] EWCA Crim 385 which dealt with the exception in s139 (2) and (3) as to what is a "folding pocketknife". That decision has no material bearing for the purposes of ss 3 and 11C of the Act as a folding pocketknife would clearly fall within the meaning of a knife and there is no similar exception.
• R v Qayum [2010] EWCA Crim 2237. The accused had pleaded guilty to possessing a bladed article, namely a pair of scissors and the decision mainly turns upon sentencing for the offence. By the plea of guilty no issue arose whether the pair of scissors was "a blade or is sharply pointed" article and the court did not indicate in any other way whether it was a blade or is sharply pointed. The UK provision is in dissimilar terms in that the primary focus is not on a knife per se. What is important is the approach in statutory construction in R v Davis of analogous legislation rather than on whether the weapon or instrument can cause physical injury.

Is a pair of scissors a "blade" within the meaning of s 3 of the Act?

1. The Macquarie Dictionary for present purposes defines a knife, blade and scissors as follows:

"knife...1.a cutting instrument consisting essentially of a thin blade (usually of steel and with a sharp edge) attached to a handle. 2. a knifelike weapon; a dagger; a short sword. 3.any blade for cutting, as in a tool or machine."

"blade... 1. the flat cutting part of a sword, knife, etc. 2. a sword.3 (plural) handheld shears for shearing sheep."

"scissors...plural noun 1. a cutting instrument consisting of two blades (with handles) sp pivoted together that their edges work against each other (often called a pair of scissors)".

For present purposes it would not strain the ordinary use of the words "or any other blade" to include a pair of scissors notwithstanding what appears to have been the intention of Parliament to deal with what are intrinsically knives or fall within the broad category of a knife, for example a sword, machete or a meat cleaver. To say that a pair of scissors is a blade because they are a cutting instrument does not particularly assist because otherwise that would also include a saw, shearing blades, secateurs and paint scrapers to name a few other instruments with blades. Many of the variety of knives referred to in the debates would in common experience be possessed by gangs or be regarded as a status symbol within gangs or be part of knife culture (see for example the Hon Janelle Saffin, Legislative Council 5 May 1998, p 4332). It would defy common sense to suggest a pair of scissors, a screwdriver, saw, secateurs, shearing blades or paint scraper as examples to be items of knife culture. Either is it likely that it was the intention of Parliament to apply because scissors have a blade since that would then also include a screwdriver (along with the other blades just referred to) and the intention seems otherwise given that both Second Reading Speeches for the 1998 Bill which inserted s 11C explicitly drew a distinction between a knife as a knife and a screwdriver as an offensive implement for the purposes of then s 28 (since repealed).

1. There is one further matter of significance in construing whether a pair of scissors is a knife within the defined meaning in s 3. Section 11C also applies to "a school". Ordinarily one would not expect a child to have custody of a knife (intrinsically a knife or which falls within the broad category of a knife) within in a school. During the debates an example of knife custody in a school was given for cutting up an apple. By itself that would be a very irregular event. However, one would expect that at least most children would have a pair of scissors in their custody at school for legitimate educational purposes. Often those scissors are quite small and all bar the blades made of plastic. It would defy common sense to say it was the intention of Parliament by prohibiting custody of scissors in a school that it would fight knife culture. Further, it is difficult to see that the Parliament intended that children who had custody of a pair of scissors in a school could lead to the arrest and detention of the child and leave it for them to explain a lawful excuse to a police officer or in court. As the UK Court of Appeal (Criminal Division) said in R v Davis:

... Firstly, it gives the section an extremely wide ambit. As soon as an object falls within this section and a citizen is found with it in his possession in public, he has to prove that he has a good excuse for having it. That is a very significant limitation on the citizen's freedom. It should not be assumed that it has been achieved except by the use of clear words.

Conclusion

1. Upon a consideration of the Act as a whole and reference to the extrinsic Parliamentary material, particularly to the extensive reference to knives per se it is clear that the object of the legislation was to fight "knife culture" through prohibiting the custody of knives in public places and schools. The definition of "knife" in s 3 should be interpreted to refer to those items that are intrinsically knives or fall within the broad category of a knife. Whatever may be the full ambit of the definition needs to be considered on a case by case basis but by giving the definition the meaning attributed above the evident mischief of the Act is not curtailed or diminished. To adopt the words of the UK Court of Appeal (Criminal Division) in R v Davis:

It seems to us, in that comparison, that it would be quite unlikely, indeed in our view impossible, that Parliament intended an article such as a screwdriver, just because it has a blade, to fall into the same category as a sharply pointed item or a folding pocketknife.

Those words are apposite to the custody of not only a screwdriver but also a pair of scissors under s 11C. For those reasons the court finds the offence not proven and the accused not guilty. The Court Attendance notice is dismissed.

Magistrate J Favretto

7 May 2012

Decision last updated: 20 August 2012