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

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.

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.

In the presence of the accused the matter was fixed for hearing on 31 January 2012 at Central Local Court part…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v O'Brien

Details

AGLC: Police v O'Brien [2012] NSWLC 7
Case: [2012] NSWLC 7
Decision Date: 07 May 2012

CaseChat Overview and Summary

The defendant, O'Brien, was charged with carrying a knife in a public place, contrary to sections 6 and 11C of the Summary Offences Act 1988. The issue before the court was whether a pair of scissors could be considered a knife under the Act. The court had to determine the meaning of the term 'knife' for the purposes of interpreting the relevant sections of the Act.

The court considered the ordinary meaning of the word 'knife' and concluded that a pair of scissors did not fit within that definition. The court found that the ordinary meaning of 'knife' referred to a cutting instrument with a blade attached to a handle, and a pair of scissors was a cutting instrument with two blades. The court held that the use of extrinsic material, such as Second Reading Speeches and Parliamentary debates, was not necessary to determine the meaning of the term 'knife'. The court's decision was based on the ordinary meaning of the words used in the Act.

As a result of the court's decision, O'Brien was acquitted of the charge of carrying a knife in a public place. The court held that a pair of scissors was not a knife within the meaning of sections 6 and 11C of the Summary Offences Act 1988. The charge against O'Brien was dismissed, and he was released from custody.

Orders

Orders of the court

A pair of scissors is not a knife within the meaning of ss and 11C of the Summary Offences Act 1988

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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