Abstract
The research paper deals with a scenario in the proposed (imaginative) amendment in s 1 of the Crimes (Dangerous Weapons Amendment) Act 2010 (NSW). This paper has broadly discussed the present law and how the proposed amendment would try to plug the loophole present and finally analyses the problem given and offers a solution to the issue.
The Summary Offences Act of New South Wales is a set of regulations that is concerned with what an individual can do or cannot do in a public place like streets, parks, hospitals, churches, public places, and schools. This law highly impacts homeless or young people since it is these people who spend the majority o their time in these public places. This law offers a vast authority to police to warn, ask one to provide info, and ask one to move on. If anybody is charged under this act, he will be served upon an infringement notice demanding payment of a fine or the individual has to defend his side in a Local Court before a magistrate. Under this law, unless the crime is severe, there will be simple punishment like a levy of fines, community services, or good demeanor bonds rather than imprisonment. (KLC 2009).
In case, if an individual possesses a knife, NSW police have the authority to frisk him if the police have a reasonable suspicion that the individual possesses a knife in a school or a public place. It is an offense to refuse to produce anything which the police officer finds out in a search or to turn down the request to be searched. A penalty notice may be served by police on the detection of a knife in a public place, and they may even confiscate the dangerous instruments. (KLC 2009).
As per section 11 C of the Summary Offenses Act of New South Wales, if an individual or a person is in possession of a knife in a school or in a public place, the highest penalty for the crime of possessing a knife in a school or in a public place is five penalty units. Thus, for the first time offense for five penalty units, a penalty of $550 and 10 penalty units and for second time offense, a fine of $1000 or one year imprisonment or both and for 20 penalty units a fine of $2200 or two-year imprisonment or both for third and subsequent crime will be levied under the above law. Under the NSW present law, only a second time or subsequent offender will face the probability of imprisonment. It is to be noted that in the earlier act, the Knife possessors were let off with a meager fine. The specialty of the new act which is to be introduced through an amendment in the year 2010 is that the definition of a knife includes a kitchen knife since youths were found to possess ordinary kitchen knives while committing an offense. (Neil, 2010, p1).
Section 11 C of the Summary of Offenses Act specifies under certain scenarios, the knife can be possessed in a school or in a public place and the exemption details are given below:
- If a knife is possessed for the preparation of drink or food;
- For the legitimate purpose of an individual’s education, business, profession, or training.
- For the engagement in a legitimate sport, recreation, or entertainment.
- For trade or commerce, an exhibition of knives.
- In a knife collectors’ exhibition where various kinds of knives are displayed.
- The knife can be possessed as an outfit while wearing an official uniform.
- For real religious objectives.
Thus, the above exemption will be available, if a knife is possessed by an individual during travel in connection with any of the above-said activities.
Subsection 3 of Section 11 C states that even if an individual possesses a knife exclusively for the objective of self-defense or the defense of another individual, it will be considered an offense.
Subsection 4 of the Section 11C states the above exemptions are not available to individuals or persons who have been already convicted for an offense relating to a knife. For the custody of a knife, the police of New South Wales must demonstrate beyond a rational doubt, the following;
- The knife is in possession without any reasonable excuse.
- The accused had a knife in his custody.
- The knife was possessed by the accused in a school or a public place.
Other probable excuses for the possession of a knife in NSW are as follows:
- Due to a necessity
- Due to duress
Knife offenses are summary offenses in NSW and such offenses can only be tried by the NSW local court. The proposed amendment is contemplating imposing a single maximum penalty of $2,200 or two-year imprisonment or both. (Neil, 2010, p1).
Thus, the harsh and strict law proposed by the NSW government may even send the very first-time wrongdoers behind the bars for possession of a knife. The reason for introducing such a stiff law for possession of a knife is mainly due to a record number of 3,736 offenses in 2009 were registered in NSW where a sword, screwdriver, knife, or scissor was employed as a weapon. (Miller 2009).
The objective of the NSW government to introduce a stiffer knife law is mainly to send strong signals to criminals. In the year 2008, about 4000 knives related offenses were registered, which represented a decline of about eight percent as compared to the year 2007. (Latimer 2010).
The new bill was drafted by Fred Nile on the background of the stabbing of a fifteen –year old schoolboy while returning from A New Year Eve Celebration in Manly just 24 months ago. The main aim for introducing a new bill on possession of a gun in NSW is that it will facilitate to have a single knife crime structure and will even send a first time offender to jail in relation to a crime of having a knife in school or a public place without any genuine reason or cause. (Miller 2009).
It is to be observed that the Weapons Prohibition Act 1998 also bars the possession or dealing in or use of a knife in a public place without rational excuse. The utmost penalty for that crime is fourteen-year imprisonment. Schedule I of the above Act details a variety of knives as barred knives viz. sheath knives, flick knives, ballistic knives, trench knives, flick knives, Urban Skinner push daggers, butterfly knives, trench knives, and star knives. (Nile, 2010, p1).
In the New South Wales Hunter, one Wayne Harwood was attacked with a knife by a 58-year old man who was awarded six-year imprisonment and along with one Fitzsimmons from Stockton for the stabbing attack with a knife by the Newcastle District Court. (abc.net.au)
In the given case, Tom Butcher, who is an apprentice chef, is being arrested for possessing a knife under s1 of the Act. It is assumed that the New South Wales Parliament has enacted the Crimes (Dangerous Weapons Amendment ) Act 2010 (NSW), s 1 of which provides as follows:
Dangerous weapon
It is an offense to carry any knife, club, gun, or another dangerous weapon in a public place. Penalty: Fine of $ 2 000.
As per the above new amendment, police constable Plod cannot arrest Tom Butcher for the mere possession of a knife. The above section says that possession of a knife in a public place is an offense, and this is not an equitable law as a knife may be possessed for the purpose of an individual’s education, business, profession, or training in a public place. The new act should contain an exemption clause as contained in the 11 C of the Summary Offenses Act of New South Wales. Otherwise, the proposed law can be said to be arbitrary and unconstitutional and will be prima facie against natural justice. Tom Butcher should demonstrate that since he is an apprentice chef, he is carrying the knife for the purpose of his profession, and it is his duty to demonstrate to plod that he does not have any ulterior motive for carrying the knife other than for his professional needs.
Even otherwise, Plot cannot arrest Tom Butcher as the newly amended section states that only a levy of a fine of $2000 can be made for the possession of a knife in a public place for other than exempted categories of usage.
Further, even if Tom Butcher is found guilty of possessing a knife for an unauthorized purpose, since, he is a first-time offender, he should be served upon an infringement notice demanding payment of fine or Butcher has to defend his side in a Local Court before a magistrate. The new amendment should also provide that, unless the crime is severe, there will be simple punishment like levy of fines, community services, or good demeanor bonds rather than imprisonment.
Tom Butcher should immediately engage a lawyer and apply to the court to release him as has been arrested without sufficient reasons or cause and against the provisions of the proposed s 1 of the ‘Crimes (Dangerous Weapons Amendment ) Act 2010 (NSW).”
References
Abc.net.au. (2008). Man Jailed over Hunter Stabbing. Web.
KLC. (2009). The Summary Offenses Act. Web.
Latimer, P (2010) Australian Business Law, 29th ed. Sydney: CCH Australia Limited.
Miller Barbara. ( 2009). NSW Backs Sharper Knife Laws. Web.
Nile Fred. (2009). Second Reading on The Crimes Legislation Amendment Bill 2009. Web.