Possess knife in a public place – case note

In Queensland Police Service v Pitt [2021] QMC 4, Mr Pitt was charged with possess knife in a public place. The issue was whether the hunting knifes were physically possessed by the accused. If so did Mr Pitt have a reasonable excuse 48 hours later. Ultimately the Court found in favour of the accused.

FACTS

Police formed a suspicion that there may be drugs within the Defendant’s car. The driver and two passengers were detained for a search.

Police located two knives in a sheath. They were in a position between the two seats in the cabin of the utility, in the area of the handbrake lever, and the centre console. The Defendant’s description, was that they were “jammed underneath” and “they [were] out of sight”. 

The accused gave evidence that they were his pigging knives. He said he had gone pigging approximately 48 hours earlier.

Possess knife in a public place – the law

The Weapons Act 1990, as originally passed, contained no provision specifically aimed at the possession of knives in public places. By the amending Act No 48 of 1997, section 51 was introduced. It was directed to the possession of knives in nightclubs.

By section 31 of Act No 19 of 1998, section 51 was replaced with a prohibition upon having physical possession of a knife in a public place. This has since been further amended to extend specifically to a school.

The provision now provides that:

A person must not physically possess a knife in a public place or a school, unless the person has a reasonable excuse.

Section 51 Weapons Act

The act defines a number of elements of the offence including:

• public place includes a vehicle that is in or on a public place.
• physically possess, a weapon, means physically hold or have an immediate ability to physically hold the weapon.

Ultimately the Magistrate found that the knives were “concealed”. However, because the defendant had the ability to reach them, they were in his physical possession.

Reasonable excuse

The Magistrate then turned to the issue of reasonable excuse. He found that the defendant was not returning from or travelling to his pigging. That did not mean that the defence of reasonable excuse was not open.

The knives were in a concealed position; they had been used for a lawful purpose perhaps as recently as the previous Friday; he was “always” pigging, and there is no basis whatsoever for an inference that it would be a long, or even substantial, time, before he went pigging again. He could, of course, have taken the knives out of the truck. But his failure to do so in no way derogates from the basic fact that he had the knives “for use” – in terms of the section – for a lawful purpose. The knife was also, in my opinion, possessed “to perform a lawful activity”, for the same reasons.

at paragraph 62

Principle

The Court found that section 51(6) provided guidance. It imported an element of what a “reasonable person” would consider to be a reasonable excuse. The Court was required to consider both when and where the knife was in physical possession.

Note that while the maximum penalty for this offence is 40 penalty units of 12 months imprisonment, some weapons offences carry mandatory imprisonment periods.

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