Australia: The NSW offence of carrying a knife or blade in a public place or a school

Police have reported having arrested 140 people on Thursday 18 and Friday 19 December 2020 and charged them with various criminal offences, as part of a police blitz on Sydney streets labelled 'Operation Saber IV'.

It's the fourth time a 'Saber' operation has been conducted in Sydney this year.

The operation involved officers from the South West, North West and Central Metropolitan regions, including Police Transport and Safety Command and the Traffic and Highway Patrol Command, with assistance from specialist police from the Dog Unit and Operation Support Groups (OSG).

Police says that over the two day period, they seized 41 knives and other bladed objects, made 78 drug detections, issued 254 Traffic Infringement Notices and 384 Transport Infringement Notices, and charged 143 people with criminal offences ranging from possessing a knife in a public place and drug possession, to domestic-violence related offences. Police report also having conducted 44 bail compliance checks.

This year, Saber operations have seen police confiscate 97 knives, make 218 drug seizure, undertake 168 bail compliance checks and put 330 people before the courts for a range of alleged criminal offences.

The initiative is said to be targeted at anti-social conduct.

The first Saber operation occurred in February 2020, ostensibly as a response to what police claim is an increase in crime and anti-social conduct.

Those claims are contrary to reported statistics on crime.

Possessing a knife or blade in a public place is an offence under section 11C of the Summary Offences Act 1988  which carries a maximum penalty of 2 years in prison and/or a fine of $2,200.

A person is not guilty of the offence is he or she is able to establish a 'reasonable excuse' for possessing the item.

A 'public place' is any place, or part of a premises, that is open to, or used by the public, whether or not for payment, and whether or not only open only to a limited class of persons.

It extends to publicly owned property, as well as privately owned places that are open to the public, such as shopping centres, restaurants, pubs and clubs, sporting venues, parks and public transport.

A 'school' includes:

• A government or registered non-government school,
• A child minding centre or pre-school, and
• Any land or building occupied in connection with the conduct of the school.

However, it does not include a building on premises within the bounds of school property occupied or used solely as a residence or for purposes unconnected with the school.

A person is not guilty of the offence if he or she is able to establish a 'reasonable excuse' for possessing the knife, for example:

1. the lawful pursuit of the person's occupation, education or training,
2. the preparation or consumption of food or drink,
3. participation in a lawful entertainment, recreation or sport,
4. the exhibition of knives for retail or other trade purposes,
5. an organised exhibition by knife collectors,
6. the wearing of an official uniform, or
7. genuine religious purposes.

The reasonable excuse must be established 'on the balance of probabilities'; meaning it is more likely than not.

A reasonable excuse does not include carrying the knife for self-defence or the defence of another person.

Police powers to stop and search a person or vehicle are primarily contained in the Law Enforcement (Powers and Responsibility) Act (LEPRA) 2002.

The bill was introduced into NSW state parliament in 2001 with a view to consolidating the main powers of police into one piece of legislation.

The term 'suspects on reasonable grounds' is used throughout the LEPRA, and it means officers cannot conduct arbitrary or random searches of you or your vehicle - they must have some factual basis upon which to base their suspicion that you have done something wrong; such as committed an offence or have something illegal or dangerous on you or in your vehicle.

Part 4 of the LEPRA details when police have the power to stop, search and detain an individual without a warrant.

Officers can do so when they reasonably suspect that a person possesses stolen property, has anything used or intended to be used to commit an offence, is carrying a dangerous item or weapon, or is in possession of an illegal substance.

Police may seize and detain any of such items.

Police also have ancillary powers to order a person to open their mouth for the purpose of a search, and to shake their hair if they suspect something is being concealed within it. Failure to comply with this request can result in a maximum penalty of a $550 fine.

A person can also be searched in a public place or a school if officers have a reasonable suspicion that they're carrying a knife or a laser pointer. An officer can confiscate such items, and failure to comply with the search can result in a fine of up to $5,500.

Police can stop, search and detain a vehicle without a warrant if they have a reasonable suspicion that it contains stolen items, has been used in an offence, is carrying anything used, or to be used, in an offence, or is carrying any illegal substances.

If a vehicle is in a public place or in the vicinity of a school, police can search it if they reasonably suspect it contains a dangerous item, or is putting the public at risk.

Officers can seize and detain any such items.

A vehicle can also be stopped by police if they have a reasonable suspicion it is carrying a person they have grounds to arrest and detain.

Failure to comply with such directions under these circumstances can result in a fine of up $5,500 and/or 12 months imprisonment.

Under section 31 of the LEPRA, police have the power to carry out strip searches if they deem it necessary for the purposes of a search. This can be done at a police station or in any other place if considered it must be done urgently.

A strip search must be conducted in a private area by a member of the same sex. At no time should a person's body cavities be searched, nor should a person be touched in any way.

No person should be present who is not needed for the purposes of the search, nor should any item of clothing be removed unnecessarily.

Strip searches must not be carried out on children under the age of 10.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.