Charged with custody of a knife in NSW.

The legislative source.

The Crown must prove three elements: (a) the accused had custody of a knife; (b) the knife was in a public place or a school; and (c) the custody was without reasonable excuse. The first two elements rest on the prosecution at the criminal standard. The third element shifts to the accused on the balance of probabilities once custody in a public place is established.

"Knife" is given its ordinary meaning. The section catches kitchen knives, hunting knives, multi-tools with a blade, box-cutters, flick knives and similar implements. The section is paired with separate prohibitions on prohibited weapons (which are dealt with under the Weapons Prohibition Act 1998); a knife that is itself a prohibited weapon attracts the more serious regime.

The reasonable-excuse list in subsection (2) is not exhaustive. The reasonable excuses commonly accepted at the bench are the occupation excuse (a tradesperson, chef, scout leader, fisher, hunter), the food-and-drink excuse (carrying a knife to or from a picnic, a fishing trip, a worksite), the sport or recreation excuse (whittling, hunting, fishing), and the trade or exhibition excuses (retail, repair, collection).

Subsection (3) is the rule that catches many people: a knife carried for self-defence is not a reasonable excuse. The legislative intention is to stop people walking the streets armed; the policy choice is enforced even where the accused has a real safety concern.

Penalties and likely outcomes.

The realistic range.

For a first offence with a clean record and a strong subjective case, a section 10(1)(b) Conditional Release Order without conviction is achievable. The CRO carries 6 to 12 months of good behaviour, no fine, and no conviction on the record. Where the conduct is at the higher end (large knife, threatening context, intoxication), a CRO with conviction or a small fine is the realistic outcome.

Aggravating circumstances.

The section is rarely charged alone where the conduct is at the upper end; an assault, an affray or an aggravated offence will usually be charged in addition. Where the knife was produced, brandished or used in any way during the alleged conduct, the section 11C charge is the bottom of the indictment and the principal sentencing exercise is on the more serious charge.

Defences and arguments worth running.

The reasonable-excuse defence.

The defence is on the accused on the balance of probabilities. The categories in subsection (2) are illustrative but not exhaustive. Where the accused's account places the custody within the lawful pursuit of an occupation (a tradesperson moving between jobs, a chef collecting tools, a scout leader returning from a camp), the defence is usually accepted on the bench. The defence is supported by employer letters, by tools-of-trade receipts, and by the surrounding context (clothing, equipment, vehicle contents).

The self-defence trap.

Subsection (3) is the rule that catches many accused persons. A knife carried for self-defence is not a reasonable excuse for the section 11C purpose. Where the accused's account is candidly that the knife was carried for personal protection, the section 11C defence is not engaged on that ground. A different excuse (the knife was in the bag from an earlier lawful use, the knife was being moved between locations for a lawful purpose) may still be available.

Custody and constructive possession.

"Custody" requires control. Where the knife was in a vehicle the accused was driving, in a bag the accused was carrying, or on the accused's person, custody is clear. Where the knife was in a shared vehicle, a shared workspace, or a residence with multiple occupants, custody is contestable and the brief should be examined for the basis of any inference.

Public place and school.

The section applies in a public place or a school. A private dwelling is not a public place. A workplace that is not open to the public is not a public place. Where the brief asserts custody in a place that is not a public place, the charge fails on its face.

What we do for clients facing this charge.

The first step is the brief: the police account of the discovery of the knife, the field notes, any body-worn-video, and the accused's account if one was given. The strength of the prosecution case is usually clear from the brief; the defence work is in identifying which reasonable excuse, if any, is available and in building the documentary support for it.

The second step is the subjective case. For a first offence with a clean record, a section 10 application supported by employer or character material is the orthodox approach. Traffic-equivalent rehabilitation (a knife-awareness or weapons-education program) is rarely required by the bench but is occasionally undertaken voluntarily.

For matters that proceed to a defended hearing, the principal questions are custody, the public-place element, and the reasonable-excuse defence. Defended hearings on s 11C are short (a half day in most cases) but tightly run; the brief is usually short, and the accused's evidence is often the central piece.

What we tell clients on the first call.

The practical detail below is not legal advice for your matter. It is the version of the conversation the firm typically has with a client charged with custody of a knife in public in the first hour.

What evidence police usually rely on.

The knife or weapon itself, photographs of the location of seizure, and the officer's account of the lawful excuse advanced (or not advanced) at the scene.

What to bring to the first consultation.

• The Court Attendance Notice (or charge sheet) and any bail papers.
• Anything police gave you in writing — fact sheet, certificate of analysis, search warrant copy, property seizure record.
• A short written timeline of the day, in your own words.
• A written account of why the item was where it was found, in your own words.

Common mistakes in the first twenty-four hours.

• Talking to anyone other than your lawyer about the matter. Friends, family, co-accused and social media are not privileged.
• Deleting messages, photographs, posts or browser history. The trail left by deletion is often more damaging than what was there.
• Contacting the complainant or any prosecution witness, even through a third party.
• Returning to the location of the seizure (the school, the shopping centre, the venue).

What not to say to police without advice.

You must give your name and address. You do not have to answer anything else, and in most cases you should not. The standard answer is: “I do not wish to answer questions. I want to speak to my lawyer.” Section 89 of the Evidence Act 1995 (NSW) protects silence; the narrow section 89A exception applies only on indictable matters and only where a special caution has been given in the presence of an Australian lawyer.

The timeline you can expect.

From charge to first court appearance is typically two to six weeks in the Local Court and longer where the matter is indictable. The brief of evidence is served by the prosecutor on a date set at the first mention. From service of the brief to first reply is typically twenty-eight days. Defended hearings and committals are then listed weeks or months out depending on the court list.

When an early plea may or may not be appropriate.

An early plea attracts a sentencing discount of up to twenty-five per cent if entered at the first available opportunity, but it locks in a conviction. The firm does not advise an early plea before the brief is served and read. Lawful excuse is a defence. An early plea is appropriate only where no lawful excuse is reasonably open on the facts.

Court-specific notes.

If the matter is listed at the Downing Centre, Parramatta, Penrith, Burwood, Manly, Newtown, Waverley, Hornsby or Sutherland Local Court, the firm appears in person. Wollongong Local Court matters are run from the firm's Wollongong office. ACT Magistrates Court and ACT Supreme Court matters are run from chambers; the firm appears in person at all ACT mentions.

Recent outcomes · custody of knife in public matters.

Anonymised outcomes from the firm's matter set. Names, dates beyond the year, and identifying details have been altered or omitted to preserve client confidentiality. Each result was determined on the particular facts and is not a guarantee of any future outcome.

Frequently asked.