Possession of Dangerous Articles Other Than Firearm

The offence of ‘Possession of Dangerous Articles Other Than Firearms’ is contained at Section 93FB of the Crimes Act 1900. The maximum penalty is 2 years imprisonment and/or a Fine of $5,500.00.

What is the Offence of Possession of Dangerous Articles other than Firearms?

Section 93FB of the Crimes Act 1900 makes it an offence for a person, in a public place, to have in their possession any item that can discharge any form of irritant or substance that could cause bodily harm, or any explosive related items (such as detonators, fuses or flares).  

The following acts constitute Possession of Dangerous Article Other Than Firearms:

• Taking a flare to the beach on New Years Eve for a celebration,
• Taking a distress signal on a camping trip,
• Going to the shops with a detonator device in your backpack / work bag,
• Bringing a canister of poisonous gas to a football game, 
• Taking ‘smoke bombs’ to the park. 

What Must Be Proven?

For a person to be found guilty of Possession of Dangerous Articles Other Than Firearms the Prosecution must prove each of the following matters beyond a reasonable doubt:

• A person in a “public place”, 
• Possesses any of the following:
  • Anything (other than a firearm) capable of discharging by any means:
    • Any irritant matter in liquid, powder, gas or chemical form or dense smoke, or 
    • Any substance capable of causing bodily harm. 
  • A fuse capable of use with an explosive or a detonator, or 
  • A detonator, or 
  • A distress signal, or distress flare or operates by emitting a bright light.
• Without reasonable lawful excuse. 

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Definitions:

A “public place” is defined by the Crimes Act 1900 to be the place deemed public for the purpose of the enactment or taken to be otherwise within the meaning if the same, although a vessel or vehicle only, or a room, or field, or place, ordinarily private was at the time used for a public purpose, or as a place of common resort, or was open to the public on the payment of money or otherwise.

Section 7 of the Crimes Act 1900 deems a person to be in “possession” of the firearm if they had the property in his or her custody, or knowingly has any such property in the custody of another person, or knowing has any such property in a house, building, lodging, apartment, field, or other place, whether belonging to or occupied by himself or herself or not, and whether such property is there had or placed for his or her own use, or use of another. 

Which Court Will Hear the Matter?

The Act prescribes this offence as a “summary offence” meaning it will be dealt with in the Local Court. 

Possible Defences:

The following defences may be available for a Possession of Dangerous Articles Other Than Firearms charge:

• The item was not in a “public place”, 
• The person was not in “possession” of the item, 
• The person satisfies the Court that they had a reasonable excuse for possessing the item,
• The person in possession of the item possessed it for a lawful purpose, 
• Regarding any item capable of discharging any irritant matter or substance capable of causing bodily harm, that its possession was for the purpose of self defence and it was reasonable in the circumstances for the person to possess the item. The Court is required to consider the reasonableness in all the circumstances of the case, including:
  • The immediacy of the threat to the person charged, 
  • The circumstances (time and place) in which the thing was possessed, 
  • The type of thing possessed, and
  • The age, characteristics and experiences of the person charged. 

Common Questions about Possession of Dangerous Articles Other Than Firearms:

Will I receive a criminal conviction?

A conviction and criminal record for this offence is very likely. 

In NSW, a Court can impose any of the following penalties for a Possession of Dangerous Articles Other Than Firearms charge.

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for a Possession of Dangerous Articles Other Than Firearms offence might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for an offence of violence can completely rule out certain career paths such as teaching and a range of government employment options. Violent offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to Gaol?

Whether a person will go to Gaol for the offence of Possession of Dangerous Articles Other Than Firearms depends very much on the circumstances of their individual matter, whether it is a standalone offence or there are other associated charges and that person’s criminal history. For example, someone who possesses a device capable of discharging a large volume of harmful chemicals to a highly populated area with prior convictions for property damage, public order or environmental pollution would be more likely to receive a Gaol sentence than a person with no prior criminal offences that is in possession of a distress device that emits a bright light in a public park with no other persons around. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.