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Offences Against Court Security

– section 4 of the Court Security Act 1980
Court
Offences against court security can be considered very serious offences depending on their circumstances. This charge is generally laid in situations where a person carries or has in their possession on court premises a firearm or an explosive substance or an offensive weapon without lawful excuse.
Examples of the Offences Against Court Security
  • You are standing on the front steps outside the Magistrates’ Court and you have a knuckle duster in your pocket.
  • You park your car in the car park directly opposite the court, and you have several firearms in your boot.
Questions in cases like this
  • Were you on court premises? ‘Court premises’ has a broad definition.
  • Did you have the prohibited item in your possession? Constructive possession is likely to be sufficient.
  • Did you have a lawful excuse?
What are some of the possible defences to the Offences Against Court Security?

Defences to this could be a factual dispute, wrongful identification, the concept of beyond reasonable doubt, or lack of intent.

You should ring us and discuss your case if you have been charged. Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.

Maximum penalty and court that deals with this charge

This offence may result in imprisonment for 7 years and is generally heard in the Magistrates’ Court.

It is the type of offence that will be viewed seriously by the Court. In Law 21/3/1988 CCA Vic, the Court stated that the purpose of the Court Security Act 1980 ‘was to deter and, if not to deter, to punish’.1

What is the legal definition of the Offences Against Court Security?

A person who without lawful excuse carries or has in his possession on court premises a firearm or an explosive substance or an offensive weapon is guilty of an indictable offence.

Legislation

The legislation for this offence can be found in section 4 of Court Security Act 1980.

Elements of the offence

The prosecution must prove the following beyond reasonable doubt:

  1. The accused carried or had in their possession…
  2. A firearm or explosive substance or an offensive weapon, and
  3. The accused is on court premises, and
  4. The accused did not have a lawful excuse for carrying or possessing the prohibited item.

1) Did you carry or possess the prohibited item?
There is a great deal of case law on the meaning of ‘possession’ in other areas of law. If we look at ‘possession’ in the context of drug cases, the prosecution will need to prove that you possessed the prohibited item or that it was under your control.2

A person may have control of an item if they have it on them or within their reach (‘manual custody’) or if they have it in a location where they maintain the power to ‘place his (or her) hands on it and so have manual custody when he (or she) wishes’.3 For instance, if you are parked directly outside the court, and you have a firearm in the glovebox of your car, this will probably be sufficient to amount to ‘possession’ of the firearm.

“Can they prove you had a firearm, explosive substance or offensive weapon in your possession?”

If we examine ‘possession’ in the context of drug cases again, there also needs to be an intention to possess. It will usually be possible to infer an intention to possess a prohibited item from proof that you knew of the existence and nature of the item at the time it was possessed.4

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2) Was the item a firearm, explosive substance or offensive weapon?
‘Firearm’ has the same meaning as in the irearms Act 1996. ‘Firearm’ means any device, whether or not assembled or in parts:

  1. which is designed or adapted, or is capable of being modified, to discharge shot or a bullet or other missile by the expansion of gases produced in the device by the ignition of strongly combustible materials or by compressed air or other gases, whether stored in the device in pressurised containers or produced in the device by mechanical means; and
  2. whether or not operable or complete or temporarily or permanently inoperable or incomplete, and which is not—
  3. an industrial tool powered by cartridges containing gunpowder or compressed air or other gases which is designed and intended for use for fixing fasteners or plugs or for similar purposes; or
  4. a captive bolt humane killer; or
  5. a spear gun designed for underwater use; or
  6. a device designed for the discharge of signal flares; or
  7. a device commonly known as a kiln gun or ringblaster, designed specifically for knocking out or down solid material in kilns, furnaces or cement silos; or
  8. a device commonly known as a line thrower designed for establishing lines between structures or natural features and powered by compressed air to other compressed gases and used for rescue purposes, rescue training or rescue demonstration; or
  9. a device of a prescribed class.5

‘Explosive substance’ has the same meaning as in Division 8 of Part I of the Crimes Act 1958. ‘Explosive substance’ includes:

  1. any material for making any explosive substance;
  2. any apparatus machine implement or materials used or intended to be used or adapted for causing or aiding in causing any explosion in or with any explosive substance; and
  3. any part of any such apparatus machine or implement.6

‘Offensive weapon’ means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use.7

3) Are you on court premises?
According to section 2 of the Court Security Act 1980, ‘court premises’ means:

  1. any premises occupied in connection with the operations of a court, including:
    1. the precincts and immediate environs of those premises, adjacent car parks, adjacent footpaths and laneways between or abutting court premises; and
    2. court buildings and the exit and entry points and steps to those buildings; or
  2. any other place, limited to where a court is, for the time being, constituted and performing the functions or exercising the powers of that court or in connection with court operations, including any area in the immediate vicinity of that place.

This is a very broad definition. You do not have to be inside a courtroom or even inside the court foyer to commit this offence. You can commit this offence if you are in the car park adjacent to the court building or standing on the court steps, or in any area in the immediate vicinity of the court.

To avoid committing an offence under section 4, it is wise not to bring a firearm, explosive substance or offensive weapon anywhere near a court building.

4) Did you have a lawful excuse?
Whether or not you had a lawful excuse will depend on the circumstances. For example, if you a police officer and you are permitted to carry a firearm as part of your job, this will amount to a ‘lawful excuse’ to possess a firearm on court premises.

Sentencing in the Magistrates’ Courts

The Victorian Magistrates’ Courts heard a total of 49 cases (317 charges) of Offences Against Court Security from 1 July 2013 to 30 June 2016. Majority of these cases led to financial penalties (41.2%). Other sentencing options imposed were: adjourned undertaking/discharge/dismissal (27.1%), imprisonment (16.0%), Community Correction Order (11.1%), wholly suspended sentence (3.6%), partially suspended sentence (0.3%), Youth Justice Centre Order (0.3%), and other sentencing forms (0.3%).

Of the prison terms imposed, the majority were sentenced to less than 3 months (42.9% of those who were sentenced to imprisonment). The longest terms imposed were between 18 and 24 months and these were given to 8.2% of those who were given prison terms.

Financial PenaltyOf the fines imposed, the highest was in the category “$2,000 < $3,000” but this was also the least imposed – 2.1% (aggregate) and 0.7% (non-aggregate) of those who were fined. For aggregate fines, the majority were sentenced to an amount in the category “$500 < $1,000” (18.6%). For non-aggregate, the majority were fined with an amount that was less than $500 (22.9%).8

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.9

Other important resources

 



[1] Judicial College eManual: 34 – Offences against justice > 34.4 – Offences against court security > 34.4 – Sentencing Purposes
[2] DPP v Brooks [1974] AC 862; He Kaw Teh v R (1985) 157 CLR 523; [1985] HCA 43; R v Maio [1989] VR 281; R v Mateiasevici [1999] 3 VR 185; [1999] VSCA 120.
[3] (Moors v Burke (1919) 26 CLR 265).
[4] R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299.
[5] Firearms Act 1996 Section 3.
[6] Crimes Act 1958 Part I Division 8.
[7] Court Security Act 1980 Section 2.
[8] SAC Statistics – Court Security Act 1980 (Vic) : s 4 – possess on court premises a firearm, explosive substance or offensive weapon < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/9499_4.html >
[9] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >