Offences Against Court Security

Police Interview

The police interview is not the time or place for you to explain our side of the story and hope that the matter will go away. Therefore, you must receive legal advice before speaking with the police even if it is calling our firm from the police station.

If police intend to interview you in relation to Offences Against Court Security, an experienced criminal lawyer will provide you with expert advice about whether you should exercise your right to silence, or whether it will ultimately assist your case if you answer all questions put to you by police.

Pleading Not Guilty

If you have been charged by police with Offences Against Court Security, this does not mean that the Court will ultimately find you guilty of the offence. It is your right to plead not guilty and put the prosecution to their proofs if you have been charged with this offence.

If you are pleading not guilty, it is important to engage an expert criminal lawyer at an early stage of proceedings. Your lawyer will explain the process involved in contesting the charge at Court and will defend you from prosecutor’s allegations at each stage of the proceedings.

Our lawyers are proactive when representing people accused of crimes and in a case like this will:

• Request CCTV footage,
• Request DNA evidence,
• Request other disclosure material which may assist your case.

Pleading Guilty

If you have been caught committing Offences Against Court Security and you intend to plead guilty to the charge, it is still wise to seek legal advice and representation.

Navigating the Court process can be daunting and speaking on your own behalf can feel overwhelming. An experienced criminal lawyer will not only assist you to thoroughly prepare supporting materials for your plea of guilty, your lawyer will also speak at Court on your behalf and advocate for your best possible outcome.

Sentencing

Sentencing in the Magistrates’ Courts of Victoria

Which court will the case be heard in?

This offence is generally heard in the Magistrates’ Court.

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.

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.

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.¹

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’.² 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.³

2) Was the item a firearm, explosive substance or offensive weapon?
‘Firearm’ has the same meaning as in the Firearms 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 ring blaster, 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.⁴

‘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.⁵

‘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.⁶

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.

Defences

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.

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?

Maximum penalty for section 4 of the Court Security Act 1980

Offences Against Court Security (s4 of the Court Security Act 1980) may result in imprisonment for 7 years.

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’.⁷

Other important resources

• SAC Statistics – Court Security Act 1980 (Vic) : s 4 – possess on court premises a firearm, explosive substance or offensive weapon
• Offences against court security

_{[1] 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.
[2] (Moors v Burke (1919) 26 CLR 265).
[3] R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299.
[4] Firearms Act 1996 Section 3.
[5] Crimes Act 1958 Part I Division 8.
[6] Court Security Act 1980 Section 2.
[7] Judicial College eManual: 34 – Offences against justice > 34.4 – Offences against court security > 34.4 – Sentencing Purposes}