Use of extrinsic material in the interpretation of the Act
15The word "or any other blade" in s 3 if given a literal meaning would lead to absurd and unreasonable results. A literal meaning would include a blade of grass, the blade of a cricket bat or an oar, rotor or propeller blades, the blade of a plough, the blade of a saw, shearing blades, the blades of secateurs, the blade of a paint scraper or the blade of a screwdriver to give as a number of examples.
16The Explanatory note to the Summary Offences Amendment Bill 1997 is in neutral terms only making reference to a "knife" or "knife blade". The Second Reading Speeches (Agreed in Principle) by Ms Allan (Blacktown-Minister for the Environment) on behalf of Mr Whelan (Legislative Assembly, 26 November 1997) and the Hon J W Shaw (Attorney General, and Minister for Industrial Relations) (Legislative Council, 5 December 1997) both refer to the need for the increase in penalties and for the new provisions of "Wielding a knife in a public place" and "Sale of knives to children" because of "an increase in knife-related violent crimes... involving a knife or dagger... this Government will not tolerate the existence of a knife culture.". Regarding the new offence of "Wielding a knife in a public place" both said, "it will introduce an entirely new offence that applies to knives generally, rather than merely to knives or other implements that may be classified as offensive." In the debates that ensued the focus was primarily upon the provision banning the sale of knives to children and issue was taken that there was no definition of a "knife" or for that matter "knife blade." That issue was resolved by making provision for a regulation making power (s 10AB(6) now s 11F(6) and reg 11) to exclude any specified class or description of knife or knife blade. It is instructive to note that the new offences of s 10AA, wielding of knives in a public place (since renumbered as s 11E) and s 10AB, sale of knives and knife blades (since renumbered as s 11F) were specifically limited to a class being knives or knife blades. It could hardly be said that a pair of scissors would have fallen within the expression knife blade given the qualification to the word blade by "knife" and ordinarily a pair of scissors would not be regarded as a knife. To the ordinary citizen who walks into a shop and asks to buy a knife it would defy common sense that they would be given a pair of scissors and the converse applies.
17The Explanatory note to the Crimes Legislation Amendment (Police and Public Safety) Bill 1998 is again in neutral terms only making a reference to "a knife". The Second Reading Speeches (Agreed in Principle) by Mr Whelan, Minister for Police (Legislative Assembly 28 April 1998) and by the Hon J W Shaw (Attorney General and Minister for Industrial Relations) (Legislative Council, 5 May 1998) again both make reference for the need to protect the community from the increase in knife related crime. The debate that ensued and now somewhat more heated was a continuation of the law and order policy issues before the Parliament in the 1997 Bill about the need for increased penalties and provisions to fight knife related crime and tackle gang culture in addition to the then standing provisions in the Act prohibiting the custody of offensive implements, wielding knives in public places and the sale of knives to children. There was no debate as to what the words "any other blade" meant which was inserted as part of the definition of a knife.
18However, both Ministers in their Second Reading Speeches regarding the new provisions concerning the confiscation of "dangerous implements" said "By including "offensive implements", a term already defined in the Act, the reach of this provision will extend to items such as sharpened screwdrivers and blood- filled syringes." (Legislative Assembly page 3970; Legislative Council page 4276). Ordinarily, a screwdriver does have a blade (see R v Davis [1998] Crim L. R. 564 CA at [18]) and on a literal reading would fit into the definition "any other blade", but that was not intended by both Ministers.
19During the very lengthy debates for the 1997 and 1998 Bills, particularly the latter, extensive references were made to the word knife or knives per se as well as to a variety of knives. References were made to the following knives: dagger, knife blade, flick knives, sheath knives, push daggers, butterfly knives, star knives, Demtel steak knives, butchers knife, carving knife, Swiss Army knives, plastic knives, kitchen knives, bread-and-butter knife, fishing knife, Stanley knife, surgical blades, cake knife, small knife, large knife, Bowie knife, pen knives, pocket knife, fold-up knife, Crocodile Dundee knives, hunting knife, Leatherman (with a saw and knife), catering knives, bartenders knife, machete, stiletto and small belt knife. There were only two references to scissors in the context of being in a Swiss Army pocket knife along with a small screwdriver, corkscrews and even toothpicks but not in the context of being a knife (Legislative Council 5 May 1998, p 4330 and 6 May 1998, p 4413).
20It is apparent from the legislative history of the relevant provisions in Part 2 Division 2 of the Act and the extrinsic material that the mischief sought to be remedied was the increase in knife related crimes and the need for public safety. However, within the context of the Act as a whole a distinction was maintained between a knife and an offensive implement. While custody of a knife in a public place or school prohibited custody simpliciter the related offence of custody of an offensive implement requires an intended offensive purpose of causing injury or menace to a person or damage property in addition to its custody. During the debates reference was made to a number of other provisions, which deal with more serious offences involving the use of weapons or offensive implements such as armed robbery or the Weapons Prohibition Act. To suggest the test should be whether the scissors could be used to injure a person is not to focus on the meaning to be attributed to the word knife given the related offence under s 11B, otherwise s 11B would be otiose. Further, why limit the provision to knives and blades given that there is any number or other weapons or instruments, which could be used to injure persons. Both Ministers in their Second Reading Speeches after making reference to the existing offensive implement provision said:
However, existing law does not necessarily make it an offence to be somewhere like George Street on a Saturday night with a large knife in one's pocket. It depends on the type of knife or the ability of the police to prove some intent to use it. By introducing the measures in this bill the Government is taking tough decisions. It is making a fundamental change in the law so it will no longer be lawful for any person to go into a public place with a knife-any knife-unless that person has a lawful excuse. (Court's emphasis)
(Mr Whelan, Legislative Assembly 28 April 1998 at p 3969; see also the Hon J W Shaw (Attorney General, and Minister for Industrial Relations), Legislative Council, 5 May 1998 at p 4275 in almost similar words)
On 29 April 1998 Mr Whelan in reply to the earlier debates said (at pp 4160-61):
The new offence of possession of a knife in a public or school is a very wide provision and applies to any knife carried by any person in any public place. It will apply to bowie knives, carving knives and pen knives. It will apply to any knife carried without good cause in a public place in this State. If persons have more than an ordinary knife in their possession we will throw the book at them. If they have a prohibited weapon, such as a flick knife, in their possession they will face a penalty of up to 14 years in gaol... (Court's emphasis)
Given that the 1998 amendment included the definition provision of "knife" in question why the need to refer a "a knife- any knife... It will apply to bowie knives, carving knives and pen knives... more than an ordinary knife..." The context of both Ministers speeches indicates that they were intending to refer to what are intrinsically knives or fall within the broad category of a knife, for example a sword, machete or a meat cleaver (see also reg 11). However, as indicated earlier the courts cannot ignore the language of the legislation and the intention of Parliament, apparent from Parliamentary Speeches, cannot be substituted for the precise terms of the Bill as enacted.
21The prosecutor in his written submissions has referred to the Second Reading Speech and Parliamentary debates for the Crimes Legislation Amendment (Possession of Knives in Public) Act 2009 No 80 which contain a number or references to scissors (screwdrivers are also referred to) being used in knife-related crime. The purpose of that Bill was to increase the penalty for an offence under s 11C where the offence is a second or subsequent offence (where the offence was under ss 11B-11C or any other offence punishable upon conviction by imprisonment for 2 years or more). The difficulty with that submission is twofold. Firstly, that extrinsic material relates only to an increase in penalty and not to creation of the offence and associated definition of knife and as such recourse to that extrinsic material is not permissible as it does not fall within the permissible categories in s 34(2)(e), (f) or (g), Interpretation Act 1987. Second, the increase in penalty also picked up prior offences under s 11B regarding offensive implements and the reference to scissors and screwdrivers (in addition to knife and sword) was in the context of the broad range of offences such as robberies. The prosecutor submits that a pair of scissors has all the characteristics of a knife and able to be used as a weapon (concealable; bladed; capable of inflicting catastrophic injury; and easily obtained) and therefore their inclusion in the definition advances the purpose of the mischief to be remedied.
22A similar issue was dealt with by the United Kingdom Court of Appeal (Criminal Division) in R v Davis [1998] Crim L. R. 564 CA. The trial judge had held that a screwdriver was a bladed article within the meaning of s 139 of the Criminal Justice Act 1988. Section 139(2) provided that "this section applies to any article which has a blade or is sharply pointed except a folding knife." In holding that a screwdriver was not a bladed article the court said:
The article in question was a screwdriver. We have not seen it, but we are assured that it is correctly described in the ruling of the learned judge, which is to be found at page 4B of volume two of the transcripts before us. The judge said:
"It is common ground that this screwdriver is not sharply pointed, indeed no normal screwdriver would be suitable for its usual function, if it were.
However, in normal language and without straining the use of language, a standard screwdriver, has one or more blades usually angled and in positioned on each side of the driving head, which constitute a narrow and flattened ridge at the tip of the blade or blades. As such it is capable of causing injury to a third party if used offensively.
In my judgment any screwdriver and in particular the screwdriver which has been produced to me in this case, does constitute a bladed article to which section 139 of the Criminal Justice Act, as amended, applies."
So the judge's ruling was that the screwdriver, because it had what he described as "blades positioned on each side of the driving head" was a bladed article for the purpose of section 139.
...
However, in our judgement this is not a question of the interpretation of an ordinary English word in the terms adopted in the judgment of Lord Reid in the case of Brutus v. Cozens. It falls rather within the second category there recognised by Lord Reid, that is to say the construction of the terms of the statute. It necessarily follows that this must be a question of construction, in the terms in which the argument has been developed before us, because the issue here is not the simple etymological meaning of the word "blade", but whether this article, it being accepted at least for the purposes of this argument that it does have a blade, is the type of article with a blade that is intended to fall within the terms of section 139(2). That is a question of the construction of section 139, not a question of the meaning of the word "blade". To that extent, therefore, the judge was right in taking this burden upon himself.
We are, however, quite unable to agree with the conclusion to which he came. Firstly, we take up the argument advanced by Miss Deacon which also, so far as we can see, lies behind the judge's ruling. It is too simple to say that the mischief of this section is to deter the carrying of items that could cause injury. Preventing or deterring further offences in which injuries are caused is, we entirely accept, no doubt the longterm and perfectly understandable objective of Parliament in passing sections such as section 139. Such an objective was also behind the Prevention of Crime Act 1953 which, however, limited itself to objects made or intended for the purpose of causing injury. The contention here goes much wider: that any object that could be so used potentially falls within the section.
The objections to that are twofold. Firstly, it gives the section an extremely wide ambit. As soon as an object falls within this section and a citizen is found with it in his possession in public, he has to prove that he has a good excuse for having it. That is a very significant limitation on the citizen's freedom. It should not be assumed that it has been achieved except by the use of clear words.
Second, the degree to which Parliament thought it proper to interfere with the citizen's freedom in that way is demonstrated by the limitation in the section to articles, in section 139(2), which have a blade or are sharply pointed, except folding pocketknives. The common sense assumption that lies behind that section is that Parliament sought to prevent or deter the carrying of what might be broadly called sharp instruments in public, not any article that has a blade even if a screwdriver can be so described but an article with a blade that falls within the same broad category as a knife or a sharply pointed instrument. That follows not only as a matter of common sense, but by looking at the specific items that are mentioned in the section, that is to say sharply pointed instruments or folding pocketknives, and inferring from that what the nature of the bladed article is to which Parliament was referring.
It seems to us, in that comparison, that it would be quite unlikely, indeed in our view impossible, that Parliament intended an article such as a screwdriver, just because it has a blade, to fall into the same category as a sharply pointed item or a folding pocketknife.
Further, that that is the construction of the phrase "any article which has a blade" is strongly reinforced by referring to section 139(3), which we have already read. The section applies to a folding pocketknife if the cutting edge of its blade exceeds three inches. That section, in its very language, seems to assume that references to blades entail references to a cutting edge. That is how the expression is used in section 139(3). It is also, as we have said, the way in which the other items in section 139(2) seem to be described.
In our judgement, the test cannot be, as the judge suggested, whether the article is capable of causing injury. If that were the test there would be no need and no justification to do what Parliament has specifically done, and limit the section to bladed items and sharp instruments. If the objective was to outlaw the carrying of all items capable of causing injury there would be no explanation at all for why there was a limitation to articles which happen to have something that could be described as a blade.
For all those reasons, which at the end of the day come down to a matter of common sense, we consider that the judge's ruling on this matter was not correct and that therefore the conviction was incorrectly entered and should be quashed."
23The words "bladed article" in s 139 and "any other blade" in s 3 are synonymous. It is trite to say that if a screwdriver is not a "bladed article" even more so would it not be "any other blade" for the purposes of s 11C if one follows the approach of the UK Court of Appeal (Criminal Division). Further, it was the obvious intention of both Ministers that a sharpened screwdriver was not a knife but an offensive implement. There is no logical distinction between a screwdriver and a pair of scissors for present purposes- both have blades and can be used to cause serious injury.
24As the UK Court of Appeal (Criminal Division) rightly pointed out, to say that a citizen has a defence of lawful excuse does not mean they cannot be arrested and then are required to raise the defence in court. That of itself is a significant intrusion into the liberty of a citizen and any legislative intent to be found in s11C to apply to a blade other than what falls within the broad category of a knife is not to be so widely read unless there is a clear intention to do so.
25The prosecutor also referred to a number of other UK decisions:
- Brooker v Director of Public Prosecutions [2005] EWHC 1132 (Admin) where the court held that a 10cm blade from a butter knife without a sharp edge, without a point and without a handle was a bladed article. There is no doubt that blade would be a knife within the ordinary sense of the word or for that matter a blade within the meaning or ss 3 and 11C of the Act.
- R v Deegan [1998] EWCA Crim 385 which dealt with the exception in s139 (2) and (3) as to what is a "folding pocketknife". That decision has no material bearing for the purposes of ss 3 and 11C of the Act as a folding pocketknife would clearly fall within the meaning of a knife and there is no similar exception.
- R v Qayum [2010] EWCA Crim 2237. The accused had pleaded guilty to possessing a bladed article, namely a pair of scissors and the decision mainly turns upon sentencing for the offence. By the plea of guilty no issue arose whether the pair of scissors was "a blade or is sharply pointed" article and the court did not indicate in any other way whether it was a blade or is sharply pointed. The UK provision is in dissimilar terms in that the primary focus is not on a knife per se. What is important is the approach in statutory construction in R v Davis of analogous legislation rather than on whether the weapon or instrument can cause physical injury.