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Chapter 56: Possession of Weapons

Table Of Contents  

[56.0] Introduction 

This chapter will examine the offence of 'Possession Of Weapon', as provided for by section 84 of the Penal Code (Ch. 26). 

There is no onus on the prosecution to prove any intention by the defendant to cause injury, see Davis v Alexander (1970) 54 CrAppR 398. 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

See: Prevention Of Crimes Act 1953 (UK), section 1.

[56.1] Offences 

Section 84(2) of the Penal Code (Ch. 26) states: 

'Any person who, in a restricted area or place, without reasonable excuse the proof of which shall be on him, carries or has in his possession or under his control any weapon is guilty of a misdemeanour […].'

[56.2] Wording Of Charges 

'[Name of Defendant] at [Place] on [Date] in a restricted [area or place] and without reasonable excuse did [carry or have in ([his/her] possession or under [his/her] control)] a weapon to wit a [specify the weapon].'

[56.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Restricted 

[i] Area; or 

[ii] Place 

E. Without Reasonable Excuse 

F.         [i] Carry; 

[ii]        [1] Possession; or 

[2] Control 

G. Weapon

[56.4] Restricted Area Or Place 

Section 84(1) of the Penal Code (Ch. 26) states: 

'For the purposes of this section, the Minister may by order designate any area or place in Solomon Islands, to be a restricted area or place.' 

On 26 May 1999 the Minister of Police and National Security issued 'The Penal Code (Designation Of Restricted Area Or Place) XXOrder 1999' which declared for the purposes of section 84 of the Penal Code (Ch. 26), 'all public ways in Honiara City and Guadalcanal Province to be restricted areas or places. 

In that Order "public ways" included any highway, market place, square, street, road ridge or other way which is lawfully used by the public.'

[56.5] Without Reasonable Excuse 

The onus is on the defendant to prove on the 'balance of probabilities' that he/she had a 'reasonable excuse' for carrying or having in his/her possession or control a weapon in a restricted area or place. 

Refer also to law relating to 'Negative Averments' examined commencing on page 83. 

See: R v Fallows (1954) 38 CrAppR 52.

[56.6] Carry 

The term 'Carry' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The 'plain and natural' meaning of that term in the context of this section would mean to 'knowingly' transport the weapon on the body. 

As regards the need for the prosecution to prove the issue of 'knowingly', see R v Cugullere (1961) 45 CrAppR 108; [1961] 1 WLR 858; [1961] 2 AllER 843.

[56.7] Possession 

The term 'Possession' is defined in section 4 of the Penal Code (Ch. 26) as follows: 

'(a) "be in possession of" or "have in possession" includes not only having in one's own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person; 

(b) if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them.' 

To prove 'possession' the prosecution must prove 'knowledge' and 'control'. 

In Director of Public Prosecutions v Brooks [1974] AC 862; [1974] 59 CrAppR 185 Lord Diplock stated at pages 866 & 187 respectively: 

'In the ordinary use of the word "possession", one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's own physical control.' 

In R v Boyesen [1982] AC 768; (1982) 75 CrAppR 51 Lord Scarman stated at pages 773 – 774 & 53 – 54 respectively: 

'Possession is a deceptively simple concept. It denotes a physical control or custody of a thing plus knowledge that you have it in your custody or control. You may possess a thing without knowing or comprehending its nature: but you do not possess it unless you know you have it.' (emphasis added) 

A person does not have 'knowledge' of property if he/she: 

·                     does not know where the property was; and 

·                     was not in position to find out. 

In R v Russell (1985) 81 CrAppR 315 [[1985] CrimLR 231] Jupp J, delivering the judgment of the Divisional Court, stated at pages 318 – 319: 

'We were referred to the case of CUGULLERE (1961) 45 CrAppR 108; [1961] 1 WLR 858, brought under the same section of the Prevention of Crime Act 1953, in which the Court of Criminal Appeal said, at the bottom of p.110 and p.860 respectively: "This court is clearly of the opinion that the words 'has with him in any public place' must mean 'knowingly has with him in any public place'. If some innocent person has a cash slipped into his pocket by an escaping rogue, he would not be guilty of having it with him within the meaning of the section, because he would be quite innocent of any knowledge that it had been put into his pocket. In the judgment of this court, the section cannot apply in circumstances such as those. It is, therefore, extremely important in any case under this section for the judge to give a careful direction to the jury on the issue of possession. The first thing the jury have to be satisfied about, and it is always a question for the jury, is whether the accused person knowingly had with him the alleged offensive weapon." 

The facts in CUGULLERE were that three pick–axe handles were found in the back of a stolen motor van which the appellant was driving. His defence was that he had no idea the van had been stolen, and had no idea that the implements were in the back of the van, implying that someone had put them there without his knowledge. 

The appellant's defence in this case is not that, having a cash slipped under his driving seat by some third party, he was innocent of any knowledge that it had been put there. It is that he himself put the cash under the driving seat, but until the police found and showed it [to] him, he had forgotten all about it. […] 

[…] 

In our judgment, the Court in CUGULLERE, in saying that the words of the statute must be construed as "knowingly had with him", were not merely dealing with the situation where a defendant has an offensive weapon put within his reach by a stranger without knowing it. They were applying the general principle of criminal responsibility which makes it incumbent on the prosecution to prove full mens rea [see Sweet v Parsley (1969) 53 CRAppR 221, 225, [1970] AC 132]]. 

It would in our judgment be wrong to hold that a man knowingly has a weapon with him if his forgetfulness of its existence or presence in his car is so complete as to amount to ignorance that it is there at all. This is not a defence which juries would in the ordinary way be very likely to accept, but if it is raised it should be left for their decision.' (emphasis added) [words in brackets added] 

See also: R v Ashton – Rickardt [1978] 1 AllER 173; (1977) 65 CrAppR 67; [1978] 1 WLR 37; ]1977] CrimLR 424; R v Wright (1976) 62 CrAppR 169, see MacKenna J at page 173; R v McNamara (1988) 87 CrAppR 246 at pages 250 – 251; R v Holland [1974] PNGLR 7 at page 19; R v Iona Griffin [1974] PNGLR 72 at page 75; R v Angie – Ogun [1969 – 70] P&NGLR 36; Wanganeed (1988) 38 ACrimR 187 & Dayman v Newsome, Ex parte Dayman [1973] QdR 399.

[56.8] Control 

The term 'Control' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

The 'plain and natural' meaning of that term in the context of this section would include having the power to deal with the weapon as the defendant wishes. 

In McCarthy & Ryan (1993) 71 ACrimR 395 Hunt CJ at CL, with whom the other members of the New South Wales Court of Criminal Appeal concurred, stated at page 400: 

'What must be shown is some form of physical possession or dominion (control) over the property: Saleam (1989) 41 ACrimR 108 at 114. The possession will be sufficient even if the property is in the actual physical possession over whom the accused has sufficient control, or with whom the accused has such a relationship (…), that the property will be handed over to the accused at his request: Cottrell [1983] VR 143 at 148 – 149.' (emphasis added) 

Therefore, a person may have control over the weapon, although the weapon is not actually in his/her physical possession.

[56.9] Weapon 

Section 84(6) of the Penal Code (Ch. 26) states: 

'In this section "weapon" means any article or instrument capable of causing injury to any person and without restricting the generality of this subsection shall include any knife, bushknife, club, firearm or explosive.' (emphasis added)

[56.10] Police Powers

[56.10.1] Specific Power 

Section 84(3) of the Penal Code (Ch. 26) states: 

'Any police officer who has reason to believe that a weapon is being concealed or carried on any person or vehicle in a restricted area or place may, without warrant or other written authority, search and detain any such person or vehicle and take possession of such weapon.' 

Refer also to the chapter which examines the 'Power To Enter & Search Generally' commencing on page 256.

[56.10.2] Offences 

Section 84(4) of the Penal Code (Ch. 26) states: 

'Any person who obstructs or hinders any police officer from lawfully exercising any powers conferred on him by subsection (3) of this section shall be guilty of a misdemeanour.'

[56.10.3] Wording Of Charges 

'[Name of Defendant] at [Place] on [Date] did [obstruct or hinder] a police officer namely [specify the name and rank of the officer] from lawfully exercising powers conferred on the said police officer by subsection (3) of section 84 of the Penal Code (Ch. 26).'

[56.10.4] Elements 

A. Defendant 

B. Place 

C. Date 

D.        [i] Obstruct; or 

[ii] Hinder 

E. Police Officer 

F. Lawfully Exercising Powers Conferred By Section 84(3) Of The Penal Code

[56.10.5] Obstruct Or Hinder 

The terms 'Obstruct' and 'Hinder' are not defined in either the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

In Hinchcliffe v Sheldon [1955] 1 WLR 1207; [1955] 3 AllER 406 Lord Goddard CJ stated at pages 1210 & 408 respectively: 

'Obstructing […] means making it more difficult for the police to carry out their duties.' (emphasis added) 

In Willmott v Atack [1977] QB 498; [1976] 3 AllER 794; (1976) 63 CrAppR 207 the court held that it was not sufficient for the prosecution to prove that the defendant had deliberately done an act which had resulted in the obstruction of a police officer; what also had to be shown was that he/she had done the act with the intention of obstructing the officer in the sense of making it more difficult to carry out his/her duty. 

In appropriate circumstances, the defendant must however be under a legal obligation to comply with the direction of the police officer concerned, see Ingleton v Dibble [1972] 1 QB 480; [1972] 1 AllER 275. 

To 'obstruct' means to hinder, impede, retard or delay, see Carmichael v Mac Gowan [1967] WAR 11. 

Intentional or unintentional intoxication may be considered for the purpose of determining whether the defendant had the necessary 'intent' at the time of the commission of the offence, see section 13(4) of the Penal Code (Ch. 26). 

The defence of 'Intoxication' is examined commencing on page 444. 

See also: Lewis v Cox (1985) 80 CrAppR 1 at page 6; Moore v Green [1983] 1 AllER 663; Rice v Connolly [1966] 2 AllER 649; [1966] 2 QB 414 & Hills v Ellis (1983) 76 CrAppR 217.

[56.11] Sentencing 

The jurisdiction of the Courts in respect of these offences is examined commencing on page 14. 

Section 84(1) & (4) of the Penal Code (Ch. 26) provides that upon a defendant being found guilty of either offence under that section he/she is guilty of a misdemeanour and therefore 'liable to imprisonment for a term not exceeding two years to with a fine or with both', see section 41 of that Code. 

The weapon may also be forfeited, see section 84(5). 

The law relating to 'Sentencing Generally' is examined commencing on page 918.

[56.12] Related Offences 

The following are offences which are related to the offences of 'Possession Of Weapon': 

·                     'Threatening Violence', section 89 of the Penal Code (Ch. 26) which is examined commencing on page 906; 

·                     'Criminal Trespass', section 189(1) of the Penal Code (Ch. 26) which is examined commencing on page 502; 

·                     'Carry Firearm Whilst Drunk Or Disorderly', section 41 of the Firearms & Ammunition Act (Ch. 80) which is examined commencing on page 859; 

·                     'Threatening Violence With Firearm', section 42 of the Firearms & Ammunition Act (Ch. 80) which is examined commencing on page 862; 

·                     'Prohibition Of Arms In Certain Areas', section 25 of the Firearms & Ammunition Act (Ch. 80) which is examined commencing on page 850; and 

·                     'Affray', section 87 of the Penal Code (Ch. 26).