The mental element of possession

On Thursday, I appeared at the Local Court for a solicitor charged with possessing a knife in court premises, contrary to s 8 of the Court Security Act 2005.

The solicitor had used the firm’s suitcase to transport files to court. After the suitcase passed through the security scanner, a substantial kitchen knife was seen - approximately 30 centimetres long, with a blade of about 20 centimetres.

The knife was ultimately located inside the lining of the suitcase.

At first glance, the case appeared straightforward: the solicitor wheeled the suitcase into court premises and the suitcase contained a knife.

But physical custody of the suitcase did not, by itself, resolve the legal question of possession.

I could see four possibilities -

1. The accused knew the item had been placed in the bag but later forgot about it. (Not good enough for a defence - ask Mr. Abbas)

2. The accused did not know the item was present.

3. The accused knew it was present but had a reasonable excuse or fell within an exception in s 8(2).

4. The accused knowingly brought the item into court, without reasonable excuse, in which case a plea of guilty may be appropriate.

The distinction between forgetting about an item and never knowing it was present is important, and in this instance is the difference between being found guilty or not guilty.

In He Kaw Teh v The Queen [1985] HCA 43, the High Court confirmed that possession has a necessary mental element. It involves sufficient knowledge of the presence of the item, together with physical custody or control. An individual cannot ordinarily possess something at law while remaining unaware of its existence or presence.

That principle can be contrasted with Abbas v R [2025] NSWDC 218. In Abbas, he knowingly placed a knife in his bag but forgot it was there when he attended court the following day. The Court held that mere forgetfulness was not a reasonable excuse, and it could be said that he was in possession as he himself placed the knife in the bag.

Today’s case was materially different.

The issue was not whether my client had once known about the knife and subsequently forgotten it. The issue was whether the prosecution could prove that he knew the knife was concealed inside the suitcase lining at all.

Ultimately, the Court was not satisfied beyond reasonable doubt that he knew about the knife in the bag at the time he attended the Courthouse. Accordingly, the prosecution failed to establish possession and my client was found not guilty.

The result is a useful reminder that criminal liability cannot be determined solely by asking where an object was found. The prosecution must prove each legal element of the offence — including the state of mind inherent in the concept of possession.

Sometimes the most important question is not:

“Was the knife in his bag?”

It is:

“Did he know it was there?”