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Chapter 55: Going Armed in Public

Table Of Contents  

[55.0] Introduction

This chapter will examine the offence of 'Going Armed In Public', as provided for by section 83 of the Penal Code (Ch. 26). 

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)

[55.1] Offence 

Section 83 of the Penal Code (Ch. 26) states: 

'Any person who goes armed in public without lawful occasion in such a manner as to cause fear to any person shall be guilty of a misdemeanour […].'

[55.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did go armed in public without lawful occasion in a manner that caused fear to [a person or persons] namely [specify the name of the person/s].'

[55.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Armed 

E. Public 

F. Without Lawful Occasion 

G. In A Manner That Caused Fear To Complainant

[55.4] Armed 

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

In R v Jones (1987) 85 CrAppR 259 [[1987] 2 AllER 692; [1987] 1 WLR 692] Tucker J, delivering the judgment of the Court of Appeal, held at page 266: 

'The expression "armed" is an ordinary English word. Normally, it will involve either physically carrying arms, or it will involve proof that, to his knowledge, a defendant knows that they are immediately available. In our judgment, it is not necessary to prove an intent to use those arms if the situation should require it, though clearly if a defendant does use them, or has used them, then that is an obvious indication that he is armed.' 

See also: Rowe v Conti; Threlfall v Panzera [1958] VR 547; [1958] ALR 1038.

[55.5] Without Lawful Occasion 

The onus is on the defendant to prove on the 'balance of probabilities' that he/she had a 'lawful occasion' to go armed in public. 

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

As regards the defence of 'possible self – defence' Widgery LCJ, with whom Melford Stevenson & Milom JJ concurred, held in Evans v Hughes (1972) 56 CrAppR 813 at pages 816 – 817: 

'[I]t may be a reasonable excuse for the carrying of an offensive weapon that the carrier is in anticipation of imminent attack and is carrying it for his own personal defence, but what is abundantly clear to my mind is that this Act [, referring to the Prevention of Crimes Act 1953 (UK),] never intended to sanction the permanent or constant carriage of an offensive weapon merely because of some constant or enduring supposed or actual threat or danger to the carrier. People who are under that kind of continuing threat must protect themselves by other means, notably by enlisting the protection of the police, and, in order that it may be a reasonable excuse to say: "I carried this for my own defence," the threat for which this defence is required must be imminent particular threat affecting the particular circumstances in which the weapon was carried.' [words in brackets added] 

The law relating to the 'Defence Of Person & Property' is examined commencing on page 451.

[55.6] Sentencing 

The jurisdiction of the Courts in respect of this offence is examined commencing on page 14. 

Section 83 of the Penal Code (Ch. 26) provides that upon a defendant being found guilty 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 'arm' may also be forfeited, see section 83. 

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

[55.7] Related Offences 

The following are offences which are related to the offences of 'Going Armed In Public': 

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

·                'Possession Of Weapon', section 84(2) of the Penal Code (Ch. 26) which is examined commencing on page 898; 

·                '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; and 

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