‘Forgetting’ is a concept that the law struggles with. Where a state of knowledge or mens rea is required, cases often decide that what an ordinary person did once know they will be treated as still knowing at a later time, whether this is actually true or not. Notwithstanding Bowen LJ’s famous statement in Edgington v Fitzmaurice (1885) 29 Ch D 459 that, ‘the state of a man’s mind is as much a fact as the state of his digestion’, a claim that someone has forgotten something can rarely be proved or disproved.

In August of last year I wrote about R v Tran [2011] SASFC 85, a case where the South Australian Court of Criminal Appeal held that an accused who forgot where in his house drugs he had hidden drugs was still in possession of them.

The SA Full Court relied on R v Martindale [1986] 84 Cr App R 31 where the House of Lords had said,

Possession does not depend upon the alleged possessor’s powers of memory. Nor does possession come and go as memory revives or fails. If it were to do so, a man with a poor memory would be acquitted, he with a good memory would be convicted.

The respondent in DPP v Fairbanks was prosecuted for possession of a knife contrary to the Weapons Prohibition Act 1998 (NSW). The penalties available for such an offence are grave and the legislation is worded so that a person knowingly possessing such a weapon commits the offence. He was acquitted and the charge dismissed. The magistrate found the respondent lacked the necessary state of mind for possession. The DPP appealed.

The knife was described as a flick knife. Schedule 1 of the Act describes a flick knife as, ‘A flick knife (or other similar device) that has a blade which opens automatically by gravity or centrifugal force or by any pressure applied to a button, spring or device in or attached to the handle of the knife.’ It seems common ground that the object Fairbanks had met the description.

An example of a knife commonly described as a flick knife. I have no way of knowing whether Fairbanks’ knife looked like this or not.

Rothman J described the knife’s history [beginning at 9]:

Between 2001 and 2009, the knife remained in a drawer at his home. In 2009 he re-discovered the knife during the process of moving house. From that time, it seems, Mr Fairbanks used the knife on camping trips (or on one camping trip), in particular, on a camping trip to Jervis Bay. At the completion of that trip he left the knife in a pocket of his backpack.

On 24 September 2010, Mr Fairbanks was required to travel to the airport and had made arrangements to be picked up and given a lift. The arrangements made to go to the airport were altered at short notice and Mr Fairbanks was required to pack his bags “in a hurry”. He placed his laptop computer into the backpack, with the intention of taking it as hand luggage. The knife, it seems unknown to Mr Fairbanks, was still in the backpack from the earlier camping trip.

Mr Fairbanks went through the security checks at the airport and the knife, contained in a pocket of his carry-on backpack, was detected.

There is no issue that a flick knife is a prohibited weapon. Mr Fairbanks cooperated fully with the AFP Officers. When the knife was discovered, and before any questioning by the relevant officers, he volunteered the exclamation:

“I forgot I had it in there. I’m sorry!”

Later, after returning from overseas, when participating in an electronically recorded interview, Mr Fairbanks said:

“I had no knowledge it was on me, in my luggage, or I wouldn’t have had it if I did! The knife was in my laptop bag which I use for work. I occasionally use it to cut up an apple.”

The appeal proceeded on the basis that these findings by the magistrate were decided correctly.

Rothman J found that, since the offence could be committed in any place (not just a public place) the offence occurred whether the respondent had the knife with him or not. Whether the knife was in his bag or in a drawer at home, he committed an offence by having it. Therefore, it didn’t matter where he believed it was, provided he knew he possessed it.

At 43,

An offence of possessing a prohibited weapon under s 7(1) of the Weapons Prohibition Act 1998 requires proof by the prosecutor that the accused knows that he/she possesses the item that is prohibited, but does not require proof that the accused knows the location of the item possessed nor proof that the item is physically on about the accused at the time of the commission of the offence.

This decision may have some relevance to prosecutions for prohibited weapons in this state, and perhaps to guns, drugs and other things that are strictly prohibited. It has less application to controlled weapons because an ordinary knife, if possessed with a lawful excuse, would make out no offence at law. So if a person had it in their bag but believed it was in their kitchen, the outcome would be different.