This article is all about the Queensland charge of going armed so as to cause fear charge.
The Law
This offence is contained in section 69 of the Criminal Code. The section states:
“ Any person who goes armed in public without lawful occasion in such a manner as to cause fear to any person is guilty of a misdemeanour, and is liable to imprisonment for 2 years.”
The three key ingredients, then, are that:
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the defendant was in public,
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openly armed,
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in a manner likely to cause fear.
In practical terms, the circumstances are important. A person holding a cricket bat in his yard playing a game with his kids is very different from the same man holding a cricket bat in a neighbour’s driveway, calling the neighbour out for a confrontation.
Lawful occasion
It may be noticed in subsection (1) that the person must go armed in public “without lawful occasion”. A person might readily contemplate a “lawful occasion” to be an armed police officer or security guard. For a private citizen there might be lawful occasions to be armed. It is unlikely for self-protection or self-defence to be such an occasion when there is no clear and present threat to the defendant.
One case that considered this question of “lawful occasion” was one where a man, who was on his own property, shot his rifle into the air to break up a fight. One of the judges in the case commented:
Other lawful reasons or excuses for going, at least temporarily, armed in public on the outskirts of towns in western Queensland can readily be imagined. Using a rifle to shoot a rabid dog or a wild pig that presents a threat to the safety of people in the area would surely not under s. 69(1) be “without lawful occasion” simply because it takes place in public and causes fear. Here it was not dogs or pigs that Mr Bennett was seeking to restrain, but his own sons, who were engaged in a serious attack on another person. Firing a shot harmlessly in the air in order to bring them to their senses was not only a legitimate reason or lawful excuse for his going armed in public (if that is what he did) but a thoroughly effective one. On hearing the shot fired, Lindsay decided to “cut it out”, as he said, and leave his victim go. Both he and George stopped hitting Barry Facer and returned to the house.
Defences to the charge of going armed so as to cause fear
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The defendant was not the person who committed the offence
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The defendant was not in public
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The defendant was not “armed”
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The defendant did not act in a manner to cause fear
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The defendant had a lawful occasion to be armed
Penalty
The maximum penalty is up to 2 years imprisonment.
Penalties can vary widely for this offence. In one case, a man was sentenced to a term of actual imprisonment for pointing a handgun at someone and pulling back the top slide. Though he didn’t shoot the weapon, the court found his actions to be so serious to be deserving of imprisonment. In another case, a man was brandishing a knife in a threatening way. He was also sentenced to imprisonment. Fines or penalties less than imprisonment are also available for this offence. Nevertheless, the courts consider this to be a serious charge and we highly recommend you seek legal advice if you are charged with such an offence.
Which court hears the charge of going armed so as to cause fear
The Magistrates Court closet to where the alleged offence occurred will hear the charge.
Can the charge be withdrawn?
Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the wounding was excused by law or the medical evidence does not meet the standard for a wounding charge and therefore the charge should be withdrawn.
Will I get a criminal conviction if I plead guilty to the charge?
The answer is possibly. It depends on a number of factors. Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to this charge. Note however if imprisonment is part of the penalty then a conviction must be recorded.
Learn more about the difference between a conviction and non-conviction
The police want to talk to me about a going armed so as to cause fear charge
Never ever give an interview to police without first getting legal advice. Even if you are innocent, even if you have a defence you could say the wrong thing and virtually guarantee you will be found guilty of the charge.
The police are not on your side, get immediate legal advice.
Learn more about your right to silence.
I’m not guilty of the going armed so as to cause fear
Still don’t talk to the police. A lawyer would require the prosecutor to give them all their evidence and statements. This is known as the full brief of evidence. Once the brief was received then negotiations with the prosecutor to drop the charge can occur.
Learn more about what to do if accused of a crime you didn’t commit.
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