Possessing or Making Explosives
Possessing or making explosives or other things with intent to injure (NSW)
Section 55 of the Crimes Act 1900 (NSW) holds that it is an offence to possess or make explosives or other things with the intention of injuring another person.
In order to convict an accused of this offence, it must be proven that:
- The accused knowingly:
- Possessed; or
- Made; or
- Manufactured,
- Any:
- Gunpowder; or
- Explosive substance; or
- Dangerous noxious thing; or
- Machine; or
- Engine; or
- Instrument; or
- Thing,
- Either:
- With the intention of injuring, or committing a serious indictable offence, to other persons; or
- For the purpose of enabling another person to injure, or commit a serious indictable offence to other persons.
A serious indictable offence is an offence which carries a maximum term of imprisonment of five (5) years or more.
Additionally, it is important to highlight that you can be charged with section 55 of the Act if you are found in possession of an object as described in the Act. The Prosecution is not required to prove that the object was actually used or has caused injury to another person.
If the Prosecution is unable to prove all of the elements beyond reasonable doubt, then the accused will not be convicted. However, if all of the elements are established, then it is likely that the accused will be found guilty of the offence.
Penalty
The Act indicates that if found guilty, you may be liable to imprisonment for ten (10) years.
Section 55 of the Act is an indictable offence; therefore, it is must be dealt with in the Local Court unless the Prosecutor or accused makes an election to have the matter heard before the District Court.
This is important because if the charge is finalised in the Local Court, then the maximum penalty for imprisonment is two (2) years due to a jurisdictional limit.
On the other hand, if the charge is finalised in the District Court, then the accused may receive a maximum penalty for imprisonment of ten (10) years.
When deciding to make an election, an accused or Prosecutor must consider a wide range of factors, such as the seriousness of the accused’s conduct. Section 55 of the Act is a serious offence with a potential gaol penalty. For this reason, it is crucial to seek proper legal advice so that you fully understand all options available to you before proceeding.
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