At Chidiac & Associates, we provide experienced criminal defence representation to clients facing explosives-related charges throughout Sydney and New South Wales. We carefully examine the circumstances of the allegation, the nature of the explosive and the evidence relied upon by the Prosecution.

What is Possession, Supply or Making of Explosives?

The principal offence is contained in section 93FA of the Crimes Act 1900 (NSW).

Section 93FA creates offences relating to:

• possessing an explosive in a public place; and
• possessing, supplying or making an explosive in circumstances giving rise to a reasonable suspicion that it was not for a lawful purpose.

The offence can therefore apply to possession, supply or manufacture where the surrounding circumstances indicate that the explosive was not intended for a lawful purpose.

Possessing an Explosive in a Public Place

Under section 93FA(1), a person who possesses an explosive in a public place commits an offence.

Maximum penalty: 5 years' imprisonment

This offence specifically concerns possession in a public place.

The circumstances in which the explosive was found, the accused person's control over it and whether a reasonable excuse or lawful purpose existed may be important.

Possessing, Supplying or Making an Explosive

Under section 93FA(2), a person commits an offence where they:

• possess an explosive;
• supply an explosive; or
• make an explosive,

in circumstances that give rise to a reasonable suspicion that the person did not possess, supply or make the explosive for a lawful purpose.

Maximum penalty: 3 years' imprisonment and/or 50 penalty units

This offence is a summary offence.

What Does "Supply" Mean?

The Explosives Act 2003 (NSW) contains a broad definition of "supply". Depending upon the circumstances, supply can include:

• transferring ownership;
• transferring possession;
• providing another person with the means to take possession;
• offering or negotiating to supply;
• receiving an explosive for supply;
• possessing an explosive for supply;
• delivering or consigning an explosive; or
• arranging or allowing another person to supply an explosive.

The precise circumstances of the alleged transaction should therefore be carefully examined.

What is an Explosive?

The legislation regulates explosives and explosive precursors under the Explosives Act 2003 (NSW) and associated regulations.

Whether a particular substance or device constitutes an "explosive" can therefore be an important issue in a Prosecution.

The classification and nature of the substance should be established rather than assumed.

Elements of the Offence

To establish an offence under section 93FA, the Prosecution must prove the relevant elements beyond reasonable doubt.

For an allegation under s 93FA(1), the Prosecution must establish that:

1. the accused possessed an explosive; and
2. the explosive was possessed in a public place.

For an allegation under s 93FA(2), the Prosecution must establish that:

1. the accused possessed, supplied or made an explosive; and
2. the circumstances gave rise to a reasonable suspicion that it was not for a lawful purpose.

Lawful Purpose and Reasonable Excuse

Section 93FA(4) provides an important protection.

A person is not guilty of an offence under s 93FA(1) or (2) for possessing or making an explosive if they satisfy the court that they:

• had a reasonable excuse for doing so; or
• did so for a lawful purpose.

Whether a reasonable excuse or lawful purpose exists will depend upon the particular circumstances.

Penalties at a Glance

These are maximum penalties, not automatic sentences.

Can I Defend an Explosives Charge?

Being charged does not mean that you are guilty. The Prosecution bears the burden of proving the relevant offence beyond reasonable doubt.

Depending upon the circumstances, potential issues may include:

• the accused did not possess the explosive;
• the accused did not supply or make the explosive;
• the item was not an explosive within the meaning of the legislation;
• the explosive was not possessed in a public place;
• the circumstances did not give rise to the required reasonable suspicion;
• the accused had a reasonable excuse;
• the accused possessed, supplied or made the explosive for a lawful purpose;
• another person was responsible for the explosive; or
• the Prosecution evidence is unreliable or insufficient.

Evidence in Explosives Cases

The Prosecution may rely upon:

• the explosive itself;
• photographs and forensic evidence;
• expert evidence concerning the substance or device;
• fingerprints or DNA;
• CCTV;
• police body-worn camera footage;
• witness statements;
• communications or messages; and
• admissions allegedly made by the accused.

The circumstances in which the explosive was discovered or allegedly supplied can be particularly important.

Sentencing for Explosives Offences

Where a person is convicted, the court may consider:

• the nature and quantity of the explosive;
• the circumstances of possession, supply or manufacture;
• whether the explosive was stored safely;
• the purpose for which it was possessed or made;
• whether anyone was placed at risk;
• the accused person's criminal history;
• personal circumstances;
• remorse and prospects of rehabilitation; and
• whether an early guilty plea was entered.

How We Can Help

At Chidiac & Associates, we provide:

• confidential advice about your explosives charge;
• assessment of the circumstances of the allegation;
• analysis of forensic and expert evidence;
• examination of police and witness evidence;
• advice concerning lawful purpose and reasonable excuse;
• advice concerning potential defences;
• representation at court;
• preparation for defended hearings; and
• sentencing advice and representation.

Our approach is built on thorough preparation, practical advice and strong courtroom advocacy.