Citation: R v Nunan [2025] NSWDC 293
Court: District Court of New South Wales
Date: 20 June 2025
Judge: Haesler SC DCJ
Background
The accused was subject to a Firearms Prohibition Order (FPO) and a Weapons Prohibition Order (WPO), both made in October 2021 and served on him in January 2022. In August 2022, a regional police enforcement squad (SERES) conducted a series of FPO compliance operations along the NSW far south coast. A local officer with an existing intelligence interest in the accused arranged for him to be added to the operation's target list.
About 12 officers attended the accused's Merimbula premises on 25 August 2022. They entered through an unlocked but closed door, found the accused sleeping inside, detained him, and conducted a search under section 74A of the Firearms Act 1996 (NSW). During that search, officers observed a large number of cannabis plants. Police secured the premises, waited approximately three hours, and obtained a Crime Scene Warrant (CSW). Execution of the CSW revealed 178 cannabis plants under hydroponic cultivation, 1.152 kg of cannabis inside the premises, and a further 168 cannabis plants in an outdoor structure.
The accused was arrested the following day and ultimately faced five counts (and alternatives) on an amended indictment, including cultivation of a prohibited plant by enhanced indoor means in a commercial quantity, possession of prohibited plants, and supply of a prohibited drug. Before trial, he challenged the lawfulness of the police search and the admissibility of all evidence flowing from it.
Legal Issues
- Whether a valid FPO and WPO was in force and effective at the time of the search on 25 August 2022
- Whether the entry and initial FPO search under section 74A of the Firearms Act 1996 (NSW) were lawful
- Whether the local officer's involvement in adding the accused to the SERES operation list constituted an impropriety or mala fides that tainted the search
- Whether, if the search was unlawful or conducted improperly, the evidence obtained should be excluded under section 138 of the Evidence Act 1995 (NSW)
Decision
On the first issue, the parties reached agreement during the hearing: the FPO had been served on 19 January 2022 and remained in force on the date of the search. That preliminary question was resolved without controversy.
On the lawfulness of the FPO search, the court examined section 74A of the Firearms Act 1996 (NSW) in detail. The provision authorises police to enter and search the premises of a person subject to an FPO, exercising such powers as are reasonably required to determine whether that person has committed an offence under section 74(1). Critically, the court found that the power is an enforcement provision: it does not require officers to hold any additional suspicion that other offences are being committed. The existence of the FPO is the sole prerequisite.
The court considered the allegation that the local officer, Senior Constable Bell, had an ulterior or improper motive for adding the accused to the SERES operation, given his pre-existing intelligence interest in suspected drug activity. The court found no evidence of mala fides. Even if SC Bell harboured a hope that additional incriminating evidence might be found, this did not render the search unlawful. All officers involved held a genuine belief that they were acting lawfully under section 74A, and what they did was reasonably required to fulfil the objectives of the Firearms Act. The court drew on the reasoning in Dowe v R [2009] NSWCCA 23, noting that a bona fide belief in lawful authority by the executing officers could sustain the legality of the search even where a requesting officer may have harboured an improper motive.
Because no illegality or impropriety attached to either the FPO search or the subsequent CSW, section 138 of the Evidence Act 1995 (NSW), which governs the exclusion of improperly or illegally obtained evidence, was not enlivened. The evidence was held to be admissible.
Orders Made
- The evidence obtained as a result of the FPO search and the subsequent Crime Scene Warrant is admissible at trial.
Key Takeaways
- The District Court confirmed that section 74A of the Firearms Act 1996 (NSW) is a pure enforcement provision: the existence of a valid FPO is the sole prerequisite for entry and search, and no additional suspicion of other offending is required.
- A police officer's hope that a lawful FPO search might also uncover evidence of other offences does not, without more, render that search unlawful or constitute mala fides.
- Where executing officers hold a genuine, bona fide belief that they are acting lawfully under their Firearms Act powers, the search will not be invalidated even if a requesting officer may have had an additional or improper purpose in initiating it.
- Under section 138 of the Evidence Act 1995 (NSW), exclusion of improperly obtained evidence is only available where illegality or impropriety is first established; here, because the search was lawful, the provision was not engaged.
- Evidence discovered during a lawful FPO search that discloses possible offending under separate legislation can properly ground an application for a Crime Scene Warrant, and evidence obtained under that warrant will not be tainted by the antecedent search where that search was itself lawful.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 25, 29
- Evidence Act 1995 (NSW), s 138
- Firearms Act 1996 (NSW), ss 74, 74A
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Cases
- Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811
- Dowe v R [2009] NSWCCA 23
- George v Rockett [1990] HCA 26; (1990) 170 CLR 104
- Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1
- NSW v Corbett [2007] HCA 32
- R v Dennis [2005] NSWCA 118
- R v Slattery [2002] NSWCCA 367
- Ridgeway v The Queen [1994] HCA 66; (1994) 184 CLR 19
- Robinson v Woolworths Ltd [2005] NSWCCA 426