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District Court 5 May 2026

R v Sutton

[2026] NSWDC 136

Firearms & weapons

Citation: [2026] NSWDC 136
Court: District Court of New South Wales
Date: 5 May 2026
Judge(s): Newlinds SC DCJ

Background

The defendant, born in 1970, has a long history of serious mental health issues, including a diagnosis of schizophrenia dating back to 1988. In October 2023, police searched his premises and found three items alleged to be prohibited weapons under s 7(1) of the Weapons Prohibition Act 1998 (NSW): a ballistic vest, an extendable baton, and a slingshot. He was charged with three counts of possession of prohibited weapons and two additional counts alleging very serious conduct.

On the day of the search, the defendant was taken to hospital due to bizarre behaviour and significant thought disorder. He was scheduled under the Mental Health Act 2007 (NSW) and admitted for assessment before being discharged back into police custody. He remained in custody from October 2023 through to the hearing in May 2026.

The matter followed a protracted path through the mental health and criminal justice systems. A fitness inquiry in September 2024 found the defendant unfit to be tried. The Mental Health Review Tribunal's subsequent decision contained an internal inconsistency between its reasons and its orders, requiring referral back and a corrected determination. The Tribunal ultimately concluded the defendant was unfit and would not become fit within 12 months, leading the DPP to elect to proceed by way of special hearing.

  • Whether a ballistics expert report served by the Crown only days before the special hearing should be excluded for breach of mandatory pre-trial disclosure requirements under the Criminal Procedure Act 1986 (NSW).
  • Whether, at a special hearing conducted under s 56 of the Mental Health & Cognitive Impairment Forensic Provisions Act 2020 (NSW), the Crown proved beyond reasonable doubt that the defendant committed the three remaining offences of possessing prohibited weapons.
  • What the appropriate disposition was following a finding that the defendant committed the offences.

Decision

Exclusion of the ballistics report. The Court excluded the Crown's ballistics expert report under s 146 of the Criminal Procedure Act 1986. The report was served on the Wednesday before a Monday hearing, despite repeated Defence requests over many months for timely disclosure and despite the Court having allowed six months' lead time specifically to accommodate the report. The Crown offered no explanation for the delay, stating only that an explanation existed but was subject to legal professional privilege. Newlinds SC DCJ held that proceeding without explanation was appropriate and that the claim of privilege was of no assistance. The fact that the expert was a serving police officer made the absence of explanation harder to understand.

The Court rejected the Crown's submission that the Defence suffered no prejudice because it had always known such evidence would be provided. Newlinds SC DCJ found that receiving detailed expert opinion evidence two days before trial was inherently prejudicial: it allowed insufficient time to obtain expert advice, a competing opinion, or to prepare the matter forensically. The late service of material that was, by the Crown's own concession, essential to its case was so prejudicial that admission would be inconsistent with the proper administration of justice. The exclusion of the report resulted in the Crown electing not to proceed with two of the five counts, which had alleged very serious conduct.

Findings on the remaining charges. At the special hearing, conducted as nearly as possible as a criminal trial, the Court was satisfied beyond reasonable doubt that the defendant committed the three remaining offences (possession of a ballistic vest, an extendable baton, and a slingshot, each a prohibited weapon). The unchallenged evidence established that the items were seized from the defendant's premises where he lived alone, that each item fell within the definition of a prohibited weapon, and that the defendant held no licence, permit, or registration for any of them. The Court found the evidence both honest and reliable.

Disposition. Having found the defendant committed the offences, the Court determined that the appropriate outcome was to make an order under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), convicting the defendant but imposing no penalty. The defendant, who had been in custody for nearly two and a half years, was released immediately. Newlinds SC DCJ described the overall procedural history as unsatisfactory, while declining to attribute blame to any particular participant.

Orders Made

  • The Crown's ballistics expert report was excluded from evidence under s 146 of the Criminal Procedure Act 1986 (NSW).
  • The defendant was found, on the limited evidence available, to have committed the offences the subject of counts 2, 3, and 4 on the indictment (three counts of possessing prohibited weapons), pursuant to s 59 of the Mental Health & Cognitive Impairment Forensic Provisions Act 2020 (NSW).
  • The defendant was convicted but received no penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The defendant was released from custody immediately.

Key Takeaways

  • Late service of expert evidence in breach of mandatory pre-trial disclosure obligations under ss 141–142 of the Criminal Procedure Act 1986 can warrant exclusion under s 146, particularly where no explanation is offered and the evidence is essential to the prosecution case.
  • The District Court held that the Crown's assertion that the Defence always knew expert evidence was forthcoming did not negate the prejudice caused by receiving detailed opinion evidence only two business days before the hearing, as the Defence still lacked adequate time to respond.
  • A claim of legal professional privilege over the reasons for non-compliance with disclosure obligations did not assist the Crown; the Court proceeded on the basis that no explanation had been provided.
  • Significant delay in the fitness-to-stand-trial process under Part 4 of the Mental Health & Cognitive Impairment Forensic Provisions Act 2020 was illustrated by this case, including complications arising from inconsistencies between a Tribunal's reasons and its formal orders.
  • In imposing a disposition under s 10A (conviction, no penalty, immediate release), the District Court had regard to the defendant's prolonged period of custody and the nature of the offences, following a special hearing in which the most serious charges had fallen away as a consequence of the evidentiary exclusion.

Legislation and Cases Referenced

Legislation:
- Weapons Prohibition Act 1998 (NSW), s 7
- Mental Health Act 2007 (NSW)
- Mental Health & Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 19(b), 36, 47(1)(a), 53, 56, 59, 63, 99
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Procedure Act 1986 (NSW), ss 133, 141, 142, 146

Cases:
- R v Dickson; R v Issakidis (No 6) [2014] NSWSC 1368 (Beech-Jones J)
- R v Hansen [2022] NSWDC 746 (Coleman SC DCJ)