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District Court 5 March 2026

Brown v R

[2026] NSWDC 42

Firearms & weapons

Citation: Brown v R [2026] NSWDC 42
Court: District Court of New South Wales (Criminal)
Date: 5 March 2026
Judge(s): Newlinds SC DCJ

Background

The appellant was convicted at Blacktown Local Court of the offence of having custody of a knife in a public place, contrary to s 93IB(1) of the Crimes Act 1900 (NSW) — a serious offence carrying a maximum penalty of four years' imprisonment and/or a $4,400 fine. The sole evidence against the appellant was the knife itself, which had been discovered during a search of the appellant's person by police.

The appellant had been part of a group of young men observed by police near a hotel in Richmond at approximately 2:24 am on a Friday morning. The group were wearing dark clothing. Police had been called to the area in connection with a reported dishonesty offence and considered the location a "hot spot for anti-social behaviour." One member of the group — not the appellant — was known to police for dishonesty offences. On the basis of these circumstances, officers formed a suspicion and searched the appellant, locating the knife.

The central issue on appeal was whether the search was lawful under s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"). If the search was unlawful, the knife was evidence obtained improperly or illegally, and its admissibility fell to be determined under s 138 of the Evidence Act 1995 (NSW). Without the knife, there was no case against the appellant.

  • Whether the search of the appellant was lawful — specifically, whether the power under s 21 of LEPRA was properly engaged, requiring both a subjective suspicion held by the officer and that the suspicion be based on objectively reasonable grounds.
  • Whether the Magistrate correctly stated and applied the legal test under s 21 of LEPRA, or conflated the subjective and objective elements of the test.
  • Whether the grounds relied upon by the officer, considered individually and cumulatively, amounted to "reasonable grounds" as a matter of law.
  • Whether the evidence (the knife) should be excluded under s 138 of the Evidence Act, given the public importance of police compliance with the law when exercising search powers.

Decision

The Proper Construction of Section 21 of LEPRA

Newlinds SC DCJ reiterated the analytical framework he had set out in Reyes-Carrion v State of New South Wales [2025] NSWDC 28 and Karlson v R [2025] NSWDC 175. His Honour emphasised that the statutory test under s 21 involves two distinct stages, not one composite inquiry:

  1. The subjective question: Did the officer actually hold a relevant suspicion? This is described as "undemanding" — there must be some factual basis, which can include material that would be inadmissible in court, but it must have some probative value (citing R v Rondo [2001] NSWCCA 540 at [53]).

  2. The objective question: Were the grounds for that suspicion reasonable? This itself involves a two-step process: (a) a finding of fact as to what grounds the officer actually relied upon; and (b) a determination, as a matter of law, of whether those grounds amount to "reasonable grounds." Where multiple grounds exist, they must be assessed in totality.

His Honour stressed that the test is not whether the suspicion was "reasonable" — a formulation that impermissibly collapses the two distinct inquiries into one. The correct question is whether the suspicion was based on reasonable grounds. This distinction, while it may appear subtle, is legally significant. A judge is not to second-guess whether they would have held the same suspicion; rather, the judge must determine objectively whether the grounds relied upon are, as a matter of law, reasonable.

The Magistrate's Error

His Honour found that the Magistrate had misdirected herself on the law. References in the Magistrate's reasons to "the reasonableness of the suspicion" and whether the search was "reasonable" indicated that the Magistrate had treated the subjective and objective elements as a single question. This was an error inconsistent with the requirements of the legislation.

Assessment of the Grounds

Turning to the grounds found by the Magistrate to have been relied upon by the searching officer, Newlinds SC DCJ assessed each individually and then cumulatively:

  • The earlier call-out to a dishonesty offence: Irrelevant without any facts connecting that job to the group. Otherwise, any officer returning from any reported crime could search anyone they noticed.
  • A group of young men out late at night: Not capable of amounting to a reasonable ground on its own.
  • Wearing dark clothing: "Self-evidently not a reasonable ground for suspecting anything other than the people enjoy wearing dark clothes."
  • The area being a "hot spot for anti-social behaviour": While police experience in identifying high-crime areas is recognised (citing Azar v DPP [2014] NSWSC 132 at [38]–[43]), the lack of particulars about the area and the vague and undefined nature of "anti-social behaviour" rendered this insufficient. If mere presence in such an area sufficed, everyone passing through would be liable to be searched.
  • The appellant's companion being known to police: His Honour found this wholly irrelevant and an entirely inappropriate ground. The case law has addressed whether a person's own criminal record can contribute to reasonable grounds, but here the record belonged to an associate, not the appellant.

His Honour was comfortably satisfied that none of the grounds were individually reasonable, and that considered together, they did not cumulatively amount to reasonable grounds. The power under s 21 was not engaged, and the search was therefore illegal.

Exclusion Under Section 138 of the Evidence Act

Having found the search was unlawful, his Honour turned to the discretion under s 138 of the Evidence Act. He exercised that discretion to exclude the knife, emphasising the public importance of police complying with the law when carrying out their duties, particularly when those duties involve interfering with a person's right not to be stopped and searched.

Without the knife, no evidence remained to support the charge.

Orders Made

  • The appeal was allowed.
  • The conviction for the offence under s 93IB(1) of the Crimes Act 1900 (NSW) was set aside.
  • The appellant was acquitted.

(Note: The judgment text provided was truncated. The orders above are inferred from the reasoning and outcome discussed in the judgment. Practitioners should confirm the precise orders from the full published decision.)

Key Takeaways

  • Under s 21 of LEPRA, the statutory test requires a two-stage analysis: the court must first determine whether the officer subjectively held a suspicion and then assess whether the grounds for that suspicion were objectively reasonable. The District Court held that collapsing these into a single inquiry (asking whether the suspicion was "reasonable") constitutes legal error.

  • Grounds supporting a search must be assessed both individually and cumulatively. The District Court confirmed that each ground must be identified as a finding of fact before the grounds are assessed together for objective reasonableness, and that a collection of individually weak or irrelevant grounds may not become reasonable simply by aggregation.

  • Common police justifications, such as the time of night, dark clothing, or presence in a "hot spot," were found insufficient to constitute reasonable grounds without some further factual nexus to suspected criminal activity. The Court emphasised the limits of generalised or circumstantial justifications for personal searches.

  • A person's mere association with someone known to police was held to be an inappropriate ground for forming a suspicion about the person themselves. The District Court distinguished this from the separate, already debated question of whether a person's own criminal history can contribute to reasonable grounds.

  • In applying the exclusionary discretion under s 138 of the Evidence Act, the Court placed significant weight on the public interest in police compliance with statutory safeguards, particularly where fundamental personal rights were at stake. This discretion operated as a meaningful check on the admissibility of evidence obtained through an unlawful search.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93IB(1)
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Evidence Act 1995 (NSW), s 138
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 21

Cases:
- Azar v DPP [2014] N