AA v Constable Michael Moore

Cases Cited: Carolan v State of New South Wales [2014] NSWSC 1566
Carvana v State of New South Wales [2024] NSWSC 254
Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811; 273 A Crim R 15
DPP v Tamcelik [2012] NSWSC 1008; 224 A Crim R 350
Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28
Fantakis v Commissioner of Police [2013] NSWSC 685
George v Rockett (1990) 170 CLR 104; [1990] HCA 26
Ghani v Jones [1970] 1 QB 693
Hyder v Commonwealth of Australia [2012] NSWCA 336; 217 A Crim R 571
Joukhador v Commissioner of Police [2020] NSWSC 227; 281 A Crim R 456
Malone v Metropolitan Police Commissioner [1980] QB 49
Murphy v The State of New South Wales [2023] NSWSC 407
New South Wales v Randall [2017] NSWCA 88
North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41
Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35
R v Nunan [2025] NSWDC 293
R v Shaitly [2019] NSWDC 762
Riley v California 573 US 373 (2014)
Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177; [2020] HCA 14
Solomon v Commissioner of Police (NSW) [2021] NSWSC 236
State of New South Wales v Abed [2014] NSWCA 419; 246 A Crim R 549

Texts Cited: NSW Legislative Council Portfolio Committee No. 5 - Legal Affairs, Report 57 Provisions of the Firearms and Weapons Legislation Amendment (Criminal Use) Bill 2020, (April 2021)
New South Wales Ombudsman, Review of police use of the firearms prohibition order search powers, (August 2016)
NSW Police Force, NSW Firearms Registry, Firearms and Weapons Prohibition Orders Standard Operating Procedures, Version 7, (April 2025)

Category: Principal judgment

Parties: AA (Plaintiff)
Constable Michael Moore (First Defendant)
Commissioner of NSW Police Force (Second Defendant)

Representation: Counsel:
S Boland (Plaintiff)
MJ Gollan (Defendants)
Solicitors:
Hanna Legal (Plaintiff)
Makinson D’Apice (Defendants)

File Number(s): 2025/00380988

Publication restriction: There is to be no publication of any information which tends to identify the plaintiff or the company in the proceeding anywhere in the Commonwealth of Australia until 22 October 2027.

JUDGMENT

1. This matter raises important issues surrounding the exercise of seizure powers relating to a search conducted pursuant to the Firearms Act 1996 (NSW) including whether a common law power of seizure applies to material found in such circumstances. It involves the seizure by police of $8,450 cash and a mobile phone from a vehicle stopped by police in the early hours of Thursday 2 October 2025 in Edgecliff, an inner eastern suburb of Sydney. The plaintiff seeks the return of both the cash and the phone claiming they have been unlawfully seized. In particular, the phone is said to be urgently required for the plaintiff’s successful business.

2. This matter first came before me in the Duty list on Wednesday 8 October 2025. The matter had initially come before Fagan J on 3 October 2025 in his capacity as Duty Judge that week, and his Honour made certain orders including setting down the matter before me on 8 October 2025. On 8 October 2025, I granted an adjournment application made by the defendants to allow them to obtain statements from relevant police officers. The matter was heard on Monday 13 October 2025.

3. This matter raises some difficult questions underpinned by the considerations eloquently expressed by Talbot J, the first instance judge upheld on appeal in Ghani v Jones [1970] 1 QB 693 at 696:

“It is an important consideration that police authorities should not be hindered in their investigations of a crime. It is certainly of equal importance that individual rights and liberties should not be infringed and taken away unless there is lawful reason for so doing.”

4. I have come to the conclusion that the cash and the phone were unlawfully seized and should be returned to the plaintiff. As to the phone, it is for the defendants to persuade the court that they should be able to retain the phone for the purpose of interrogating the phone as they wish to prior to it being returned. I have concluded that the defendants have not discharged that onus. The cash and the phone should be returned to the plaintiff forthwith, and no analysis should take place prior to the phone being returned. I now set out my reasons.

Orders sought

5. By way of summons, the plaintiff seeks an order pursuant to s 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPR Act) that:

(a) The mobile phone seized from the plaintiff by the first defendant on 2 October 2025 be immediately returned to the plaintiff; and (b) The amount of money seized from the plaintiff by the first defendant on 2 October 2025, being an amount of approximately $8,000 in cash, be immediately returned to the plaintiff (c) (the mobile phone and the money are together referred to hereinafter as the goods).

1. An order that the mobile phone not be interrogated by the defendants or their agents, either by manual or electronic means.
2. In the event that an interrogation of the mobile phone has already occurred, an order that the product of any interrogation not be reviewed, copied or disseminated by the defendants or their agents.
3. Costs.

Plaintiff’s grounds

6. The plaintiff contends that he is the lawful owner of the goods and is therefore “lawfully entitled” to the goods pursuant to s 219(1)(a) of the LEPR Act.

7. The plaintiff contends that the estimated value of the mobile phone is approximately $500,000 per month in the conduct of the plaintiff’s business, thus engaging the jurisdiction of this Court (s 229(1)(c) of the LEPR Act). I note that there has been no issue as to the engagement of this Court’s jurisdiction.

8. The plaintiff contends that the seizure of the goods by the first defendant was without lawful justification in that:

(a) The search by which the goods were located purportedly occurred pursuant to Part 7 of the Firearms Act. (b) Section 74A(2) of the Firearms Act empowered police to search “for any firearms, firearm parts or ammunition”. (c) Section 74A(2) did not empower the police to search for the goods. (d) Having located the goods, no Crime Scene was established and no Crime Scene Warrant was sought pursuant to Part 7 the LEPR Act. (e) The goods were seized without warrant. (f) Section 36 of the LEPR Act did not permit the seizure of the goods as the goods were not “found as a result of as search under this section” (s 36(3) of the LEPR Act). (g) No other lawful justification existed for the seizure of the goods.

Evidence

Plaintiff’s evidence

9. The following evidence was relied upon by the plaintiff:

10. Affidavit of Nicholas Hanna of 3 October 2025, the plaintiff’s solicitor;

11. Affidavit of Mr BB of 3 October 2025. He was with the plaintiff in the vehicle at the time in question and was cross-examined; and

12. Documents produced by the New South Wales Police Force including the body worn video of one the constables (BWV), and official documentation relating to the incident including police notebook entries and a COPS entry, the Exhibits Details Report and email correspondence.

Mr Hanna’s evidence

10. In his affidavit, Mr Hanna stated that he was instructed by the plaintiff on 2 October 2025 to seek the return of his phone and approximately $8,000 in cash.

11. At about 4:43pm on 2 October 2025 (that is, on the same day as the seizure) Mr Hanna sent a letter to the NSW Police where, amongst other things, he recorded his instructions that “Police informed our client that they would be seizing the cash and the phone on the purported “suspicion of drug supply””. In that letter, he stated that the plaintiff’s assertion on the night that he was very wealthy was correct, a matter of public record and they could verify this by looking at [an article] published by [a reputable media outlet] in 2024. He also stated that the police on the night stated they were familiar with the plaintiff’s business.

12. Mr Hanna further referred to s 74A of the Firearms Act which set out limited powers and stated that there was no ancillary power to seize materials that do not constitute evidence of offences contrary to s 74(1), (2) and (3) of the Firearms Act.

13. Mr Hanna referred to the Firearms and Weapons Prohibition Orders Standard Operating Procedures*,* Version 7 (Standard Operating Procedures*)**.* Portions of this document was annexed to his affidavit. I observe that the version produced is available on the Internet, with the same redactions. It has a publication date of April 2025 and a review date of April 2027. It includes the following in relation to Firearms Prohibition Orders (FPOs):

“1. Purpose of this document

The SOPs have been developed to provide NSWPF personnel with guidance regarding the application process associated with the issuing of FPOs and WPOs [Firearm Prohibition Orders and Weapons Prohibition Orders], the exercise of police powers associated with FPOs and the requirements to review current orders to ensure they are still required or appropriate.

[…]

All NSWPF employees must comply with these SOPs to ensure that FPOs/WPOs are not overused, abused, issued arbitrarily, and that the making of these orders are lawfully justified in all circumstances, being based on relevant and reliable information.

[…]

The exercise of the search powers related to premises other than vehicles is subject to the overarching policy & procedures for search warrants and uninvited entry and search operations.

If you have any questions in relation to FPOs and/or WPOs please contact […], or after-hours legal advice via the State Coordinator.

[…]

8. Police Powers and Offences

[Section 74A of the Firearms Act is set out]

The powers available to police can be exercised immediately after being served, if reasonably required to determine if the person has committed an offence against section 74(1), (2) or (3) only.

8.1 Firearms Prohibition Orders search powers

The exercise of the search powers related to premises other than vehicles is subject to the overarching policy & procedures for search warrants and uninvited entry and search operations.

Firearms Prohibition Orders are expressly about prohibiting the subject of an FPO from possessing any firearm, firearm part or ammunition. The search powers are only there to facilitate police being able to ensure that the person is complying with the FPO, and not for any other purpose. That is any search is conducted only to ensure compliance with the FPO and must be reasonably required for that purpose.

In Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811 at [38] citing Kourakis CJ in R v Ioannidis.

Kourakis CJ considered that the police officer need not hold even a rational or genuine reason, falling short of reasonable suspicion, for thinking there had been a contravention of the order*.* His Honour considered that the “reasonableness” limitation in s 32(3a) was “concerned not with the strength of a suspicion but with the proportionate use of the power to monitor” compliance with the firearms prohibition order: at [13]**. At [22] his Honour said that the provision empowers police to search persons who are subject to FPOs whenever a search is reasonable required and a search will in the absence of countervailing circumstances generally be reasonably required for no other cause than to check compliance with the FPO.

More recently, Basten J in Solomon v Commissioner of Police (NSW) [2021] NSWC 236 at [91]-[93] suggests that the function of the phrase ‘reasonable required’ is unclear.

The better view may be that “reasonably required” is a criterion governing both the scope of, and the occasion for, an exercise of power*. A* suspicionless search can have few limits; it can occur at any time and with any frequency*.* It would be inherently arbitrary and therefore almost incapable of abuse*.* To the extent that Shaba rejected the need for any reason to carry out a search, beyond the existence of a firearms prohibition order, it is not, in my view, self-evidently correct.

The power to carry out the search in accordance with s 74A of the Firearms Act 1996 is vested in the officer carrying out the search. That officer must be satisfied that the search is reasonably required and be aware this may be challenged in court.

A search can be conducted only when ‘reasonably required’ to determine if there is compliance with the FPO.

[…]

While exercising powers in accordance with section 74A Firearms Act 1996, police are only authorised to search for firearms, firearms parts and ammunition. If other items are located that are illegal or need to be seized, some other authority must be identified.”

[Underlining added; italics in original]

14. I note that the contents page of the document includes sections 8.2 and 8.3 (under the heading ‘Police Powers and Offences’) headed respectively ‘Search Warrant’ and ‘Crime Scene Warrant’ but the contents do not appear to be publicly available.

15. In his letter to the police, Mr Hanna set out further matters including his request for the return of the property by a certain time, failing which he would institute proceedings. He also requested the police not to extract any data from the phone using Cellebrite’s Universal Forensic Extraction Device.

16. Also annexed to Mr Hanna’s affidavit was an extract of an article from [a publication by a reputable media outlet] dated […] 2024 entitled “Australia’s richest people […]” with the plaintiff listed as number […] with a “YoY change” as […]% and his wealth as [well over $60 million]. There was also another article from [that same publication] dated [earlier in] 2024 which referred to the plaintiff’s [particular business] who had recently purchased a home for over [well over $16 million]. It noted that the business had been launched [well over a decade ago] and that had [resulted in the plaintiff being included in] last year’s Rich List with a [tens of million dollars] fortune”.

17. Mr Hanna’s affidavit also annexed a copy of the plaintiff’s FPO issued pursuant to s 73(1) of the Firearms Act dated 21 July 2020, which included the reasons the delegate of the Commissioner of Police formed the opinion that the FPO should be issued. Schedule 1 is headed Statement of Reasons. It is in the following terms (with slight formatting and minor textual adjustments):

“Material Findings of Fact:

Based on material held by the NSW Police Force I find the following:

You have been convicted of the following offence: Possess prohibited drug at Waverley Local Court on 4 March 2020 and fined $500.

You are associated with Outlaw Motorcycle Gangs.

Outlaw Motorcycle Gangs are organised criminal groups.

You are subject to the following Apprehended Violence Order (AVO): COPS Event [REDACTED] issued at Downing Centre Local Court on 20 June 2019. This AVO is current for the period from 8 June 2020 until 19 June 2021.

MY UNDERSTANDING OF THE APPLICABLE LAW IS THAT:

Section 73(1) of the Firearms Act 1996 states the Commissioner may make a firearms prohibition order against a person if, in the opinion of the Commissioner, the person is not fit, in the public interest, to have possession of a firearm.

REASONING PROCESS:

Your antecedents coupled with your association of a criminal gang have enabled the Commissioner to make the determination in relation to your fitness to have access to firearms, firearms parts and ammunition.

It is considered that you are not fit in the public interest to at any time have access to firearms, firearms parts or ammunition. It is critical to ensuring the public’s safety that a firearms prohibition order is issued against you.”

18. Schedule Two is headed “Effect of Firearms Prohibition Order”. It set out details under the headings “Automatic revocation of licence and permit”; “Offences relating to a person who is subject to a firearms prohibition order”; and “Police powers relating to a person who is subject to a firearms prohibition order”.

19. Under the last heading the following information was provided:

“A police officer may exercise the following powers as reasonably required for the purposes of determining whether you have committed an offence against sections 74(1), 74(2) or 74(3) of the Act:

(a) detain you; or

(b) enter any premises occupied by you or under your control or management; or

(c) stop and detain any vehicle, vessel or aircraft occupied by you or under your control or management,

and conduct a search of you, the premises, vehicle, vessel or aircraft, for any firearms, firearm parts or ammunition.”

20. A USB containing the BWV footage of Constable Andrews (Constable Moore’s colleague on the night) was also tendered, and was played at the hearing.

Mr BB’s evidence

21. The following account reflects my findings on the basis of BB’s evidence. Contested facts are resolved where necessary, as indicated.

22. Mr BB has been employed by the plaintiff’s business as General Manager since late 2020. The plaintiff is the founder and head of the business. The business’ principal form of marketing is by way of videos on social media and it is common for there to be in excess of 20 people participating in video shoots, including actors, production team, assistants etc. During video shoots, various expenses arise that require payment including items from Bunnings, food, drinks, petrol, cleaners etc.

23. They do not want to hand out the company credit card to people making purchases for security reasons, and often more than one person is going to make separate purchases at the same time so it is more secure and efficient for “us to give them cash”. He stated that they also use cash to pay extras and people who they don’t have an ongoing contractual relationship with. He stated:

“As a result, we generally have several thousands of dollars in petty cash with us at video shoots.

In the days leading up to the latest video shoot (the shoot) […] I reminded [the plaintiff] on a couple of occasions to bring petty cash to the shoot for such expenses.”

24. It can be noted that this general account was also provided to the police by Mr BB on the night in question.

25. In relation to the shoot, Mr BB stated that on 1 October 2025, he and the plaintiff attended [a gym] at [a western suburb] for the second day of the shoot, which was a larger than usual one with about 40 participants including about 20 actors. The shoot concluded at about 12:30am – 1:00am on 2 October 2025. At the conclusion of the shoot, the plaintiff and Mr BB drove one of the actors from [the western suburb] to his home in Bondi, with the plaintiff driving the company utility vehicle. After dropping off the actor they continued driving to drop Mr BB off at the business’ head office in Alexandria as Mr BB had left his belongings there, including his house keys.

26. Mr BB then gave an account of the stopping of the vehicle and the search. I note that Mr BB’s account in his affidavit was provided prior to the plaintiff being provided with the USB of the BWV taken by the police at the scene. It largely accorded with the video which was later played in court, although there are some differences, indicated by underlining where significant. I have also viewed the BWV again, carefully, for the purposes of preparing these reasons.

27. Mr BB stated that the vehicle was pulled over near Edgecliff Train Station and two police officers approached and introduced themselves. The plaintiff was asked to produce his driver’s licence, which he did by handing over his phone which had his digital driver’s licence displayed (which I note is permitted pursuant to s 61C Road Transport Act 2013 (NSW)). Shortly after, the following conversation took place:

Officer: Are you aware that you are subject to an FPO?

Plaintiff: Yes

Officer: We’re going to have to search the vehicle because of that.

Plaintiff: Okay

Officer: I’ll get you both to step out of the vehicle and stand up against the wall.

28. Mr BB could not remember which officer said what.

29. The plaintiff and Mr BB did as requested. Two other officers who had arrived at the location began searching the vehicle. Whilst the search of the vehicle was occurring, there was a conversation to the following effect with the police:

Officer: Where have you boys been tonight?

Mr BB: We were at a video shoot for a [business] and we just dropped one of the actors home.

Officer: Who do you work for?

Mr BB: [Business name]

Officer: [Business name], I know that brand.

Plaintiff: It’s my business.

Officer: [To another officer] Hey, these guys are from [Business name].

[To Mr BB and the plaintiff]: How did the shoot go?

Mr BB: It was day two of three. Long days. Early starts, late finishes.

30. Mr BB then stated at about this time, one of the officers who was searching the vehicle turned to them and asked, “Whos**e bag is this?”**. When he said this, he was pointing to the plaintiff’s leather work backpack bearing the name of the business. The plaintiff replied, “That’s my work bag”. The officer then started searching the backpack. Shortly after this, the same officer turned around again holding a bundle of cash and a conversation to the following effect took place:

Officer: Whose cash is this?

Plaintiff: It’s mine.

Mr BB: It’s petty cash for the company. We use it to pay extras and make miscellaneous payments during the shoots.

31. The officer then started counting cash.

32. A short while later, an officer showed the plaintiff his iPhone model mobile phone and a conversation took place as follows:

Officer: Whose phone is this?

Plaintiff: It’s mine.

Officer: I’m going to seize the cash and the phone on suspicion of drug related activity.

Plaintiff: Drug related activity? What’s the suspicion?

Officer: It’s a lot of money

Plaintiff: It’s not a lot of money for our business. It’s common for us to carry this kind of money for the business.

Mr BB: We need the phone to run the business. We use it for 2-factor authentication for our online store.

33. Mr BB stated he did not recall the officer responding. The officer then gave the plaintiff a piece of paper and they drove away.

34. In his affidavit, Mr BB stated that the sole source of the business’ income is from selling items on its online store which is operated by the application Shopify. Shopify uses two-factor authentication, a form of electronic authentication which requires a user to use a second device (usually a mobile phone) to gain access to an account. The two-factor authentication for the business’ main Shopify account is linked to the plaintiff’s phone which means that they cannot access it without having to access to the plaintiff’s phone at the same time. As a result, without access to the main Shopify account, they cannot receive payments or access the main business database. The payments are the business’ sole source of income and what the business uses to pay business expenses including wages, suppliers and service providers.

35. Mr BB claims that they urgently need the plaintiff’s phone to continue to operate the business.

36. Last year their revenue was approximately $20 million and the profit was approximately $6 milllion.

37. That night (presumably 3 October 2025) they were also apparently planning to do a “Shock Drop” which is a surprise release to customers announced by way of SMS using another application called “Klaviyo”. Mr BB claims that they are currently unable to access Klaviyo as it too requires two-factor authentication linked to the plaintiff’s phone. He expected that the Shock Drop would have generated approximately $500,000 in revenue.

38. In cross-examination, Mr BB agreed that if he had given someone $50 to go and get some lunch, he would expect them to return with a receipt and some change. When asked if he collected receipts for the shoot in question, he said they had not spent anything that evening.

39. Other than the last answer, I accept the evidence Mr BB was telling the truth. I have viewed the account he gave on the night in question, and have considered his affidavit which was provided prior to the BWV being available, and which largely accords with it. I am also of the view that he was attempting to provide truthful answers in Court. As to his last answer, I have considered this further below at [98].

Police documentation

40. Relevantly, the police Exhibit Details Report described the “incident” as “Firearms Legislation – FPO Search Vehicle/Vessel/Aircraft”.

41. The COPS entry included the following information:

42. The plaintiff as “the owner of the [business], the biggest […] brand in Australia”; the company has strong links with the [name of Outlaw Motorcycle Gang (OMCG)] for money laundering as well as the POI [Person of Interest] having links to [name of a different OMCG] and OCN [Organised Crime Network].

43. “Police noticed a warning indicating the POI currently has a Firearm Prohibition Order”.

44. “Police conducted a search of the POI and vehicle to search for firearms, parts or ammo [ammunition] that may be located on the POI or his vehicle. Whilst searching the vehicle, police found a bundle of cash located in a backpack in the back seat of his vehicle.”

45. “Police seized the POI’s cash and mobile phone as recent intelligence suggest that this POI is involved in money laundering with [name of OMCG] and reasoning for the large abundance of cash seemed unlikely.”

46. “Police seized the phone for the purpose of a premium cellbrite [sic]. Email sent to ES Cellbrite [sic] on 2/10/2025.”

47. The “incident type” was “Actual Firearms Legislation”; and the “further class.” Was “FPO search vehicle/vessel/aircraft”.

48. An email seeking a “premium cellbrite” [sic] was also sent.

Defendant’s evidence

43. The following evidence was relied upon by the defendants:

44. Affidavit of Constable Michael Moore of 9 October 2025; and

45. Affidavit of Constable Mitchell Lothian of 9 October 2025.

46. Both officers were cross-examined.

47. The following account reflects my findings on the basis of their evidence, together with the BWV footage. Contested facts are resolved where necessary, as indicated.

48. The plaintiff’s vehicle came to Constable Moore’s attention whilst he and Constable Andrews were patrolling in Double Bay, as it was stopped in the middle of a complicated intersection at a red light. He decided to follow and stop the vehicle for the purpose of administering a random breath test and to question the driver about why they had stopped in the middle of an intersection.

49. Prior to stopping the vehicle, Constable Andrews ran the vehicle’s plates through the police system for safety reasons and found that the owner of the vehicle was subject to an FPO. The following warning came up on the police equipment to this effect: “**[…] MAY HAVE CONCEALED FIREARMS/WEAPONS REGISTERED OWNER [PLAINTIFF’S NAME] HAS AN ENFORCEABLE FPO*.* SEARCH CAR THOROUGHLY.” Constable Andrews broadcast on police radio that they were conducting a vehicle stop at a particular location.

50. Constables Moore and Andrews had a discussion about what would happen next and Constable Moore decided, as the more senior officer of the two (albeit only marginally, having been a constable for only two years, one of which was as a probationary constable and he was only 23 years of age) that they would speak to the driver, check his licence, record, and see if the driver of the vehicle is the owner with the FPO, and if he was “we would have to conduct a Firearm Prohibition search”. They approached the vehicle and Constable Andrews asked the plaintiff for his driver’s licence which he produced by bringing it up on his phone and handing the phone to police. Constable Andrews said to the plaintiff (twice) that they had “pulled him over for a roadside test”, although this did not occur. The plaintiff immediately stated in response to a question as to how his night had been that he had dropped a friend back to Bondi after being in a shoot all day for his business. The plaintiff and Constable Andrews then had a conversation as to the confusing nature of the intersection where the plaintiff had stopped, and Constable Andrews stated, “that’s the reason I pulled you over” and also said, “that’s one of the other reasons I pulled you over […]”.

51. Constable Andrews then stated, “you’re aware you have an FPO” and “’cause of that, obviously, we’ll search you and the vehicle”. Constable Andrews stated the search of the plaintiff and the vehicle were being conducted in accordance with s 74 of the Firearms Act. The plaintiff was immediately co-operative and he and Mr BB left the vehicle.

52. Shortly after the vehicle was stopped and the plaintiff and Mr BB had left the vehicle, Constable Moore and Constable Andrews were joined by two other police officers, Constable Lothian and Probationary Constable Pardey. Constable Lothian had been a constable since August 2023. Constable Moore said to Constable Lothian, “FPO/WPO”. Constable Lothian had also heard that the vehicle had “warnings” when the VKG broadcast was made. At the point where Constable Moore was about to search the vehicle, Constable Lothian offered that he and Probationary Constable Pardey would search it, which they did. Constable Lothian stated in his affidavit that he commenced the search in accordance with his powers under s 74A of the Firearms Act because the plaintiff was the subject of an FPO. In his oral evidence he stated he searched the car because “The car had an FPO, Firearms Prohibition Order, and “due to the time, that car being out at 2am in the morning, I thought there was potentially an offence that may occur or it was imminent.” PC Pardey located a large wad of cash in the plaintiff’s backpack and Constable Lothian stated that he thought “Constable Pardey told me that the backpack was under the back seat. It was a wad of $50 bills folded up with a rubber band around it. PC Pardey passed me the cash, and I put it on the driver’s seat and activated my Body Worn Video camera. As far as I can remember, there was a mobile phone sitting on the front driver’s seat when I was searching that area.”

53. At least two of the officers on the night had heard of the plaintiff’s business. Constable Moore agreed in cross-examination that the plaintiff’s business was “a large and well‑known [business]” and “[that the products would be seen] around the place”. Constable Moore also agreed that he had no experience in corporate money laundering allegations, but had formed the view on the night that the $8000 was somehow involved with the laundering of money, even though the business was an online business.

54. The plaintiff said they had been doing the shoot at six different locations and had been working since 6am. The plaintiff also stated that they could flip up the seat in the vehicle which provided extra storage.

55. Although not the subject of any specific submission, the location of the phone during the incident is relevant. On the basis of the whole of the evidence I find that the plaintiff was not in possession of his phone from the time he handed it over to the police to show them his digital driver’s licence until the time the police officer announced he was seizing it. From the BWV footage, it can be seen that the plaintiff and Mr BB were at the side of the road away from the vehicle during the whole of the search of the vehicle. About 9 minutes and 28 seconds into the BWV footage, the plaintiff asked where his phone was and was told it was on the front seat. The plaintiff accepted that answer and continued to wait on the side of the road as before.

56. Constable Lothian took control of the cash as he was the most senior officer searching the vehicle. Constable Lothian thought it was “quite unusual to keep an amount of cash tied together like that in 50 dollar notes.”

57. Constable Lothian called Constable Moore over and showed him a bundle of cash tied with a rubber band and a Stanley knife, both located in the vehicle.

58. Constable Moore recalled from an intelligence dissemination that he received from South Sydney Police Station that the plaintiff may be using the business for the purpose of money laundering with the assistance of a named OMCG. When Constable Andrews told Constable Moore that the plaintiff was the owner of this well-known business, Constable Moore had remembered the email.

59. At this point, Constable Moore told Constable Lothian about the recent dissemination and showed him a copy of it on his MobiPol device. A copy of the dissemination was tendered.

60. The dissemination was headed “Intelligence Alert” and was before the court in a redacted form. It came from South Sydney PAC and was headed “[Address], ALEXANDRIA LIKELY LOCATION FOR OCN CONFLICT”.

61. Under the heading “Key Points” were three dot points, the first of which was:

“It is highly likely that [the business] is involved OCN money laundering.”

60. The other two were redacted.

61. Under the heading “Target Details” were the name and address details of the plaintiff, including his criminal history: “Charges x 5 – Possess unauthorized pistol x 4, Reckless grievous bodily harm – T1, ABH”.

62. Under the heading “Warnings” it stated, “WPO/FPO is person named on served firearms and weapons prohibition order.”

63. Under the heading “Background” it stated:

“Information received suggests [the business] is used by the [named OMCG] as a front for money laundering activity”.

At approximately 1415 on 16/09/2025, 13 male POIs arriving in 14 VOIs [vehicles of interest] ([redacted] and one Unknown VEH) were then seen to enter [the business at named address]. [Redacted].

[Plaintiff] returned to the location a short time later and has been uncooperative with police.

One of the members of staff injured was [name]. [Name] later attended Sutherland hospital with a minor injury requiring stitches to left ear. Sutherland Shire Police attended the hospital and overheard [name] tell medical staff that he received the injury sparring with friend at a fight club.”

64. The section headed “Key Associates” was redacted. A section about the man assaulted set out his personal details, including his criminal history and “warnings”.

65. Under the heading “Outcomes/Recommendations/Considerations” it stated, “Please KLO4 for [Plaintiff] [redacted] and [assaulted man] and record all interactions with them as well as clothing worn on BWV. Patrol [the business] [address]. Maintain officer safety at all times.” I understand that KLO4 means “keep a look out for”.

66. The document was dated, reviewed and approved 17 September 2025, and stated, “This assessment was prepared by South Sydney Intelligence Team”.

67. After discussion with the plaintiff about the Stanley knife which he used for cutting boxes open for work the following conversation took place:

Constable Moore: […] and just regarding the large wad of cash.

Plaintiff: Petty cash.

Constable Moore: Sorry what was that?

Plaintiff: Petty cash for the business.

Mr BB: We pay some of the younger lads.

Constable Andrews: So that would be from the shoot today?

Mr BB: Yeah.

Constable Moore: Like you pay the younger people cash?

Mr BB: Coffee, this, that. Give the lads, they have been working non-stop and –

Constable Moore: Yeah, okay.

Mr BB: We’re not there all day. So we give them some wads of cash and that’s your coffees and lunch for the team.

Plaintiff: It’s a very small amount of money, I am worth $60 million. There’s not much money. I paid some staff today, I paid some extras today. There was just cash running around.

Constable Moore: How much cash do you reckon this is?

Plaintiff: Maybe eight and half grand?

Constable Moore: I believe it was located in one of the bags?

Plaintiff: Backpack.

Constable Moore: Yeah, the black backpack. Sweet, that’s all the questions I just wanted to ask regarding it.

68. Constables Moore and Lothian discussed what to do next and Constable Lothian said he was going to call the Eastern Suburbs Acting Inspector Michael Foscholo, the duty officer rostered on to supervise the night shift. Constable Moore conveyed to Constable Lothian that the plaintiff and Mr BB had said they had the cash for “petty cash”. Constable Moore counted the cash while Constable Lothian was speaking to Acting Inspector Foscholo.

69. Constable Lothian stated that Constable Moore informed him that the plaintiff and his passenger had said they were in the area to get food. Constable Lothian found this suspicious because there were not many places open to eat at that time in the area where they were stopped. Constable Moore also told him that the cash was to buy coffees and lunches for their colleagues which he thought was unusual. He also found it suspicious that the cash was in $50 notes and secured with a rubber band.

70. Constable Lothian formed the view, based on the intelligence, the responses from the plaintiff and other occupant and the manner in which the money was found that the cash and mobile phone may be connected with suspected criminal activity being money laundering connected with outlaw motorcycle gangs. He also had a suspicion in relation to potential drug activity because of the location near a notorious hotel and the night of the week was generally associated with drug use; the time of the night being 2am on a weeknight; and the intelligence suggesting the plaintiff had links to organised crime.

71. Constable Lothian stated that:

“All of the above information gave rise to me having a reasonable suspicion that evidence of an offence may be found in the vehicle. I therefore decided to exercise my search and seizure powers under s 36 of the LEPR Act having formed a reasonable suspicion based on the above matters that the vehicle contained something unlawfully obtained or that it contained something which may have been used in connection with a relevant offence such as money laundering.”

72. While Constable Moore was counting the cash, Constable Lothian spoke to the plaintiff and seized the cash and the phone. The interaction, as recorded on BWV was as follows:

Constable Lothian: Is it [name of plaintiff]?

Plaintiff: Yep.

Constable Lothian: How you going mate. Constable Lothian from Bondi.

Plaintiff: Mmhm.

Constable Lothian: At this stage, mate, spoken to my boss, we’re going to be seizing the cash and your phones [as said]. This is a high drug trafficking area around here and I believe that you’re here committing, let me finish, that you’re here committing an offence. If you can prove to us that the cash was obtained legally, it’s yours, but I am gonna be conducting further investigations into where this cash has come from, OK? We’re going to be taking your phone as well because I believe it may be part of an offence…

Plaintiff: You’re taking the mickey. You’re taking the mickey.

Constable Lothian: Let me finish… ‘Cause I believe it may be part of an offence. Do you want to give me the passcode to the phone?

Plaintiff: No.

Constable Lothian: Ok then it’s going to be held for longer. If you give me the passcode we can probably have it back to you sooner but if there’s no passcode then it’s going to be held longer. It’s up to you.

Plaintiff: Bro take my phone, like…

Constable Lothian: Do you have any phones on you?

Plaintiff: No. I’ve already been searched.

Constable Lothian: Ok. Alright, no worries. Alright so we’re seizing this, the time being…

Plaintiff: A drug offence? You, what…

Constable Lothian: Suspected of committing an offence.

Plaintiff: I pay $6 million in taxes. Me sell drugs is absurd. It’s absolutely absurd.

Constable Lothian: Well, I’ve told you what’s happening.

Plaintiff: It’s my work phone, everything’s on that

…

Constable Lothian: I believe this has come from committing some sort of offence, OK?

Plaintiff: Take it bro, whatever.

[…]

Plaintiff: (to Constable Moore when Constable Moore gave him his card). You’ll hear from my lawyer bro.

73. Constable Lothian stated in his affidavit:

“I believe that the plaintiff’s mobile phone may contain evidence relevant to the offence of money laundering, such as call logs, text message logs, and other information that may establish the plaintiff’s participation in money laundering, and his association and involvement with the [name] outlaw motorcycle gang and their activities.”

74. He expanded upon this in examination in chief as follows:

Q. And what powers were you exercising to continue the vehicle search after that discovery [of the cash]?

A. Continuing the vehicle search after that discovery I was using 36 of LEPRA as I thought there's something further in the car that may be connected with an offence that has occurred. My suspected offence was money laundering.

Q. And did you have a conversation at any stage with the plaintiff about what you thought the activities he had been up to that evening?

A. When I seized the cash and the phone I informed the plaintiff that I was taking it. When I explained to him that I was taking it I said Double Bay is a high area and has lots of drug volume. At 2am in the morning, especially Wednesday nights, Thursday morning, sorry, with Wednesday nights being quite a busy night at the Golden Sheaf with a lot of young uni students who are known to participate in drug use at that time of the morning.

Q. And was that one of the genuine reasons for you to withhold the phone and the cash?

A. Can you repeat that, sorry?

Q. You told us that you thought he might have been involved in money laundering. Did you genuinely believe that he may have been involved in the sale of drugs?

A. No, I didn't believe he was involved in the sale of drugs, but that helped build my suspicion as to why I wanted to take the phone so we can establish the offence that has occurred or I thought was imminent to occur.

Q. And after you had finished the search what did you then do?

A. I then communicated again with my Inspector and provided him with my reasonable suspicion and then I seized the phone and the money.

[Emphasis added]

75. In cross-examination, Constable Lothian agreed that when a person’s property is seized, police had an obligation to explain to them the basis for the seizure. The officer stated, several times, that he explained to the plaintiff that he believed he was committing “an offence”. At one point (transcript p 75, line 20) he said he did not believe he had to go beyond that. This account shifted during cross-examination. The following provides a flavour of the cross-examination immediately following that answer:

Q. Are you not trained to identify the offence or the offending conduct that you are alleging against the person when you remove things from them?

A. Yes, I believe I am.

Q. Given that you are trained to do that, why didn't you do it on this occasion?

A. I informed the plaintiff that I believed he was committing an offence and further investigations will be carried out.

Q. The question is: Why didn't you tell him what offence or what offending conduct?

[…]

A. In the moment I didn't, that's as far as I can explain it, I didn't.

Q. What I'm asking you is why?

A. I don't know why, I don't recall why I didn't.

Q. You would you expect, wouldn't you, that it would focus your mind if, in a situation like that, on your obligation if a person actually asked you why they were losing their phone?

A. Yes.

Q. You would remember that you've got an obligation to tell them exactly that?

A. Yes.

Q. So why didn't you in circumstances where he asked you why?

A. Again, I don't know why I didn't. Looking back, I should have.

76. At another point in the cross-examination, Constable Lothian said he did not tell the plaintiff in order “to keep the security of the investigation”.

77. And at another point in his cross-examination Constable Lothian said this:

A. I explained drugs because drugs are quite prevalent in Double Bay at that time of the morning, especially on a Wednesday. That was part of my reasonable suspicion. I wasn't searching just for drugs. I was searching because I believed there was something in the car that had connection with an offence that had occurred, was occurring or imminent to occur.

Q. What offence?

A. Money laundering.

78. Constable Lothian also understood from what he was told by Constable Moore that the plaintiff had been in [the western suburb] and had come to the eastern suburbs to get food. From my understanding of the evidence, including viewing the BWV, it would appear that Constable Lothian misunderstood the explanation that had been provided to Constable Moore: that is that the plaintiff and Mr BB were in the area because the plaintiff had dropped an actor home to Bondi and that they had eaten food at El Jannah earlier. Whilst there was some indication that food was mentioned again, so far as I could make out from the recorded conversations, the explanation for being in that area was because they had dropped someone in Bondi, and they were on their way back to Alexandria.

79. The conversation between the two officers had not been recorded on BWV because it had been turned off while Constable Lothian was talking to his boss and Constable Moore had come up to talk to him whilst he hung up the phone. I find, however, that Constable Lothian had already made the decision to seize the items at that point, and his senior officer had agreed with him.

80. In cross-examination he stated he was “searching the car under 36, yes, and then seized the mobile device and the ‑ the mobile device and the cash under 36 of LEPRA, yes”. Whilst he then rejected the proposition that this justification was untrue, he agreed with the proposition that if were seizing under the LEPR Act he had obligations to tell the plaintiff that he was seizing under the LEPR Act.

81. On the basis of all of the evidence I also make the following findings:

82. nothing was said to the plaintiff about any suspected involvement in money laundering;

83. the words used by Constable Lothian to the plaintiff strongly and misleadingly suggested (as reflected in Mr Hanna’s letter to the police later that day, and in Mr BB’s affidavit both prepared prior to being provided with the BWV footage) that the cash and phone were to be seized because of a suspicion the plaintiff was involved in drug supply albeit no offence was actually nominated, even when requested – rather it was left at large as “an offence”;

84. Constable Lothian’s account of the basis for seizure is confusing but, in my view, shows that the officer deliberately obfuscated the basis for his seizure of the cash and the phone to the plaintiff on the night;

85. the officer’s alleged use of s 36 of LEPR Act as a source of power to search clearly arose after the finding of the cash; and

86. the phone was not obtained as a result of any search.

87. Constable Moore then returned to Bondi Police Station with the exhibits and recounted the cash which totalled $8,450.

88. Constable Moore then took carriage of the matter as the investigating officer and stated he suspects that there may be information, such as communications with associates, on the plaintiff’s mobile phone which may provide evidence of his participation in money laundering activities for outlaw motorcycle gangs.

89. In cross-examination Constable Moore stated he had no experience with premium Cellebrite examinations but “Inspector Foscholo told us to do a premium Cellebrite instead of a normal one”.

Legal principles and legislation

85. First it is appropriate to consider the statutory context of the search and seizure powers within the Firearms Act*.* In this regard the following observations of the High Court in Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35 at [4]-[6] are pertinent. As stated by Gageler CJ, Gordon, Jagot and Beech-Jones JJ:

“Statutory construction is the process of attributing meaning to statutory text. The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose – being what the provision is designed to achieve in fact – insofar as that purpose is discernible from the statutory text and context. In the construction of a provision of a Commonwealth statute, the meaning that would best achieve the statutory purpose so discerned is to be preferred to each alternative meaning.

That being the nature of the task to which the process is directed, the "modern approach" to statutory construction, as was explained nearly 30 years ago in CIC Insurance Ltd v Bankstown Football Club Ltd in a statement repeated and endorsed many times since: "(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... , one may discern the statute was intended to remedy". Use of extrinsic material in the construction of a provision of a Commonwealth statute is guided but not governed by a non-exhaustive list of categories of material statutorily recognised to have potential to illuminate the statutory context.”

[Footnotes omitted]

86. With these principles in mind (which are properly transferable to the State context), some observations can be made about the Firearms Act*.* It has a confined remit, as can be seen by s 3:

3 Principles and objects of Act

(1) The underlying principles of this Act are—

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety—

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) to facilitate a national approach to the control of firearms.

(2) The objects of this Act are as follows—

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

87. An FPO does not expire. It can only be revoked by the Commissioner “for any or no stated reason” (Firearms Act s 73(3)). It can also be challenged in the Civil and Administrative Tribunal (Firearms Act s 75(1)). The 2016 Ombudsman’s report suggested a five year expiry for an FPO (Ombudsman of NSW, Review of police use of the firearms prohibition order search powers (August 2016) at 8 - 9) but that has not been adopted.

88. The Firearms Act sets out limited seizure powers. Section 25(2) authorises (subject to a limited exception) the seizure of a firearm in the possession of a person whose licence is suspended, revoked or otherwise ceases to be in force. Section 30(7) authorises a police officer to seize any firearm in respect of which a permit has been issued if the permit is suspended, revoked or otherwise ceases to be in force. Section 35(3) provides that on cancellation of the registration of a firearm, a police officer is authorised to seize the firearm. Section 42(1) provides that a police officer must seize any firearm or ammunition that the officer has reasonable grounds to believe is not being kept in accordance with the relevant requirements set out in the Firearms Act (subject to a limited exception in s 42(2)). Finally, s 61(2) provides that a police officer may seize any firearm in a person’s possession if the firearm is in a public place and the officer suspects on reasonable grounds that the firearm is unsafe.

89. It is also relevant to note that in 2020 an amending bill, the Firearms and Weapons Legislation Amendment (Criminal Use) Bill 2020 (NSW), was introduced in the Legislative Assembly on 26 February 2020. The bill lapsed on 27 February 2023. Amongst other things, the bill proposed a new section to provide that FPOs be reviewed after the order has been in force for ten years; it included a new proposed offence (under a proposed s 51J) to create a new offence of knowingly taking part in the unauthorised manufacture of firearms or firearm parts and to provide that the offence will include being in possession of certain matter (referred to as a firearm precursor (the definition including moulds for making firearm parts, digital blueprints and computer software or plans)) for the purposes of manufacturing a firearm or firearm part. It is apparent this was aimed, at least in part, at the 3D printing of firearms. It also proposed new seizure powers for police officers in relation to that new offence (under a proposed s 51K).

90. The proposed new s 51K included powers for a police officer to seize and detain any firearm, firearm part or firearm precursor (including a computer or data storage device on which a firearm precursor is held or contained) that the officer suspects on reasonable grounds may provide evidence of the commission of an offence under a proposed s 51J. Further, in exercising this power, a police officer would be empowered to direct a person to provide information including a password or code that may be required to enable the officer to access any information held or contained in the thing seized.

91. This all has some relevance because prior to its lapsing, the bill was sent to a cross-party Portfolio Committee of the Legislative Council which produced a report on the bill in April 2021 (NSW Legislative Council Portfolio Committee No. 5 - Legal Affairs, Report 57 Provisions of the Firearms and Weapons Legislation Amendment (Criminal Use) Bill 2020 (April 2021)), including recommendations for amending certain provisions of the bill including s 51J, the proposed new seizure power. The Committee received evidence from witnesses including “legal experts”. Whilst some of the recommendations and observations made by the Committee were made in a particular and slightly different context, their observations have some pertinence to the issues facing the Court in this matter. Most relevantly, the Committee made Recommendation 6 which recommended the amendment of s 51K to provide that police are required to seek a court order when requiring the owner of a device to supply the password of any computer, phone or storage device seized by police suspected of containing evidence.

92. In the course of its report, the Committee noted the following:

“2.143 The committee recognises that whilst information may have traditionally been stored or saved in hard copy, much of the information or data now is stored in our smartphones or computers. The committee understands that the NSW Police Force in some circumstances may require timely and secure access to information to disrupt criminal activity.

2.144 However, considering the wealth of information that is now stored or accessible on our smartphones, the committee is cautious about affording power to a police officer of any rank to demand a password or code to any object on the premises that he or she believes 'may be reasonably required' to gain access to information.

[…] The committee therefore recommends that the Legislative Council amend sections 51K and 25F of the bill to provide that police are required to seek a court order when requiring the owner of a device to supply the password of any computer, phone or storage device seized by police suspected of containing evidence.

[…]

2.148 The committee heard that as FPOs do not currently expire, individuals with an FPO could be subject to extensive and at times, arbitrary, searches of their person and premises at any given time by police, for an indefinite period. The committee also understands that the existing options to review FPOs are limited and subject to a number of mitigating factors. Considering that the NSW Ombudsman only found that 2 per cent of all FPO searches resulted in police finding a firearm, firearm part or ammunition over its two year review, the committee is concerned that the extensive powers related to FPOs could be subject to abuse or at least, increased arbitrary use.”

93. As noted earlier in the judgment, the cash and the phone are sought to be returned to the plaintiff pursuant to s 219(1) of the LEPR Act which reads relevantly as follows:

219 Disposal of property on application to court

(1) A court may, on application by any person, make an order that property to which this Division applies—

(a) be delivered to the person who appears to be lawfully entitled to the property, or

(b) if that person cannot be ascertained, be dealt with as the court thinks fit.

94. At to “property to which this Division applies” s 216(1)(a) of the LEPR Act provides that this Division (that being Division 2 of Part 17) applies, relevantly, to “property that is in the custody of a police officer or member of the NSW Police Force in connection with an offence, whether or not proceedings for the offence have been commenced”. I note that this subsection is not drafted in terms of the property “lawfully” being in a police officer’s custody, as opposed to s 216(1)(b), which is.

95. It is also relevant to note that s 218 of the LEPR Act is in the following terms:

218 Return of seized things

(1) A police officer who, in exercising a function conferred by or under this Act, seizes a thing or has custody of other property to which this Division applies must return the thing to the owner or person who had lawful possession of the thing before it was seized or came into custody if the officer is satisfied that—

(a) its retention as evidence is not required, and

(b) it is lawful for the person to have possession of the thing.

(2) This section is subject to any order made under section 219.

Consideration

96. First of all, a question of the standing of the plaintiff to bring the proceedings was raised in relation to the cash, although no issue was taken in relation to the plaintiff’s standing to bring the proceedings in relation to the phone.

97. It is for the plaintiff to satisfy the court pursuant to s 219 of the LEPR Act, on the balance of probabilities, that he appears to be lawfully entitled to the cash: Carolan v State of New South Wales [2014] NSWSC 1566 at [2] and [64].

98. Given the money was found in a backpack belonging to the plaintiff, was in his car, and there is evidence which I accept that he runs a highly successful business which generates millions of dollars in income and he conducts video shoots involving extras who are paid in cash for lunches and coffees, I am satisfied that he has standing to bring these proceedings in relation to the cash. To the extent that there was a difference in the evidence of Mr BB (in court) and the plaintiff and Mr BB (on the night) as to whether any payments had been made that day, I am satisfied that Mr BB’s denial in court of making any payments that day more likely concerned the fact that he had not asked for receipts or change, rather than not having paid the money as stated and the money being therefore the proceeds of some unlawful activity. I accept the account provided by both the plaintiff and Mr BB on the night that the money was used for petty cash for extras. In my view, this not only accords with common practice for minor payments but also accords with the amount of money recovered which was not in round figures (that is it was $8450 rather than say $9000, or $8500). This, together with the plaintiff’s account on the night, recorded on BWV, that he paid some staff, some extras that day, and that his approximation of how much cash was “about eight and a half grand” (which was accurate) indicates to me that it “appears” that he is “lawfully entitled” to the cash for the purposes of s 219(1) of the LEPR Act*.*

Was there a statutory justification for seizure?

99. The plaintiff submitted that there were a number of bases that the Court could find the seizure to be unlawful.

100. First, I note that the stopping of the vehicle was purportedly justified on a number of different bases, being to clarify the operation of the intersection, to administer a random breath test, and for an FPO search. Ultimately, however, the issue of the lawful stopping of the vehicle was not in issue, as it did appear that there were genuine reasons for stopping the vehicle, and a power to do so (even if they changed over time). I will not deal with that issue further.

101. The plaintiff then contended that the search pursuant to the Firearms Act was unlawful, pointing to the evidence of Constable Moore that in his mind it was, in essence, the mere fact of the existence of the FPO which provided lawful justification for the search.

102. Justice Basten in Solomon v Commissioner of Police (NSW) [2021] NSWSC 236 stated at [88]:

“A provision which gives powers to police to undertake a warrantless search should not be read more broadly than is necessary to give effect to its stated purpose. The powers conferred include entering premises occupied by a person subject to an order and searching a vehicle or vessel under the control of such a person. However, it is clear that an officer can only (for example) enter premises occupied by a person subject to an order for the purpose of determining whether he or she has committed an offence under the first three prohibitions in s 74. Further, such entry must be “reasonably required” for that purpose, meaning that it must be reasonably necessary. It may appear that (i) the officer must hold a belief as to what is reasonably required, (ii) there is an objective test of reasonableness to be applied to the officer’s belief, and (iii) that test suggests a need for proper grounds for holding such a belief. This understanding is not far removed from the requirements of an officer undertaking a warrantless search under s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).”

103. I agree with Basten JA’s observation at [91] that the function of the phrase “reasonably required” in s 74A(1)(a) is unclear. His Honour also noted at [93] that:

“The better view may be that “reasonably required” is a criterion governing both the scope of, and the occasion for, an exercise of power. A suspicionless search can have few limits; it can occur at any time and with any frequency. It would be inherently arbitrary and therefore almost incapable of abuse. To the extent that Shaba rejected the need for any reason to carry out a search, beyond the existence of a firearms prohibition order, it is not, in my view, self-evidently correct.”

104. The reference to Shaba was to Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811; 273 A Crim R 15, a decision of Fagan J. At [19]-[20] Fagan J stated:

“[…] Section 74A(1) as I interpret it fulfils a function because it prescribes that the power of search is to be exercised in order to determine whether specified subsections of s 74 have been infringed. It reduces the scope of the search power. There is no occasion to read into s 74A(1) a requirement that the police officer should hold a suspicion, in order to give the subsection work to do.

The absence of any stipulation of a suspicion or belief does not lead to any absurdity, inefficacy or inconvenience in the operation of s 74A. There is no such consideration which would warrant implying into s 74A(1) a requirement that some suspicion or belief be held by the police officer. Nor is there any occasion to resort to extrinsic materials in order to resolve absurdity or unreasonableness resulting from giving the words of the subsection their ordinary meaning (cf s 34(1)(b)(ii) of the Interpretation Act 1987 (NSW)).”

105. Based on my reading of the section and the authorities, it would appear, that the phrase “reasonably required” involves both subjective and objective considerations. In this case, I am of the view that the circumstances in which the FPO search was conducted logically informs both the objective and subjective aspects. As noted, apart from the bare fact of the existence of the FPO, there was evidence showing a warning on the FPO pointing to organised crime links as well the vehicle being seen in the early hours of the morning in a particular area of Sydney associated with drug crime at that time of the morning. It is true that the young officer did not articulate that combination of circumstances and purported to rely upon the mere fact of the FPO as justifying the search being “reasonably required”. However, when viewed in the circumstances of the lateness of the hour, the warning on the FPO, and the area, I am of the view that those circumstances must have, in fact, at least to a degree, informed the decision of the officer that the search was reasonably required, and I am prepared to find, in the circumstances of this case, that the FPO search was lawful.

106. I then turn to the issue of seizure.

107. In my view, the evidence is all one way. The evidence of the officers and the surrounding paperwork (the COPS entries, the exhibit record and the emails) make it clear that the search of the vehicle which resulted in the finding of the cas**h was an FPO search. Further, although not directly raised in submissions by either party, in my view, as noted above, the evidence shows that the phone was not found in the course of any search. Rather it was initially handed to Constable Andrews for the purposes of a licence check (following the police discovering the registered owner of the plaintiff’s vehicle was subject to warnings and an FPO), and thereafter at some point was placed in the vehicle and remained in the vehicle until it was seized. My finding that the phone was not found pursuant to a “search” is informed by the helpful discussion set out by Wright J in Carvana v State of New South Wales [2024] NSWSC 254 (Carvana*)* at [166]-[177] albeit that was in the context of s 21 of the LEPR Act.

108. As set out above at [86], there are only limited statutory powers to seize under the Firearms Act. It is clear that no statutory power under the Firearms Act authorised the seizure of either the cash or the phone.

109. Further, although relied upon by Constable Lothian and the defendants in their submissions as authorising the seizure, in my view s 36 of the LEPR Act does not apply in the circumstances of this case. That is, I agree with the plaintiff’s submission that one cannot seize an item under s 36 unless it is found as a result of a s 36 search (s 36(3)). On the evidence it is clear (for different reasons) that neither the cash nor the phone was found pursuant to a s 36 search, and thus they could not be seized under s 36(3). To the extent that there was any “evolution” of Constable Lothian’s state of mind such as to turn the search into a s 36 search, as contended for in the written submissions on behalf of the defendants, it happened after the cash was found. As such, the evolution happened too late to be able to rely on s 36(3) as the basis for lawful seizure of the cash. Further, given the phone was not found pursuant to any search, s 36(3) does not authorise its seizure.

110. For completeness, I note that even though the plaintiff stated, “Take it bro, whatever” in relation to the phone towards the end of the encounter with police, it is clear that by that time the decision to seize the phone had been made, and the comment was made in that context.

111. There is thus no statutory power authorising the seizure of either the cash or the phone under either the Firearms Act or the LEPR Act.

112. I also note that the officer also did not comply with s 202 of the LEPR Act (which, pursuant to s 201(1), applies to the exercise of a search power whether or not the power is conferred by the Act) by failing to nominate the power under which he was seizing the items. Sections 201 and 202 are contained within Part 15 of the LEPR Act which is called “Safeguards relating to powers”. That important safeguard was not observed in this case.

113. Section 202 provides that an officer must, as soon as it is reasonably practicable to do so, provide to the person the subject of the exercise of the power, evidence that the police officer is a police officer (unless in uniform); evidence of his or her name and place of duty and, importantly, the reason for the exercise of the power. Whilst s 204A preserves the validity of the exercise of power where there has been a failure to provide the name or place of duty when exercising a power (other than in relation to a single person), there is no such preservation in relation to the failure to nominate the power being exercised.

114. In these circumstances, in my view, the failure to proffer the reason for the seizure also rendered the seizure unlawful. On the facts of this case, it cannot be said that the lawfulness can be preserved by reason that the seizure was “obvious” or that “the officer had a sound basis for believing that the suspect knew the reason” (as set out by Basten JA in New South Wales v Randall [2017] NSWCA 88 at [31]-[32] in relation to the effect of the failure to provide a reason someone’s arrest). See too State of New South Wales v Abed [2014] NSWCA 419 and Murphy v The State of New South Wales [2023] NSWSC 407 in relation to the inadequate provision of the reason for a person’s arrest which resulted in the finding that the arrest was unlawful. Further, I do not accept the defendants’ contention that the exercise of a power to seize property, especially where that property is a mobile phone, is necessarily “markedly less invasive” than an arrest such as would justify any dilution of the consequences of the failure to comply with s 202 as occurred in the cases just cited.

Common law power to seize in the context of a search under the Firearms Act

115. I now go on to consider the argument that Constable Lothian seized the goods pursuant to a common law power, albeit, even if he did, he failed to nominate this reason when exercising the power to seize and thus, s 202 would also apparently render such a seizure unlawful.

116. In my view, the common law power of seizure does not apply in the circumstances of this case. In coming to this view, I have kept in mind the principles conveniently set out by Garling J in DPP v Tamcelik [2012] NSWSC 1008; 224 A Crim R 350 (Tamcelik) at [72]-[78] when his Honour dealt with the doctrine of “chance discovery” in the context of the purported exercise of police powers in Part 6 of the LEPR Act. (I note that some of the principles referred to by Garling J have also been stated more recently by the High Court as set out above at [85].) Garling J stated:

“The starting point for statutory interpretation is to engage in a purposive construction, that is, to prefer a construction which promotes the purpose and/or the object underlying an act: Carr v Western Australian [2007] HCA 47; (2007) 232 CLR 138 at [5]-[6] per Gleeson CJ.

In Thompson v Australian Capital Television Pty Ltd [1994] FCA 1042; (1994) 54 FCR 513 at [29], Burchett and Ryan JJ said:

"Statutory reforms removing a particular plank from the edifice of the common law do not necessarily bring down whole sections of the structure just because a rule expressly changed or abolished had an historical or a logical connection with other rules of the common law. To forbid such a consequence, the rule has been established (and should be adhered to: Corporate Affairs Commission of NSW v Yuill (1998) 100 ALR 609 at 610 per Brennan J) that Acts altering the common law should be construed as doing so only so far as is necessary to give effect to their provisions: Hocking v Western Australian Bank (1909) 9 CLR 738 at 746; American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 37 ALR 613 and 616."

As the plurality, Mason CJ, Brennan, Gaudron and McHugh JJ said in Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 436-437:

"An insistence on the necessity for express words as in conformity with earlier judicial statements in England, which call for express authorisation by statute of any abrogation or curtailment of the citizen's common law rights or immunities. Thus in Raymond v Honey, Lord Bridge of Harwitch stated that 'a citizens right to unimpeded access to the courts can only be taken away by express enactment'. And, in Morris v Beardmore, Lord Scarmon observed: 'when for the detection, prevention, or prosecution of crime, parliament confers upon a constable a power or right which curtails the rights of others, it is to be expected that parliament intended the curtailment to extend no further than its express authorisation'. The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities, but has also determined upon abrogation or curtailment of them."

The context in which the High Court of Australia was considering the English authorities in Coco, was whether various statutory provisions conferred power on a judge to authorise entry onto premises for the purpose of installing and maintaining a listening device in circumstances where that entry would have otherwise have constituted a trespass.

At 435 their Honours noted:

"Every unauthorised entry upon private property is a trespass, the right of person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right ... In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorised or excused by law ..."

As well, it is necessary to have regard to the context and purpose of the statute. The principles of statutory interpretation have been recently restated with clarity by Allsop P, with whom Giles, Hodgson, Tobias and Macfarlan JJA agreed, in Wilson v State Rail Authority of NSW [2010] NSWCA 198; (2010) 78 NSWLR 704 at [12] ff, in these terms:

" 12 I am mindful that any initial engagement with enactment history and context might be misunderstood as part of any enquiry as to the subjective intent of legislators or policy advisers so that such divined intent can be transferred to the words used by Parliament. Such an enquiry would be misdirected. It is the language of Parliament that must be interpreted and construed: Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at 384-385 [12]-[16] (Spigelman CJ), 398-403 [158]-[185] (Mason P), 403 [191] (Beazley JA) and 403 [192] (Giles JA). However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, and a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect. The foregoing principles can be taken from the following: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-424, specifically approved by the Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) in Bropho v Western Australia [1990] HCA 24; 171 CLR 1 at 20; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 at 99 (Toohey, Gaudron and Gummow JJ), 112-113 (McHugh J); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381-382 [69]-[71] and 384 [78] (McHugh, Gummow, Kirby and Hayne JJ); Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at 23 [49] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Eastman v Director of Public Prosecutions of the Australian Capital Territory [2003] HCA 28; 214 CLR 318 at 322 [1] (Gleeson CJ agreeing with Heydon J) 330 [32] (Gummow J agreeing with Heydon J), 331 [34] (Kirby J agreeing with Heydon J), 331 [35] (Hayne J agreeing with Heydon J), 331 [36] (Callinan J agreeing with Heydon J) and 368 [140] and fn 99 (Heydon J); Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; 218 CLR 273 at 280-281 [10]-[11] (McHugh ACJ and Gummow and Hayne JJ), 305-306 (Kirby J, in dissent, though not in expression of principle); Minister for Immigration and Citizenship v SZJGV [2009] HCA 40 at [8]-[9] (French CJ and Bell J), [47]-[48] (Crennan and Kiefel JJ), cf [19]-[20] (Hayne J), though compare Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 and Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [33]-[34]; and see also the Interpretation Act 1987 (NSW), ss 33 and 34."

In particular, I note what Dixon CJ said in Commissioner for Railways (NSW) v Agalianos [1995] HCA 27; (1955) 92 CLR 390 at [5]:

"...the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed."”

117. At [61]-[64] of Tamcelik Garling J stated:

“The first principle deals with the inability of police officers to enter private property and to seize goods from that private property without having a statutory entitlement so to do: such as by being in possession of a search warrant, or as Part 2 of LEPRA allows, to quell a breach of the peace, or in another specified emergency.

The second principle deals with the doctrine which has become known, in a shorthand way, as the doctrine of "chance discovery". This deals with the circumstances in which items are discovered collaterally with the purpose of the presence of police on premises: such as being present in premises pursuant to a search warrant dealing with the presence of stolen goods, when pornographic material shared on computer hardware is discovered.

Historically, the common law refused to permit a police constable (or a government official) to enter private property without the permission of the occupier: George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at [4]; Entick v Carrington (1765) 19 State Tr. 1029. Whilst the basis for this principle was initially the individual's right of private property, more recently, the justification rests on the protection of privacy.

So important is this basic common law right, that it is enshrined in the American Constitution by the Fourth Amendment: "The right of the people to be secure in their persons, house, papers and effects, against unreasonable searches and seizures, shall not be violated ...". Kirby J in New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 at [22], described it as

"...a precious feature of our type of society and the happiness of its people..."”

118. I pause here to observe that it can be remembered that Ghani dealt with a warrantless search (and seizure) involving the investigation of the crime of murder. It was warrantless because at the time a search warrant could not be obtained for that crime. That can be contrasted to the present day. These days detailed statutory regimes exist for the execution of search warrants in different situations. There are also powers of warrantless search provided for under statute including in the Firearms Act relating to those who are subject to an FPO, and in more general circumstances under Part 4 of the LEPR Act, both with specific related seizure powers.

119. Garling J then discussed the “doctrine of chance discovery” noting at [67] of Tamcelik: “In Ghani v Jones [1970] 1 QB 693 at 807, a case dealing with return of seized items, Lord Denning MR said that the freedom of the individual, whose privacy and possession were not to be invaded except for the most compelling reasons, had to be balanced against the interests of society at large in finding out wrongdoers and repressing crime”.

120. Garling J then set out the five criteria identified by Lord Denning in Ghani required to be satisfied to enable the common law powers of warrantless seizure to be used:

“At 708-709, the Master of the Rolls set out the following proposition, which assists in understanding where that balance is to be struck:

"Balancing these interests, I should have thought that, in order to justify the taking of an article, when no man has been arrested or charged, these requisites must be satisfied:

First: the police officers must have reasonable grounds for believing that a serious offence has been committed - so serious that it is of the first importance that the offender should be caught and brought to justice.

Second: the police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber).

Third: the police must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is an accessory to it, or at any rate his refusal must be quite unreasonable.

Fourth: the police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned.

Finally, the lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards."”

121. In T**amcelik Garling J concluded that the common law principles of chance discovery were not applicable in the circumstances of entry under Part 6 of the LEPR Act. In coming to that conclusion, his Honour considered the substance of the provisions, and the legislative requirement, for instance, of the need to obtain a warrant under s 83 if a police officer is denied entry to a dwelling, even in circumstances suggesting some urgency. Garling J also noted the limits provided by s 85 in relation to actions a police officer may take inside a dwelling in the context of such an attendance. Further, Garling J noted that there was no express provision providing an exception to the restrictions, and essentially if an officer was on the premises for the purpose of dealing with a domestic violence offence, the policer officer is limited to action dealing with that domestic violence offence.

122. In finding that the common law powers were still available when dealing with s 21 of the LEPR Act, (within Part 4 of that Act) Wright J in Carvana, noted the general powers conferred by that section in relation to the whole range of offences identified in s 20 which includes indictable offences generally. Wright J also helpfully set out the following at [182]-[183]:

“Ghani has been accepted in New South Wales as relevantly stating the law, not only in Greer, but also in a number of other cases including G H Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635 at 640 (Mahoney J) and the cases there referred to; Tye v Commissioner of Police (1995) 84 A Crim R 147 at 151 (Studdert J); and R v Elomar and Ors (No 11) [2009] NSWSC 385 at [54]-[55] (Whealy J). In addition, Ghani has been relied upon in the High Court on a different but related issue, without adverse comment in relation to the principles referred to above: Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177; [2020] HCA 14; 94 ALJR 502; 376 ALR 575; 280 A Crim R 356, for example at [118] (Gageler J), and [274]-[275] (Edelman J). The relevant principles in Ghani also appear consistent with earlier statements of the law including what was said by Wright J in R v Lushington*, ex* parte Otto [1894] 1 QB 420 in which it was held at 423-424:

“… I take it that it is undoubted law that it is within the power of, and is the duty of, constables to retain for use in Court things which may be evidences of crime, and which have come into the possession of constables without wrong on their part. …”.

Nonetheless*, Ghani* has not always been held to be the law in the Federal Court or the Victorian Supreme Court. Most recently, differing views in relation to the principles in Ghani have been expressed by the three members of the South Australian Court of Appeal in Middlin-Hannah v The Queen [2020] SASCFC 112. At [63], Kourakis CJ said:

“Doubts have, on occasion, been expressed on the correctness of the decision in Ghani v Jones on the grounds that it was, a now unjustified, reaction to the surprising slowness of the legislature to provide police with the statutory powers required in contemporary contexts. However, it remains authoritative and has been followed many times in Australia. It is soundly based on the long recognised high public interest in the enforcement of the criminal law. The power to seize items reasonably believed to be of evidentiary value, and to retain them for so long as it is reasonably necessary for a police investigation and prosecution, should generally be recognised. It is enlivened whenever police lawfully discover such items, whether pursuant to a power like that conferred by s 68 of the SOA, when invited onto residential or commercial premises or otherwise seen in public places. It will also apply to apparently lost or misplaced items found or delivered to police, even when it is possible to ascertain the owner. It is, of course, open to the legislature to abrogate the power expressly or by codifying police powers. That is not this case.”

[Footnotes omitted]

At [122], Livesey J took a different approach saying:

“The weight of Australian authority appears to be against recognising any extension of the common law along the lines of Ghani v Jones. In my view, that is not a step that this Court should now take in circumstances where, over the last century and a half, the powers available to South Australian police have been so clearly extended by legislation, such as, but not confined to, the Summary Offences Act and the Controlled Substances Act 1994 (SA). In addition, neither party addressed whether Ghani v Jones does, or should, represent part of the common law of Australia.”

The third member of the Court, Bleby J, at [163], concluded that it was not necessary to reach a view as to whether Ghani v Jones should be treated as authoritative in Australia.”

Even if it applied, the common law test was not satisfied

123. The plaintiff argues that even if those common law powers were potentially available in these circumstances, the defendants would fail the test at the first hurdle as the police officers could not have had “reasonable grounds for believing” that a serious offence has been committed (that is, the first Ghani requirement). I accept that the concept of “reasonable belief” is a more stringent concept than “reasonable suspicion”. As stated in George v Rockett (1990) 170 CLR 104; [1990] HCA 26 at [14], “The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief. […] Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.” It involves an objective test, and whilst it may be based on hearsay or inadmissible material the material must have some probative value: Hyder v Commonwealth of Australia [2012] NSWCA 336; 217 A Crim R 571 at [15].

124. I agree with the plaintiff’s submission that even if common law powers were available to the police on the facts as I have found them in this case, the first hurdle as set out in Ghani has not been satisfied. In my view, there was clearly insufficient material to form the basis for “reasonable grounds for believing that a serious offence had been committed.” The only material available to the police was one intelligence report, with the starkest of allegations, with the supporting material merely indicating one visit to the plaintiff’s workplace by OMCG members to assault another person, followed by the plaintiff failing to assist police. Even when combined with the finding of approximately $8,000 cash in the vehicle this material does not constitute, in my view, reasonable grounds for belief that a serious offence has been committed. When the following matters are added any such basis becomes even more flimsy: the credible explanation which was immediately offered to the police by the plaintiff and Mr BB on the finding of the money; no sense of alarm or discomfort from either men when the vehicle was being searched; and indeed, full co-operation and an offer to police by the plaintiff to open parts of the vehicle in order to assist police.

125. In my view, the defendants’ submissions (which I noted in fairness were written prior to the oral evidence being adduced) that the s 36 power was being exercised concomitantly with the Firearms Act power simply falls away in light of all the evidence.

Common law seizure powers not available in the context of an FPO search

126. In any event, I am of the view that common law seizure powers were not available to the police in the circumstances. In coming to this conclusion, I note the following.

127. I note that s 4(1) of the LEPR Act provides that the Act does not limit “the functions obligations and liabilities that a police officer has a constable at common law” unless provided for “expressly or by implication”. Unlike s 4 of the LEPR Act, the Firearms Act does not have any equivalent explicit preservation of the common law.

128. There is no NSW authority which holds that the common law seizure powers apply in the context of an FPO search. In my view, in light of the particularly strict regime in the context of the Firearms Act given its public safety focus, such a seizure power should not be readily inferred absent any legislative provision.

129. Further, unlike ss 21 and 36 in Part 5 of the LEPR Act, as set out above, a search pursuant to s 74A has a low threshold for its proper exercise, only needing it to be “reasonably required” for the purposes of determining whether a person who is subject to an FPO has committed a firearms related offence. That is a lower level of satisfaction than that needed for a police officer to conduct a search and seize goods without a warrant pursuant to such search under Part 5 of the LEPR Act. Sections 21 and 36 of the LEPR Act require a suspicion “on reasonable grounds” that a relevant offence has been committed (which includes indictable offences and offences under the Firearms Act).

130. In addition, as noted above at [87] FPOs never expire, unless revoked by the Commissioner. In these circumstances, anyone who is the subject of an FPO, no matter when it was imposed can be searched on the basis of a very low threshold. This is thus a power of immense reach, affecting progressively more and more citizens of New South Wales. In accordance with the principles set out above, it behoves the courts to construe this power strictly for the purpose for which it was intended and not as the springboard for a significant extension of police seizure powers: see North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [11].

131. The limited power to seize following an FPO is also recognised by the Standard Operating Procedures set out above at [13], and is limited to seizing firearms, firearms parts and ammunition. Also recognised by the Standard Operating Procedures is that any seizure which goes beyond these items must be pursuant to an additional authority which must be identified.

132. An additional avenue of seizure power was readily open to police by way of a crime scene warrant pursuant to Part 7 of the LEPR Act. Such warrants have clearly been used by police in cases such as R v Nunan [2025] NSWDC 293 and R v Shaitly [2019] NSWDC 762. The plaintiff and Mr BB were cooperating patiently even though they were clearly very tired. I note that all the police officers involved with the plaintiff on 2 October 2025 were very junior and in the first year or two of service and it was appropriate that they took time to seek the advice of their senior officers by phone. Similarly, they could have, but did not, contact an authorised officer to apply for a crime scene warrant. If such an application had been successful (which is not beyond doubt on the circumstances known to the Court), such a warrant could potentially have provided the police with a power to seize the items (s 95(1)(m) of the LEPR Act).

133. I do not accept, as contended for by the defendants without evidence, that the seeking of a crime scene warrant in these circumstances would “lead to the complete paralysis of operational policing and would prevent police officers from taking any meaningful action in response to any suspected or perceived criminal act”.

134. I note too that if the police had applied for a Crime Scene Warrant, they would also have been entitled to apply for a ‘digital evidence access order’ in relation to the plaintiff’s phone (s 76AB of the LEPR Act). It is worth noting that this would require an eligible issuing officer, when determining whether there were reasonable grounds to issue a digital evidence access order, to consider the reliability of the information on which the application is based, including the nature of the source of the information (s 76AI of the LEPR Act).

135. Given the absence of any statutory or common law power to seize the cash or the phone, I have concluded that the seizure of those items was unlawful.

Discretion

136. Having concluded that the cash and the phone were unlawfully seized, I then must consider if the police should nevertheless be permitted to retain them, at least for a time, in particular to allow the phone to be the subject of a Premium Cellebrite download.

137. The onus of establishing an entitlement to keep unlawfully obtained property rests upon the defendants: Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177; [2020] HCA 14 per Gageler J at [134]; Edelman J at [278] (Smethurst*)* (although in the minority as to the outcome, that principle was not in issue).

138. In considering whether the defendants have discharged this onus, I note the following matters. First, I note the particular character of a mobile phone and the vast amount of data and personal information it is likely to carry. This has been recognised in a number of contexts including by the High Court in Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 at [1] and [43] as well as by the joint parliamentary committee which prepared a report on the proposed amendments to the Firearms Act as set out above. It has also been the subject of comment in Riley v California 573 US 373 (2014) which, now more than ten years ago, stated the following:

“The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos […] The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video— that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labelled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier.”

139. Brief similar observations were made by Gageler J in Smethurst at [126].

140. Further, in my view, this case is to be distinguished from Smethurst*.* Not only did Smethurst involve the execution of a search warrant which was later found to be unlawful only because of various inadequacies in the description of the offences, but unlike this case, the plurality of the High Court in Smethurst stated at [104], “there is nothing hypothetical about the possibility of prosecution […] and the information held by the AFP exposes them [Ms Smethurst and her employer] to the risk of prosecution”. In contrast, in the instant case, there is only one intelligence report, and no suggestion of any pending prosecution against the plaintiff in the foreseeable future. There does not appear to be an investigation on foot (other than one purportedly arising from the impugned seizure, which I will leave to one side), let alone a prosecution. The highest it appears to get is in the “recommendations” section of the intelligence report which said to keep a lookout for the plaintiff, record all interactions and patrol the plaintiff’s business premises. In my view, this does not fit into the category of cases discussed by Hill J cited in Smethurst at [102]:

“As Hill J observed in Puglisi v Australian Fisheries Management Authority, the preponderance of opinion in relation to the exercise of discretion tends to be in favour of refusing to order the return of things, even when they have been illegally seized, if there are criminal proceedings pending in which the items may be used as evidence.”

[Footnotes omitted]

141. Nor do these circumstances fit within the circumstances discussed in cases cited by the defendants: Malone v Metropolitan Police Commissioner [1980] QB 49; Fantakis v Commissioner of Police [2013] NSWSC 685 (and the cases cited therein); or Joukhador v Commissioner of Police [2020] NSWSC 227; 281 A Crim R 456. There simply does not appear to be any investigation on foot, or any criminal proceedings pending.

142. Further, the incorrectly drafted warrant in Smethurst permitted the police to perform a targeted download of the phone. It was also noted by Nettle J (in joining with the plurality, permitting the retention of the download which had already occurred) that “it is not suggested that the unlawfulness of the search and seizure was the result of anything other than an honest error made in the course of a bona fide attempt to comply with the provisions of Pt IAA of the Crimes Act (by reason of the misdescription of the suspected offence in the warrant), it is difficult to see that the unlawfulness of the search and seizure, of itself, should be regarded as so obliquitous as to render continued detention and use of the information inequitable.” That is far from the case here.

143. Accordingly, given there is no apparent investigation on foot, no pending prosecution, insufficient evidence to ground a reasonable belief that a serious offence has been committed, and the extraordinarily invasive nature of a police interrogation of all material available on a mobile phone, I am of the view that it is not appropriate to allow the police to retain the items, nor to conduct any copying or interrogation of the phone, prior to its return.

Conclusion

144. The defendants have failed to persuade me that the public policy considerations are such that I should exercise my discretion in favour of the defendants to allow them to interrogate the phone before returning it, or to retain the cash for any length of time. The cash and the phone should be returned to the plaintiff forthwith without any further investigation being made of the phone.

Orders

145. Accordingly, I make the following orders pursuant to s 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW):

146. The following property which came into the possession of the police on 2 October 2025 having been seized from the plaintiff’s vehicle is to be delivered to the plaintiff forthwith:

(a) The cash in the sum of $8,450; and (b) The mobile phone.

2. In the event that an interrogation of the mobile phone has already occurred, the product of any interrogation must not be reviewed, copied or disseminated by the defendants or their agents.
3. The defendants to pay the costs of the plaintiff.

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