Brown v R [2026] NSWDC 42 | Case summary | Zoe

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Brown v R [2026] NSWDC 42 | Case summary | Zoe

This is an appeal from a decision of Magistrate Chisholm made on 24 July 2025 at Blacktown Local Court where the learned Magistrate convicted the Appellant of the charge of having custody of a knife in a public place contrary to s 93IB(1) of the Crimes Act 1900 (NSW). This is a serious offence which carries a maximum penalty of four years imprisonment and/or a fine of $4,400.
The crux of the appeal, and of the hearing before the Magistrate, were submissions made on behalf of the Appellant to the effect that the evidence relied upon by the Crown in proving the guilt of the Appellant had been the product of an illegal search of the Appellant in that the power found in s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) was not engaged. If that submission is accepted, the search was illegal. The contested tender of evidence found as a result of that search, being a knife, then engaged the operation of s 138 of the Evidence Act 1995 (NSW) (“Evidence Act”), the Appellant’s submission being the circumstances were such whereby the evidence should be rejected. If that had been the result before the Magistrate, the Appellant would undoubtedly have been acquitted because there was no other evidence but other than the product of the search.
As is well understood, this appeal is a rehearing under s 18 of the Crimes (Appeal and Review) Act 2001 (NSW). It is not an appeal de novo, but rather I have to form my own judgment on the facts so far as I am able to do so, recognising in relation to findings of fact based on demeanour and credit and the like with the significant advantage that Magistrates and judges who actually hear evidence in real time have over someone like me trying to judge evidence from the papers. It is not necessary for such an appeal to succeed for there to be identified any factual or legal error. Ultimately, I am required to consider the material and if I come to a different conclusion than the Magistrate, I must substitute my own decision based on my own findings of the fact and/or law. In other words, if I am satisfied that the Magistrate should not have been satisfied beyond reasonable doubt as the Appellant’s guilt, then I should acquit the Appellant: See for example, Lunney v Director of Public Prosecutions [2021] NSWCA 186 and McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298.
The appeal turns on the ruling as to the admissibility of the disputed evidence which brings into sharp focus the proper construction of s 21 of LEPRA. If the search is found to have been illegal, there is then engaged an exercise of discretion, as required under s 138 of the Evidence Act. The issue was determined by the Magistrate on a voir dire, with uncontested statements of the arresting officers being tendered.
The learned Magistrate was, as is so often the case, dealing with the matter, on the run, in a busy list. However, with respect to the Magistrate and notwithstanding careful submissions that were made to the Magistrate on behalf of the Appellant, I consider the Magistrate misunderstood or misapplied the proper legal test.
In Reyes-Carrion v State of New South Wales [2025] NSWDC 28 (“Reyes-Carrion”) I sought to explain my analysis and understanding as to the proper construction of s 21 and how it is to be interpreted and applied in cases such as this. The topic came up again in Karlsson v R [2025] NSWDC 173 at [13] and [14].
The Magistrate, in a respectful way, indicated that notwithstanding having been taken to what I said in Reyes-Carrion that she did not feel bound by it. That may or may not be right, although, the test as explained by Grove J in Valentine v Eid (1992) 27 NSWLR 615 was not adverted to by the Magistrate. Be that as it may, the Magistrate indicated that, having read the case, it said nothing new because all that was happening was that I was gathering together a series of well-known authorities and that what she took from it was that ultimately the question for her was whether a search was “reasonable” (Transcript 10.27), or that what was required to be identified was “the reasonableness of the suspicion”, that is T11.12, or “reasonableness” in relation to what is described as the objective test at T11.35, or “reasonableness of the suspicion”, at T11.40.
Giving full allowance to the fact that the judgment given by the Magistrate was ex-tempore in circumstances where she was, no doubt, very busy and had other cases to worry about, none of those passages from her judgment, to my mind, do anything other than misstate the proper legal approach.
For clarity and without going back through my reasoning set out in Reyes-Carrion, in my opinion what is required for an officer to engage the power under s 21 of LEPRA to carry out conduct which would otherwise be illegal conduct that involves interfering with people’s right to not be stopped and searched by anyone is as follows:
First, there is what is described as the subjective question. That is a determination as to whether the officer involved actually held a relevant suspicion. Cases like R v Rondo [2001] NSWCCA 540 at [53] explain that such a test is undemanding. There must be some factual basis shown. It can be based on material that would be inadmissible in court, although the material must have some probative value.
Second, there needs to then be a consideration as to whether the grounds for that suspicion were reasonable. That involves a two-step process. The first being a finding of fact as to what grounds were actually relied on by the officer, then the final question, what is sometimes called the objective question being whether those grounds relied on amount, as a matter of law, to reasonable grounds. If there is more than one ground, obviously that question has to be looked as that answered by reference to the totality of the grounds relied upon by the officer.
I think that a significant reason for the separate and distinct steps imposed by the Statute often being misunderstood and misapplied, is that there is an overwhelming desire and tendency of anyone discussing this topic to use the shorthand phrase of “reasonable suspicion”. That is not the statutory test. The statutory test requires, firstly, was there a suspicion, and secondly, the following question to be answered is, was that suspicion based on reasonable grounds?
It is not for a judge second-guessing a police officer’s decision to look at the grounds and consider whether the judge would have held the same suspicion. That would be a legal error but the question of whether grounds relied on are reasonable or not is an objective test to which there is a binary answer. They will either be reasonable or not reasonable. If they are not reasonable, then regardless of the fact that the suspicion is held, the power conferred by s 21 will not have been engaged and thereafter, the interference with the person’s rights by searching them will be a breach of the law.
I think where the Magistrate has gone wrong here, is that there was a failure to clearly delineate between consideration of the subjective belief of the officer on the one hand and her consideration of the grounds relied upon. This caused her to ask the wrong question, that is, whether the suspicion was reasonably held or not. That is to mix together two separate and distinct questions and treat them as one. To do so creates a different and erroneous legal test, inconsistent with what is required by the legislation.
Be that as it may, this being an appeal of the type I have explained, it is necessary for me to come to my own conclusion as to the matters that remain in issue between the parties. I can do that comfortably because there is no submission before me that any findings of fact by the Magistrate made about which she would have had undoubtedly an advantage over me are in dispute, rather it is the legal characterisation of the facts as found. Specifically, whether the grounds relied on by the officer were reasonable grounds.
There is no issue before me as I do not think there was an issue before the Magistrate, that the officer actually held the relevant suspicion, so the question becomes what grounds did the Magistrate find were the basis for that submission and were those grounds reasonable grounds when considered together for the purpose of the Statute.
I will just quickly explain the factual setting.
The Appellant was out late at night in Richmond with some friends or acquaintances. They were near a hotel well after closing hours. They were wearing dark clothing. Police had been called out to a report of a dishonesty offence somewhere in Richmond. They saw the group of people in an area in Richmond which they considered to be a hot spot for “anti-social behaviour” and one of the group (not the Appellant) was known to the police for having a history of crimes of dishonesty.
The Magistrate made the following findings as to the grounds relied upon by the officer when forming the relevant suspicion for the purpose of LEPRA:
The officer had just come from a call out to a job involving a “dishonesty offence”;
The group of people were young men and were seen at about 2.24am on a Friday morning;
The group members were wearing dark clothes;
The group was found in an area that police thought through their experience knew was a hot spot for anti-social behaviour; and
The Appellant was in the company of a known young person.
Dealing with each of those grounds firstly individually, I am comfortably satisfied that none of them on their own are a reasonable ground.
First, to my mind, it is entirely irrelevant without further facts connecting the job that the officers had been earlier called out to for a dishonesty offence to this group of young men. If that was a reasonable ground on its own, every police officer who had been called out to any reported crime on the way back to the station could stop and search anyone they noticed. That would obviously not be a reasonable ground.
Secondly, on its own, the fact that there was a group of young men out late at night in Richmond, to my mind again, obviously could not amount to a reasonable ground when looked at in isolation.
Third, the fact that the group were wearing dark clothes is again to my mind self-evidently not a reasonable ground for suspecting anything other than the people enjoy wearing dark clothes.
Fourth, as far as the area being known as a “hot spot for anti-social behaviour”, accepting comments made by various judges including, in particular, Adamson J in Azar v DPP [2014] NSWSC 132 at [38]-[43], police officers do have experience in identifying areas where criminal behaviour is common, however again, in the absence of any particulars of the area and also in the absence of any explanation as to what “anti-social behaviour” was intended to mean, anti-social behaviour being behaviour that might be simply rude or offensive to people at one end of the scale, all the way through to serious criminal conduct at the other end of the scale, I do not think is sufficient in any event. On its own, the fact that an area is a known hot spot for criminal activity could hardly ever be seen to be a reasonable ground because otherwise everyone walking through any such area for any purpose at any time of day would be liable to be stopped and searched. That is not the law.
Finally, the fact that the Appellant’s friend or acquaintance was a known breacher of the law is to my mind wholly irrelevant and an entirely inappropriate ground to take into account.
The question of whether the fact that a person, the subject of a search, is known to the police to have a criminal record can amount to a reasonable ground has been the subject of considerable discussion in a number of cases. It is sometimes said that on its own, the fact that a person has a criminal record could never amount to a reasonable ground. In Reyes-Carrion at [58]-[68], I sought to analyse some of those cases and came to the conclusion that it would only be in very unusual or extreme cases, that it could be a reasonable ground but that is not this case. Here, the ground relied upon is not that the Appellant was known to have a criminal record but that his friend or acquaintance apparently did. Guilt by association has long been considered a very unfair and inappropriate method of assessment of anyone’s character or propensity to act in any way. In other words, the fact that a person has a friend or acquaintance who might have a criminal record is not on its own a reasonable ground to form a s 21 suspicion. I would hazard a guess that most people who have lived in New South Wales for a number of decades, no matter from what social class or what background, know at least one person who has a criminal record. Sometimes, they might go out in public with that person. That does not mean the police have a basis to search that person.
All that means is, that when I look at each of these grounds, none of them looked at individually amounts to a reasonable ground. That, of course, is not the end of the matter. I then need to consider whether the totality of the grounds relied upon amount to a reasonable ground when taken together. I can imagine circumstances where officers having been called out to a reported crime are given, for example, a description by witnesses as to people involved and then shortly thereafter, see a group of people late at night who fit that description (which might involve them wearing dark clothes) joining the dots if you like between those various factors and that combination of factors may well amount to a reasonable ground but the difficulty here is that there is nothing on the evidence that was before the Magistrate or in any of the Magistrate’s findings that connects any of the dots.
For those reasons, accepting all the matters that the Magistrate found were taken into account by the officer, together, I do not consider that, objectively as a matter of law, they amount to reasonable grounds for the purpose of the exercise of the power under s 21 of LEPRA.
What that means is, I am satisfied that the evidence relied upon by the Crown was illegally obtained.
That takes me to the exercise of discretion under s 138 of the Evidence Act, which the Magistrate did not deal with because the Magistrate had come to the opposite conclusion as to legality.
The law here is that there is a balance required of the various competing matters. The consequences will inevitably involve the rejection or admission of evidence that has at least some probative value for the proof of criminal conduct.
Section 138 of the Evidence Act does provide a non-exhaustive list of relevant factors to be taken into account on that balancing exercise. The first is, the probative value of the evidence and the second is, the importance of the evidence. There is no doubt that the evidence found on the search was not just probative and important to the prosecution case, it was the entirety of the prosecution case and without it, the case must fail. Those factors weigh in favour of admitting the evidence. The nature of the relevant evidence was the carrying of a knife in a public place. The Appellant when questioned said he was carrying the knife for self-defence purposes but, of course, that is expressly no answer to the crime of carrying a knife in a public place. Carrying knives in public places especially by young men is a very serious matter and experience teaches one that the very fact that a person has a knife can cause significant injuries to all sorts of people, including the person carrying the knife, that were not necessarily intended when the person went out that night.
The next question is the gravity of the impropriety as identified. This is, to my mind, a weighty matter.
As I said in Reyes-Carrion at [10] when speaking about the use of these stop and search powers:

Those various observations boil down to this. Police perform a very important role in our society. Part of their role is to protect people from criminal activity. Another is to detect and prosecute crime. Because they perform those important tasks of protection, identification, and prosecution of criminal activity, they are, in certain circumstances, exempt from some laws that apply to all of us for our own protection. Such laws include that, generally, people have no right to stop and search other people.
The same Parliament that makes the laws that the police have a duty to enforce, also makes the laws that delineate the outer edges of police’s ability to interfere with citizens’ rights. I consider it extremely important that those laws, like every other law in society, are complied with. It is not too much to expect police, who have a duty to enforce the law, to themselves comply with the law whilst they carry out that duty. I readily acknowledge that the proper interpretation of s 21 of LEPRA is difficult. A lot of very experienced lawyers struggle with it. I have struggled with it, and I sympathise with young police officers out late at night doing their job, having to make judgment calls in this regard. However, that is part of their job and their duty. There is a strong public policy in police officers properly understanding and properly applying the law relevant to the exercise of their powers. This is so even if the police officer, as here, honestly but wrongly considered that they had the power. Accepting that there will be mistakes made, in this case, the grounds relied on, in my opinion, fall a long way short of the mark. This can only be explained by the officer either not understanding the legal requirements or failing to properly turn their mind to it. As such, the illegality or impropriety can fairly be described as honest but reckless.
When I balance up the various factors as required by s 138, and after giving considerable weight to the seriousness of any crime involving knives, in the exercise of discretion, I reject the evidence the product of the search. That being the case, it is not submitted by the Crown that there was any other basis to support the conviction of the Appellant.
For those reasons, my orders are as follows:
Appeal allowed.
Set aside the orders of the Magistrate.
In lieu thereof, enter a verdict of not guilty.