AA v Constable Michael Moore

1. [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. [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. [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:

4. [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

1. [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:

   1. (1)

      An order that the mobile phone not be interrogated by the defendants or their agents, either by manual or electronic means.

   2. (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. (3)

      Costs.

Plaintiff’s grounds

1. [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.

2. [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.

3. [8]

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

Evidence

1. [9]

   The following evidence was relied upon by the plaintiff:

   1. (1)

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

   2. (2)

      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

   3. (3)

      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.

2. [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.

3. [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.

4. [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.

5. [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):

6. [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.

7. [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.

8. [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”.

9. [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):

10. [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”.

11. [19]

    Under the last heading the following information was provided:

12. [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.

13. [21]

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

14. [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.

15. [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:

16. [24]

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

17. [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.

18. [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.

19. [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:

20. [28]

    Mr BB could not remember which officer said what.

21. [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:

22. [30]

    Mr BB then stated at about this time, one of the officers who was searching the vehicle turned to them and asked, “Whose 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:

23. [31]

    The officer then started counting cash.

24. [32]

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

25. [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.

26. [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.

27. [35]

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

28. [36]

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

29. [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.

30. [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.

31. [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].

32. [40]

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

33. [41]

    The COPS entry included the following information:

    1. (1)

       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].

    2. (2)

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

    3. (3)

       “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.”

    4. (4)

       “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.”

    5. (5)

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

    6. (6)

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

34. [42]

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

35. [43]

    The following evidence was relied upon by the defendants:

    1. (1)

       Affidavit of Constable Michael Moore of 9 October 2025; and

    2. (2)

       Affidavit of Constable Mitchell Lothian of 9 October 2025.

36. [44]

    Both officers were cross-examined.

37. [45]

    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.

38. [46]

    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.

39. [47]

    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.

40. [48]

    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 […]”.

41. [49]

    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.

42. [50]

    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.”

43. [51]

    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.

44. [52]

    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.

45. [53]

    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.

46. [54]

    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.”

47. [55]

    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.

48. [56]

    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.

49. [57]

    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.

50. [58]

    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”.

51. [59]

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

52. [60]

    The other two were redacted.

53. [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”.

54. [62]

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

55. [63]

    Under the heading “Background” it stated:

56. [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”.

57. [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”.

58. [66]

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

59. [67]

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

60. [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.

61. [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.

62. [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.

63. [71]

    Constable Lothian stated that:

64. [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:

65. [73]

    Constable Lothian stated in his affidavit:

66. [74]

    He expanded upon this in examination in chief as follows:

67. [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:

68. [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”.

69. [77]

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

70. [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.

71. [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.

72. [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.

73. [81]

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

74. [82]

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

75. [83]

    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.

76. [84]

    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

1. [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:

2. [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. [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.

4. [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.

5. [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).

6. [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.

7. [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.

8. [92]

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

9. [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:

10. [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.

11. [95]

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

Consideration

1. [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.

2. [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].

3. [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.

4. [99]

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

5. [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.

6. [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.

7. [102]

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

8. [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:

9. [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:

10. [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.

11. [106]

    I then turn to the issue of seizure.

12. [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 cash 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.

13. [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.

14. [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.

15. [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.

16. [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.

17. [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.

18. [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.

19. [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.

20. [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.

21. [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:

22. [117]

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

23. [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.

24. [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”.

25. [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:

26. [121]

    In Tamcelik 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.

27. [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]:

28. [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].

29. [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.

30. [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.

31. [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.

32. [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.

33. [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.

34. [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).

35. [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].

36. [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.

37. [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).

38. [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”.

39. [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).

40. [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.

41. [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.

42. [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).

43. [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:

44. [139]

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

45. [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]:

46. [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.

47. [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.

48. [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

1. [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

1. [145]

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

   1. (1)

      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:

   2. (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. (3)

      The defendants to pay the costs of the plaintiff.