By Paul Gregoire and Ugur Nedim
New South Wales man Hayden Brown appeared before Blacktown Local Court in July 2025, after he’d been arrested and charged with having a concealed knife in public, following NSW police officers having spotted a group of young people wearing dark clothing at about 2.20 am on a Friday morning, and nearby a hotel after closing hours, in the Greater Sydney outer-suburb of Richmond.
NSW police had been called out due to reports regarding a dishonesty offence, or a crime of deception to gain an advantage, having occurred in the vicinity of Richmond. The officers later explained that the group was also gathered in a known “hotspot for antisocial behaviour”, and one of the group, not Brown, was already known to police for their history of committing dishonesty crimes.
After the officers searched Brown, he was subsequently charged with one count of custody of a knife in a public place, contrary to section 93IB of the Crimes Act 1900 (NSW). This offence carries up to 4 years prison time and/or a $4,400 fine. The crime also captures possessing a knife at a school, and a person can raise a reasonable excuse as a defence, but self-defence cannot be that excuse.
NSW Magistrate Bree Chisholm found Brown guilty of this crime when he came before the lower court on 24 July last year. However, there had been a question as to the legality of the search that located the knife on Brown. And this was a question her Honour considered on a voir dire, or at a pre-trial hearing, in order to determine whether it had been a legitimate procedure.
Brown then lodged an appeal against conviction to the NSW District Court on the ground that the actions of the police which led to the locating of the knife amounted to an illegal search, pointing out the conduct was not in accordance with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), also known as the LEPRA, and the probative value in admitting the evidence derived from the search was outweighed by the undesirability of admitting evidence of that type, and hence did not pass the admissibility test contained in the Evidence Act 1995 (NSW).
The police power to search citizens
NSW District Court Judge Robert Newlinds explained in his 5 March 2026 judgment that the case turned on whether the search of Brown had been legal and therefore, admissible at trial. But further, as was the case at trial, if the search was not legal, then whether a mechanism in the Evidence Act 1995 (NSW) could still result in the disputed evidence being admitted.
Section 21 of the LEPRA provides that NSW police officers may “stop, search and detain a person”, as well as anything in their possession or in their control, without a warrant, if the officer “suspects on reasonable grounds” that one of a number of circumstances exists.
The circumstances that can lead to a genuine search include the person being in possession of anything stolen or unlawfully obtained, or the person has in their control a thing to be used or is connected to the “commission of a relevant offence”, or the person has a dangerous article in a public place, as well as whether the person has in their possession an illicit drug or an illegal plant.
On locating any of these items that appear to reveal the guilt of the individual being searched, a police officer can then seize and detain these items.
A dangerous article can be a firearm, a prohibited weapon under the Weapons Prohibition Act 1998 (NSW), a spear gun, an article that isn’t a firearm but can be used to discharge “any irritant matter in liquid, powder, gas or chemical form or any dense smoke, or any substance capable of causing bodily harm”, as well as a fuse that could be used with an explosive, or being in possession of a detonator.
Reasonable grounds of suspicion
The question that had to be determined prior to Brown’s trial and at his appeal in March was whether the NSW police officer who searched him had “reasonable grounds” to hold a suspicion that permitted them to carry out the search legally. And as Judge Newlinds pointed out, the authority on this question is the 2001 NSW Court of Criminal Appeal case R versus Rondo.
His Honour explained that the steps set out by the authority of Rondo to determine whether an officer might hold reasonable grounds of suspicion begins with whether there was a factual basis for the suspicion to have been held, and this must be a reasonable belief that is predicated upon more than just a mere possibility.
The second part involves a two-step process to ascertain whether the grounds of suspicion were reasonable. The first being whether there was a factual basis for the suspicion to have been held, and from there, the part, which is often referred to as the objective question, involves whether, given the circumstances at the time, the grounds relied upon were reasonable.
Admitting illegally obtained evidence
Judge Newlinds then explained that Magistrate Chisholm found during the voir dire process, that as the search of Brown had not been legal then the test contained in section 138 of the Evidence Act 1995 (NSW) was consulted. This is a provision that, in some cases, allows a court to continue to include illegally obtained evidence at trial.
Section 138 of the Evidence Act maintains that if evidence at trial “was obtained improperly or in contravention of an Australian law or in consequence of an impropriety or of a contravention of an Australian law” then that evidence is “not to be admitted unless the desirability of admitting” it “outweighs the undesirability” of not admitting evidence that has been obtained unlawfully.
This section of the Evidence Act further provides that if a questioning police officer omitted facts or provided false statements to a suspect being questioned, then any evidence obtained is said to have been secured wrongfully.
And in ascertaining whether unlawful evidence should be admitted, a judge has to consider its probative value, its importance, the nature of the offence, “the gravity of the impropriety or contravention”, whether it was intentional or reckless, whether civil or political rights have been breached, whether the matter has been tried before and the difficulty involved in obtaining it.
Determinations on appeal
Judge Newlinds explained that Magistrate Chisholm, in the busy circumstances of the Local Court, had considered the “reasonableness of the suspicion”, which misstates the proper legal approach. And in pointing to Rondo, the judge outlined that what he considered was at hand was whether the officer had breached Brown’s right not to be stopped and searched.
His Honour further explained that the magistrate had relied on particular grounds in considering if relevant suspicion had been formed as per the LEPRA, which included the officers having been called out in relation to a dishonesty offence, that the group was darkly clothed, out late and in a hotspot for antisocial behaviour, and Brown was in the company of a person known to police.
The NSW District Court judge then underscored that none of these were legitimate grounds on their own, but the further question was whether all of these grounds taken together in their totality could then be said to have provided reasonable grounds for the search. And his Honour did not consider that in taking all these circumstances together, that reasonable grounds were provided.
So, that left the question as to whether the resulting evidence of a knife in the possession of Brown was of such importance that it ruled out the illegal circumstances in which it had been obtained. And his Honour then pointed out that in considering the provisions, the evidence wasn’t just probative and important, but the prosecution’s entire case relied upon this one piece of evidence.
Judge Brown then considered the “gravity of the impropriety” that occurred in conducting the illegal search, of which he found was “a weighty matter”, as the right that members of the general public have to go about their daily life without being detained and searched by police is significant.
“I would add that the protections society provides to people are not only protections for innocent members of the community who find themselves wrongly suspected of criminal activity, they are also there to protect non-innocent members of the community who find themselves suspected of criminal activity,” his Honour set out.
“Such people do not lose their rights just because they are suspected of criminal activity. That suspicion must be based on reasonable grounds.”
Appeal made out
Judge Brown then determined not to admit the wrongfully obtained evidence based on the considerations contained in the Evidence Act. This was despite the seriousness of knife crime in this state in general. And there were no other reasons put forward to have convicted Brown.
On 5 March 2026, his Honour then allowed the appeal. He further set aside the orders of Magistrate Chislom, and he then entered a verdict of not guilty against Brown’s name.
