Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811

Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811 · Read the judgment on AustLII

Catchwords: Police powers – Search – Firearms Prohibition Orders

A judge of the Supreme Court has held that police do not need to suspect that a person who is the subject of a Firearms Prohibition Order has a firearm before exercising a related power to search them.

The defendant was the subject of an order under the Firearms Act 1996 (NSW) prohibiting him from acquiring or possessing a firearm. He was stopped for a random breath test, during which the police officer discovered the existence of the order. Section 74A of that Act entitles police to search ‘as reasonably required’ to check whether a person who is the subject of a firearms prohibition order has committed a relevant firearms offence. Despite having no relevant suspicion, the officer conducted a search, during which he found not a firearm, but about 450g of cannabis. He arrested and charged the defendant. At hearing the defendant argued that the power in s74A requires an officer to form a suspicion before exercising the power. The Magistrate found that the search was unlawful (and hence dismissed the charge) on the basis that the officer had no reasonable grounds to believe that the defendant was not complying with the prohibition order. The prosecution appealed.

On appeal to the Supreme Court, Fagan J, sitting alone, held that the power was not confined to circumstances in which the officer formed a suspicion. The words providing that the search could be carried out ‘as reasonably required’ limited the scope of the scope of the search being conducted, and there is no occasion to read into the words a requirement that the officer hold a suspicion or belief of any kind (leave alone one specifically relating to firearms) (at [19]). His Honour found that the argument put forward by the defendant (and accepted by the Magistrate) that such words should be read into the section would be ‘highly unusual, possibly unique, in the field of statutory provisions concerning police powers’ (at [22]-[23]). His Honour found it unsurprising that the power would be so unconstrained, finding that the efficacy of the powers would be reduced if there was a requirement for a suspicion, and secondly the power is relatively narrowly confined in terms of who may be searched and what may be searched for (at [25]-[27]). Notwithstanding arguments made by the defendant that the provisions represented sweeping intrusion upon freedoms with little oversight (at [28]), his Honour found that the intention of the Parliament to abrogate freedom from search to the limited extent provided for in s 74A of the Firearms Act is clear from the terms of the section (at [34]). The prosecutor’s appeal was accordingly allowed, and the matter remitted for hearing according to law.