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R v Nunan

R v Nunan

Case [2025] NSWDC 293 20 June 2025

Drug offences

Admissibility of Evidence

Criminal Liability

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Nunan [2025] NSWDC 293
Hearing dates: 16, 17 and 18 June 2025
Date of orders: 20 June 2025
Decision date: 20 June 2025
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
The proposed evidence of the results of the Firearms Prohibition Order search and subsequent Crime Scene Warrant is admissible at trial

Catchwords:
CRIME — Drug offences — Cultivate prohibited plant — Possess prohibited plant — Enhanced indoor cultivation — Knowingly take part in enhanced indoor cultivation — Commercial quantity — Supply prohibited drug
CRIMINAL PROCEDURE — Trial — Voir dire —Pretrial hearing — Firearms Prohibition Order — Police powers— allegations of impropriety
EVIDENCE— Admissibility of illegally obtained evidence

Legislation Cited:
Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW)
Evidence (Audio and Audio Visual Links) Act 1986 (NSW)
Firearms Act 1996 (NSW)
Law Enforcement Powers and Responsibilities) Act 2002 (NSW)

Cases Cited:
Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811
Dowe v R [2009] NSWCCA 23
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1
NSW v Corbett [2007] HCA 32
R v Dennis [2005] NSWCA 118
R v Slattery [2002] NSWCCA 367
Ridgeway v The Queen [1994] HCA 66; (1994) 184 CLR 19
Robinson v Woolworths Ltd [2005] NSWCCA 426

Category: Principal judgment
Parties: Luke Bernard Nunan (the accused)
Director of Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
N Allan (for the accused)
C Triscari (for the Crown)
Solicitors:
Boom Lawyers (for the accused)
Solicitor for Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2022/254160

JUDGMENT

Notes:

This judgment was prepared without the advantage of a transcript.
No publication except to legal advisors until conclusion of any jury trial.
Unless otherwise indicated, a reference to a section is a reference to the Firearms Act 1996 (NSW).

Introduction

On 15 October 2021 a delegate of the NSW Police Commissioner signed Firearms Prohibition Order (‘FPO’) and Weapons Prohibition Order (‘WPO’) in relation to Luke Bernard Nunan.
It is now accepted that those Orders were served on Mr Nunan on 19 January 2022.
The rationale for the Order can be found in a 15 January 2022, COPS entry relating to information about – "drug supply and possession or sourcing of firearms": Voir Dire Exhibit A, pp 128 and 129.
During the latter half of 2002, the South East Regional Enforcement Squad (‘SERES’) planned a visit to the south coast to enforce FPOs.
Plain Clothes Senior Constable (‘SC’) Bell made an email request that Nunan be "added to this op”: Voir Dire Exhibit A, p 19. SC Bell noted, "I currently have an active job running on him”. Later in the email he said Nunan's risk assessment was high”: Voir Dire Exhibit A, p 19. In evidence he explained because of the possibility Nunan may have possession of a 12 gauge shotgun at the premises police where being asked to search: Evidence, 16 June 2025.
In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Nunan

Details

AGLC: R v Nunan [2025] NSWDC 293
Case: [2025] NSWDC 293
Decision Date: 20 June 2025

CaseChat Overview and Summary

The defendant, Mr. Nunan, was charged with various drug-related offences including cultivating and possessing prohibited plants, engaging in enhanced indoor cultivation, and supplying prohibited drugs. The case was heard in the Supreme Court of Victoria. The dispute primarily revolved around the admissibility of evidence obtained through a search conducted under a Firearms Prohibition Order and a subsequent Crime Scene Warrant. The defence argued that the evidence was obtained improperly and should be excluded.

The court needed to decide whether the evidence obtained through the search was admissible. This involved determining whether the Firearms Prohibition Order was validly issued and whether the search was conducted within the legal framework. Additionally, the court had to assess if the evidence obtained was tainted by any procedural irregularities, which could render it inadmissible. The admissibility of evidence obtained under a warrant was also examined, considering whether the warrant was issued based on sufficient evidence and whether it complied with legal requirements.

The court concluded that the Firearms Prohibition Order was validly issued and that the search was conducted in accordance with the legal framework. The court found that there were no procedural irregularities that would render the evidence inadmissible. The evidence obtained from the search was deemed reliable and relevant to the case. The court also determined that the Crime Scene Warrant was issued based on sufficient evidence and complied with legal requirements. Therefore, the evidence obtained through the search and the subsequent Crime Scene Warrant was held to be admissible at trial.

The court ordered that the proposed evidence of the results of the Firearms Prohibition Order search and the subsequent Crime Scene Warrant be admitted at the trial. This decision allowed the prosecution to use the evidence obtained through the search and warrant in their case against Mr. Nunan.

Orders

Orders of the court

The proposed evidence of the results of the Firearms Prohibition Order search and subsequent Crime Scene Warrant is admissible at trial

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Nunan [2025] NSWDC 293

Most Recent Citation

Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 105

Cases Citing This Decision

AA v Constable Michael Moore [2025] NSWSC 1241
Citation 1 (Para 132)

…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 po…
Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 105
Citation 2 (Para 6)

…ce, the primary judge failed to give proper effect to s 8, which is set out at [20]. Reliance was placed on Whan v McConaghy (1984) 153 CLR 631 and Reg v Nunan (1999) 108 A Crim R 1 for the proposition that the specification of dates by a judge under s 8, whilst not forming part of the sentence, fixes the period of t…

See all citing cases →

Cases Cited

State of New South Wales v Dennis [2025] NSWCA 118
Citation 1 (Para 88)

…read into it any further limitations. A Court cannot rewrite the language of the statute without proper regard to its intended purpose: NSW v Dennis [2025] NSWCA 118 at [135].…
Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811
Citation 2 (Para 67)

…Relying on a passage in Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811 at [19], he submits that the scope of the search power in s 74A is reduced. He accepted that the decision in Shaba was persuasive, but he submitted a different issue arose here. Section 74A, he said, could not be construed to per…
Dowe v The Queen [2009] NSWCCA 23
Citation 3 (Para 97)

…en if the request made by SC Bell was for an improper motive, that the search undertaken was lawful: for an example of similar reasoning see Dowe v R [2009] NSWCCA 23.…
State of New South Wales v Corbett [2007] HCA 32
Citation 4 (Para 73)

…against intrusion by State agencies into a person's home. The common law rules are strictly applied: see cases summarised by Kirby J in NSW v Corbett [2007] HCA 32 at [16] to [22]. In Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1 at [20] Brennan J observed:…
R v Tolley [2004] NSWCCA 165
Citation 5 (Para 53)

…hat is to control the possession and use of firearms in the community by honest citizens, and not simply to disarm the criminally minded": R v Tolley [2004] NSWCCA 165 at [53].…
R v Slattery [2002] NSWCCA 367
Citation 6 (Para 54)

…accept Mr Allan's suggestion that this made checking his evidence difficult. A fact that requires his evidence be scrutinised carefully: R v Slattery [2002] NSWCCA 367.…
Ridgeway v the Queen [1995] HCA 66
Citation 7 (Para 72)

…e High Court and the Court of Criminal Appeal and s 138 Evidence Act considerations would not be enlivened: Ridgeway v The Queen [1994] HCA 66; (1994) 184 CLR 19; Robinson v Woolworths Ltd [2005] NSWCCA 426.…
Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd [1994] HCA 66
Citation 8 (Para 72)

…y set out by the High Court and the Court of Criminal Appeal and s 138 Evidence Act considerations would not be enlivened: Ridgeway v The Queen [1994] HCA 66; (1994) 184 CLR 19; Robinson v Woolworths Ltd [2005] NSWCCA 426.…
George v Rockett [1990] HCA 26
Citation 9 (Para 73)

…Common law principles, exemplified in the decision in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 and ss 21, 99 and Part 5 LEPR Act , provide some protection against intrusion by State agencies into a person's home. The common law rules are strictly applied: see cases summarised by Kirby J in NSW v Corbet…
Halliday v Nevill [1984] HCA 80
Citation 10 (Para 73)

…home. The common law rules are strictly applied: see cases summarised by Kirby J in NSW v Corbett [2007] HCA 32 at [16] to [22]. In Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1 at [20] Brennan J observed:…
Mitchell v John Heine & Son Ltd (1938) 38 SR 466
Citation 11

…tify a man of ordinary prudence and caution in believing that the acts contemplated here; entry to the premises and the method of entry was required: Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466 at [469]. Not manifestly unreasonable, not arbitrary, not capricious or irrational, that is – bonafide or not mala fide?…

Legislation Cited

Drug Misuse and Trafficking Act 1985 (NSW) 23(1)(a)
2 mentions (from Para 1)
Evidence Act 1995 (Cth) 138
2 mentions (from Para 3)
Firearms Act 1996 (TAS)
1 mention (from Para 3)

Medium Neutral Citation:	R v Nunan [2025] NSWDC 293
Hearing dates:	16, 17 and 18 June 2025
Date of orders:	20 June 2025
Decision date:	20 June 2025
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	The proposed evidence of the results of the Firearms Prohibition Order search and subsequent Crime Scene Warrant is admissible at trial
Catchwords:	CRIME — Drug offences — Cultivate prohibited plant — Possess prohibited plant — Enhanced indoor cultivation — Knowingly take part in enhanced indoor cultivation — Commercial quantity — Supply prohibited drug CRIMINAL PROCEDURE — Trial — Voir dire —Pretrial hearing — Firearms Prohibition Order — Police powers— allegations of impropriety EVIDENCE— Admissibility of illegally obtained evidence
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) Evidence (Audio and Audio Visual Links) Act 1986 (NSW) Firearms Act 1996 (NSW) Law Enforcement Powers and Responsibilities) Act 2002 (NSW)
Cases Cited:	Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811 Dowe v R [2009] NSWCCA 23 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1 NSW v Corbett [2007] HCA 32 R v Dennis [2005] NSWCA 118 R v Slattery [2002] NSWCCA 367 Ridgeway v The Queen [1994] HCA 66; (1994) 184 CLR 19 Robinson v Woolworths Ltd [2005] NSWCCA 426
Category:	Principal judgment
Parties:	Luke Bernard Nunan (the accused) Director of Public Prosecutions (NSW) (Crown)
Representation:	Counsel: N Allan (for the accused) C Triscari (for the Crown) Solicitors: Boom Lawyers (for the accused) Solicitor for Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2022/254160