QUESTIONING the powers of police who found a gel blaster in a search came to an unsuccessful end for a 26-year-old man, whose allegation was dismissed by a magistrate.
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Adam Stewart, 26, of Fish Parade, Gormans Hill pleaded guilty in Bathurst Local Court to having an unregistered firearm, after his matter went to a hearing on July 6, 2023.
Stewart initially pleaded not guilty to the charge on the basis that police unlawfully exercised their powers for a stop and search, but after Magistrate Brian van Zuylen sided with the officers, he changed his plea.
Court documents state police were patrolling the Kelso area about 2.20am on December 27, 2022 when they spotted a man - later identified as Stewart - who appeared to be walking along a highway while drunk.
After stopping and asking if Stewart was ok, police found reason for a search given the area, the time of day and Stewart's "criminal history and intelligence information".
The officers got out of their vehicle and stopped Stewart, who they thought may have had drugs or weapons.
Before the search began, Stewart said he had a paintball gun.
"You don't have anything you shouldn't have?" police asked, as shown on Body Worn Video to the court.
"I've got a paintball gun. I didn't have a bag, it's just a paintball gun," Stewart replied.
"That's probably something you shouldn't have on you," police said.
The court heard Stewart went to give police the gun - which was a gel blaster replica of a handgun - but he was told to leave it in his pants.
The officers took the firearm, and Stewart continued his walk home.
![Bathurst Courthouse, where Adam Stewart questioned police powers on July 6, 2023. Picture by James Arrow Bathurst Courthouse, where Adam Stewart questioned police powers on July 6, 2023. Picture by James Arrow](/images/transform/v1/crop/frm/5QSV2wJYJi8ZgVyWibkV7A/45fbf276-7343-43e7-8a5b-fd0e9fc1f8f3.jpg/r921_586_6715_3885_w1200_h678_fmax.jpg)
Hearing
Police prosecutor Sergeant Jeff Sinton began the hearing by calling one of the officers involved in the matter - Senior Constable Robert Punnett - to give evidence.
Sgt Sinton then played Body Worn Video footage from the incident to the court.
"Can you inform the court what was going through your mind in relation to the search?" Sgt Sinton asked.
"We were driving towards the Gold Panner to another job. From a distance, I could see a figure walking towards us, they were noticeably swaying from side to side," Snr Const Punnett said.
"I was concerned ... I wanted to check they were ok to get home safely ... but when speaking with him [Stewart], he seemed fairly coherent.
"At that stage, based upon the time of the morning, where he was coming from, the distance he was walking and my personal knowledge of Mr Stewart, I suspected he had either a knife or drugs."
During cross examination, Aboriginal Legal Service solicitor Usman Naveed asked Snr Const Punnett if he recalled saying to his "offsider" Constable Brad Stacpoole that Stewart was "good for a search".
"Yes. At that point we had a discussion with Mr Stewart about where he was going ... and because of those factors, I thought he could be in possession of drugs or a weapon, so I said 'he's good for a search' and stepped out of the car," Punnett said.
Mr Naveed then questioned the reasoning for a search given Stewart - as heard by the court - had no prior weapon or illicit drug charges on his record, and he was not subject to any curfew conditions or lockdown orders.
"It's not an offence to be out and about at 2am," Mr Naveed said.
"I put it to you, Senior Constable Punnett, that you didn't have any reasonable suspicion to stop and search Mr Stewart."
"I disagree," Snr Const Punnett replied.
Mr Naveed submitted the grounds for suspicion were "not sufficient" given "there was no suggestion he [Stewart] was a risk to anyone".
"Interestingly enough, not only is a criminal record itself not grounds for suspicion, but the criminal record doesn't reflect life offending. One wonders how it would have led to reasonable suspicion in the mind of a police officer," Mr Naveed said.
"Police are expected to know what amounts to suspicion and what doesn't ... because no one should be subject to unlawful interference."
Sgt Sinton said in return the reason for the stop and search of Stewart was merely because officers "saw a concern for his [Stewart] welfare".
Magistrate Brian van Zuylen ultimately found police had "properly" exercised their powers.
"Is the court persuaded there was no reasonable suspicion? The court does not regard it as an unreasonable or inappropriate stop and search," Mr van Zuylen said.
Sentence
Immediately after Mr van Zuylen's finding, Stewart entered a plea of guilty to the charge.
"The community doesn't want an intoxicated young man like you with that sort of thing in their pocket," Mr van Zuylen said.
"Who's to say you get into an argument and produce it for some reason? It could have been a catastrophe."
Stewart was convicted and fined $400.
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