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District Court 12 December 2019

R v Shaitly

[2019] NSWDC 762

DrugsPublic order & justice offences
CRIME VOIR DIRE JUDGMENT S 138 EVIDENCE ACT 1995 FIREARMS PROTECTION ORDER IN PLACE EVIDENCE OF FINDING DRUGS NOT ADMITTED

Citation: R v Shaitly [2019] NSWDC 762
Court: District Court of New South Wales
Date: 12 December 2019
Judge: Tupman DCJ

Background

An accused man faced two counts of deemed supply of prohibited drugs under the Drug Misuse and Trafficking Act 1985, arising from a police raid on a Blacktown car wash business he co-owned with his brother. On 10 August 2017, police found a child's lunch box hidden in the ceiling cavity of the business's storeroom. It contained 154.94 grams of methylamphetamine and 140.15 grams of cocaine. DNA matching the accused was found on the lunch box zipper and on an inner plastic bag.

The Crown's case was circumstantial. It relied on the DNA evidence, the accused's connection to the premises, and the quantity of drugs (which triggers deemed supply under the legislation) to establish possession for the purpose of supply.

The accused challenged the admissibility of all evidence relating to the drugs on the basis that the search producing that evidence was conducted without lawful authority.

  • Whether the search of the car wash premises on 10 August 2017 was conducted lawfully, specifically whether it fell within the scope of the search powers under s 74A of the Firearms Act 1996
  • Whether, if the search was unlawful, the evidence obtained should nonetheless be admitted under s 138 of the Evidence Act 1995, which requires a court to weigh the desirability of admitting improperly obtained evidence against the undesirability of doing so
  • Whether the conduct of the police officers aggravated the impropriety, including whether their evidence on the voir dire was reliable

Decision

Tupman DCJ found that the search was conducted without lawful power. The powers under s 74A of the Firearms Act 1996 authorise police to search premises occupied by or under the control or management of a person subject to a Firearms Prohibition Order (FPO), but only for the purpose of determining whether that person has committed certain firearms offences. The evidence established that the police operation was coordinated specifically to locate drugs, not to investigate firearms offences. Her Honour held that legislation conferring such wide search powers must be construed narrowly and enforced strictly, and that using those powers as a pretext for a drug search constituted a grave impropriety.

Her Honour also declined to accept the police evidence as reliable. The officers' accounts of their purposes and knowledge were inconsistent and implausible. The Court found that the true objective of the search was apparent from the overall planning and coordination of the operation, which involved multiple simultaneous searches of the accused, his brother, their vehicles, and their homes. The timing of the FPO against the accused, issued just three days before the raid with no satisfactory explanation, further undermined the Crown's position.

Turning to the s 138 balancing exercise, Tupman DCJ held that the seriousness of the impropriety outweighed the probative value of the evidence. The powers invoked were exceptionally broad and carried a corresponding obligation of strict compliance. The police appeared to have withheld relevant evidence from the Director of Public Prosecutions until the voir dire. Her Honour also accepted that the unlawful search engaged the right to protection from arbitrary interference with privacy recognised in Article 17 of the International Covenant on Civil and Political Rights, adopting the observation from Basten J in Parker v Comptroller-General of Customs that a deliberate or reckless disregard of legal constraints involving a contravention of an internationally recognised human right weighs against admission.

The Crown failed to satisfy the Court that the desirability of admitting the evidence outweighed the undesirability of doing so. The evidence of the finding of the drugs was accordingly excluded.

Orders Made

• The evidence is not admissible pursuant to section 138(1) of the Evidence Act 1995 and is rejected.

Key Takeaways

  • The District Court held that s 74A of the Firearms Act 1996 confers exceptionally wide search powers that must be construed narrowly and applied strictly: using those powers as a vehicle for an investigation directed at drug offending, rather than firearms offending, constitutes a grave impropriety.
  • Where police conduct a coordinated raid whose true objective is the location of drugs while purporting to rely on firearms search powers, the resulting search is conducted without lawful authority.
  • Under s 138 of the Evidence Act 1995, the onus falls on the Crown to establish that the desirability of admitting improperly obtained evidence outweighs the undesirability of doing so; the Crown failed to discharge that onus in these circumstances.
  • A finding that police evidence was unreliable, and that material was withheld from the independent prosecutor, counted as aggravating factors in assessing the gravity of the impropriety for s 138 purposes.
  • An unlawful search that constitutes an arbitrary interference with a person's privacy under Article 17 of the International Covenant on Civil and Political Rights is a relevant consideration in the s 138 balancing exercise, consistent with the approach in Parker v Comptroller-General of Customs (2007) 243 ALR 574.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
- Evidence Act 1995 (NSW), s 138
- Firearms Act 1996 (NSW), ss 73, 74A, 74B
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- International Covenant on Civil and Political Rights, Art 17

Cases
- Parker v Comptroller-General of Customs (2007) 243 ALR 574
- Gedeon v R [2013] NSWCCA 257
- R v Rockford [2015] SASCFC 51