THE QUEEN v KHAJEHNOORI [2005] ACTSC 76 (9 AUGUST 2005)
CRIMINAL LAW – whether de minimis quantity of drug of dependence – whether search warrant invalid – pre-trial motion
WARRANTS – validity of search warrant – unauthorised description of some property – whether severable
Drugs of Dependence Act 1989 (ACT), s 171(1), s 187
Evidence Act 1995, s 138
Human Rights Act 2004 (ACT), s 30
Australian Capital Territory Supreme Court Rules 1937, O 80 Div 80.8
Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523, applied
Bourke v R (1993) 67 A Crim R 518, distinguished
Freeman v Roberts (1992) 37 FCR 399, discussed
Malubel Pty Ltd v Elder (No 2) (1999) 73 ALJR 269, followed
Ousley v R (1997) 192 CLR 69, referred to
R v Stankovich [2004] ACTSC 93, followed
R v Trevitt [2005] ACTSC 48, discussed
Von Arnim v Health Insurance Commission [2004] FCAFC 33, followed
Williams v The Queen (1978) 140 CLR 591, distinguished
No. SCC 249 of 2004
Judge: Gyles J
Supreme Court of the ACT
Date: 9 August 2005
IN THE SUPREME COURT OF THE )
) No. SCC 249 of 2004
AUSTRALIAN CAPITAL TERRITORY )
)
CRIMINAL JURISDICTION )
BETWEEN:THE QUEEN
AND:BEHROZ KHAJEHNOORI
ORDER
Judge: Gyles J
Date: 9 August 2005
Place: Canberra
THE COURT ORDERS THAT:
The motion be dismissed.
IN THE SUPREME COURT OF THE )
) No. SCC 249 of 2004
AUSTRALIAN CAPITAL TERRITORY )
)
CRIMINAL JURISDICTION )
BETWEEN:THE QUEEN
AND:BEHROZ KHAJEHNOORI
Judge: Gyles J
Date: 9 August 2005
Place: Canberra
REASONS FOR JUDGMENT
This is a notice of motion pursuant to Div 80.8 of O 80 of the Australian Capital Territory Supreme Court Rules 1937 for the following orders:
‘That the evidence of the search of premises at 8 Nash Place, Stirling in the Australian Capital Territory, and the finding of a quantity of methamphetamine be excluded –
(a)pursuant to Section 138(1) of the Evidence Act 1995; or
(b)by the application of the principle that the law is not concerned with trifles (de minimis non curat lex).
(c)that the putative admissions by the accused be excluded pursuant to Section 85 of the Evidence Act 1985.’
At the hearing of the motion no relief was sought on the basis of ground (c).
The accused has been arraigned on the following charge:
‘The DIRECTOR OF PUBLIC PROSECUTIONS, who prosecutes in this behalf for Her Majesty the Queen, INFORMS THE COURT AND CHARGES THAT on the 13th day November 2003 Behroz Khajehnoori, at Canberra in the Australian Capital Territory, possessed a drug of dependence, namely methamphetamine.’
The case statement is as follows:
‘The accused is charged with possessing methamphetamine.
The accused resides at 6 Nash Place Stirling.
At about 7.00 am on 13 November 2003 Police executed a search warrant at 6 Nash Place Stirling. The accused was home at the time and the search of the premises was conducted…
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- AGLC
- R v Khajehnoori [2005] ACTSC 76
- Case
- [2005] ACTSC 76
- Decision Date
CaseChat Overview and Summary
The legal issues the court was required to decide included whether the quantity of the drug in question was de minimis and therefore exempt from criminal liability, and whether the unauthorised description in the search warrant rendered it invalid. Additionally, the court needed to determine whether any invalidity in the warrant was severable, allowing the remainder of the warrant to stand.
The court, after thorough examination of the evidence and arguments presented, concluded that the quantity of the drug was not de minimis and thus did not exempt Khajehnoori from criminal liability. Regarding the search warrant, the court found that while there was an unauthorised description of some property within the warrant, this did not render the entire warrant invalid. The court deemed the invalidity to be severable, meaning that the remainder of the warrant remained valid and enforceable. Therefore, the motion to dismiss the charges on the basis of an invalid search warrant was dismissed.
Orders
Orders of the court
1.
The motion be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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