R v Khajehnoori - [2005] ACTSC 76

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 13^th 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…

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 Khajehnoori

Details

AGLC: R v Khajehnoori [2005] ACTSC 76
Case: [2005] ACTSC 76
Decision Date: 9 AUGUST 2005

CaseChat Overview and Summary

The matter in R v Khajehnoori involved the respondent, Khajehnoori, who was facing criminal charges related to the possession of a de minimis quantity of a drug of dependence. The case was heard by a court in Australia, where the validity of a search warrant and the scope of its authorisation were central to the proceedings. Khajehnoori sought to challenge the validity of the search warrant on the basis that it contained an unauthorised description of some property and, as a result, the warrant was invalid.

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

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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