R v Shaitly - [2019] NSWDC 762

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Shaitly [2019] NSWDC 762
Hearing dates: 10,11 and 12 December 2019
Date of orders: 12 December 2019
Decision date: 12 December 2019
Jurisdiction: Criminal
Before: Tupman DCJ
Decision:
Evidence inadmissible pursuant to s 138(1) of The Evidence Act 1995

Catchwords: CRIME – Voir Dire Judgment – S 138 Evidence Act 1995 – Challenge to admissibility of evidence found in search without lawful search warrant – Unlawful search for drugs when search being undertaken pursuant to Firearms Act 1996 – Firearms Protection Order in place – Police coordinated raid on car wash premises – Indictable quantity of drugs found in ceiling – Grave impropriety construed against extremely wide powers granted pursuant to S 74A of Firearms Act 1996 – Legislation should be narrowly construed and strictly enforced because of the wide nature of the powers – Police evidence not accepted as reliable – Seriousness of impropriety outweighs probative value – Evidence of finding drugs not admitted
Legislation Cited: Drug Misuse and Trafficking Act 1985, s 25, s 29
Evidence Act 1995, s 138
Firearms Act 1996, s 73, s 74A, s 74B
International Covenant on Civil and Political Rights, Art 17
Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited: Parker v Comptroller-General of Customs (2007) 243 ALR 574
Gedeon v R [2013] NSWCCA 257; 237
R v Rockford [2015] SASCFC 51

Category: Principal judgment
Parties: The Crown
Mr Shaitly
Representation:
CROWN- Counsel: Mr Chatterton
Solicitor: Ms Carr-Hummerston
F/W- Counsel: Mr English
Solicitor: Ms Macdougall

File Number(s): 2017/279623

HER HONOUR: The accused has been arraigned in this trial on two counts in an indictment dated 9 December 2019. They are both charges of supplying a prohibited drug, contrary to s 25 of the Drug Misuse and Trafficking Act, 1985 (hereafter the “DMT Act”).
Count 1 alleges that on or about 10 August 2017, he supplied 154.94 grams of methylamphetamine.
Count 2 alleges that on or about 10 August 2017, he supplied 140.15 grams of cocaine.
They are both brought pursuant to s 29 of the DMT Act as deemed supply charges.
The Crown case against the accused, as I understand it, is circumstantial. A blue child's lunch box was located by Constable Furner in the roof cavity of the storeroom of a car wash premises called Grime2Shine Car Wash, at Blacktown on 10 August 2017, during the course of a police search.
Inside that lunch box there was a ball of white crystalline substance wrapped in plastic, and another quantity of crystalline substance knotted inside a number of plastic bags which, in itself, was inside another plastic bag or plastic bags. The substance inside the plastic bag was analysed and found to be 154.94 grams of methylamphetamine. The crystal substance in the shape of a ball was analysed and found to be 140.15 grams of cocaine.
DNA was located in two positions. There was apparently mixed DNA located on the zipper of the lunch box, and a single…

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 Shaitly

Details

AGLC: R v Shaitly [2019] NSWDC 762
Case: [2019] NSWDC 762
Decision Date: 12 December 2019

CaseChat Overview and Summary

In the case of R v Shaitly, the defendant was charged with drug-related offences following a police raid on premises associated with a car wash. During the raid, police discovered an indictable quantity of drugs concealed in the ceiling of the premises. The dispute arose from the admissibility of the drugs as evidence, given that the search that led to their discovery was conducted without a lawful search warrant. The case was heard in a court of law where the defendant challenged the admissibility of the evidence under section 138 of the Evidence Act 1995, due to the search being conducted without a warrant and in contravention of the Firearms Act 1996.

The legal issues before the court involved whether the evidence obtained during the unlawful search should be admitted under the Evidence Act 1995, specifically section 138(1). The court had to determine whether the serious nature of the impropriety in the conduct of the police outweighed the probative value of the evidence found. Furthermore, the court needed to examine whether the powers granted under section 74A of the Firearms Act 1996 could be interpreted to allow for such a search without a warrant and whether the legislation should be narrowly construed due to the extensive powers it confers.

The court found that the police had acted with grave impropriety by conducting a search without a warrant, even though the search was ostensibly being undertaken pursuant to the Firearms Act 1996. The court emphasised the need to narrowly construe and strictly enforce legislation that grants extremely wide powers, such as those under section 74A. Given the serious nature of the impropriety and the unreliability of the police evidence, the court concluded that the evidence of the drugs found during the search should not be admitted. Consequently, the court ruled that the evidence was inadmissible under section 138(1) of the Evidence Act 1995.

Orders

Orders of the court

Evidence inadmissible pursuant to s 138(1) of The Evidence Act 1995

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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Medium Neutral Citation:	R v Shaitly [2019] NSWDC 762
Hearing dates:	10,11 and 12 December 2019
Date of orders:	12 December 2019
Decision date:	12 December 2019
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	Evidence inadmissible pursuant to s 138(1) of The Evidence Act 1995
Catchwords:	CRIME – Voir Dire Judgment – S 138 Evidence Act 1995 – Challenge to admissibility of evidence found in search without lawful search warrant – Unlawful search for drugs when search being undertaken pursuant to Firearms Act 1996 – Firearms Protection Order in place – Police coordinated raid on car wash premises – Indictable quantity of drugs found in ceiling – Grave impropriety construed against extremely wide powers granted pursuant to S 74A of Firearms Act 1996 – Legislation should be narrowly construed and strictly enforced because of the wide nature of the powers – Police evidence not accepted as reliable – Seriousness of impropriety outweighs probative value – Evidence of finding drugs not admitted
Legislation Cited:	Drug Misuse and Trafficking Act 1985, s 25, s 29 Evidence Act 1995, s 138 Firearms Act 1996, s 73, s 74A, s 74B International Covenant on Civil and Political Rights, Art 17 Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited:	Parker v Comptroller-General of Customs (2007) 243 ALR 574 Gedeon v R [2013] NSWCCA 257; 237 R v Rockford [2015] SASCFC 51
Category:	Principal judgment
Parties:	The Crown Mr Shaitly
Representation:	CROWN- Counsel: Mr Chatterton Solicitor: Ms Carr-Hummerston F/W- Counsel: Mr English Solicitor: Ms Macdougall
File Number(s):	2017/279623