R v Shaitly [2019] NSWDC 762

R v Shaitly [2019] NSWDC 762

The search of the roof cavity was conducted for drugs, not firearms, under police powers limited to firearms searches by s 74A of the Firearms Act 1996. This was a grave impropriety given the extraordinary and invasive nature of the statutory powers. The officers’ evidence was unreliable and recklessness in disregarding lawful constraints was established. The Crown failed to satisfy the court that the desirability of admitting the evidence outweighed the undesirability, especially given the impact on civil liberties and international human rights. Evidence of drugs found in the lunch box is therefore not admitted.

Jurisdiction
Australia
Judgment Date
12 December 2019
Procedural Posture
Criminal / Voir Dire (challenge to Admissibility of Evidence)
Outcome
evidence inadmissible
Legal Topics
['admissibility of Evidence' 'improper Police Conduct' 'firearms Prohibition Order' 'search and Seizure' 'drug Offences']
['criminal Law' 'evidence Law'] ['admissibility of Evidence' 'improper Police Conduct' 'firearms Prohibition Order' 'search and Seizure' 'drug Offences']

Case Brief

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Procedural Posture

Criminal / Voir Dire (challenge to Admissibility of Evidence)

Legal Issues

  1. 1 ['Whether the evidence of drugs found in the roof cavity of the car wash storeroom is admissible under s 138(1) of the Evidence Act 1995 given the search was conducted without lawful authority' 'Construction and enforcement of wide police powers under s 74A of the Firearms Act 1996 in relation to searches conducted under Firearms Prohibition Orders' 'Whether the gravity of police impropriety in conducting an unlawful search outweighs the probative value and public interest of admitting the evidence']

Ratio Decidendi

The search of the roof cavity was conducted for drugs, not firearms, under police powers limited to firearms searches by s 74A of the Firearms Act 1996. This was a grave impropriety given the extraordinary and invasive nature of the statutory powers. The officers’ evidence was unreliable and recklessness in disregarding lawful constraints was established. The Crown failed to satisfy the court that the desirability of admitting the evidence outweighed the undesirability, especially given the impact on civil liberties and international human rights. Evidence of drugs found in the lunch box is therefore not admitted.

Court Disposition

evidence inadmissible

Orders

  • ['Evidence of finding drugs in the roof cavity of Grime2Shine Car Wash is not admitted; Crown case based on this evidence is rejected under s 138(1) of the Evidence Act 1995.']