Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811 Hearing dates: 31 May 2018 Date of orders: 01 June 2018 Decision date: 01 June 2018 Jurisdiction: Common Law Before: Fagan J Decision: 1. The plaintiff's appeal is allowed.

2. Pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 (NSW) the order of Ms Holdsworth LCM made on 8 November 2017 at Liverpool Local Court dismissing the charges against the defendant in proceedings H64072582 (supply prohibited drug and possess prohibited drug), is set aside.

3. The charges are remitted to the Local Court to be dealt with according to law.

4. The defendant is to pay the plaintiff's costs of the proceedings in this Court. Catchwords: CRIME – prosecution appeal against dismissal of charges – possession and supply of prohibited drug contrary to Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1) – drugs found in vehicle stopped for random breath test – driver subject to firearms prohibition order – vehicle searched pursuant to Firearms Act 1996 (NSW), s 74A(2) – where no actual suspicion by searching officer of contravention of Firearms Act, s 74 – where evidence excluded pursuant to Evidence Act 1995 (NSW), s 138 and charges dismissed – whether error in requiring actual suspicion for lawful search under Firearms Act, s 74A – appeal upheld

WORDS AND PHRASES – "reasonably required" – Firearms Act 1996 (NSW), s 74A(1) – whether subjective suspicion required Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Criminal Law Consolidation Act 1935 (SA) Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) Firearms Act 1977 (SA) Firearms Act 1996 (NSW) Interpretation Act 1987 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Cases Cited: Abebe v Commonwealth (1999) 197 CLR 510 Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 George v Rockett (1990) 170 CLR 104; [1990] HCA 26 Kruger v The Commonwealth (1997) 190 CLR 1; [1997] HCA 27 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 McRae v Coulton (1986) 7 NSWLR 644 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12 R v Ioannidis (2015) 124 SASR 86; [2015] SASCFC 158 Tasker v Fullwood [1978] 1 NSWLR 20 Uber BV v Howarth [2017] NSWSC 54 Texts Cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths) Category: Principal judgment Parties: Director of Public Prosecutions (plaintiff) Dilan Shaba aka Tony Tomika (defendant) Representation: Counsel: Ms Belinda Baker (plaintiff) Mr Peter Lange (defendant)