R v Shaitly [2019] NSWDC 762

District Court New South Wales

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