F/W- Counsel: Mr English
Solicitor: Ms Macdougall
File Number(s): 2017/279623
[2]
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 DNA located on the inside plastic bag which contained the methylamphetamine. DNA in the mixed sample and the single sample matched that of the accused. According to the Crown case statement tendered on this voir dire, the accused and his brother jointly owned the car wash business operating under the name Grime2Shine Car Wash in Blacktown. The accused worked there and had been seen there during the course of surveillance, on about five occasions in the ten days to two weeks before 10 August 2017.
This is a very brief summary of the circumstantial evidence that the Crown would lead against the accused to prove that, as at 10 August 2017, he was in possession of the drugs inside the lunch box. The Crown seeks to prove that by the presence of his DNA and his connection to the premises and therefore, because of the quantity involved of both drugs, that he was in possession of them for the purpose of supply, pursuant to s 29 of the DMT Act.
The accused challenges the admissibility of the evidence surrounding the finding of the drugs, and therefore anything connected with the drugs, on the basis that the evidence was obtained as a result of an illegality or impropriety, namely that the search which located the lunch box with the drugs inside, was conducted illegally, without power.
It is argued that this finding would be made and that in those circumstances if it is, the onus would then pass to the Crown to satisfy the Court that, on balance, pursuant to s 138 of the Evidence Act, 1995 the desirability of admitting the evidence outweighs the undesirability of not admitting it.
In order to determine, first of all, the question of the legality of the search, it is necessary to analyse, in some detail, the evidence given by the police officers on this voir dire. The officer in charge of the case, or at least so far as it appears on this voir dire, is Detective Murnane. He completed a statement on 11 October 2017, which is tendered as part of the evidence on the voir dire, and also gave oral evidence.
There is also a statement from Detective Michael Carl, who coordinated the search at the car wash and also gave oral evidence. There are also statements from Constable Furner and Constable Jaji, who were involved in the actual physical search of the premises, who also gave evidence on the voir dire. Portions of the videotaped search are also tendered.
From the evidence overall, and in particular the statement of Detective Murnane, I accept that by 10 August 2017, New South Wales Police were in possession of some information relating to both this accused and his brother, Ranny Shaitly. This would appear to have been that in January 2015, police became aware of a dispute between the accused's brother and a customer of the car wash in relation to damage to a vehicle. As a result, the accused's brother was charged with assault of that customer and convicted of that offence.
According to Detective Murnane's statement, police then became aware in November and December 2015, that both the accused and his brother were storing firearms and drugs at the car wash premises in Blacktown. On 29 May 2015, a delegate for the Commissioner of Police made a Firearms Prohibition Order (hereafter "FPO") against the accused's brother, pursuant to s 73 of the Firearms Act, 1996 (hereafter the "Firearms Act").
The reason for making that order is stated in Schedule One to be for convictions for firearms offences of selling and possessing an unauthorised pistol, which it would appear occurred some time in 2006 and for which he was convicted and sentenced on 20 April 2007.
This order was served on the accused's brother on 29 October 2015, and from that date onwards, the police then had the very wide powers of detention and search in relation to Ranny Shaitly, pursuant to s 74A of the Firearms Act. Section 74A is as follows:
74A Powers of police to search for firearms in possession of person subject to firearms prohibition order
(1)The powers of a police officer under this section may be exercised as reasonably required for the purposes of determining whether a person who is subject to a firearms prohibition order has committed an offence under section 74 (1),(2) or (3).
(2) A police officer may:
(a) detain a person who is subject to a firearms prohibition order, or
(b) enter any premises occupied by or under the control or management of such a person, or
(c) stop and detain any vehicle, vessel or aircraft occupied by or under the control or management of such a person,
and conduct a search of the person, or of the premises, vehicle, vessel or aircraft, for any firearms, firearm parts or ammunition.
There is no evidence in the statement of Detective Murnane about any further intelligence or information after November/ December 2015. However there is some further evidence about what, more probably than not, was within his knowledge as at 10 August 2017, to which I will refer in due course.
Surveillance of the car wash premises was conducted by police between 28 July and 10 August 2017. The accused before me was sighted there on 28 July and 3 August and there is also apparently CCTV footage, from the carwash premises themselves, showing him at the premises going to the storeroom on occasions between the 3 and 9 August 2017.
On 7 August 2017, a delegate of the Commissioner of Police issued an FPO against the accused in this matter. The opinion that he was not a fit and proper person to have possession of a firearm, is stated in Schedule One to be on the basis of previous convictions made in the District Court at Gosford on 23 August 2006 for offences of possessing an unauthorised, prohibited firearm; two counts of larceny; possessing ammunition without licence and aggravated break, enter and commit an indictable offence.
A further ground for the issue of the FPO, was that he was charged with, and on bail for, a series of other offences including the manufacture and supply of a large commercial quantity of prohibited drugs; supplying a prohibited drug; and possession of unregistered firearms. All of this is set out in Schedule One to the FPO for this accused which states that the accused was, at the time, on bail and due to appear at the Parramatta District Court on 5 March 2018 in relation to these offences.
There is no evidence on this voir dire about the date on which these offences are alleged to have occurred. But it obviously must have been before 7 August 2017 and more probably than not, given that these indictable offences had been listed as far in advance as March 2018 in the District Court, I infer were likely to have been offences allegedly committed no later than sometime in 2016.
There is no explanation for why this FPO was issued on that date, in the midst of ongoing surveillance of both the accused, his brother and the carwash premises and certainly not why, on that particular day, in the surrounding circumstances it was, in the words of the FPO, "Critical to ensuring the public safety that a Firearms Prohibition Order" was issued against him.
As I say, there is no evidence to explain the timing of this, but the order was in fact made on 7 August 2017. It did not have effect however, until it was served pursuant to the provisions of s 73(2) of the Firearms Act. It would appear to be the case that the service of this order on the accused was to form part of the overall operation designed to occur on 10 August.
There was clearly in place, from at least 9 August 2017, and possibly a little earlier, a plan by police to conduct a coordinated set of searches of both the accused and his brother, their vehicles, their homes, and the carwash premises. It was in the nature of a coordinated raid.
As part of this, in fact, Constable Furner served this order at 9.50am after a vehicle stop of the accused and then commenced the search of the accused and his vehicle immediately thereafter. He then went to the carwash to be involved as part of a group of other operational police in the search of those premises. That was clearly all part of the prearranged coordinated set of searches.
At 10.15am some police arrived at the carwash premises and a crime scene guard was put in place whilst they waited for other police to arrive. Employees of the business were told that they were also to be subjected to a search, which is apparently permitted by the very wide powers attaching to searches of those on whom a FPO has been served. A fairly large group of operational police were at the carwash by 10.22am and started the search. The search was recorded by video.
There would appear to have been about ten officers present. One of them was Detective Senior Constable Michael Carl, whose role was to coordinate the search at the carwash. Others involved were Constable Furner and Constable Jaji who played an operational role, namely actually conducting some of the searches.
The search of the carwash premises started in the carwash area and then moved to the storeroom, the office, and the bathroom. The search started at 10.22am and concluded at 10.42am. A video of portions of that search is tendered on the voir dire. No items of interest were located during this search. The video shows that in the storeroom there is a fairly small hole in the ceiling, which was open and into which a number of cables passed. This has been referred to as a manhole, which is as good a description as any.
The video shows that at the beginning of the search there were three officers inside that storeroom as well presumably as Officer McGee, who was operating the video. At one stage before bags are searched the unnamed officer assists Constable Jaji to climb up some steel shelves underneath the manhole. His head is seen at ceiling level, but he did not appear to put his head into the manhole. He shone a torch around inside, but did not locate anything.
The officers inside the storeroom, including Detective Carl, then searched a number of items on the shelves. The video then depicts Detective Carl outside the storeroom advising that the search was completed at 10.42am, that being adopted by the independent officer who was present and the video ends at 10.42am.
There is then a written statement from Detective Carl dated 31 August 2017 tendered on this voir dire. He commenced making that statement on 31 August and completed it on 4 September, so about three weeks after the event. I accept from that statement at paragraph 10 that the search of the carwash premises was, in fact, completed in his view at 10.42am.
Paragraph 11 goes on to state that after the search was concluded Detective Carl was approached by Senior Constable Furner, who asked if he could double-check the roof cavity in the storeroom. Paragraph 11 continues on p 3 as follows:
"I was aware of information relating to drugs being concealed in the roof cavity of the location, and allowed Senior Constable Furner to have a more thorough search of the roof cavity."
Without more, the very clear inference to be drawn from that sentence is that Detective Carl permitted the further search of the roof cavity as a search for drugs.
The evidence from Detective Senior Constable Furner is that at about 11am that day he assisted and searched the roof cavity area of the car wash storeroom by climbing up the shelves to reach inside. He said he put his hand in the roof cavity and felt an object. He said that at that point he stopped and told other police about that, including Constable Jaji; and then, for reasons that, with the greatest of respect do not bear close logical scrutiny, organised for Constable Jaji to be the one who climbed back up the shelves, in due course, to look inside, as he then went to speak to Detective Carl.
He was present, he said, when Constable Jaji climbed back up the shelves, and looked for the object that Constable Furner said he had felt with his hand, which he then withdrew from the roof cavity, and which was a blue lunch box, which was left on the top of the shelves, opened by Constable Jaji and found to contain the two forms of crystal substances to which I have already referred.
Constable Furner's evidence, in my view, is significant more for what it does not contain than what it does contain. He does not, interestingly, claim to have been in the storeroom when it was first searched. The video of the search does not indicate that he was, in fact, present in the storeroom when it was searched. It is a very small space. The initial search was undertaken by Jaji, assisted by another officer who was not Furner. Detective Carl and the video operator were also present. Constable Furner gave oral evidence that he did not recall the reason that he, in fact, conducted the search of the roof cavity in which he said he felt the lunch box, and doesn't recall speaking to anybody about it specifically.
Constable Jaji gave evidence that he conducted a search of the car wash at 10am on 10 August 2017. That is clearly incorrect. He said that during that search Furner told him that he had felt an object in the roof cavity, and so he climbed onto the storage shelves and put his hand into the hole, felt around, and located the blue lunch box, which he opened. He said that he then saw a plastic bag containing a large crystal substance about the size of a fist, as well as a set of scales. That does not appear to be consistent with the evidence seen on the DVD of two forms of crystal and no scales inside the lunch box. According to the vision on the subsequent video, the scales were located afterwards and separately from the lunch box, not inside the lunch box. Perhaps not much turns on this, but it is an indication of the lack of detail and specificity in the evidence of both Jaji and Furner, in my view.
As I have said, there were four police officers called by the Crown on this voir dire, whose statements have also been tendered. Detectives Murnane and Carr are by far and away the most significant for the issues to be determined on this voir dire. In addition to the summary of their evidence, which I have already outlined, and some of the issues arising from the oral evidence, I make the following findings about their evidence.
First of all, Detective Murnane: He was the officer in charge of the overall searches being conducted that day. As I have already said, I accept that there had been some work undertaken before 10 August 2017 to put these searches into place. Detective Murnane said that there was a meeting of officers who were to be involved in the search on the morning of 10 August 2017, which he referred to as a briefing. Detective Carl said that there had been a briefing the previous afternoon at which he and others had been present, in which written operational orders were provided. I accept, more probably than not, that there were two meetings - one in the afternoon of 9 August, in which written operational orders were provided, and another on the morning of 10 August, when there were further oral instructions given to some officers who were then present.
I accept from the evidence given by Detective Murnane overall, that the operation was to include the following people and places:
Ranny Shaitly, the brother of the accused. He was to be stopped and searched and his vehicle and his house would also be searched. This was designated to be a search to be conducted pursuant to s 74A of the Firearms Act, on the basis of the FPO served on him on 29 October 2015.
Danny Shaitly, the accused. This search was to be of the accused's person, his vehicle and his house, and also to be conducted pursuant to an FPO, which was in existence from 7 August 2017 but not served until 9.50am on the 10th, after the oral briefing had occurred. As I have said, it was served on him by Constable Furner at 9.50 am on 10 August as a result of a vehicle stop. The evidence is silent about the basis of the authority for the vehicle stop, but it was clearly part of the overall operation, ultimately to search both of them, their vehicles, their houses, and the car wash; and also to serve the FPO on the accused.
The Grime2Shine car wash business at Blacktown, which was operated by both the accused and his brother and which was to be searched.
As I have said, there was surveillance establishing that both of them had been at the premises; information that either one or both of them were the owners and/or managers of the business and, in particular, surveillance that the accused had been seen going to the storeroom on three or four occasions in the days leading up to 10 August. The storeroom, however, would appear from the video to also be the place at which employees of the business stored their bags, as well as where products used in the car wash were stored.
Detective Murnane, in my view, was not an impressive witness. In his evidence‑in‑chief he said that, during the oral briefing he undertook with officers on the morning of 10 August, he tasked those officers that they were to search the car wash for firearms, firearm parts, and ammunition, and that it was a search to be undertaken pursuant to s 74A of the Firearms Act. In cross‑examination in relation to this issue he said that he communicated this task to the officers both orally and in writing, via the operational orders. It is likely, it seems to me, that those operational orders were provided to most, if not all, of the officers who were involved the previous day, but perhaps some were also given these orders on the morning of 10 August.
It transpired in cross‑examination that the solicitor for the accused had sought a copy of the operational orders by subpoena, and the police had responded that the operational orders would be provided, but were likely to be subject to a claim for public interest immunity, and would only be provided in a redacted form. This was accepted inter partes between the accused and the OIC without any claim for public interest immunity actually being adjudicated.
In cross‑examination, Detective Murnane was taken to some email correspondence between him and the solicitor for the accused just before this trial, in which he was asked whether, behind any of the redacted portions of the operational orders provided to the defence in response to the subpoena, there was information tasking the officers with those items to be searched for.
He agreed that he had replied on 3 December 2019 to that email in terms that there was nothing in the redacted areas of the operational orders which contained such information, namely information about items to be searched for, with the exception of two specific pages, namely pages 7 and 8, and he then supplied an unredacted copy of these pages to the accused's solicitors. He apparently did not supply a copy of these unredacted pages to the DPP.
He also agreed that there was nothing on either of those pages, which apparently had previously been redacted on the basis of a potential claim for public interest immunity, that refers to the items to be searched for, and also provided further information in his evidence that there was nothing otherwise in the portions of the operational orders that remained redacted which disclosed this. So, in all, this means that on his evidence, there was nothing in the operational orders which he provided to those who were to be involved in these coordinated searches, which specifically sets out the items to be searched for during the searches to be conducted on 10 August 2017.
When the officer was then asked in cross‑examination to clarify his previous evidence that he had both, in writing and orally, tasked the officers with searching for firearms, firearm parts and ammunition, he sought to explain that by saying that what he meant was that, in writing, he tasked them with searching. In my view, that is an unconvincing reply. It is also a matter of some surprise that in written operational orders for a search purportedly to be undertaken pursuant to s 74A of the Firearms Act, the written orders do not specifically task those searching officers that they were there to search only for firearms, firearm parts and ammunition.
This is particularly so in my view because this coordinated search, something in the nature of a raid, has otherwise all the hallmarks of a coordinated raid conducted pursuant to a general search warrant, and it ought to have been made very clear to the officers involved, the limitations, such as they are, of searches pursuant to s 74A.
Detective Murnane gave further evidence that one of the purposes of the coordinated searches on 10 August 2017 was to disrupt what were suspected criminal activities in relation to the accused and his brother. He agreed that this was the case. He agreed that in coordinating these searches, he had relied on a number of intelligence reports relating to both of them, and that those reports broadly related to suspected drug and firearms offences.
He also agreed that there was a concern that the car wash was being used to launder the proceeds of crime, namely money from the manufacture of drugs. He agreed that they had intelligence, specifically, that they were hiding drugs in the roof cavity of the car wash. He claimed that he did not apply for a general search warrant because he did not believe he had the grounds to obtain one, because this information was two years old.
This particular belief has not been able to be explored in any great detail because the specifics of his belief were raised in re‑examination. Murnane claimed that he did not think he could apply for a general search warrant because he had to have a reasonable belief there would be drugs at the car wash within 72 hours, and that at that point he did not have that belief, I infer, because a particular piece of intelligence was two years old.
That seems to me to be a somewhat curious answer, on which I place limited weight, in circumstances where it would appear that as recently as 7 August 2017, one of the bases for the issue of a FPO in relation to the accused before me, according to Schedule One of that document, was that he had been charged with and was on bail for the manufacture and supply of a large commercial quantity of prohibited drugs, together with the possession of unregistered and unauthorised firearms.
There is no evidence about the date of these offences, as I have said, other than that he was bailed to appear in the District Court in March 2018, and again I infer that in the circumstances it would appear that these offences, or alleged offences, were relatively recent. Together with the earlier intelligence involving the use of the car wash premises to store drugs, specifically to store them in the roof cavity, it may well have been a stronger basis on which a general search warrant could have been applied for, at least, and perhaps obtained. However, I can take that no further.
In any event, the written operational orders did not specifically task the searching officers with searching just for those items permitted under s 74A. Further, both in the operational orders and orally, Detective Murnane shared with the officers the intelligence linking the premises to criminal activities, including storing drugs and possibly storing money sourced from criminal activities, specifically drug manufacture. Specifically, he told the officers who were about to be involved in the searches about the information that there had been drugs stored in the roof cavity of the car wash two years previously.
In addition, there was a risk assessment provided to the group of officers, which is the norm when coordinated searches such as this are planned. This was written by another officer, but said the following:
"Due to Danny Shaitly's criminal history and criminal associates, it is believed that Grime2Shine Car Wash is potentially being used as a front to launder the proceeds of crime, specifically the manufacture of drugs."
That document, namely that risk assessment, was made available to all those involved in the searches, together with the operational orders and that would appear, to some extent, to reflect the current state of mind of all of those involved in this coordinated set of searches, including Detective Murnane.
When Detective Murnane was asked why, if these searches were limited to searches for firearms, firearm parts and ammunition, he ever mentioned the fact that this information or intelligence existed, particularly that there were drugs in the roof cavity two years previously, he answered that in his experience, often drugs and firearms are secreted together, and so if drugs were to be stored in the roof cavity, then perhaps firearms might be there as well.
He also gave evidence about later interactions and conversations he had with Detective Carl. This is perhaps the most troubling aspect of the evidence he gave. I will deal with that soon, after summarising Detective Carl's evidence.
Detective Carl was coordinating the search at the car wash. I accept that he had been at a briefing the previous afternoon, where he had received written operational orders, and probably the risk assessment document as well. He was not there on the following morning when there was an oral briefing with other officers, because he was conducting surveillance at the car wash premises from 6.30am.
He had never been involved in an FPO search before. He said that he knew his responsibilities were to coordinate and supervise the search. He was not directed about the parameters of the search, but gave evidence that he was aware that he could search for firearms, firearm parts and ammunition, and that that was his intention when he attended. I have already said the search started at 10.22, was recorded by video, and concluded at 10.42.
Detective Carl's statement of 31 August 2017 sets out the situation, and in particular I have already made reference to the portion of paragraph 11 of that statement, which in large part gives rise to the application made on behalf of the accused here, the subject of this voir dire. As I have said, he said that Constable Furner approached him to say that he was not happy with the search of the manhole in the storage room.
Again, without this being the subject of any specific evidence, there is, in fact, no evidence to suggest that Constable Furner was ever present in the storage room when the initial search was conducted. His statement does not say he was. Constable Jaji was not asked whether he was. Constable Jaji said he had conducted the search at 10.00am, which is not accurate. The second search, in which Constable Jaji was specifically involved with Constable Furner, was at 11.00am.
That statement would appear to have been the state of Detective Carl's evidence right up until the time the trial commenced before me on Tuesday 9 December, when defence counsel announced that there was a challenge to the admissibility of the evidence on the basis of illegality. Defence counsel has informed the Court, and I accept, that the accused's legal representatives were not aware of the oral evidence that Detective Carl would give about his statement dated 31 August 2017, which had been served on the accused, until he was in the witness box giving evidence on this voir dire. Furthermore, it would appear to be the case that the DPP was in the same position in the light of the written submissions provided to the Court, which are undated, but which were available to and offered to the Court in the morning on 9 December before the oral evidence had been called and which were provided, apparently unaltered, to the Court later that day.
Just to summarise a further piece of evidence given by Detective Carl, I accept that after the lunchbox had been located by Constable Jaji, Detective Carl established a crime scene pursuant to the LEPRA provisions and then obtained a crime scene warrant, also pursuant to the LEPRA provisions, which was executed, steps were taken to search for other items, the drugs were seized as a result of a combination of crime scene establishment and the crime scene warrant that was obtained.
As I have said, until the time at which Detective Carl gave evidence on this voir dire, the evidence that he was expected to give would appear to be that contained in his statement dated 31 August 2017. The sentence, which I have already quoted at the top of p 3 of his statement, in my view is capable of only one inference, namely that permission was given by Detective Carl to Constable Furner to, "..have a more thorough search of the roof cavity", or to paraphrase it, to conduct a further search of roof cavity, to look for drugs because of the information that Detective Carl had in relation to drugs being concealed in the roof cavity on a previous occasion. It is, in my view, both naive and disingenuous to contend for any other inference and subsequent conversations between Detectives Murnane and Carl, in fact, provide further convincing evidence that both of them, at least, were aware that this was the only real inference available from that sentence.
That statement was written by Detective Carl sometime between 31 August and 4 September 2017, that is only three weeks after the event. His evidence on this voir dire, including his evidence-in-chief and cross‑examination was different to that. In his evidence-in-chief he said that Constable Furner approached him and said he was not happy with the search of the manhole in the storeroom. He was asked why Constable Furner made that claim and Detective Carl claimed he did not recall being given any reason. He said that Constable Furner wanted to search it again and he said, "Yes". He was asked, on p 40 at line 25, why did you allow him to do that? And he answered, "To search for firearm prohibition order items".
He was then asked, "Why is that different from what appears in your statement at paragraph 11?" His answer, in chief, was that as soon he read his statement back he knew that he had made a mistake. By that he sought to explain that he meant it was an error to have said or inferred that the reason for allowing the second search was to search for drugs. Again, at p 41 of the transcript, he said that the previous intelligence he had about drugs in the ceiling was irrelevant. Later in chief, he said that this realisation had come to him; namely, that what he described as a mistake had occurred in his statement, when he was reviewing his statement in preparation for the trial. The first trial date set for this matter was July 2019; it was vacated and then set again for 8 December, this week. That is more than two years after he finished his statement.
In cross‑examination in relation to this issue he said that he has spoken to Detective Murnane about this particular sentence in paragraph 11 of his statement. He claimed not to remember when that conversation with Detective Murnane occurred and was not able to recall the exact conversation or any particular detail of it. At best, he said that it was probably sometime between July and the present, but that he would be guessing. He said that it occurred at Blacktown Police Station. On more than one occasion in his evidence, he said that he would not know when the conversation occurred.
Eventually, it seems to me after a degree of prodding, Detective Carl said that, in this conversation Detective Murnane had said to him that this portion of paragraph 11 would, in his words, "be an issue". He went on to say that the first time he had re-read this statement after 4 September 2017 was when he had the conversation with Detective Murnane about the fact that this portion of paragraph 11 would be an issue.
That, of course, contradicts the evidence he gave initially in chief that he became aware of what he called a mistake as soon as he reviewed his statement. His evidence, I accept, gave the impression that he had done so shortly after completing the statement and that, he claimed, is when he became aware of what he called a mistake.
He agreed that whenever it was that he re-read his statement, he realised that it carried an inference that he had allowed the further search in order to search for drugs. He was asked, for the first time, in cross‑examination at p 50 whether he had discussed the issue with Detective Murnane. By that stage Detective Murnane had already given evidence and said that this conversation had occurred.
He answered that he had discussed many issues with Detective Senior Constable, and he was going to say "Murnane" but was disrupted. That appears to me another disingenuous answer and he was seeking to avoid answering the question.
Detective Murnane gave evidence about this topic, to which I said I would return, and I now do. He did not give evidence about it in chief. During cross‑examination he agreed that he had spoken to Detective Carl about this portion at paragraph 11 of his statement. He said that it was about six months ago or probably longer, but was not specific about when this occurred. He said that, Detective Carl told him that he had made a mistake by putting the wrong content in his statement. It was clear that at whatever point it was that he spoke to Detective Carl, Detective Murnane was aware of the very clear inference that if the search had been permitted to continue for drugs, or that if there had been a new search permitted for drugs, that this would be outside the powers to search pursuant to s 74A of the Firearms Act.
He said that when he identified this, what he called an issue, Detective Carl told him that it was a mistake and that he had not given the officer permission to search for drugs. He said that they spoke about it being an issue. He denied having told the officer to make a clarifying statement.
His evidence about this is as unconvincing as is Detective Carl's evidence. Neither of them can remember the timing of the conversation. Neither of them can recall the circumstances in which it was raised. In neither case was there an attempt to make an additional statement to cover this issue. In particular, in relation to Detective Carl, he made no attempt to complete a further statement to clarify this, what he called, or what he would have accepted was a mistake. This is important in determining whether or not to accept as the truth, that portion of paragraph 11 of his statement because in fact, Detective Carl did make further statements after 31 August 2017, but never sought to correct this so‑called mistake.
As officer in charge, Detective Murnane would have, and indeed did, recognise this as being important. He should have made a statement about the conversation he had with Detective Carl if in fact it did occur as long ago as six months, or even longer.
On the whole, I am not convinced that either of them is a reliable witness in relation to this particular issue. It is clearly a very important issue, and would have been obviously so to anybody investigating this matter, as it would have been to the DPP, had they been advised.
It clearly was understood to be an obvious issue to the two detectives involved. It seems to me that there is a clear inference open on the evidence in relation to this issue, and in particular because of the lack of any specific evidence from two trained police officers about when in fact they discussed this very important issue, that in fact a discussion occurred recently in the lead-up to this trial. It is of note, it seems to me, that the email exchange between the defence solicitor and the OIC was occurring around about 3 December, just last week, asking for unredacted access to portions of operational orders, specifically dealing with what items which in fact those involved in the coordinated searches were tasked with searching for.
An inference is available that, at least at that stage, the obvious difficulty about the sentence in paragraph 11 of Detective Carl's statement became clear. If this clarity had in fact occurred earlier, and if in fact the conversations between Detectives Carl and Murnane had occurred earlier, there is on the face of it, absolutely no good reason why it was not corrected earlier. Nor, for that matter, why it was not in particular brought to the attention of the DPP, who have the task of prosecuting this trial.
The search of the roof cavity by Constable Furner has been referred to both as a second search and as a continuation of the original search. It seems to me that for the purposes of the voir dire, nothing much turns on that distinction.
Overall, I accept that the statement in paragraph 11 of Detective Carl's statement of 31 August is accurate. Namely, that in circumstances where he clearly states three weeks after the event, that he was aware of information relating to drugs being concealed in the roof cavity of the car wash location, and allowed Senior Constable Furner to have a more thorough search of the cavity, the very clear inference is that he permitted Constable Furner to undertake that search to look for drugs which might be concealed inside there because of that information. Detective Carl attempted to explain that sentence away, not just as a mistake, but in an attempt to explain why it was that he would write that, mistake or not, by asserting that he had made the statement three weeks after the event and, by that stage, he was in fact aware that drugs had been found. That evidence does not affect my assessment of his unreliability in relation to this aspect and it does not lead me to accept the evidence that what he put in that statement was, as he called it, a mistake. On the contrary, it would appear that what he was asserting was that he had conflated his actual knowledge of what was found in the roof cavity with other information, and had just recorded it incorrectly. That does not bear logical scrutiny, especially so in conjunction with the fact that he apparently does not recall asking Furner why he thought the original search was not thorough enough, and when it was that he actually spoke to Detective Murnane about this.
Thus, I accept that the search of the roof cavity by Constable Furner, under the direction of Detective Carl, and with the permission of Detective Carl, was done without lawful authority.
The lawful authority to search was limited, pursuant to s 74A of the Firearms Act, to searching for evidence of the commission of offences committed under that Act, namely the offences pursuant to s 74 (1), (2) and (3). It is an illegal search and I accept that pursuant to s 138(1) of the Evidence Act, 1995 that evidence is not to be admitted unless the Crown can establish that the desirability of admitting it on balance outweighs the undesirability of admitting it.
Pursuant to s 138(3) of the Evidence Act,1995 the Court may take into account a number of factors which are not exclusive, but are the factors which are regularly taken into account, and may be taken into account by the Court.
There are factors which favour admitting the evidence. They include the probative value of the evidence. Without this evidence, there is no case against the accused for these offences. The nature of the proceedings is also a factor which would operate in favour of admitting the evidence. These are serious criminal offences with a maximum penalty of 15 years imprisonment.
All drug supply offences are serious, and I accept, on the basis of the authorities to which I have been referred, that there is clearly a public interest in the conviction of an offender for drug supply offences. Equally, however, in determining the nature of the proceedings for the purpose of conducting the balancing exercise, they are deemed supply offences. They are not ongoing drug supply offences. They are not drug supply offences for commercial or large commercial quantities. The quantities, of course, are not minimal and are well above both the trafficable and indictable quantities for these two drugs, but they are not of the quantity often seen by these courts in relation to drug supply charges.
Other factors present are perhaps neutral. One is whether or not the impropriety was deliberate or reckless. There is no evidence on which could make a finding that the conduct was a deliberate decision by Detective Carl to flout the search limitations of s 74A of the Firearms Act. If that were the case, that would operate as a factor against the admission of the evidence, or at least, as one of the factors against the admission of the evidence.
In my view, it was reckless in the way that that is understood for the task that the Court must undertake. As I understand it, the Crown, whilst in their written submissions advocate that there would be no finding of either deliberate or reckless impropriety, nonetheless in their oral submissions submitted that it might well be open for the Court to make a finding that the impropriety, if found, was reckless.
The decision of the New South Wales Court of Criminal Appeal in Gedeon v R [2013] NSWCCA257; 237 A Crim R 326 described the concept of recklessness as amounting to a "don't care" attitude. That is the appropriate way, in my view, to categorise what Detective Carl did. The fact that he claims to have no recollection of why it was that Constable Furner said he thought the search had not been thorough enough is indicative of what amounts to a "don't care" attitude. That is, a decision to allow him to proceed regardless. I accept that it was a reckless impropriety on Detective Carl's part. In terms of the way in which that affects the balancing exercise that is probably a neutral factor in the circumstances.
Other areas operate in this case against the admission of the evidence. One of those is the gravity of the impropriety. In my view, this is a grave impropriety. This is a case in which the impropriety was committed in circumstances, and in the carrying out of provisions of a particular piece of legislation, which provides for extremely wide powers. The powers are much wider than the more general search warrant provisions. Section 74A, which was added to the Firearms Act in 2013, empowers police officers without a warrant to detain a person who is subject to an FPO and to enter any premises occupied by that person; to stop and detain a vehicle occupied or controlled by that person; to conduct a search of the person, the premises, or the vehicle for the purpose of determining whether or not the person has committed an offence in respect of the Firearms Prohibition Order.
The bases on which a Firearms Prohibition Order may be made seem to be extremely wide. All of this searching is available without the need to obtain a warrant and there is nothing in the legislation to require an officer to have a state of reasonable belief that offences might have been committed.
What is more, FPOs would appear to be enforced for the life of the individual, enabling this interference for his or her whole life, without allowance for positive changes in that individual. The only power in the Firearms Act to revoke these orders appears to be a power for the Commissioner to revoke the orders at any time, but except for some limited rights of administrative appeal, which are intentionally limited, there is no provision for an individual to seek to revoke an order on the basis of change of circumstances or similar.
Furthermore, a FPO can be issued on the basis of convictions for offences or, apparently, events that occurred well before the issue of the FPO, just as here, where the basis for the FPO involving Ranny Shaitly, which was issued in May 2015, two years after the legislation came into effect, is stated to be as a result of convictions for various firearm offences, which would appear to have occurred in about October 2006 and which were sentenced in April 2007. To an extent the same applies for the accused, Danny Shaitly, although also in relation to charges that he was facing and for which he was then on bail.
There is no limitation to the number of times that a person subject to an FPO can be detained and searched, and the powers exist to allow the searching of at least the property of third parties connected with premises involving the person covered by the FPO.
The only follow‑up of the extent of these powers was to be by way of an Ombudsman's report to be prepared and tabled two years after the legislation was commenced pursuant to s 74B of the Firearms Act. That is clearly, then, a report provided for by Statute, which has been published and which I have read. It recognises the extremely wide nature of the powers granted to law enforcement officers as a result of these amendments and outlines some of the issues which were connected with the operation of this legislation for the two years after it came into existence, including in some cases a large number of searches of an individual, very few instances in which firearms were actually located and a relatively large number of cases in which the powers were exercised where there was not in place a valid FPO.
My purpose for summarising the nature of the legislation under which the searches in this case were purported to be exercised, and reference to the Statutory Ombudsman's Report, is to emphasise that this is extraordinary legislation in a common law jurisdiction, providing much wider power than is usually the case for search warrants undertaken by law enforcement officers, which has an impact on an assessment of the gravity of the impropriety when it is undertaken by such a law enforcement officer purporting to operate under that very wide power.
These extremely wide powers infringe the general civil liberties of individuals. Amongst those inherent liberties are the right to resist detention and search by law enforcement officers without warrant, the concept of the sanctity of a person's home and the right of innocent third parties not to be caught in these searches. All of these liberties are overcome by these search provisions, and it would appear, intentionally so by the legislature.
It was recognised by the legislature that these were very wide powers, specifically enacted to deal with what was perceived to be increased firearm offences in the community, and designed to reduce access to firearms by criminal groups, or members of criminal groups. Construction of legislation of this type, because of the impact it is capable of having on the civil liberties of individuals, must be narrow, and compliance with its provisions by law enforcement officers must be exact, accurate and precise. Law enforcement bodies must not be permitted to avoid strict compliance with legislative provisions of this type, either in their use for collateral purposes or to mask sloppy policing.
The decision of the South Australian Court of Criminal Appeal, in R v Rockford [2015] SASCFC 51, provides, with respect, some very useful assistance in the conduct of a balancing exercise such as the one I am undertaking, based as it is, to an extent, on reviewed authority in relation to this area. Just as in the case before me, in that case, the South Australian Court of Criminal Appeal was reviewing a balancing exercise undertaken by a trial judge to admit or not admit evidence which had been unlawfully obtained. At paragraph 39 of that decision, the following appears, and I will read it in full, because in my view, it is an important consideration.
"The factors considered by the judge were relevant to the exercise of the discretion. They weigh in favour of the admission of the evidence obtained as a result of the unlawful search and entry. However, in my view, the judge failed to have regard to what Deane J describes in Pollard as the principal considerations of 'high public policy' which favour exclusion of evidence procured by unlawful conduct on the part of investigating police, namely, the threat which disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. As his Honour observed, it is the duty of the Court to be vigilant to ensure that unlawful conduct on the part of police is not encouraged by an appearance of judicial acquiescence. The exclusion of evidence obtained in this way is in the public interest because it is necessary to prevent statements of judicial approval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct, and to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process."
Those comments or considerations, in my view, are even more relevant in the case before me, for two reasons:
The legislative provisions which were ignored by Detective Carl in this case are part of extraordinary provisions contained in s 74A of the Firearms Act, which should be both construed narrowly and enforced strictly;
The officers who gave evidence about this, and who clearly recognised the difficulties, were at the very least less than frank in the evidence they gave to the Court; and what is more, would appear to have kept the evidence from the independent Director of Public Prosecutions until they gave their evidence on the voir dire.
They are additional factors to take into account in determining not just the gravity of the impropriety, but the way in which it should be weighed in balance by the Court.
There are other aspects of s 138(3) which I take into account. There is no evidence that any other proceedings either have been or are likely to be taken in relation to the impropriety.
There is an argument that the impropriety here was contrary to the right of a person recognised by the International Covenant on Civil and Political Rights. There are written submissions on behalf of the accused going to this issue. It is of some interest, but it seems to me it is also somewhat caught with the more general finding that I have made about the gravity of the impropriety, because of the nature of the legislation that the officers were bound to apply strictly.
I do accept, however, with respect, the dicta of Basten J in Parker v Comptroller‑General of Customs (2007) 243 ALR 574 at paragraph 60 that:
"A deliberate or reckless disregard of legal constraints involving a contravention of an internationally recognised human right or fundamental freedom will undoubtedly weigh against admission of the evidence."
The International Covenant on Civil and Political Rights provides in Article 17 as follows:
No one should be subjected to arbitrary or unlawful intervention with his privacy; and
Everyone has the right to the protection of the law against such interference or attacks.
That is a factor which I take into account in the overall weighing process.
Overall, it is for the Crown to establish, on balance, that taking into account those factors, the desirability of admitting the evidence outweighs the undesirability of not admitting it. In this case, I am of the view that the Crown has not satisfied that onus and that proposition has not been made out. In those circumstances, the evidence is not admissible pursuant to the provisions of s 138(1) of the Evidence Act,1995 and I reject it.
[3]
Amendments
04 March 2020 - Correction to cover page: Hearing dates changed from '10 December 2019' to '10, 11 and 12 December 2019'
11 May 2020 - Correction made: 'Firearms Act, 1972' incorrect, changed to 'Firearms Act 1996'.
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Decision last updated: 11 May 2020