By Paul Gregoire and Ugur Nedim
At 10.22 am on 10 August 2017, ten NSW police officers conducted a raid of the Grime2Shine carwash in the western Sydney suburb of Blacktown. The business was co-owned by the brothers Danny and Ranny Shaitly, who’d both fallen short of the law in the past.
On a second search of the business’ storeroom, officers found a blue lunchbox containing illegal drugs hidden in a roof cavity. Danny’s DNA was located on the zipper of the container and a bag holding 154.9 grams of ice. And there was also another bag containing 140.15 grams of cocaine.
Danny was charged with two counts of supplying an indictable amount of a prohibited substance, under section 25 of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT). This offence carries a maximum penalty of 15 years in prison and/or a fine of $220,000.
There wasn’t any specific evidence that Danny had been supplying the drugs to others, but that doesn’t matter under NSW laws, as section 29 of the DMT stipulates that anyone found with more than a traffickable amount of an illegal drug can be charged with supply, even if there is no evidence the drugs had been, or were to be, supplied to anyone. This is known as ‘deemed drug supply’.
However, the defence challenged the admissibility of the evidence of drugs, on the basis that the search during which the substances were located was illegal and beyond the powers of the police officers involved. And for this reason, prior to the actual trial, a voir dire hearing had to take place.
A voir dire is a hearing that occurs in front of a magistrate in the local court, or a judge in the absence of a jury in the district court.
It can occur before or during a local court hearing or district or supreme court trial, and in the case of the latter the jury will be sent out of the courtroom while the voir dire takes place.
It is usually held to determine whether proposed evidence is admissible in the proceedings; in other words, whether it can go towards establishing whether an accused person is guilty or innocent.
Section 138 of the Evidence Act 1995 (NSW) sets out that illegally obtained evidence “is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.”
During the voir dire, NSW District Court Judge Robyn Tupman explained that officer-in-charge Detective Murnane had been aware of information relating to the Shaitly brothers storing firearms and drugs in their carwash in late 2015, following Ranny being convicted of assault.
A delegate of the NSW police commissioner then placed Ranny Shaitly on a Firearm Prohibition Order (FPO), in accordance with section 73 of the Firearms Act 1996 (NSW). This was based upon 2007 firearm convictions that related to the selling and possessing of an unauthorised pistol.
Since 2013, an enhanced FPO regime has been in operation in this state. It allows those deemed unfit to own a firearm to be placed on a prohibition order that permits police to then stop, detain and search them, along with their vehicles and premises, without the need of a warrant.
Between 28 July and 10 August 2017, NSW police had been conducting a surveillance operation in relation to the Shaitly brothers and their carwash. And half an hour before the actual search of the business, officers stopped Danny in his car and served him with his own FPO.
Issued on 7 August, Danny’s FPO was based upon charges he was set to stand trial for in March 2018 that related to the possession of unregistered and unauthorised firearms, as well as the manufacture and supply of a large commercial quantity of a prohibited drug.
Locating the drugs
On serving Danny with the FPO, officers searched him and his vehicle and proceeded to take him to his carwash, which was searched under the broad provisions of the firearm prohibition order.
The search commenced at 10.22 am and ended at 10.42 am. Whilst being filmed, a number of officers searched the business storeroom, with a constable Jaji climbing up onto some steel shelves where the ceiling cavity was located, however he didn’t look inside the roof.
In a statement made a few weeks after the raid, detective Carl recalled that following the conclusion of the search he approached senior constable Furner and asked whether he could search the ceiling cavity area again, as he was privy to information suggesting drugs could be concealed there.
The senior officer agreed to the second search and it was at that point the lunchbox with the drugs inside was located in the roof.
The Grime2Shine search was carried out under the authority of the FPOs the brothers were subject to.
Section 74 of the Firearms Act stipulates that an FPO subject may be detained and their premises and vehicles entered, with the aim of then searching them to locate “any firearms, firearm parts or ammunition”.
Judge Tupman made clear that these powers are “extremely wide” and once a person is placed on an FPO, it never expires. Her Honour further noted that these quite remarkable powers were enacted to deal solely with a perceived increase in firearms offences in the community.
As legislation of this type is so broad in its application “compliance with its provisions by law enforcement officers must be exact, accurate and precise,” the judge said. Officers mustn’t be allowed to avoid “strict compliance” “for collateral purposes or to mask sloppy policing”.
Her Honour found that a claim by detective Carl as to his making a mistake in his statement regarding searching the roof cavity specifically for drugs was unreliable. And she outlined that the officer had conducted the search in a reckless “don’t care” manner.
In determining that the legal provisions pertaining to FPOs were ignored, and that the officers were “less than frank” in the evidence that they provided to the court, Judge Tupman ruled that “the desirability of admitting the evidence outweighs the undesirability of not admitting it”.
So, the evidence of drugs – which was the basis of the drug supply charge – was excluded, and charge was withdrawn and dismissed as a result.
Plugging up the gaps
However, it seems a little less likely that the same situation will arise again, as on 18 November last year, the Berejiklian government passed new laws setting up a pilot Drug Supply Prohibition Order scheme, which works in a similar way to the FPO regime, but in respect to illicit substances.
The DSPO regime permits an individual who’s been convicted of a serious drug offence within the last 10 years, be placed on an order that provides carte blanche search powers in relation to drugs.
The orders can be ongoing in their application, and a magistrate must issue a DSPO.
That said, the general laws relating to illegal searches remain in place and evidence derived from an illegality or impropriety by law enforcement officers remains liable to exclusion.