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  • Writer's pictureGeoff Harrison

Firearms Prohibition Orders


Published by Geoff Harrison | 15 July 2023


Firearms Prohibition Orders (FPO) are covered under ss73-75 of the Firearms Act 1996 ('the Act'). An FPO gives police a very broad power of search, as no state of mind of the officer or prerequisite as to the officer having reasonable grounds to suspect an offence has been committed is required. As noted by Fagan J, in DPP v Shaba (2018) NSWSC 811 (see below) at [42]:

...s 74A(1) of the Firearms Act does not prescribe that a police officer may exercise the powers in subs (2) of s 74A only if he or she suspects that the person who is subject to a firearms prohibition order has committed an offence under s 74(1), (2) or (3). The subsection does not require, as a prerequisite to the exercise of the search power in subs (2), that the officer should hold any suspicion or belief, upon reasonable grounds or otherwise, or that there should exist circumstances from which a reasonable person could suspect that an offence against one of those subsections may have been committed.


Her Honour Tupman J, in R Shaitly [2019] NSWDC 762 noted that, given the power under an FPO re searching and its impact upon civil liberties being so wide, that the legislation should be strictly interpreted (see [97-98]).


73 FIREARMS PROHIBITION ORDERS


(1) The Commissioner may make a firearms prohibition order against a person if, in the opinion of the Commissioner, the person is not fit, in the public interest, to have possession of a firearm.


(2) A firearms prohibition order takes effect when a police officer serves a copy of the order personally on the person against whom it is made.


(3) The Commissioner may revoke a firearms prohibition order at any time for any or no stated reason.


74 EFFECT OF FIREARMS PROHIBITION ORDER


(1) Prohibition on persons acquiring, possessing or using firearms, firearm parts or ammunition A person who is subject to a firearms prohibition order must not acquire, possess or use a firearm.

Maximum penalty--imprisonment for 14 years if the firearm is a pistol or prohibited firearm, or imprisonment for 5 years in any other case.

Note : Reference to a pistol includes a prohibited pistol.


(2) A person who is subject to a firearms prohibition order must not acquire or possess a firearm part.

Maximum penalty--imprisonment for 14 years if the firearm part relates solely to any kind of pistol or prohibited firearm, or imprisonment for 5 years in any other case.


(3) A person who is subject to a firearms prohibition order must not acquire or possess ammunition for any firearm.

Maximum penalty--imprisonment for 5 years.


(4) Prohibition on supplying firearms etc to persons subject to orders A person must not supply or give possession of a firearm or firearm part to another person knowing that the other person is subject to a firearms prohibition order.

Maximum penalty--imprisonment for 14 years if the firearm is a pistol or prohibited firearm or if the firearm part relates solely to any kind of pistol or prohibited firearm, or imprisonment for 5 years in any other case.


(5) A person must not supply or give possession of ammunition for any firearm to another person knowing that the other person is subject to a firearms prohibition order.

Maximum penalty--imprisonment for 5 years.


(6) Prohibition on persons residing at premises where there are firearms etc A person who is subject to a firearms prohibition order is guilty of an offence if a firearm, firearm part or ammunition for any firearm is kept or found on premises at which the person is residing.

Maximum penalty--50 penalty units or imprisonment for 12 months, or both.


(7) It is a defence to a prosecution for an offence under subsection (6) if the defendant proves that the defendant--

(a) did not know, and could not reasonably be expected to have known, that the firearm, firearm part or ammunition was on the premises, or

(b) took reasonable steps to prevent the firearm, firearm part or ammunition from being on the premises.


(8) Prohibition on persons attending certain premises A person who is subject to a firearms prohibition order must not without reasonable excuse attend--

(a) the premises specified in a firearms dealer's licence, or

(b) a shooting range, or

(c) the premises of a firearms club, or

(d) any other premises of a kind prescribed by the regulations.

Maximum penalty--50 penalty units or imprisonment for 12 months, or both.


(9) Membership of a firearms club is not a reasonable excuse for the purposes of subsection (8).


(10) Exemptions The Commissioner may by order exempt a person, either unconditionally or subject to conditions, from a specified provision of this section.


(11) Proof of possession of firearm parts and ammunition For the purposes of any proceedings for an offence under this section, a reference in section 4A to a firearm is taken to include a reference to a firearm part or ammunition.


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.


(3) In this section,

"premises" includes any place, whether built on or not.


_____________________________________________________________________


R v Shaitly [2019] NSWDC 762 (12 December 2019)



District Court

New South Wales

Case Name:

R v Shaitly

Medium Neutral Citation:

[2019] NSWDC 762

Hearing Date(s):

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] NSWCA 348; (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


F/W- Counsel: Mr English


Solicitor: Ms Macdougall

File Number(s):

2017/279623


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; [2013] NSWCCA 257; 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] NSWCA 348; (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.



Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811 (1 June 2018)


Supreme Court

New South Wales

Case Name:

Director of Public Prosecutions (NSW) v Shaba

Medium Neutral Citation:

[2018] NSWSC 811

Hearing Date(s):

31 May 2018

Date of Orders:

1 June 2018

Decision Date:

1 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] HCA 14; (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] HCA 21; (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)


Solicitors:


Solicitor for Public Prosecutions (plaintiff)


Tashman Lawyers (defendant)

File Number(s):

2017/368957


JUDGMENT


The Director of Public Prosecutions appeals as of right pursuant to s 56 of the Crimes (Appeal and Review) Act 2001 (NSW) against the decision of Ms Holdsworth LCM to dismiss charges against the defendant of possession and supply of a prohibited drug. The defendant was charged that on 1 September 2016 he had in his possession 447.2 g of cannabis, contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Deemed supply was charged under s 25(1) on the same facts.

The charges were heard and dismissed on 8 November 2017. The ground of dismissal was that there was no evidence to support either charge after her Honour had excluded evidence of Senior Constable Rhys Smith that he had found the cannabis in a vehicle being driven by the defendant at Warwick Farm. Her Honour held that the search of the vehicle by which the constable had located the drug had been conducted without lawful authority. The evidence of the drug being found in the search was excluded in exercise of the discretion under s 138 of the Evidence Act 1995 (NSW).


The defendant was subject to a firearms prohibition order made pursuant to s 73 of the Firearms Act 1996 (NSW). Constable Smith had performed his search in exercise of the power conferred by s 74A of the Firearms Act. The learned magistrate held that s 74A did not justify the search in circumstances where the officer did not at the time hold a suspicion that the defendant had committed an offence against s 74(1), (2) or (3) by having in his possession a firearm, a firearm part or ammunition. Whether or not her Honour erred in dismissing the charges therefore turns upon the correct interpretation of s 74A.

The statutory interpretation issue is the “question of law alone” upon which the plaintiff bases his appeal under s 56 of the Crimes (Appeal and Review) Act. If the plaintiff is correct in his contention that her Honour misconstrued s 74A then the search of the defendant’s vehicle was not unlawful, her Honour’s discretion to exclude the constable’s evidence of finding the drugs was not enlivened and the charges were wrongly dismissed.


In order to state in meaningful terms the “question of law alone” which arises on the appeal, it is necessary first to quote extracts from the sections of the Firearms Act which are relevant. They are as follows:

73 Firearms prohibition orders


(1) The Commissioner may make a firearms prohibition order against a person if, in the opinion of the Commissioner, the person is not fit, in the public interest, to have possession of a firearm.


...


74 Effect of firearms prohibition order


(1) Prohibition on persons acquiring, possessing or using firearms, firearm parts or ammunition


A person who is subject to a firearms prohibition order must not acquire, possess or use a firearm.


Maximum penalty: imprisonment for 14 years if the firearm is a pistol or prohibited firearm, or imprisonment for 5 years in any other case.


Note. Reference to a pistol includes a prohibited pistol.


(2) A person who is subject to a firearms prohibition order must not acquire or possess a firearm part.


Maximum penalty: imprisonment for 14 years if the firearm part relates solely to any kind of pistol or prohibited firearm, or imprisonment for 5 years in any other case.


(3) A person who is subject to a firearms prohibition order must not acquire or possess ammunition for any firearm.


Maximum penalty: imprisonment for 5 years.


...


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.

(3) In this section, premises includes any place, whether built on or not.


The “question of law alone” upon which the appeal turns is this:

Whether upon its correct interpretation s 74A(1) of the Firearms Act has the effect that a police officer may exercise the powers in subs (2) of s 74A only if he or she suspects that the person who is subject to a firearms prohibition order has committed an offence under s 74(1), (2) or (3) and the officer has reasonable grounds for that suspicion.


The plaintiff submits that the answer is no, there is no requirement that a police officer have any suspicion or belief, on reasonable grounds or otherwise, as a pre-requisite to exercising the power of search in s 74A(2) of the Firearms Act. It is the plaintiff’s contention that a search may be carried out to determine whether or not a person subject to a firearms prohibition order has possession of a firearm, firearm part or ammunition in contravention of s 74(1), (2) or (3), without any pre-formed suspicion or belief and subject only to the constraint that a search on the occasion in question and to the extent undertaken should be reasonably required for the objective of ascertaining whether infringement has occurred. The defendant contends that a search order under s 74A(2) is not lawful unless the officer held at the time a suspicion that a contravention of one or more of those subsections had occurred.

Facts and decision below


Firearms prohibition orders under the Act are not expressed in terms which purport to contain within themselves the restrictions imposed upon the person affected. Rather, such orders have attached to them a schedule identifying sections of the Act which take effect upon the order being issued. Consistently with that scheme, the order which was served on the defendant on 9 May 2016 informed him, amongst other things, that he would commit an offence against s 74(1), (2) or (3) if he should acquire or possess a firearm, a firearm part or ammunition.


Senior Constable Smith gave evidence that on 1 September 2016 he stopped the vehicle being driven by the defendant for a random breath test. At the request of the constable the defendant produced a license, which was in the name Tony Tomika. Senior Constable Smith returned to his police vehicle and conducted checks which revealed that the defendant had previously gone by the name Dilan Shaba and that the vehicle he was driving had been registered in the name of Nahdum Shaba until the date of service of the firearms prohibition order. At that time it had been transferred to a person named Phommachanh. The constable also saw that the defendant had in the past been convicted of serious offences involving violence and that there were intelligence holdings which associated him with “Assyrian organised crime drugs”.


The constable said that from the circumstance of the vehicle’s registration having been transferred contemporaneously with service of the firearms prohibition order, together with the fact the defendant was still driving it several months later, he inferred the defendant “may be attempting to avoid police notice”. He said he did not form a suspicion that the defendant was in possession of a firearm or a firearm part or ammunition. If he had felt such a suspicion, he said, he would have remained at a distance from the vehicle, drawn his service weapon, used a megaphone to require the defendant to alight from the vehicle and handcuffed him before executing a search. None of that was done.


On the basis of his concern that the defendant might be avoiding police notice Senior Constable Smith “decided to search him to ensure he was not committing an offence under the [Firearms] Act”. The senior constable said he thought it was reasonably required that he search the vehicle, invoking the power under s 74A(2) of the Firearms Act, “in the sense that I can’t determine that he’s in possession on his person without searching him and I think it was reasonable”. He further said that he thought, in view of the inference the defendant was avoiding police notice, “that it’s reasonable to search him to see if he’s compliant with his firearms prohibition order. That he’s not in possession of firearms, ammunition or anything.”


Immediately upon the senior constable opening the door of the vehicle to commence the search he smelt a strong odour of cannabis. He located under some items of clothing a bulky black garbage bag. He ripped a small hole in this and saw that there was a clear plastic bag within which contained green vegetable matter. From the smell and appearance he was of the opinion it was cannabis. The defendant was arrested and charged.


The learned magistrate’s reasons for finding that the search was unlawful appear sufficiently from the following extracts from her judgment, which was given orally:

The officer has confirmed in evidence that at the time he searched the car he had no suspicion that the accused was in possession of either firearms, parts thereof or ammunition. The officer has confirmed that if he did think that he would have taken action differently when he approached the vehicle to ensure both his safety and those around him. The officer said effectively that he could not ensure compliance with the firearms prohibition order in the absence of conducting a search of the accused and the motor vehicle. In other words, the officer’s evidence is to ensure compliance there had to be a search and that is what the officer did.


...


There is no escaping the officer’s evidence that he did not suspect that the accused had potentially committed any of the offences outlined in s 74(1), (2) or (3) of the Firearms Act. The officer wanted to ensure compliance with the firearm prohibition order, but certainly unequivocally says in the witness box today that he had no suspicion that at the time of the search of the car that he believed that any of the offences in 74 had been committed by the accused.


...


It is not the prosecution case that the officer had reasonable grounds to believe that the accused may have committed one of the [offences] in s 74(1), (2) or (3) of the Firearms Act. If the officer or any officer did seek to determine if the accused was in contravention of any of the provisions of s 74(1), (2) or (3) in my view that officer would be required to show reasonable grounds for the holding of such belief.


...


This case I believe stands or falls on the officer’s honest assertion that he had no belief or suspicion that at the time that he stopped the vehicle and conducted the search that the accused was potentially infringing any of the provisions s 74(1), (2) or (3). On that basis the search of the vehicle is in my view outside the power under s 74A of the Firearms Act and therefore unlawful.


Having come to the above conclusion her Honour weighed the considerations which she thought relevant to the exercise of the discretion under s 138 of the Evidence Act and, as previously mentioned, determined to exclude the evidence of the search and seizure. With due respect to her Honour, I interpret s 74A(1) of the Firearms Act as not requiring that a police officer form a suspicion upon reasonable grounds that there has been an offence against subs (1), (2) or (3) of s 74 as a prerequisite to exercising the power of search under s 74A(2). It is therefore not necessary for me to consider in any detail the manner in which her Honour evaluated relevant discretionary considerations to arrive at her decision to exclude the critical evidence.

Interpretation of s 74A of the Firearms Act


The power of search which subs (2) of s 74A of the Firearms Act confers is closely confined as to (a) who or what may be searched and (b) what may be searched for. Only a person who is subject to a firearms prohibition order, or premises, a vehicle, vessel or aircraft occupied, managed or controlled by such a person may be searched. The only things that may be searched for are those of which possession by the person subject to the order would constitute (or provide evidence of) an offence against s 74(1), (2) or (3), namely, firearms, firearm parts or ammunition.


Subsection (1) of s 74A prescribes a criterion which limits the occasions on which and the manner in which the power of search may be exercised. Despite the use of the word “may”, subs (1) is not merely permissive. It does not merely allow the search power to be exercised “as reasonably required etc” whist not constraining other ways in which the power might be used. The subsection would be redundant if that was its effect. In an appropriate context the word “may” in a statute can mean “shall” or it can convey some other shade of prescriptive and/or imperative meaning: D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths) Ch 11; Tasker v Fullwood [1978] 1 NSWLR 20 at 23-4; McRae v Coulton (1986) 7 NSWLR 644 at 661. Section 74A provides such a context. I interpret the word in the sense “may only”.


Upon that interpretation, subs (1) limits both the occasions on which a search may be conducted and the extent of the search. The limit is whatever is “reasonably required” in order to determine whether the person subject to a prohibition order has possession of a firearm, firearm part or ammunition. Subsection (1) is a clearly expressed criterion of the manner of exercise of the search power, by reference to its reasonableness as a means of achieving its statutory object. It does not stipulate a pre-requisite to the exercise of power by reference to the state of mind of the police officer. The subsection does not state that an officer who is to exercise the power of search must hold a suspicion or belief that any of subs (1), (2) or (3) of s 74 has been breached, nor any other suspicion or belief.


The defendant submitted that if s 74A(1) should be interpreted as not requiring any more than that the power of search under subs (2) be exercised reasonably then it would serve no purpose because that limitation would be imputed without express words. The proposition that the legislature will be taken to intend that a power conferred should be exercised reasonably is well supported by authority: Kruger v The Commonwealth (1997) 190 CLR 1; [1997] HCA 27 at 36; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 650 [126] (Gummow J) and Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 554 [116]. The defendant’s counsel referred to Uber BV v Howarth [2017] NSWSC 54 where these authorities were applied at [143].


I do not accept this argument. Section 74A(1) as I interpret it fulfils a function because it prescribes that the power of search is to be exercised in order to determine whether specified subsections of s 74 have been infringed. It reduces the scope of the search power. There is no occasion to read into s 74A(1) a requirement that the police officer should hold a suspicion, in order to give the subsection work to do.


The absence of any stipulation of a suspicion or belief does not lead to any absurdity, inefficacy or inconvenience in the operation of s 74A. There is no such consideration which would warrant implying into s 74A(1) a requirement that some suspicion or belief be held by the police officer. Nor is there any occasion to resort to extrinsic materials in order to resolve absurdity or unreasonableness resulting from giving the words of the subsection their ordinary meaning (cf s 34(1)(b)(ii) of the Interpretation Act 1987 (NSW)).


Suspicion upon reasonable grounds that an offence has been committed, as a pre-requisite to the exercise of certain police powers, is a familiar concept from the common law. It has been adopted by Parliament in other statutes, for example in s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). There is no basis in the principles of statutory interpretation for implying, imputing or otherwise importing such a requirement into s 74A(1), where Parliament has seen fit not to enact it.


The defendant sought to avoid the significance of Parliament having omitted any words such as “if the police officer suspects on reasonable grounds” (as in s 21 of the Law Enforcement (Powers and Responsibilities) Act), by submitting s 74A (1) requires that the officer must suspect a breach of s 74(1), (2) or (3) before carrying out a search, but not that he need have reasonable grounds for the suspicion. This was propounded as a criterion for exercise of the power which would lie somewhere below the stringency of s 21 of the Law Enforcement (Powers and Responsibilities) Act but would not be as liberal as omission of any requirement that a suspicion be held, even at an unsubstantiated subjective level.


That is not how the learned magistrate interpreted the subsection. It is clear from her reasons as quoted at [13] above that her Honour regarded s 74A (1) as stipulating a prerequisite of suspicion upon reasonable grounds. I find no warrant for the intermediate interpretation propounded by the defendant. It would be highly unusual, possibly unique, in the field of statutory provisions concerning police powers. I cannot conceive of any statutory purpose which would be served by stipulating that a police officer should not carry out a search except on suspicion, whilst stopping short of requiring that the suspicion be reasonably based; that is, by allowing that the suspicion might be irrational or idiosyncratic.


The interpretation I place upon s 74A(1) flows from the plain words of the subsection. I find no ambiguity which would warrant recourse to extrinsic materials as an aid to construction: see s 34(1)(b)(i) of the Interpretation Act. Counsel referred me to the second reading speeches made when Pt 7 of the Firearms Act was enacted and when certain amendments were introduced. I do not find it necessary to consider these in order to interpret the subsection. In any case I find nothing in the speeches contrary to the view at which I have arrived.


Although this observation is not essential to my reasoning with respect to the interpretation of s 74A(1), I find it unsurprising that Parliament should have refrained from requiring that a police officer should have a suspicion or belief that a person subject to a firearms prohibition order is in possession of firearms, firearm parts or ammunition before searching him or his premises or vehicles etc. Two considerations are relevant.


First, the purpose of Pt 7 is very clearly the protection of the public against the risk to peace and safety posed by firearms being in the hands of persons whom the Commissioner of Police considers “not fit, in the public interest” to have them (s 73(1)). There is a rational justification for a power of investigatory and preventive search, to ascertain compliance with the prohibitions to which persons under such orders are subject, thereby to make the orders effective. The power of search and hence the efficacy of the orders would be reduced considerably if search were restricted to cases where a police officer already suspected non-compliance.


Secondly, I have referred earlier to the narrow focus of subs (2) regarding who or what may be searched and what items may be searched for. By allowing such a power to be exercised without the relevant police officer holding a suspicion as to the commission of an offence Parliament has not effected any broad or substantial erosion of civil liberties. It is an understandable policy choice that the power of search should be relatively untrammelled in the interests of public safety, at the expense of a limited and highly directed intrusion upon the privacy of the inherently small class of persons against whom firearms prohibition orders are made.

In an endeavour to characterise s 74A as having introduced a sweeping intrusion upon freedoms the defendant submitted that there is little oversight of the Commissioner’s role in making firearms prohibition orders, that they continue indefinitely unless revoked and that the availability of judicial or administrative review of their continuance is at best limited. On the assumption that those propositions are broadly correct, without researching the law which underlies the submission, none of this negates the expressly very confined scope of searches under s 74A and the necessarily small proportion of the civilian population who are the subject of orders under s 73 and who may therefore be exposed to the exercise of the power.

In aid of the construction advanced by the defendant, as summarised at [22], he invoked the principle of legality applicable to the interpretation of statutes that erode fundamental rights, freedoms or immunities: Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63, Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15, Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [173]. It was submitted that the basic right in issue in the present case is a right to be “free of searches and seizures”.


The defendant cited George v Rockett (1990) 170 CLR 104; [1990] HCA 26 in which the High Court stated at [4] that the common law had long been jealous of the prima facie immunity from seizure of papers and possessions ... had refused to countenance the issue of search warrants at all and refused to permit a constable or government official to enter private property without the permission of the occupier.


Their Honours went on to say at [5]:

State and Commonwealth statutes have made many exceptions to the common law position, and s.679 [of the Criminal Code (QId)] is a far-reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.


George v Rockett was concerned with whether strict statutory conditions for the issue of a search warrant had been complied with. No doubt the courts will, for similar reasons, scrutinise closely whether statutory prerequisites for search without warrant have been met. The issue here, though, is what those statutory prerequisites are. George v Rockett illustrates that by clear language Parliament may abrogate a fundamental freedom or immunity. That was explained, as follows, at [10] (Mason CJ, Brennan, Gaudron and McHugh JJ) (citation omitted):


The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.


At [11] their Honours approved the following simpler statement of the principle by Brennan J in Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12:

Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.

The intention of the New South Wales Parliament to abrogate freedom from search to the limited extent provided for in s 74A of the Firearms Act is to my mind clear from the terms of the section. Equally, I consider it clear that the legislature has directed its attention to the fact that the section would intrude upon the privacy of persons subject to firearms prohibition orders and it has “determined upon abrogation or curtailment” of that privacy. The principle of legality is of no assistance, at least in this case, in construing the limits and preconditions which Parliament intended to impose around this abrogation of freedom from search and seizure.


R v Ioannidis


I am not aware of any previous decision of a court in New South Wales in which the issue of interpretation which arises here has been considered. In R v Ioannidis (2015) 124 SASR 86; [2015] SASCFC 158 the Full Court of the Supreme Court of South Australia had to consider a very similar issue under the Firearms Act 1977 (SA). Pursuant to that legislation the Registrar of Firearms was empowered to issue a final firearms prohibition order on the ground that “it is in the public interest to prohibit the person from possessing and using a firearm”. There was also a judicial power to make such an order under the Criminal Law Consolidation Act 1935 (SA), on criteria which included that a firearm had been used in and had facilitated the commission of an offence.


Section 10C(3) prohibited a person who was the subject of an order from acquiring possessing or using a firearm or firearm accessories and s 10C(4) required the person to surrender all firearms, firearm parts and ammunition. Section 32(3a) was in these terms:

A police officer may, as reasonably required for the purpose of ensuring compliance with the firearms prohibition order issued by the Registrar or to which a person is subject by order of a court -


(a) detain a person to whom this subsection applies and search the person for any firearm, license, firearm part or ammunition liable to seizure under this section; and


(b) stop and detain a vehicle, vessel or aircraft to which this subsection applies and search the vehicle, vessel or aircraft for any firearm, license, firearm part or ammunition liable to seizure under this section; and


(c) enter any premises to which this subsection applies and search the premises for any firearm, license, firearm part or ammunition liable to seizure under this section.


The similarities between this legislative scheme and that of the New South Wales Firearms Act are self-evident. All members of the South Australian Full Court accepted that s 32(3a) did not require, as a prerequisite to the exercise of the power of search, that the police officer hold a suspicion, on reasonable grounds or otherwise, that non-compliance with the firearms prohibition order had occurred: at [16] (Kourakis CJ), at [58]-[59] (Gray J) and at [119] (Peek J).


Kourakis CJ considered that the police officer need not hold even a rational or genuine reason, falling short of reasonable suspicion, for thinking there had been a contravention of the order. His Honour considered that the “reasonableness” limitation in s 32(3a) was “concerned not with the strength of a suspicion but with the proportionate use of the power to monitor” compliance with the firearms prohibition order: at [13]. At [22] his Honour said that the provision

empowers police to search persons who are subject to FPOs whenever a search is reasonably required and a search will in the absence of countervailing circumstances generally be reasonably required for no other cause than to check compliance with the FPO.


Notwithstanding the similarities between the South Australian and the New South Wales legislation there are also differences, which means that the reasoning of the majority of the South Australian Full Court is not precisely in point. Nevertheless I find it highly persuasive and supportive of my own interpretation of s 74A(1) of the New South Wales Firearms Act.


Peek J dissented in the result of the appeal because his Honour considered that the power under s 32(3a) could be exercised

if, and only if, such proposed act [of search] would be assessed by a reasonable person as being required to be done to effectuate the designated statutory purpose (ensuring compliance with a firearms prohibition order). Thus, the statutory condition precedent will only be satisfied if, as a matter of objective assessment, the circumstances as known to the police officer positively required the performance of the proposed act of detention or search.


His Honour was alone in this conclusion. With respect, I would not adopt a similar view of s 74A(1). His Honour’s formulation, if applied to the section which I am required to consider, would add a gloss which I do not find clear and for which I can find no justification in the context of the New South Wales Act. His Honour’s interpretation appears to import a concept of objectively identifiable circumstances to indicate that the firearms prohibition order may not be being complied with. Under the New South Wales Act, that would translate to objective circumstances indicating that s 74(1), (2) or (3) may have been infringed. I consider that there is no such requirement to be found in s 74A(1) and that the power of search under s 74A(2) may be exercised when “reasonably required” and as far as “reasonably required” to determine whether an offence against s 74 has been committed, irrespective of any objective indication that that might be so.



The question of law formulated in the terms stated at [6] is resolved by my conclusion that, on its correct interpretation, s 74A(1) of the Firearms Act does not prescribe that a police officer may exercise the powers in subs (2) of s 74A only if he or she suspects that the person who is subject to a firearms prohibition order has committed an offence under s 74(1), (2) or (3). The subsection does not require, as a prerequisite to the exercise of the search power in subs (2), that the officer should hold any suspicion or belief, upon reasonable grounds or otherwise, or that there should exist circumstances from which a reasonable person could suspect that an offence against one of those subsections may have been committed.


It follows that the learned magistrate erred in law and the appeal should be allowed.


Accordingly the orders of the Court are:

(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.


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