Car wash owner facing drugs charges avoids trial due to botched warrant

*This post was approved by our client

In March 2020 the Prosecution withdrew serious drug supply charges against our client after they decided not to appeal a decision by Judge Tupman to exclude the entire Prosecution case against our client in circumstances where the Police had conducted an illegal search (the Police had essentially carried out a drug search under the guise of the Firearms Prohibition Order legislation)

Here are links to the judgment and also the article from the Sydney Morning Herald about what we consider an important decision on a topical area.

Read the Judgment

Link to article (transcribed below)

** This post was approved by our client

A NSW judge has thrown out a drug supply case against a man who was alleged to have run a criminal enterprise out of his car wash business, saying police infringed on his civil liberties and committed "reckless impropriety" by not obtaining the correct search warrant.

NSW Police raided the Blacktown car wash owned by Danny and Ranny Shaitly in 2017, suspecting the brothers of using the business as a front to launder the proceeds of an alleged drug manufacturing operation, according to the judgment given by Judge Robyn Tupman in the NSW District Court.

Ranny Shaitly was already subject to a firearms prohibition order, which gave police wide powers to search his premises and vehicles for guns or ammunition.

Three days before the raid, police successfully applied for an identical order against Danny Shaitly, relying on his 2006 convictions for possessing a prohibited gun and aggravated break and enter, along with the fact he was on bail for drug and firearms offences at the time.

But firearms prohibition orders do not give police the power to search for drugs.

On August 10, 2017, about 10 officers descended on the Blacktown car wash owned by the brothers and scoured the washing area, office, storeroom and bathroom, turning up nothing of interest in the 20-minute raid.

Then one of the officers asked search co-ordinator Detective Michael Carl if he could do a more thorough search of the roof cavity in the storeroom, which could be accessed by a small hole in the ceiling that was crossed by cables.

In a statement written three weeks after the raid, Detective Carl said he was "aware of information relating to drugs being concealed in the roof cavity" and consented to the officer's request.

A short time later, a constable reached inside the cavity and pulled out a blue child's lunch box containing two packages of crystalline substance wrapped in plastic bags. One was found to be 154.94 grams of methylamphetamine and the other was found to be 140.15 grams of cocaine.

Danny Shaitly's DNA was found on the zipper of the lunch box and inside the plastic bag containing methylamphetamine. He was charged with drug possession and supply.

But Judge Tupman threw out the case against Danny Shaitly in December, finding that the "grave impropriety" police had committed in conducting an illegal search outweighed the public interest in convicting an offender for drug supply.

During the pre-trial argument, Detective Carl said he had been mistaken when he said in his written statement that he was aware of drugs in the ceiling, but Judge Tupman was unconvinced by his new version of events. "That does not bear logical scrutiny," she said.

Firearm prohibition orders gave police such wide powers it was important to comply with them precisely or they would infringe on the civil liberties of individuals, she said.

"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."

Last week, the Crown decided not to appeal her decision. Danny Shaitly is now serving a minimum nine-and-a-half year prison term for separate drug manufacture and firearm offences.

Shaitly's solicitor Lauren MacDougall said Parliament had recognised the need to protect citizens from unjustified entry into their home when it enacted the legislation and the case had established significant breaches from those safeguards.

"Her Honour’s decision should not be regarded as protecting Mr Shaitly, but rather, as protecting the rights that Parliament requires of all citizens," Ms MacDougall said.

A spokeswoman for the NSW Police said: "We note the judge's decision, and we are now considering our options."