Adrian Charles Upton v Paul Bayden Herbert and State of South Australia No. Scgrg-97-308 Judgment No. 6371 Number of Pages 15 Tort Conversion

[1997] SASC 6371

IN THE SUPREME COURT OF SOUTH AUSTRALIA

PERRY, J

Tort - conversion - Police officers seized a motorcycle from the plaintiff, suspecting that it was stolen and that he had unlawful possession of it - when the plaintiff sued the State of South Australia in the Magistrates Court for its return and damages for its detention, the State issued an interpleader summons against the person who claimed to be the owner of the motorcycle "the intervener" - the court ordered that the question of ownership between the plaintiff and the intervener be tried first - the trial Magistrate found in favour of the intervener - held on appeal that there was no reason to interfere with the relevant findings of fact - while not all of the parts on the motorcycle were shown to have been owned by the intervener, the court was entitled to order its return to the intervener. Article "Accession and Confusion in the Law of Hire Purchase" Guest, 27 MLR (1964) 505, considered.

Practice and procedure - civil trial - held that the trial Magistrate did not err in allowing two witnesses to be interposed, in receiving an affidavit in evidence from a witness resident in the United States of America, and in allowing a police officer to refer to a statement which he had made, as an aide memoire. District Court Rules R 55.11(5); Evidence Act 1929ss59j, 34c and 45b, referred to.

Estoppel - the plaintiff to an action against the State of South Australia for damages for detention of a motorcycle had previously been acquitted of a summary charge of unlawful possession of the same motorcycle - the State of South Australia issued an interpleader summons against the person who asserted that he was the true owner of the motorcycle - on a trial between the plaintiff and the intervener, held that the latter was the owner of the motorcycle - on appeal, held that although the question of estoppel could not properly be raised for the first time on appeal, in any event, there was no estoppel against the State of South Australia arising by reason of the dismissal of the unlawful possession charge - the determination of ownership as between the plaintiff and the intervener determined the plaintiff's claim against the State of South Australia in favour of the latter. Summary Offences Act 1953s41, referred to.

ADELAIDE, 22 May 1997 (hearing), 19 September 1997 (decision)

#DATE 19:9:1997

#ADD 22:9:1997

Appearances:

Appellant:

Counsel: Mr D Peek

Solicitors: Herman Bersee

Respondent:

Paul Bayden Herbert:

Counsel: Mr P Smith

Solicitors: Flavio Verlato

Respondent:

State Of South Australia:

Counsel: Ms L Chapman

Solicitors: Crown Solicitor (SA)

Order: appeal dismissed.

PERRY J

This is an appeal from a judgment given by a Special Magistrate constituting the Magistrates Court sitting in its civil jurisdiction at Mount Gambier.

The appellant was the plaintiff in the proceedings. He sued the first respondent, the State of South Australia, for the return of what is described in the statement of claim as a 1978 FX Harley Davidson motorcycle. The motorcycle had been seized by police officers from premises occupied by the plaintiff on 2 April 1994. In the alternative to that claim, the plaintiff claimed by way of damages its alleged value, namely, $12,000. In addition, the plaintiff claimed ongoing damages for the loss of use and enjoyment of the motorcycle.

In response to the proceedings, the State of South Australia issued an inter-pleader summons addressed to the second respondent, Paul Bayden Herbert.

The basis for the issue of the inter-pleader summons was that the State of South Australia did not claim ownership of the motorcycle, but it had received a claim to ownership of it from Mr Herbert. It was, therefore, faced with competing claims to ownership.

By order made on 23 August 1996, the action was directed to proceed to trial. The terms of the order provided that what was described as "trial of issue of ownership" only was to proceed at that stage.

No formal pleading was filed by Mr Herbert. By an order made on 18 September 1996 he was directed to file an affidavit-

"... setting out the basis upon which he claims ownership, in particular when and how he bought the motorcycle and the basis upon which he recognises the motorcycle as his property."

In response to that order, Mr Herbert filed an affidavit sworn on 14 October 1996 furnishing information as to those matters to which he had been directed to depose.

The State of South Australia was excused from the trial at that stage. Mr Herbert was directed to be dux litis. The trial proceeded over some five days in October and December 1996.

On 7 February 1997, the learned Special Magistrate gave judgment in which he determined the question of ownership in favour of Mr Herbert. He made an order in the form of a declaration "that the seized motorcycle is the property of Mr Herbert". He ordered that the motorcycle be released to him.

It is from that declaration and order that Mr Upton appeals to this Court.

For convenience, I will continue to refer to the parties as Mr Upton and Mr Herbert.

Initially, in his notice of appeal Mr Upton asserted that the learned Special Magistrate erred in accepting the evidence proffered by Mr Herbert as to the identification of various parts on the motor cycle as his; further, that he erred in accepting Mr Herbert as a witness of credit.

A supplementary notice of appeal was filed on 9 May 1997 in which Mr Upton advanced a number of other grounds. One of the new grounds pleaded that by reason of the course of the proceedings, Mr Upton had wrongly been deprived of the benefit of an issue estoppel against the State of South Australia. Other additional grounds pleaded in the supplementary notice of appeal asserted that the learned Special Magistrate erred in allowing the evidence of certain witnesses to be interposed, in permitting a witness to refer to a statement for the purpose of giving evidence, and in receiving in evidence an affidavit.

At the hearing of the appeal, counsel appeared for the State of South Australia only to advance submissions with respect to the question of estoppel.

It is convenient first to deal with the evidence.

Evidence

Mr Herbert is a baker who lives at Casterton, Victoria. He has had a long-standing interest in motorcycles, and has been a regular attendant at rallies and meetings involving others with a similar interest.

In 1988 he purchased what he described as a motor and rigid frame from a person living in Hastings in Victoria. The parts had been dismantled and were in three or four separate boxes. His interest was in the motor, which he believed to be a 1982 Harley Davidson shovel head motor with an STD crank case. He sold the frame more or less immediately, but retained the motor. He started to assemble the motor himself, but in June 1989 he had the assembly of the motor completed by D & H Motors at Geelong.

Subsequently, he bought for $7,000 a complete motorcycle, described as a Harley FX 1200. He purchased that bike from Robbo's Motorcycles in Canberra. That was in February 1990.

Mr Herbert sold off the motor from that motorcycle, substituting for it the shovel head motor which he had purchased previously. Thereafter, he purchased various parts which he fitted to the motorcycle. In that process, he restored a number of parts, some of which he had electro-plated and others which he painted. As well, some further work was done by D & H Motors.

He registered the motorcycle on 2 August 1990, presumably when his work on it was finished. The certificate of registration contains particulars of the "chassis or frame number" against which appears the number 640454H2, and the engine number, recorded as 35619439476.

Following registration of the bike, he used it for outings, such as motorcycle rallies and meetings, and taking his wife and children for rides. It was a distinctive white colour; so far as he was aware, the only white Harley Davidson in the area. He said that the motorcycle became "fairly well known" within the district.

On 10 July 1991, the motorcycle was stolen from Mr Herbert's garage. He reported the matter to the Casterton police and published notices offering a reward, but without success.

In March 1994, acting in response to an anonymous telephone call, Detective Hope of the Mount Gambier police visited Mr Upton at his home at Mount Gambier. When Detective Hope arrived, Mr Upton was riding a red coloured Harley Davidson motorcycle. The motorcycle was unregistered and uninsured, although it carried a registration label and number plate relating to another motorcycle.

Detective Hope seized the motorcycle and took it to Mount Gambier police station. The Mount Gambier police must have contacted the police station at Casterton, as Mr Herbert then received a telephone call from the Casterton police. He was asked to give some identifying features of his motorcycle. After he had done so, the Casterton police suggested that he attend at Mount Gambier police station and inspect the motorcycle.

When he did so, at first he did not recognise it. The appearance was very different from the appearance of his motorcycle at the time of its theft.

Before he attended at Mount Gambier, Detective Hope handed to Senior Constable Manser of the Mount Gambier police station a list of what were described as identifying features of the motorcycle. The list must have been a record of the information previously given by telephone by Mr Herbert to the Casterton police when he was first contacted after the motorcycle had been located.

Senior Constable Manser gave evidence at the trial. His evidence was that he received the list from Detective Hope before Mr Herbert came to see the motorcycle. According to Senior Constable Manser's evidence, the identifying marks set out in the list were:

"82 shovel head motor, STD crank case imported from the America, both saddlebags handmade with two plywood in the bottom, front cylinder under rocker cover, there is graze marks on fins where owner hit the road, there are vice marks on front forks where it was placed in a vice for repairs."

Constable Manser examined the motorcycle and saw what he thought were graze marks on the fins and vice marks on the front forks.

It was after Constable Manser's examination that Mr Herbert attended at Mount Gambier police station. This was on 7 April 1994. He pointed out to Detective Hope and Senior Constable Manser a number of other features which he claimed confirmed that other components on the motorcycle were his. However, he said that the rear mudguard, the front mudguard, the petrol tank and the oil tank were not his.

On 10 April 1994, Mr Herbert attended again at Mount Gambier police station, this time with some tools. He removed certain parts, as a result of which he identified some other marks to Detective Hope in the presence of Senior Constable Manser.

The Mount Gambier police officers permitted Mr Herbert to remove the motorcycle and take it back to Casterton. But when he arrived at Casterton he was contacted by the Mount Gambier police and asked to take the motorcycle to the Casterton police, which he did. It was then returned to Mount Gambier, where it remained at the time of the trial.

Before instituting the subject proceedings, Mr Upton, through his solicitor, wrote to Detective Hope demanding the return of the motorcycle and denying that it had any stolen parts on it. When that demand was not complied with, he issued the proceedings on 10 August 1994.

On 8 September 1994, a complaint was issued against Mr Upton out of the Magistrates Court at Mount Gambier alleging unlawful possession of stolen motorcycle parts. There was a summary trial of that charge before another magistrate. On 8 March 1996, the learned trial Magistrate dismissed the complaint.

At the civil trial, Mr Herbert called a motor mechanic who was the proprietor of D & H Motors, Mr Ian Cust. He had been in the industry for twenty years, dealing with Harley Davidsons. He gave technical evidence as to the significance of the casting code on the crank casing. He identified it as an "STD" casing, which indicated that it was a genuine factory made crank case.

Mr Crust gave evidence also as to the significance of other features on the subject motorcycle which had been identified by Mr Herbert as tending to confirm his ownership of the motorcycle. I will deal with that evidence when I come to address the alleged distinguishing features.

Mr Herbert called a witness named Warren Jenner. Jenner knew the plaintiff, Adrian Upton, and also his brothers, Damien and Phillip. Mr Jenner lived in Mount Gambier but had seen Mr Herbert riding his Harley Davidson at Casterton on an occasion when he was at Casterton for a rally or hill climb. Later, he put it as some time in 1991, he saw the same motorcycle in a shed or garage attached to a unit at Powell Street, Mount Gambier, occupied by Phillip Upton. He thought that Damien Upton might also have been living there.

In cross-examination he went further and said that Damien Upton was with him on an occasion when he saw Mr Herbert ride the motorcycle down the main street of Casterton. He says that Damien told him he was going to steal the motorcycle. His evidence is not entirely clear as to where this statement was made. There is some uncertainty also as to whether that conversation took place while they were in the main street at Casterton on the occasion when Mr Herbert was seen riding it, or later on the same day at about 7.00 pm or 8.00 pm. At all events, his evidence was that when he came back at about midnight on the same day, the motorcycle was in the shed.

The plaintiff, Mr Adrian Upton, gave evidence. He also called his brother Phillip Upton, but not Damien. Adrian Upton denied stealing or receiving the motorcycle. Phillip Upton, who admitted to living in a unit in Powell Street, to which was attached a lock-up garage, denied that either of his brothers had ever put a Harley Davidson into the garage. He denied knowing anything relevant to the disappearance of Mr Herbert's motorcycle.

The plaintiff Adrian Upton gave evidence that he had owned a Harley Davidson motorcycle, not the one in question, since 1989.

As to the subject motorcycle, his evidence was that at an occasion which he described as a Ballarat swap meet held in March 1992, he purchased a Harley Davidson motorcycle frame. Apparently a swap meet is an occasion when motorcycle owners or dealers meet for the purpose of either swapping or selling motorcycles or parts.

He said that he paid between $900 and $1,000 for it. He conceded that, judging from the photographs of Mr Herbert's motorcycle before it was stolen, it was the same type of frame as the 1978 frame on Mr Herbert's motorcycle.

He said that in June or July 1992 he bought a shovel head motor to fit the frame. His evidence as to the purchase was vague:

"Q. You got in Melbourne. What state was it in. (227)

A. It was in pieces. It looked like it was all there but when I got home, under closer inspection it needed new lifters, a few new bearings, new rings, gaskets, new valves, some seals in it and give it an valve grind and put it together and it wasn't too bad.

Q. The person you bought it off do you know him.

A. No, I've never seen or met him before in my life.

Q. Where was he, where did he live.

A. I don't know. I just got directions and found it. I think it was out Reservoir way, or something out there, Nunawading. I don't know, one of them areas. I don't know Melbourne all that well.

Q. When you went and bought it were you by yourself.

A. Yes, my brother lent me some money.

Q. Who was that.

A. Phillip."

Phillip Upton's evidence was that he had lent $2,000 to his brother Adrian, as he thought, "So he could buy some Harley parts". His bank statement recorded that he had withdrawn that amount of money in June 1992.

Mr Adrian Upton asserted that after he had bought the motor, he went on to fit to it some parts which he already had, and that he purchased the necessary remaining parts to complete the motorcycle.

He was riding the motorcycle when Detective Hope arrived at his home just before the motorcycle was seized.

Identification of the motorcycle

Much of the trial was taken up with detailed evidence as to the appearance and origins of the various components of the seized motorcycle.

It was conceded from the outset by Mr Herbert that not all of the motorcycle was his. In particular, he eschewed ownership of the front wheel, the handlebars, the petrol tank, the front brake, the exhaust pipes, the seat and swing arm. The swing arm is the framework onto which the back wheel is bolted.

He said elsewhere in evidence that 80% of the motorcycle was his property. He repeated his description of the parts appearing on the motorcycle which were not his, and said that there were some other parts which were missing.

At one stage in his evidence he said that the parts on the motorcycle which were not his were worth in the order of $300 or $400.

The learned Special Magistrate set out at length the evidence as to the various components of the motorcycle during the course of his reasons for judgment. It would be tedious for me to go through the same process.

It is sufficient for me to say that certain items of evidence were of particular cogency and, in my opinion, support the conclusion eventually reached by the learned Magistrate.

I have referred to the fact that the certificate of registration initially issued to Mr Herbert for the motorcycle following its restoration records the engine number, namely, 35619439476.

The engine number on the seized motorcycle has been ground off.

The engine crank case comprises two matching parts. Apparently they are manufactured as a matched pair. During the course of manufacture, the full engine number is stamped on one part of the crank case. Separately, and in a less conspicuous position, each part of the matched pair is stamped with four digits, being part of the full engine number.

In this case, the two matching parts of the crank case were stamped "4394". They are, of course, four digits corresponding with part of the engine number. The last two digits of the engine number, 76, indicate the year of manufacture. Apparently the engine number is in a code which in this case indicates that the engine was number 4394 of 1976.

I agree with the learned trial Magistrate that this is a significant identifying feature. While he correctly observed that the number 4394 might have formed part of an engine manufactured in 1975 or 1977, the significance of the number 4394, given the overall context of other similarities with Mr Herbert's motorcycle, was important.

The frame number on the seized motorcycle had been destroyed, apparently deliberately, and the area in which it had been located was covered by paint.

Tendered in evidence was a warranty registration card for the voltage regulator purchased by Mr Herbert in the course of restoring his motorcycle. That card indicates a serial number, namely, 47805. The serial number is not visible unless the regulator is removed from the engine. On the bottom of the regulator of the seized motorcycle appears the same serial number.

Mr Herbert's evidence was that while restoring the motorcycle, he cut off a section of the side stand so that it did not tangle with the belt drive. The seized motorcycle has the side stand shortened. The comparison with the photograph of Mr Herbert's motorcycle suggests that it has been shortened, albeit somewhat more.

Evidence was given by Mr Herbert that while working on the motorcycle during the course of its assembly, his wife, in an attempt to help him, used a buffer attached to a drill to polish one of the components. The drill slipped and caused what was described as "chatter marks". Mr Herbert thought they were on the front rocker cover, but on the seized motorcycle similar chatter marks appeared on the rear rocker cover. Mrs Herbert gave evidence during the course of which she pointed out the marks, explaining how she had caused them.

The learned trial Magistrate considered the existence of those marks to be a "significant identifying feature". He attributes the fact that Mr Herbert was apparently confused as to which of the rocker covers became marked in that way by reason of the lapse of time and that he had not seen his motorcycle for some years between the time when it was stolen and when it was recovered.

Other similarities between the seized motorcycle and Mr Herbert's motorcycle were detailed by the learned trial Magistrate. For reasons which appear in his judgment, he was not prepared to rely on all of the features to which attention is drawn in that respect, but he did accept that a number of the features were similar.

He found that the component known as a lower triple tree, which holds the front forks together on the seized motorcycle, were from Mr Herbert's motorcycle by reason of the distinguishing marks referred to in Mr Herbert's evidence.

He referred to another feature as significant, namely, filing marks on part of the frame of the seized motorcycle adjacent to the storage area. Mr Herbert's evidence was that he filed down that part of the frame in order to enable the battery to fit.

During the course of his work on the motorcycle Mr Herbert painted the centre of the clutch housing with what he thought was black paint, but what in fact was a water soluble ink paint used in the timber industry.

The centre of the clutch housing of the seized motorcycle was painted black and the paint was apparently easily removed.

I do not go through all of the similarities. Standing back from them, there are some obvious coincidences which in their combined effect would be remarkable if the seized motorcycle was not Mr Herbert's. They include the fact that the frame is a similar frame to that which was on Mr Herbert's motorcycle and that it was fitted with a shovel head motor, a three inch belt drive and the same variety of carburettor, namely a carburettor known as an S & S carburettor.

During the course of his submissions on the hearing of the appeal, Mr Peek of counsel for Mr Upton attacked a number of the findings of the learned trial Magistrate with respect to some of the so-called identifying features of the seized motorcycle. I have carefully considered those criticisms and read the evidence with them in mind.

At the end of the day I am unpersuaded that there is any reason to doubt the correctness of the eventual finding made by the learned trial Magistrate. That conclusion finds expression in the following passage from his reasons for judgment:

"Mr Upton is for the most part unable to counter much of Mr Herbert's identification evidence. An attempt was made to challenge Mr Herbert's credibility and to suggest that Mr Herbert made his observations of identifiable features on the seized motorcycle after he had taken it from the Mt Gambier Police Station but before returning it to the Casterton Police Station. I reject that as an explanation for Mr Herbert being able to identify some features on the seized motorcycle. I found Mr Herbert to be an extremely honest witness whose evidence was in several material respects corroborated by documents and /or photographs. Mr Upton simply could not explain how or why the frame number and the engine number on the seized motorcycle came to be ground off. He could not explain how the crank case number for Mr Herbert's motorcycle engine was on the engine crank case of the seized motorcycle.

There was an attempt to establish that Mr Upton had indeed expended money purchasing various parts for a Harley Davidson motorcycle. Exhibit I23 comprises a bundle of invoices and/or receipts. However, Mr Upton concedes that many of those invoices and/or receipts relate to parts which he purchased for his other Harley Davidson motorcycle which is not the subject of this action. Apart from that however, a careful perusal of those various invoices and/or receipts indicates that they for the most part are for the less expensive parts of a motorcycle. They are invoices and/or receipts for work done such as chroming or painting the various parts of a motorcycle as opposed to being related to the purchase of these parts. There are no receipts for the more substantial components of the motorcycle such as the frame, engine, mudguards, seat, wheel the like.

Having indicated those various matters I am in no doubt and I make a finding to the effect that several of the components on the seized motorcycle were taken from Mr Herbert's stolen motorcycle and are his property."

My own view is that the coincidence between the appearance of the components on the seized motorcycle and many of the components which were unquestionably on Mr Herbert's motorcycle is just too strong for there to be any real doubt about the matter. The learned trial Magistrate understated the significance of the coincidences.

Questions of credit

In the passage which I have just cited from the learned trial Magistrate's reasons for judgment, it will be seen that he found Mr Herbert to be "an extremely honest witness". Clearly, he preferred his evidence to the evidence of Mr Upton.

The credit of the witness Jenner, to whose evidence I have already referred, was attacked both at the trial and on the appeal before me. He denied that he suffered from schizophrenia. He admitted that he had told another man, Ashley Weir, that Adrian Upton had stolen Weir's utility, or "might have stolen" it.

Mr Weir was called as part of the plaintiff Upton's case. Without objection, he was permitted to say that Jenner was "like a snake, you wouldn't be able to trust him", and that at a night club, where Mr Weir worked as a bouncer, Jenner had approached him and told him that Adrian Upton had stolen his ute.

I doubt that any of that evidence led from Mr Weir was admissible as those matters went only to the question of credit, as to which the answers in the cross-examination of Mr Jenner should have been regarded as final.

Be that as it may, the learned trial Magistrate made the following observations:

"There was an attempt to discredit Mr Jenner. I indicate at the outset that in any other case Mr Jenner might appear might appear as a man with little or no credibility. However, if Mr Jenner's evidence is considered in conjunction with the objective facts which I have earlier outlined, it is obvious that Mr Jenner was telling the truth. The seized motorcycle which had been in the possession of Mr Adrian Upton contained several components of Mr Herbert's motorcycle. How did he get them? The only logical answer is that either he stole Mr Herbert's motorcycle or he obtained parts from someone who did. There is no suggestion that Mr Adrian Upton stole Mr Herbert's motorcycle. There is the express suggestion that Damien Upton along with Barry Ross did steal it. I prefer Mr Jenner's evidence over that of specifically Adrian Upton and Damien Upton. Barry Ross did not give evidence. I am satisfied and so find on the balance of probabilities that Damien Upton in the company of Barry Ross stole Mr Herbert's motorcycle from Mr Herbert's garage in Casterton in Victoria. I am satisfied and so find that they returned Mr Herbert's motorcycle to Mt Gambier. I am satisfied and so find that Mr Adrian Upton obtained the parts found on the seized motorcycle from Mr Herbert's motorcycle. I am drawn to conclude by what can only be blatant lies told by Mr Adrian Upton and his brother Damien Upton, that Mr Adrian Upton knew that the various parts on the seized motorcycle came from Mr Herbert's stolen motorcycle. I am drawn to the inescapable conclusion that it was Mr Adrian Upton who with a view to changing the appearance and in a sense, disguising Mr Herbert's motorcycle destroyed the frame number, ground off the engine number and made a variety of changes to the appearance of Mr Herbert's motorcycle, so as to make it appear a completely different motorcycle."

The learned trial Magistrate saw and heard the witnesses. In the circumstances of this case, I do not think that it would be proper for this Court to interfere with his eventual finding as to the credit of Mr Jenner which led in turn to his finding as to the theft of the motorcycle.

It is true, as Mr Peek points out, that the learned trial Magistrate did not expressly refer to evidence given on behalf of Mr Upton by a Mr Robert Baron. The latter gave evidence that he had seen Mr Upton building up a Harley Davidson motorcycle "pretty well" from scratch, and that he had given him the back wheel for it. But the fact that the learned trial Magistrate does not refer in his reasons for judgment to all of the evidence, or for that matter, all of the witnesses, does not provide a legitimate basis upon which to attack the clear findings which he obviously came to. There is no reason to suppose that he did not consider all of the evidence, including the evidence of Mr Baron, before reaching his conclusion.

Furthermore, given the elaborate way in which, on the Magistrate's findings, Mr Herbert's motorcycle was rebuilt and disguised, it is not surprising that Mr Upton might have been observed over a period of time building up the motorcycle.

Mr Peek contended that the finding that Mr Herbert was an honest witness, and the learned trial Magistrate's preference of his evidence over Mr Upton's evidence, was unsound and failed to take into account Mr Herbert's admission that he had added a serial number of the part known as the "triple tree" to a docket to do with some re-chroming which he had effected by a firm called Carramar Lighting. Apparently, he did so in an attempt to provide corroborative evidence of his ownership of the part. The matter was fully explored in evidence, and the learned trial Magistrate must be taken to have considered that evidence before reaching his view as to Mr Herbert's credit.

For my own part, I have carefully considered the evidence relating to this aspect of the matter. I must admit that it has been a source of some concern in the course of my deliberations. However, at the end of the day, I am not satisfied that the evidence as to that topic is sufficient to justify this Court interfering with the learned trial Magistrate's view either as to the credit of Mr Herbert or as to the ultimate outcome of the case.

Estoppel

In support of his argument on this aspect of the matter, Mr Peek put before the Court material to do with the summary prosecution of Mr Upton and the reasons for judgment of the learned Special Magistrate who tried the matter.

It is by no means clear to me that this material was put before the learned trial Magistrate in the civil case. Indeed, it does not appear that any question of estoppel was argued at all in the course of that case. Neither was it pleaded by Mr Upton.

True it is that the statement of claim was filed before the verdict of the Magistrate on the receiving charge, but Mr Upton did not apply to amend this statement of claim after this verdict.

In my opinion, it is now too late to raise the point.

But in case I am wrong in that, I will deal with the argument.

Mr Peek conceded that there could not be an estoppel founded on the outcome of the receiving charge as between Mr Herbert and Mr Upton. He is clearly right in making that concession. If estoppel applies at all, it can only apply between the parties to the earlier proceedings which are said to give rise to the estoppel. Mr Herbert was not a party to the prosecution.

But it is contended that insofar as the State of South Australia was a party to the prosecution, an estoppel arises against the State of South Australia.

In fact the complaint issued against Mr Upton out of the Magistrates Court shows that the complainant was one Julie Ann Raison, an assistant police prosecutor. Although I am not convinced that it is right to equate her for these purposes with the State of South Australia, I will approach the estoppel argument on that footing.

It is sometimes legitimate to have regard to the reasons for judgment in the proceedings said to give rise to the estoppel to identify the issues with respect to which the estoppel is said to arise. Although there may be arguments against the legitimacy of such an approach in the circumstances of this case, I proceed on the footing contended for by Mr Peek, and I have regard to the reasons, at least for the purpose of identifying the issues.

The learned Special Magistrate found that when he seized the motorcycle from Mr Upton, Sergeant Hope entertained a genuine suspicion that it had been stolen or unlawfully obtained. This was based on the information which he had previously obtained from Mr Herbert. Furthermore, he found that the suspicion was entertained on reasonable grounds. [Summary Offences Act 1953, s41(1).]

That finding shifted the onus to Mr Upton to establish the defence provided for in s41(2) of the Summary Offences Act which provides:

"It is a defence to a charge for an offence against this section to prove that the defendant obtained possession of the property honestly."

As to that aspect of the matter, after summarising the evidence given, in particular, by Mr Herbert, the learned Magistrate found:

"I have not been satisfied that any of the motorcycle parts on the defendant's bike were the property of Herbert."

While the learned Magistrate said that he was "satisfied" that Mr Upton's "testimony was honest and accurate", he did not make a finding that the motorcycle belonged to Mr Upton. All he found was that Mr Upton had proved within the meaning of s41(2) on the balance of probabilities that he had obtained possession of the motorcycle honestly. Such a finding is not tantamount to a finding that Mr Upton was the owner of the motorcycle.

A person may honestly come into possession of somebody else's property and fail to gain title to it.

Furthermore, the learned Special Magistrate was not trying a question of ownership as between the State of South Australia and Mr Upton. He was only determining the guilt or innocence of Mr Upton of the charge in the complaint. Furthermore, he dealt with the complaint as an entirely different body of evidence from that called at the subsequent civil hearing now in question.

If it had not been for the competing and persisting claim by Mr Herbert to the motorcycle, no doubt the police may well have treated the decision of the learned Magistrate as justifying handing over the motorcycle to Mr Upton. That they did not do so was perfectly proper course for them to follow, given the competing claim by Mr Herbert to ownership of the motorcycle, a claim which could only properly be resolved in the context of a civil suit between Mr Herbert and Mr Upton.

By interpleading, the State of South Australia created a opportunity for that claim to be resolved.

The decision to direct the trial of the issues as between Mr Upton and Mr Herbert first was clearly correct. But Mr Peek argues that by allowing the issues between Mr Upton and Mr Herbert to be adjudicated upon first, his client was deprived of an opportunity of effectively holding the State of South Australia to the estoppel which he contends arose.

I also have already explained that no estoppel arises of the kind suggested by him. In any event, no claim against the State of South Australia could survive the outcome of the judgment on the issues raised as between Mr Upton and Mr Herbert. It is not as though the circumstances of the seizure of the motorcycle, standing alone, gave rise to any cause of action. The learned Magistrate hearing the unlawful possession charge specifically found that Sergeant Hope entertained a genuine suspicion, based on reasonable grounds, that the motorcycle had been stolen or unlawfully obtained.

In fact, the learned trial Magistrate in the civil action disposed of the whole of the action, not just the issue which he had been directed to try. The formal endorsement on the court file which records the order made reads:

"Reasons for decision published. Finding that the motorcycle the subject of the action is the property of the intervener Mr Herbert and is to be returned to Mr Herbert 21 days after this date. Order plaintiff's claim against the Defendant is dismissed. Order Plaintiff to pay Defendant's costs and intervener's reasonable costs to be allowed at 80% of Supreme Court scale."

I have pointed out earlier in these reasons that Mr Upton's claim against the State of South Australia not only included a claim for an order for the return of the motorcycle or its value, but also a claim for damages for "loss of use and enjoyment".

While Mr Peek is correct in suggesting that the form of order went beyond what was necessary to dispose of the issue brought to trial at that stage, I cannot see that his client has suffered by that. Mr Upton's claim against the State of South Australia could not survive the finding made on the issue of ownership as between him and Mr Herbert. In my opinion, that observation holds good with respect to all of the elements in Mr Upton's claim against the State of South Australia, including the claim for damages for loss of use.

It would be pedantic and serve no useful purpose to quash the order insofar as it related to the State of South Australia. The only consequence of that would be to cause the State of South Australia to bring the matter on for the purpose of the making of an order disposing of Mr Upton's claim against it.

The other procedural arguments

In the supplementary notice of appeal, Mr Upton complains that the learned trial Magistrate erred in permitting counsel for Mr Herbert to interpose two witnesses, namely the witnesses Cust and Drage, before the completion of Mr Herbert's own evidence.

The two witnesses were interposed during the course of the cross-examination of Mr Herbert. There is no reason to suppose that Mr Herbert was not well aware of the general nature of the evidence to be given by the two other witnesses. After all, they were witnesses whom he was calling in support of his case.

Furthermore, Mr Herbert had, by the time the two witnesses were called, committed himself to the basic essentials of his account of the matter. In any event, there can be no serious suggestion that the final part of the cross-examination of Mr Herbert could have been contaminated by the evidence of the two witnesses who were interposed, as Mr Herbert left the court room during the course of their evidence.

If any question arose concerning the interposed witnesses out of that part of the cross-examination of Mr Herbert which followed their evidence, counsel for Mr Upton had every opportunity to ask that one or other or both of the two other witnesses be recalled for further cross-examination. No request to that end was made.

There is nothing in this ground of appeal.

A separate complaint is made that the learned trial Magistrate erred in permitting Constable Manser to refer to a statement during the course of his examination in chief.

This was a statement dated 10 April 1994. It will be recalled that this was one of the dates upon which Mr Herbert attended at Mount Gambier police station to inspect the motorcycle. In the statement, Constable Manser recorded, inter alia, a statement made by Mr Herbert in answer to questions put by Constable Manser identifying parts which Mr Herbert conceded were not his.

I can imagine there might be arguments against the admissibility of the evidence, but that is not the ground of appeal pursued. What is pursued is an objection to the use by Constable Manser of his statement as an aide memoire.

While it is true that the statement was prepared some time later, in my opinion, there was no irregularity in permitting the police officer to refresh his memory from it.

The appellant complains that the admission into evidence by the learned trial Magistrate of the affidavit of Louis Morris Trachtenberg against his objection.

It appears from the affidavit that Mr Trachtenberg is president and owner of STD Developments Inc, which manufactures, inter alia, Harley Davidson engine cases. He lives in Chatsworth, California in the United States of America. In the affidavit he deposes to the fact that on 18 February 1986 STD sold to Harley City of Melbourne an engine case bearing the engine number of the engine in Mr Herbert's motorcycle, that is, the engine number which appears in the certificate of registration which was issued when he first registered it. In the affidavit, Mr Trachtenberg goes on to say:

"This casing will fit Harley engines manufactured between 1970 - 1983."

He explains the significance of the first three digits in the engine number, which indicate that it was a cash sale. He deposed also to the fact that part of the engine number, that is, the digits 4394, were impressed into the engine casing at the rear and also on each side, whereas the eleven digit number (that is, the whole number) was impressed into the front of the engine casing.

There is no indication either in the grounds of appeal or in the argument presented on Mr Upton's behalf during the course of the hearing of the appeal that the evidence given through the affidavit by Mr Trachtenberg was disputed. Mr Peek did not suggest that the court lacked the power to admit an affidavit in evidence at the trial. Such a course could have been made the subject of directions given before trial under DCR R 55.11(5) pursuant to which the court:

"May give such directions as are then proper with respect to:

....................

(v) the giving of evidence at the trial by affidavit or document filed in the action or the making of any other order authorised by s59j of the EvidenceAct 1929."

S59j of the Evidence Act provides:

"59j(1) A court may at any stage of civil or criminal proceedings -

(a) dispense with compliance with the rules of evidence for proving any matter that is not genuinely in dispute; or

(b) dispense with compliance with the rules of evidence where compliance might involve unreasonable expense or delay."

It seems to me that the admission of Mr Trachenberg's evidence by affidavit could be justified under both paragraphs (a) and (b) of that section.

The affidavit might also have been admissible pursuant to either ss34c or 45b of the Evidence Act 1929. Counsel for Mr Herbert so contended. As I think that the affidavit was clearly admissible on other grounds, I do not pause to examine the argument under those sections.

I would dismiss this ground of appeal.

The whole motorcycle or part of it?

Mr Upton complains that the learned trial Magistrate erred in regarding it as his task to determine the question of ownership of the motorcycle as a whole when the evidence disclosed, and indeed, Mr Herbert conceded, that some parts of it were not his.

It appears to me from his reasons for judgment that the learned Magistrate was well aware of the fact that he might have made some other order with respect to those parts of the motorcycle that Mr Herbert conceded were not his.

He bore in mind also the fact that some parts of Mr Herbert's motorcycle were apparently removed from it.

At the end of the day he was not prepared to make any adjustment either way. He expressed his view in these terms:

"It is impossible on the evidence presented to say what happened to those parts of Mr Herbert's motorcycle which were removed from it. I suspect they were either used to build other Harley Davidson motorcycles or sold.

I am persuaded that Mr Herbert should not suffer as a consequence of Mr Adrian Upton's dishonest activities nor should Mr Adrian Upton benefit from his dishonest activities. I have mentioned at the outset that my task is to determine ownership of the Harley Davidson motorcycle seized by the Mt Gambier police in or about March 1994. The major components of the motorcycle are the frame and engine. Both belong to Mr Herbert. I make a declaration that the seized motorcycle is the property of Mr Herbert."

The question of "accession" and the separate question of "confusion" with respect to personal chattels are questions as to which legal authority has not been entirely certain or consistent. Cannibalisation of motor vehicles is not a new phenomenon.

A useful discussion of the doctrines of accession and confusion, with particular reference to the law of hire purchase, appears in the article "Accession and Confusion in the Law of Hire Purchase" by Professor A.G. Guest in 27 MLR (1964) 505. As appears from the authorities cited in that article, the American cases distinguish between situations where the articles annexed have been attached by a thief or "other wilful trespasser" cases, and cases where they have been attached by an innocent third party.

In the former case, generally speaking, the original owner may re-take the property stolen with any accessions attached by the wrongdoer. However, cases falling into the second category have sometimes resulted in orders allowing an innocent and bona fide purchaser to remove attached parts, or be compensated for them.

This case does not call for a lengthy examination of authority. In my opinion, once the learned trial Magistrate had concluded that Mr Upton had told "blatant lies" and that he knew that "the various parts on the seized motorcycle came from Mr Herbert's stolen motorcycle", it was open for him to take the course which he did. After all, most of the motorcycle was found to belong to Mr Herbert, whose evidence was that the balance of the items which were not his would amount to possibly $300-$400 in value.

Costs

Mr Upton complains of the order that he pay costs based on 80% of the Supreme Court scale. Costs are in the discretion of the court: District Court Act 1991s42(1). The fact that Mr Upton was found to have told "blatant lies" in support of his claim was relevant to the question of costs.

There is nothing to suggest that the exercise of the discretion as to costs has miscarried.

Conclusion

The appeal is dismissed.

I will hear the parties as to the costs of the appeal.