Commissioner of Police v A D - [2009] SADC 102

District Court of South Australia
(Civil)
COMMISSIONER OF POLICE v A D & ORS
[2009] SADC 102
Judgment of Her Honour Judge McIntyre
30 September 2009
POLICE - RIGHTS, POWERS AND DUTIES - SEARCH, SEIZURE AND DETENTION OF PROPERTY
Interpleader summons: Items seized by or provided to police in the course of an investigation - investigation now completed. Commissioner of Police seeks orders determining conflicting claims over items in his possession. Orders made on competing claims.
Held:
1. Articles cannot be kept longer than is necessary for Police to complete investigations or to preserve articles for evidence
2 Items should be returned to the person from whom they were seized or taken unless another person is able to establish a better claim to possession.
3. Determination of the issues on an interpleader summons does not require determination of ownership
District Court Rule 202(1); Navigation Act 1912 ; Hitoric Shipwrecks Act 1976 , referred to.
Ghani & Ors v Jones [1970] 1 QB 693; Russell v Wilson [1923] 33 CLR 538; Chairman National Crime Authority v Flack (1998) 86 FCR 16; Allen v Roughley (1955) 94 CLR 98; Standard Electronic Apparatus Laboratories Pty Ltd v Stenner [1960] NSWR 447; Esanda v Gibbons (1999) NSWSC 1094; Ebner v Official Trustee in Bankruptcy [2003] 126 FCR 281; State of Victoria v The Commonwealth (1996) 187 CLR 416; Pierce & Anor v Bemis & Anor [1986] 2 WLR 501, considered.

COMMISSIONER OF POLICE v A D & ORS
[2009] SADC 102
Introduction

The Commissioner of Police is in possession of numerous items of personal property obtained during the course of an investigation relating to the alleged theft of goods from the estate of Peter Liddy following Mr Liddy’s conviction and imprisonment. That investigation is now complete and the Director of Public Prosecutions has determined that no prosecutions will be undertaken. The Commissioner of Police therefore has no interest in the property.
The Commissioner believes that the items formed part of the estate of Mr Liddy at the time of his imprisonment. He is however aware that there are conflicting claims over certain items and is not sure who is entitled to the return of the property. He seeks orders of this Court determining the ownership of the property.
The Commissioner issued these interpleader proceedings naming ten defendants each of whom the Commissioner believed might have an interest in some or all of the property. Prior to the hearing three parties indicated that they did not wish to pursue a claim for an interest in the property. These parties were the second defendant, Arrowlea Pty Ltd (In Liquidation), the third defendant, Terrence Stevens and the ninth defendant, the South Australian Department of Environment & Heritage.
There was some uncertainty about the position of the third defendant, Peter Liddy. He did not file a notice of acting or defence. He indicated throughout the interlocutory proceedings, however, that he maintained an interest in at least some of the property. Notwithstanding the deficiencies in his documentation I determined to treat Mr Liddy as a party for the purpose of ascertaining who was entitled to the property particularly in view of the fact that at least two of the parties were asserting that the property was Mr Liddy’s.
The Claims
This matter is difficult to resolve owing to the different approaches taken by the various parties towards these proceedings, the fact that parties who might have been expected to participate in these proceedings did not and the limited evidence called.
The Commissioner
The Commissioner seeks declarations as to the ownership of the property. I do not consider this necessary. The relevant rule requires me to determine who is entitled to the property to enable the Commissioner to return the items that are currently in his possession.[1] This is a different question to that of ownership. Even if I am wrong about that, there is insufficient evidence before me to make findings in respect of the ownership of many of the items held by the Commissioner. I will refer to this in greater detail later in these reasons.
[1] District Court Rule 202(1)
The law relating to the return of items seized or taken into custody by police in the course of their investigations is well settled. Articles cannot be kept longer than is necessary for police to complete their investigations or to preserve them for evidence.[2] Once investigations are completed and evidence no longer required, items should be returned to the person from whom they were seized or taken unless another person is able to establish a better claim to possession.[3]
[2] Ghani & Ors v Jones [1970] 1 QB 693, Russell v. Wilson [1923] 33 CLR 538; Police Regulations 1999 Reg. 57
[3] Chairman National Crime Authority v Flack (1998) 86 FCR 16
The items of personal property (“the items”) in the possession of the Commissioner are listed in a schedule in paragraph 3 of the Commissioner’s interpleader action. I will use the item numbers in that schedule for present purposes although there is a difficulty with that numbering system in relation to the claim by the tenth defendant that I will refer to later in these reasons. The Commissioner indicates the manner in which the various items came into his possession as follows:
·Items 1 – 25 inclusive came into the Commissioner’s possession from employees of the fifth defendant;
·Items 26 – 67 inclusive came into the Commissioner’s possession from Coralie Vi Liddy at her home in Gawler;
·Item 68 came into the Commissioner’s possession from the seventh defendant;
·Item 70 came into the Commissioner’s possession from the sixth defendant;
·Item 69 came into the Commissioner’s possession from the eighth defendant;
·Item 71 came into the possession of the Commissioner from Lee Jack Kelly.
Prima facie, unless a better title can be shown, the Commissioner should return the items to the people or entities outlined above.[4]
[4] Russell v. Wilson see note 2 above; Chairman, National Crime Authority and Anor v Flack see note 3 above
First defendant
The first defendant is one of the victims of the crimes that resulted in Mr Liddy’s imprisonment. He issued proceedings against Mr Liddy seeking damages in this Court in action number DCCIV-01-835. His interests are representative of other victims who are plaintiffs in concurrent actions.
On 18 June 2001 the first defendant obtained a Mareva Order in action number DCCIV-01-835 to preserve Mr Liddy’s assets pending a resolution of those proceedings. The first defendant says that all of the items of personal property set out in the Commissioner’s interpleader action were assets of Mr Liddy at the time the Mareva Order was made and have not been subsequently released. Accordingly it appears that the first defendant is asserting some form of contingent claim to the items but does not claim the items should be provided to him. Rather, the first defendant seeks the following:
·    A declaration that Mr Liddy is the owner of each item of property.
·    A declaration that each item is subject to the Mareva order made on 18 June 2001 in action no. DCCIV-01-835; and
·    An order that each item be held by the Commissioner or by this court pending further orders being made in relation to the Mareva order or regarding assets that are the subject of the Mareva order.
Third defendant
The third defendant’s position is not entirely clear owing to his lack of pleadings and the fact that he withdrew from active participation in the hearing without completing his evidence. He appears to assert that he, at one stage, owned or had possession of all of the items identified in the interpleader action. He further appears to say that he subsequently divested himself of some items of property by selling them or giving them away. In particular he says that his mother owns, or alternatively that he is unsure of the ownership of, items 1 – 4, 8 – 26, 28, 39, 43 – 44, 50, 51, 53, 59 – 61 and 64 – 67. It seems therefore that he maintains ownership of some but not all of the items.
Mrs Liddy
Mrs Liddy is not a party to these proceedings and does not assert an entitlement to return of the items seized from her house. The Master who had the conduct of the interlocutory proceedings gave Mrs Liddy the opportunity to join these proceedings by order dated 29 October 2008. She did not do so.
Fifth defendant
The fifth defendant located items 1 to 25 inclusive and provided these to the Commissioner. It does not however seek the return of the items. Rather it claims, in common with the first defendant, that these items belong to Mr Liddy. The fifth defendant also says that it assisted the Commissioner with his enquiries in relation to items 26 to 71 inclusive. Whilst this latter assistance is no doubt public spirited, it is not plain to me that this affords the fifth defendant any relevant interest in items 26 - 71. Again, the fifth defendant’s primary position is common with that of the first defendant namely that items 26 – 71 inclusive belong to Mr Liddy. It seeks the same orders in these proceedings.
Sixth Defendant
The sixth defendant claims an entitlement item 70. Item 70 is described in the Commissioner’s interpleader summons as “an India pattern brown Bess musket .75 calibre. Manufacturer T Ketland & Co with one 157 engraved on the barrel”. The sixth defendant voluntarily handed this item to the police during the course of the investigation.
The basis of the sixth defendant’s claim is set out in paragraph 3 of his defence. Specifically he claims to be the lawful owner of Item 70 and to have been in lawful possession of it before he surrendered it to the police. The circumstances in which he says that he came to be in possession of the item are set out in his affidavit sworn on 26 February 2009[5] as follows:
·    The third defendant gave item 70 to his mother with other items to be sold on her behalf.
·    A Mr Van Kruyssen obtained item 70 from Mrs Liddy’s home, at the request of the third defendant and with Mrs Liddy’s consent.
·    Mr Van Kruyssen sold item 70 to Mr Parry of Victor Harbor antiques in or about August 2003
·    Mr Parry sold it to Mr Blair Jenke an antique dealer in about March 2004
·    He purchased item 70 from Mr Blair Jenke at an arms fair at the Melbourne Showgrounds on 27 March 2004 in the sum of $3,900.
[5]    Exhibit D7 - 1
Seventh Defendant
The seventh defendant, Dr Mills, claims entitlement to item 68 that is described in the police interpleader summons as “A Charleville American Flintlock Rifle (French made) carved with “H” and a crescent and “USTATES”.
Dr Mills claim is in very similar terms to the sixth defendant. He filed an affidavit sworn on 12 March 2009[6] in which he sets out the circumstances in which he says that he came to possess item 68.
[6] Exhibit D6-1
In summary, he says that he purchased the item from Mr Parry of Victor Harbor Antiques on 23 May 2004 for the sum of $3,500. He voluntarily handed this item to the police during the course of the investigation.
Eighth Defendant
The eighth defendant claims entitlement to item 69. Item 69 is described in the Commissioner’s interpleader summons as “An American Revolutionary Flintlock Musket engraved “JH” “U.S.” and “USTATES” on butt and “US” and “24” on barrel.”
The only document filed in these proceedings by the eighth defendant is his defence in which he claims to have purchased the item in good faith from the same source as the sixth defendant on 25 July 2003 at an arms fair in Melbourne Victoria. Pleadings are not however evidence. The eighth defendant did not take advantage of the orders made by Master Rice on 3 February 2009 to file an affidavit and submissions in support of his claim. Notwithstanding this it is uncontroversial that he was in possession of item 69 and that he voluntarily handed it to the Commissioner.
Tenth defendant
The tenth defendant, the Commonwealth of Australia, claims an interest in part or all of items 29, 30, 31, 32, 45, 46, 47, 48, 49, 52, 54, 55, 56, 57, 58, 62 and 63. The Commonwealth’s claim is complex both as a matter of law and fact. The Commonwealth’s legal claim rests principally upon two sources - a treaty with the Government of the Netherlands entered into in 1972[7] and the Navigation Act 1912 (Cth). The factual complexity arises due to the need to make findings as to the attribution of various items held by the Commissioner.
[7] Agreement between the Netherlands and Australia concerning old Dutch Shipwrecks (“ANCODS”)
Mr Kelly
A Mr Kelly provided the police with item 71. I have no evidence before me concerning Mr Kelly. I do not know who he is or how he came to be in possession of item 71. He is not a party to these interpleader proceedings and it is not clear whether he has been invited to be a party to them.
The Proceedings
The hearing commenced on 16 March 2009 and continued for a period of 3 days. The plaintiff and the first, fifth and tenth defendants were represented by counsel.
The sixth, seventh and eight defendants were neither present nor represented at the hearing. They had indicated in the interlocutory proceedings that, owing to their limited interest and the cost associated with the hearing, they did not wish to attend the hearing. At a directions hearing on 3 February 2009, Master Rice gave leave to these three defendants to file and serve affidavits and submissions in support of their claims in these proceedings. The sixth and seventh defendant filed affidavits that I admitted as exhibits. They also filed written submissions that I have considered in reaching my decision. No further documents were received from the eighth defendant.
The third defendant, Mr Liddy, attended part of the hearing but was unrepresented. He sought an adjournment at the outset to seek legal advice. I declined to grant that adjournment. Mr Liddy gave evidence in chief and cross-examination commenced during the second day of the hearing. On the third day of the hearing Mr Liddy again sought an adjournment to obtain legal advice. I declined that application and Mr Liddy refused to take any further part in the proceedings. Mr Liddy was the only witness who gave oral evidence albeit incomplete.
The matter was adjourned to 26 March 2009 for submissions. By letter from the court, dated 19 March 2009, Mr Liddy was provided with the transcript of proceedings and exhibits tendered after his departure together with written submissions filed by the tenth defendant. He was invited to indicate whether he wished to attend Court on 26 March 2009 or to provide written submissions. He did not respond.
Submissions were made by the remaining parties on 26 March 2009 and additional written submissions were tendered by the sixth and fifth defendants. The transcript of proceedings and these submissions were provided to Mr Liddy by letter from the court dated 14 April 2009. He was invited to provide written submissions or advise of his desire to make oral submissions on or before 24 April 2009. He did not respond. I therefore proceed on the basis of the evidence before me.
The following documents were tendered as exhibits during the course of the hearing:
D10-1                Mr Viduka’s report dated 3/9/08
         D10-2                Myra Stanbury’s report dated June ‘04
         D10-3                Mr Viduka’s supplementary report dated 26 February 2009
         D10-4                Certificate serial number SA36
         D10-5                Certificate serial number SA 480
         D10-6                Certificate serial number SA 0479
D6-1                  Affidavit of Dr Mills dated 12 March 2009
D7-1                  Affidavit of Mr Rojo dated 26 February 2009
D3-1                  Liddy’s claim in respect of Interpleader
D5-1                  Handwritten note dated 18/6/01
D5-2                  Handwritten note dated 20/6/01
D5-3                  Van Kruyssen report dated 29/10/01
D3-2                  Liddy letters
I will now proceed to deal with the various claims in turn.
Claims by Sixth, Seventh and Eight Defendants
Prima facie items 68, 69 and 70 should be returned to the purchasers. It is uncontested that each was in possession of the item they claim and therefore had possessory title at the time each handed the item to the Commissioner. The question is whether anyone else has established a better title in these proceedings.
The first and fifth defendants oppose these claims asserting that these items belong to Mr Liddy. I have reservations about the fifth defendant’s interest in these items for the reasons outlined above however the first defendant adopted the fifth defendant’s submissions on this issue.
The tenth defendant has no interest in these items.
Mr Liddy does not claim ownership of these items. He gave evidence that he once owned these items but that he later gave them to his mother. He said that he did not sell them and that the only way he knew they had been sold was that “these people have said that they bought them”.[8] Accordingly whilst the first defendant asserts that Mr Liddy is the true owner of these items, Mr Liddy is not making a similar assertion.
[8] Transcript p54
The first defendant argues that as the sale by Van Kruyssen to Parry and the subsequent sale by Parry to Blair Jenke or, in the case of the seventh defendant the subsequent sale by Parry to him, took place in South Australia, these transactions and the question of any transfer of title are governed by s.21 of the South Australian Sale of Goods Act 1895. This section provides as follows:
21—Sale by person not the owner
(1)     Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the     consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the         seller's authority to sell.
(2)    Provided also that nothing in this Act shall affect—
(a)     the provisions of the Mercantile Law Act 1936 or any enactment enabling            the apparent owner of goods to dispose of them as if he were the true owner         thereof;
(b)     the validity of any contract of sale under any special common law, or         statutory power of sale, or under the order of a court of competent    jurisdiction.
The first defendant says that, the exceptions in sub-section 2 are not relevant here and that there is no evidence that Mr. Liddy by his conduct could be precluded from denying Van Kruyssen’s or Parry’s authority to sell. Accordingly it is argued that Mr. Parry, Mr. Blair Jenke and the seventh defendant did not acquire good title to the items.
The sixth and eight defendants purchased their items from the business conducted in Victoria by Mr. Blair Jenke. The relevant section of the Goods Act 1958 (Vic) is in substantially the same terms as the South Australian legislation. The first defendant says that accordingly the sixth and eight defendants did not obtain good title to item 70 from Mr Blair Jenke.
There are two difficulties with this argument. First there is, as the first defendant concedes, insufficient evidence for me to make a finding as to the circumstances in which Mr Van Kruyssen came to sell the items to Mr Parry.
Mr Liddy denied involvement in the sale of these three items. He maintained that he gave these items to his mother and that she must have sold them. Mr Liddy’s evidence was untested by cross-examination and of limited weight. I was unimpressed by Mr Liddy’s evidence for reasons I shall discuss later.

The Sixth defendant annexed a statement, given by Mrs Liddy to the police, to his affidavit sworn on 26 February 2009.[9] Only limited weight can be attached to that statement. The statement indicates that Mr Van Kruyssen took items from the house apparently with Mr Liddy’s consent if not at his instigation. Mrs Liddy describes these items as “Peter’s things”. She told police that she did not know what items Mr Van Kruyssen took or when this occurred. It does not appear from this statement that the items were collected or sold at her direction.
[9] Exhibit D7-1: Exhibit IRR4
The evidence is thus most unsatisfactory. There are many possible arguments that might conceivably arise to enable the purchasers to establish transfer of title to them.
The second difficulty with the argument is that the first defendant asserts another’s entitlement to defeat someone with a possessory title. This is somewhat akin to a jus tertii argument and is, in my view, impermissible particularly in these circumstances where the third party, Mr Liddy, expressly disavows entitlement.[10] Whilst I have no doubt that it is possible Mr Liddy owns these items it is equally possible that he does not. There is insufficient evidence for me to determine this issue.
[10] Allen v. Roughley (1955) 94 CLR 98; Standard Electronic Apparatus Laboratories Pty Ltd v Stenner [1960) NSWR 447; Esanda v. Gibbons (1999) NSWSC 1094: Ebner v Official Trustee in Bankruptcy [2003] 126 FCR 281.
What is incontrovertible is that the sixth, seventh and eighth defendants were each in possession of the items that they claim and therefore had possessory title at the time each handed it to the Commissioner. No one else has established a better title in these proceedings. In those circumstances I consider that each of these defendants is entitled to the return of the item that they claim.
The Commonwealth’s claim
The Commonwealth claims an interest in some or all of the items comprised in items 29, 30, 31, 32, 45, 46, 47, 48, 49, 52, 54, 55, 56, 57, 58, 62 and 63 of the Commissioner’s interpleader summons. Some of these numbers represent groups of items and the Commonwealth has had to adopt a somewhat different numbering system to that outlined in the Commissioner’s interpleader summons in order identify the specific items it claims and the categories into which they fall. I will deal with this later in these reasons. Suffice to say for present purposes that all of the items that are the subject of the Commonwealth’s claim are asserted to be relics from historic shipwrecks or unclaimed wrecks in Australian territorial waters.
The Commonwealth’s claim to these items is disputed by the first defendant who says that these items should be declared to be the property of Mr Liddy. Mr Liddy did not address the items claimed by the Commonwealth prior to his withdrawal from active participation in the proceedings. The person with an apparent possessory title to these items is Mrs Liddy. She did not participate in these proceedings nor is she apparently asserting an entitlement to the items. This is accordingly a different situation to that of the sixth, seventh and eighth defendants.
The items claimed by the Commonwealth fall into four categories. These are described as:
·    ANCODS material
·    ANCODS ambit claim material
·    Historic Shipwrecks Act 1976 ambit claim material
·    Miscellaneous ambit possible claim material.
The Commonwealth’s claim of title rests on two sources. The first is an agreement between the Governments of the Netherlands and the Commonwealth of Australia concerning old Dutch shipwrecks that was signed on 6 November 1972 (“ANCODS”). The second is based on section 308 of the Navigation Act 1912.
If either or both aspects of the legal basis of the Commonwealth’s claim of title is established then it will be necessary to determine the attribution of the articles claimed by the Commonwealth. The Commonwealth’s evidence on that topic relies upon evidence tendered by consent as follows:
"QReport of Andrew Viduka, Assistant Director Maritime Heritage Section with the Department of Environment Water Heritage & the Arts dated 3 September 2008 and his supplementary report dated 26 February 2009.[11]
"RReport of Myra Stanbury, Curator in Maritime Archaeology, Western Australia Museum dated June 2004.[12]
"SThree certificates relating to coins registered by Mr Liddy in 1994.[13]
[11] Exhibits D10-1 and D10-3
[12] Exhibit D10-2
[13] Exhibits D10-4, D10.5 and D10.6
I will deal with the legal issues first.
ANCODS
The agreement known as ANCODS is set out in Schedule 1 of the Historic Shipwrecks Act 1976 (“HSA”). Article one of the agreement states as follows:
The Netherlands, as successor to the property and assets of the VOC[14], transfers all its right, title and interest in and to wrecked vessels of the VOC lying on or off the coast of the State of Western Australia and in and to any articles thereof to Australia which shall accept such right, title and interest.
[14] Vereenigde Oostindische Compagnie - Dutch East India Company
Schedule 2 of the HSA identifies four Dutch shipwrecks off the coast of Western Australia that are the vessels the subject of ANCODS as follows:
·    Batavia
·    Vergulde Draeck, or Gilt Dragon
·    Zuytdorp: and
·    Zeewyk; or Zeewijk.
The Commonwealth contends that the HSA recognises the transfer of title of those wrecks and the articles thereof but does not effect that transfer. The transfer was, it is contended, effected by ANCODS. Insofar as the Commonwealth assertion of title relies upon the text of ANCODS the Commonwealth contends that this issue is not justiciable in this court because the treaty, and the steps outlined in the treaty, are Acts of State. Accordingly it is said that this court must accept the Acts of State as facts without further enquiry. Those Acts of State are:
1.     The assertion by the Netherlands of title to the shipwrecks named in             ANCODS.
2.     Recognition by the Commonwealth of that assertion of title.
3.     The transfer by the Netherlands to the Commonwealth of Australia of           that title; and
4.     The acceptance of the transfer by the Commonwealth.
The first defendant does not dispute that entry into a treaty is an act of the executive.[15] It is further uncontroversial that the HSA does not effect any transfer of title from the Netherlands to the Commonwealth. The first defendant however disputes the Commonwealth’s contention that the effect of ANCODS is to transfer title in the relevant relics to the Commonwealth stating that this is inconsistent with the provisions of the HSA. The first defendant says that this contention rests on an incorrect assumption that the HSA directly or indirectly incorporates ANCODS into domestic law and ignores the hierarchical definition of “historic relic” in the HSA. [16]
[15] A.D’s submissions
[16] Submissions of A.D, para 6 – 13 & 16
The primary contention of the first defendant is that the issue in dispute in this matter is justiciable because:
The determination of ownership of property inside Australia is well within the realm of matters which are “governed” by the domestic legal order as the High Court expressed it in State of Victoria v The Commonwealth and it is manifestly incorrect to suggest that the Commonwealth need not prove its claim to title beyond providing evidence of the terms of an unimplemented international treaty.[17]
[17] Submissions of first defendant para 15
I reject the submissions of the first defendant contained in paragraph 18 of his submissions to the effect that I should enquire into matters such as whether the VOC did in fact own the articles in question, whether that title passed to the Netherlands and whether the Netherlands was in a position to transfer title to the Commonwealth. It is my view that the conclusions of fact that the first defendant seeks to challenge are plainly not justiciable in this Court because they are Acts of State. Further, they are not matters that had an effect upon the “domestic legal order”. [18]
[18] State of Victoria v The Commonwealth (1996) 187 CLR 416
If the transfer of title outlined in ANCODS had an effect on “the domestic legal order” then that issue may well be justiciable. The difficulty with this argument is that the treaty was entered into on 6 November 1972. There is no evidence that Mr Liddy owned or had possession of the disputed items on that date. Indeed, there is no evidence as to how or when Mr Liddy acquired any of the items in dispute in these proceedings. There is no evidence of a competing title as at 6 November 1972 and, in particular, no evidence that ANCODS over rode an established legal property right held by Mr Liddy as at that date. I see no basis upon which I could or should enquire into the Acts of State contained within ANCODS. I accept that ANCODS transfers title to the shipwrecks named in the treaty, and the articles associated with them, from the Netherlands to the Commonwealth of Australia.
The first defendant also argues that the HSA does not implement ANCODS and that it is inconsistent with ANCODS. It is further said that the provisions of the HSA must take precedence over an unincorporated treaty.[19]
[19] First defendant’s submissions para 19 - 21
It is common ground that the HSA does not effect the transfer of title. The Commonwealth contends, and I agree, that the HSA recognises ANCODS and the Commonwealth’s assertion of title. In fact, it appears to be a fundamental premise of the HSA. I further do not consider that the provisions of the HSA are in any way inconsistent with ANCODS. The definition of “historic relic” within the HSA includes, but is not limited to, a Dutch relic mentioned in article 1 or 2 of ANCODS.[20] The first defendant contends that if the Commonwealth proposition that all Dutch relics were held by the Commonwealth at the time of the commencement of the HSA it would have been unnecessary to include “Dutch relics” within the definition of historic relics and, more particularly, to empower the Minister to declare ownership of Dutch relics in the Commonwealth.[21]
[20] Section 3 sub-section 1 HSA
[21] Submissions of first defendant para 24-27
There are two difficulties with this proposition. First, the purpose of the legislation is to enact a protective regime for a range of historic relics. The reason for including Dutch relics in the definition of historic relics is to include such items within that protective regime. This does not however affect the question of ownership.
The second is that the HSA does not empower the Minister to declare ownership of Dutch relics in the Commonwealth. Section 20(1) and (2) deals specifically with ANCODS material. It enables the Minister to make declarations for the purpose of carrying out or giving effect to ANCODS by declaring that ownership of a specified Dutch relic be vested in a specified authority of the Commonwealth, in the State of Western Australia or a specified authority of that State or in the Government of the Kingdom of the Netherlands. There is a distinction between vesting an item in an authority of the Commonwealth and stating that material be vested in the Commonwealth. It is my view that section 20(1) and (2) recognises that ownership of those items is already vested in the Commonwealth. This view is strengthened by the provisions of section 20(3) which deals with non-ANCODS material and enables the Minister to declare the ownership of the remains of a specified ship or article associated with the ship:
…to be vested in the Commonwealth, in a specified State, in a specified authority of the Commonwealth or of a State, in the government of a specified country other than Australia or in any other specified person.
I therefore find that the Commonwealth’s assertion of title on the basis of the Acts of State contained within ANCODS is well founded.
Navigation Act 1912
The Commonwealth also claims entitlement to the items by operation of the Navigation Act 1912 (NAA) specifically under section 308 which is as follows:
The Commonwealth shall be entitled to all unclaimed wreck found in Australia.
Section 295A of the HSA provides that sections 302-312 of the NAA do not apply in relation to a wreck that is a historic shipwreck under the HSA. The Commonwealth contends that this section does not deprive the Commonwealth of title to any wreck to which it had already become entitled under section 308 of the NAA prior to the enactment of section 295A. The Commonwealth further contends that:
..in the absence of proof of any established claim to such relics, the only conclusion available is that the wreck was unclaimed wreck prior to the commencement of the Historic Shipwrecks Act, and that ownership vested in the Commonwealth. This conclusion is boosted where there is evidence that the wrecked ship from which the article came has been abandoned.[22]
[22] Submissions of the Commonwealth para 61
The first defendant accepts the Commonwealth’s contention in relation to the operation of section 295A of the HSA. It is the second contention that is the subject of dispute. The first defendant contends as follows:
There is no basis, however, for the interpretation of “unclaimed wreck” advanced by the Commonwealth, nor is the suggestion that in the absence of proof of a claim to an historic relic the Commonwealth is deemed to be the owner supportable by the legislation.[23]
[23] First Defendant’s submissions para.30
The dispute therefore revolves around the interpretation of an “unclaimed wreck” for the purposes of the NAA.
Wreck is defined in s294 of the NAA to include:
Jetsam, flotsam, lagan and derelict found in or on the shores of the sea or any tidal water, and any articles or goods of whatever kind which belong to or came from any ship wrecked, stranded or in distress or any portion of the hull, machinery or equipment of any such ship.
There is no definition of an unclaimed wreck. Rather it is necessary to consider the effect of the provisions of Part VII of the NAA in order to establish whether a wreck is unclaimed.
Section 294 of the NAA defines “Receiver” as the Authority or person appointed by the Authority to be a Receiver of wreck in any assigned district.
Section 302 deals with the finding or taking possession of a wreck as follows:
Where any person:
(a) finds or takes possession of any wreck within the limits of Australia, or
(b) having found or taken into possession any wreck outside Australia, subsequently brings it within the limits of Australia:
That person shall give notice to the Receiver, stating that he or she has found or taken possession of the wreck, and describing the marks by which it may be recognised.
Section 303 authorises the Receiver to take possession of any wreck and s.304 requires the Receiver to post notices following the Receiver taking possession of any wreck. Section 305 deals with the ability of an owner to make a claim in respect of the wreck and section 309 enables the Receiver to sell any unclaimed wreck within a year of it coming into the Receiver’s possession if no owner establishes a claim to the wreck.
The Commonwealth says that a claim is a claim by the owner and that if a wreck is unclaimed this means that no owner has established a claim under the terms of the Act. The Commonwealth further contends that if a wreck is not put in possession of the Receiver it is of necessity unclaimed.
The first defendant says that wreck is not prima facie unclaimed. It gains that character following the execution by the Receiver of its duties under the NAA. The first defendant further contends that section 308 only operates on a wreck in respect of which the other sections of part VII have exhausted their operation.[24] The first defendant says:
In order to succeed the Commonwealth must show that prior to the commencement of s.295A of the Navigation Act 1912 the relevant articles were taken into custody by the Receiver and that no claim was advanced within one year of the Receiver taking custody. The Commonwealth has not established any of those elements and as such it cannot rely on s.308.
[24] Submissions of first defendant para 32
It is my view that title under section 308 does not depend upon items being placed in the hands of the Receiver. Section 308 of the NAA was considered in Robinson v Western Australian Museum.[25]That case dealt with the Gilt Dragon and its cargo but did not appear to consider the provisions of ANCODS. Jacobs and Murphy JJ held that section 308 applied to the Gilt Dragon. However Jacobs and Stephen JJ both considered that the droit of admiralty vested this ship in the Commonwealth even in the absence of the legislative provisions of the NAA. Jacobs J states as follows:
Apart from that legislation, the position would appear to be as follows. The true owner of this maritime property, the remains of the Gilt Dragon and its cargo, is a successor or successors in title of the owners at the time the vessel foundered and sunk, said to be the Dutch East India Company. Subject to any claim by the true owner, the Crown in its office of admiralty is under the law of the prerogative entitled to the derelict as a Droit of Admiralty.[26]
[25] (1977) 138 CLR 283
[26] At p 339
Stephen J made similar comments indicating that title to the Gilt Dragon could be assumed to have remained in her original Dutch owners unless there were an express abandonment by them of title but:
That the finder of derelict does not thereby acquire any title to it, even in the absence of any subsequent claim by the original owner, was, by the middle of the last century, well established by decisions of the Court of Admiralty. It is the Crown, not the finder, in whom, in such circumstances, title come to vest as droit of admiralty.[27]
[27] At p 318
Accordingly it appears that, at least in respect of items found within Australian territorial waters, the Commonwealth’s title does not depend upon items being placed in the hands of the Receiver under part VII of the NAA. Section 308 enacts a prerogative of the Crown and cannot be read down by reference to the scheme of delivery to the Receiver enacted in part VII of the NAA. That scheme imposes a scheme of obligation upon others but, in the absence of express words removing the Commonwealth’s prerogative, does not deprive the Commonwealth of its rights.
Section 302 of the NAA appears to broaden the scope of the prerogative entitlement to include items found outside Australia but subsequently brought within the limits of Australia. Whilst this may bring such items within the scheme outlined in Part VII of the NAA it does not in my view bring such items within either the droit of admiralty or s308 of the Act.[28] Accordingly the critical factual issue is whether the attribution of the disputed items can be said to place them within the territorial waters of Australia.
[28] Pierce & Anor v Bemis & Anor [1986] 2 W.L.R. 501
I will now turn to deal with the attribution of the articles claimed by the Commonwealth.
Commonwealth’s Classification of Items
To this point I have used the item numbers in the interpleader summons to describe the various items of property held by the Commissioner. The Commonwealth’s claim relates to part or all of items 29, 30, 31, 32, 45, 46, 47, 48, 49, 52, 54, 55, 56, 57, 58, 62 and 63 in the Commissioner’s interpleader summons. The item numbers used by the Commissioner in many cases however include groups of items – principally coins. The Stanbury report[29] indicates that not all of the grouped items have the same qualities or provenance. Thus the identification scheme used by the Commissioner is not sufficient to distinguish between items claimed by the Commonwealth or, for that matter, not claimed by the Commonwealth. Further it does not assist in the identification of the precise nature of the Commonwealth’s claim in respect of each item. Ms Stanbury’s report contains a detailed description of individual items with her opinion as to attribution.
[29] Exhibit D10 - 2

The Commonwealth’s claims are based upon the identification of items in the Stanbury report and the subsequent classification of those identified items in the first Viduka report.[30] Andrew Viduka reclassified the items identified by Ms Stanbury under the scheme set out in the “Shipwreck Items Classifications” spreadsheet attached to his first report. I have attached this spreadsheet to these reasons as Appendix one. The items or groups of items are, in this spreadsheet, numbered from 1 – 45. The spreadsheet is said to refer back to the case exhibit numbers used by the Commissioner in his list of items. I have experienced considerable difficulties in reconciling Mr Viduka’s spreadsheet with the Commissioner’s list. It appears to me that there are some errors in the spreadsheet.[31] Notwithstanding these difficulties I will now adopt Mr Viduka’s numbering system, rather than the Commissioner’s item numbers, for the purpose of considering the Commonwealth’s claims as those items are sufficiently described in the Stanbury report to enable me to determine the claim.
[30] Exhibit D10 - 1
[31] For example, item 33 on the Viduka spreadsheet is said to have Exhibit number 138.001.009 and PPMS number 03/B28561-30. Case exhibit number 138.001.009 on the Commissioner’s Interpleader Summons list is Item 45. The PPMS Exhibit number for item 45 is however 03/B28561-031. The description of the item in each list does not assist to resolve this issue.
As a preliminary point I indicate that I accept both Mr Viduka and Ms Stanbury as expert witnesses and, in the absence of any contradictory evidence and subject to the comments that follow, I accept their opinions as to attribution.
Category 1: ANCODS material
This claim relates to items 1 – 13 inclusive and item 15 on Mr Viduka’s spreadsheet.
Items 1 - 13 are listed at table 1 in page 3 of the Stanbury report. These items were originally registered under the Western Australian Museum Act 1959 (“WAMA”). This Act set up a predecessor State scheme to the Commonwealth system of registration commenced under the HSA. Items 1 – 4, 9 – 13 have been matched with material registered under WAMA as having come from the Batavia. Items 5 to 8 were believed to have come from the Batavia and were registered as such under WAMA. I find that these items are the subject of ANCODS and that, by operation of ANCODS, title in them was transferred from the Netherlands to the Commonwealth in 1972. Accordingly I find that the Commonwealth is entitled to possession of these items.
Items 14 – 16 are set out in table 2 of the Stanbury report at page 8. Item 14 and 16 are certificates relating to items registered by Mr Liddy with the Commonwealth in an amnesty under the HSA.[32] The coins referred to in those certificates have not been located. Ms Stanbury says that the coins referred to in item 15 are from the Batavia. I accept this attribution and find that the Commonwealth is entitled to item 15. I also find that the Commonwealth is entitled to the certificates in items 14 and 16.
[32] Exhibit D10-4
Category 2: ANCODS ambit claim material
The coins that are included in this section are items 17 – 26, 28 – 32, 34 – 36 and 39 – 41 inclusive. These coins are not the subject of any certificates so they cannot be attributed to the ANCODS shipwrecks with the same level of certainty as in category 1. Ms Stanbury however considers they are items of a type and age consistent with them having come from one or other of the old Dutch shipwrecks the subject of ANCODS. On that basis, and in the absence of any challenge to Ms Stanbury’s evidence, I find that the Commonwealth is entitled to these items.
Category 3: Historic Shipwrecks Act ambit claim material
These are items 35 and 38. Item 35 comprises three coins compatible in date and type with those from a shipwreck called The Rapid which sank off the coast of Western Australia in 1811. Mr Viduka’s supplementary report[33] indicates that The Rapid lies within the 3 nautical mile limit of the territorial sea baseline on Ningaloo Reef.
[33] Exhibit D10-3
Mr Viduka further indicates that the vessel, The Rapid, was deliberately set on fire to mask its location. Subsequently the Boston Marine Insurance Co. organised a salvage attempt and, in February 1813, the ship Meridian arrived at Canton with over $90,000 of The Rapid’s silver. The insurers pursued a further $5,000 in coins that had apparently been transferred from Batavia to Madras but the remainder was unaccounted for. No further action appears to have been taken. This suggests, in my view, subsequent abandonment of rights. I accept Mr Viduka’s opinion that this implies subsequent abandonment of rights.
Item 35 comprises three coins and item 38 twelve coins that Ms Stansbury says are compatible in date and type with those that came from The Rapid. I accept this evidence and find on the balance of probabilities that these coins came from The Rapid. I further find that they are unclaimed wreck and that the Commonwealth is entitled to these coins by droit of admiralty and/or by operation of section 308 of the Navigation Act
Category 4: Miscellaneous ambit possible claim material
This category relates to items 33, 37 and 42 – 45 inclusive.
Item 33 comprises coins in an envelope marked “from Merestyn”. The assertion on the envelope is a hearsay assertion. It is not clear who wrote those words. Ms Stanbury gives a history of the wreck of a vessel called “The Merestyn” off Cape Town. However she does not attribute these items to The Merestyn. It is thus unclear where these coins were found. There is no basis upon which I could infer that those relics were found in Australian waters. I decline to make that finding.
Items 37 and 43 relate to coins that Ms Stanbury says appear to come from a shipwreck site with a late 19^th Century wrecking. There is however no basis upon which I could infer that these are relics found in Australia and I decline to make that finding.
Item 42 is referred to in the Stanbury report as a knife handle similar to those recovered from the Dutch shipwrecks. Again this falls short of a positive attribution and in my view forms an insufficient basis to enable me to find that the items were found in a shipwreck in Australian waters.
Ms Stanbury has not offered any opinion in relation to items 44 and 45. These are conglomerates of coins showing signs of having been in a marine environment. I note Mr Viduka’s opinion on the objects the subject of category 4 is heavily qualified as a provisional opinion. He states:
Even with typologically(sic), chemical and or metallurgical analysis it would be too difficult to identify these objects to a specific shipwreck.[34]
[34] Exhibit D10-1 paragraph 17D
I do not consider the Commonwealth has discharged its onus of proof on the balance of probabilities in respect of the items in category four. Accordingly I reject the Commonwealth’s claim for items 33, 37 and 42 – 45 inclusive.
Permit for Disposal
The Commonwealth has a further argument in respect of items 33, 37 and 42 – 45 inclusive. It is said that these articles are protected under section 4A of the HSA and that the prohibition in section 13(1)(b)(iii) applies. The Commonwealth contends that the Commissioner is not able to dispose of the items without a permit.[35] Accordingly, it is said that these items should be delivered up to the solicitors for the Commonwealth rather than to any other party.
[35] Commonwealth’s submissions para 42
Section 13 of the HSA prohibits a number of activities in relation to historic relics. I do not consider that these items are “historic relics” as defined in section 3 of the HSA. There is no evidence that these items are items to which the declaration under section 4A of the HSA applies, Dutch relics, Papua New Guinea relics or articles in respect of which notices have been issued under the HSA. For the reasons outlined above I am unable to find that the items are from a ship wreck found in Australian waters or indeed from a shipwreck at all.
Even if I was wrong about this, the argument rests upon the meaning of the word “dispose”. Dispose is not defined in the HSA. The Macquarie dictionary definition is as follows:
Dispose of:
a. to deal with definitely: to dispose of the matter
b. to get rid of; dump: to dispose of a corpse.
c. Sport to eliminate as a competitor
d. to make over or part with (property), as by gift or sale. [Middle English dispose(n), from Old French disposer, from dis- dis-1 + poser pose1, but associated with Latin dispōnere
I do not consider that the delivery up of these items by the Commissioner could be said to be a “disposal” of property in the sense in which it is used in the HSA. I refer to my prior comments concerning the law relating to the return of items seized by police in the course of an investigation. The Commissioner has a temporary right to possession of the items. That right is extinguished upon completion of the investigation. Generally speaking such items are returned to the person from whom they were seized. There is no question of alienation or transfer of title merely a recognition that the Commissioner’s temporary right to possession has ceased. I reject this argument.
The balance of the items
I will now deal with the remaining items. I will revert to the numbering system used by the Commissioner. The remaining items are items 1 – 28, 33 – 44, 50, 51, 59 – 61, 64 – 67 and 71.
The remaining items were in the possession of parties who do not press claims for their return in these proceedings. These are the fifth defendant, Mrs Liddy and Mr Kelly. The first defendant, supported by the fifth defendant, says these items are Mr Liddy’s.
Mr Liddy declined to participate in the hearing on day three and therefore was subject to only very limited cross-examination by counsel for the fifth defendant. Given that his evidence was effectively untested by cross-examination only limited weight can be given to it.
The evidence that Mr Liddy did give was unsatisfactory. Much of it was irrelevant and much that was relevant was vague and imprecise. Some aspects of it were, as I shall discuss, improbable. Notwithstanding the view I formed about Mr Liddy’s evidence I cannot entirely reject it as it forms the only evidence that I have on some topics and some aspects of it were uncontested.
Mr Liddy confirmed that he had possession and asserted ownership of all of the interpleader items at some stage, albeit he says he later sold or gave certain items away. There is no evidence to the contrary and no party to these proceeding disputes this.
There are a number of the remaining items that Mr Liddy does not claim to have disposed of. These items are items 5 – 7, 24, 33 – 38, 40 - 42 and 71. In the circumstances I find that Mr Liddy is entitled to the return of items 5 – 7, 24, 33 – 38, 40 - 42 and 71.
Mr Liddy gave evidence that he could not remember who owned some items but that he did not own them as he had sold them or given them away. These items are items 26, 39, 43 and 50. In the absence of other claims in respect of those items, or compelling evidence that there might be such claims, I find that Mr Liddy is entitled to the return of those items also.
Mr Liddy gave evidence in chief that he gave, or probably gave, his mother a number of his items in order to provide for her financial security. He identified these asserted gifts as items 1 – 4, 8 – 25, 28, 44, 51, 53, 59 – 61, 64 – 67.[36]
[36] Exhibit D3; transcript pp46-46
The police seized these items from Mrs Liddy’s house. In general terms her occupation of the house by legal right is sufficient to manifest her intention to control all the chattels in it, known and unknown to her. This is however a rebuttable presumption of fact and can be displaced if a superior title can be shown.[37]
[37] Russell v. Wilson, Chairman National Crime Authority v. Flack – see note 3 above
Again the difficulty arises that Mr Liddy is not asserting any entitlement to these items. The first and fifth defendants assert his entitlement as they did in order to defeat the claims by the sixth, seventh and eighth defendants. In my view however this is quite a different situation to that which obtained in respect of those defendants who had possessory title of the items that they claimed.
It was plain from Mr Liddy’s evidence that he harbours great resentment towards the first defendant who is one of the victims of the crimes that have resulted in his imprisonment. He gave evidence that, in effect, asserted that his victims made up the allegations against him in order to “get their hands on the things or the money”[38].
[38] Transcript p46
The date upon which and the circumstances in which Mr Liddy contends he gave these items to his mother is unclear.[39]
[39] Transcript p49
Mr Liddy also gave evidence that he did not did not show his mother the items that he took to her house. Rather he said that he hid them in various locations in her house including under a bed.[40] He said that he did not wish to worry her about the extent of what he had given her so he:[41]
…simply stashed them in the place, told her I put things there for her that would be sold for her and left it at that.
[40] Transcript p.48
[41] Transcript p49
As Mr Liddy refused to subject himself to cross-examination these issues were not clarified.
It has to be said that his characterisation of his actions as gift giving strains credibility. The actions Mr Liddy described seem more consistent with hiding the items at his mother’s house than a desire to make a gift of them to his mother. His actions are certainly not inconsistent with an intention to retain possession of them. Given Mr Liddy’s views about the motivation of his victims it would not be surprising if he did attempt to hide these items. There is further no evidence that Mrs Liddy accepted the asserted gifts or their delivery.[42] Quite the contrary. I have already referred to the statement given by Mrs Liddy to the police.[43] Whilst this statement is of limited evidentiary value, it is instructive that Mrs Liddy was as vague as her son as to the circumstances in which the items came to be in her house. Her statement tends to confirm that the items were hidden in her house and that she had limited prior knowledge of the items. She refers throughout her statement to the items as “Peter’s”.
[42] Nolan v. Nolan (2003) 10 VR 626
[43] Exhibit D7-1: Annexure IRR4
It is further important to bear in mind that this is an interpleader action. The court’s role in an interpleader action is to assess conflicting claims to an interest in property. Mrs Liddy did not however assert a claim in these proceedings or, on the evidence before me, at all. Mr Liddy’s evidence was an attempt to negative his entitlement to some of the items by asserting that another person, his mother, owned them. Mr Liddy was not acting as his mother’s agent or on her behalf in asserting her entitlement. I consider that his evidence was likely motivated by his desire to prevent his victims gaining access to these items. There is no other competing claim to these items in these proceedings.
There is insufficient evidence to enable me to find that Mr Liddy owns these items. In my view however it would be an abuse of process to allow Mr Liddy to frustrate his victims’ claims by asserting that he gave the items to his mother in circumstances where his mother does not claim the items. The court should not allow itself to be used for that purpose nor should these items remain in limbo.
Accordingly, I make no order as to items 1 – 4, 8 – 25, 28, 32, 37, 42 – 45, 51, 53, 59 – 61, 64 – 67 but direct that the Commissioner retain these items pending further order or determination of the proceedings in action no. DCCIV-01-835.
Mr Liddy did not give evidence about items claimed by the Commonwealth. I have found that the Commonwealth has failed to establish an entitlement to certain of these items. Further, some of the items claimed by the Commonwealth did not encompass all of the articles grouped within the Commissioner’s system of item numbering.
All of the items affected by the Commonwealth’s claim were located at Mrs Liddy’s house. There is insufficient evidence to enable me to find that Mr Liddy owns those items but as there is no competing claim I will deal with those items in the same manner as items 1 – 4, 8 – 25, 28, 32, 37, 42 – 45, 51, 53, 59 – 61, 64 – 67 and direct that the Commissioner retain these items pending further order or determination of the proceedings in action no. DCCIV-01-835.
Conclusion
I direct the Commissioner to return Item 70 to the sixth defendant, Item 68 to the seventh defendant and item 69 to the eighth defendant.
I find that the tenth defendant the Commonwealth is entitled to the items it claims with the exception of items 33, 37, 42 – 48 on it’s list (the Miscellaneous ambit claim). I direct the Commissioner of Police to provide the items to which the Commonwealth is entitled to the solicitors for the Commonwealth. I note the difficulty in reconciling the Commonwealth’s list of items with that of the Commissioner. I give the parties liberty to apply in relation to that issue.
I direct the Commissioner of Police to retain the remaining items pending further order or pending determination of the proceedings in action no. DCCIV-01-835.