Commissioner Of Police v AD & Ors (2) - [2013] SADC 94

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
COMMISSIONER OF POLICE v AD & ORS (2)
[2013] SADC 94
Judgment of Her Honour Judge McIntyre
9 July 2013
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 final orders determining conflicting claims over items in his possession. Orders made on competing claims.
Police Regulations 1999 r53, r60, 61, 62 and 63; District Court Rules 2004 r202; District Court Act 1991 s36, referred to.

COMMISSIONER OF POLICE v AD & ORS (2)
[2013] SADC 94
Introduction

In July 2008 the Commissioner of Police issued an interpleader summons in relation to a number of items of personal property. The items were obtained in the course of an investigation into the alleged theft of goods from the estate of Peter Liddy following Mr Liddy’s conviction and imprisonment for sexual offences. The investigation concluded and the Commissioner had no further interest in those items. The Commissioner believed that the items formed part of Mr Liddy’s estate but was aware of conflicting claims in relation to them. Accordingly the Commissioner sought a determination of those claims and orders for the disposition of the property.
I delivered a judgment on 30 September 2009 which dealt with a number of those claims. I will not repeat the matters set out in that judgment. I directed the Commissioner of Police to retain a number of items pending further order or determination of proceedings in action number DCCIV-01-835 (the retained items). The first defendant AD, one of Mr Liddy’s victims, brought that action seeking damages from Mr Liddy. The retained items were arguably the subject of a Mareva order issued in those proceedings in order to preserve Mr Liddy’s assets. The proceedings in DCCIV-01-835 have been concluded and the Mareva order discharged. The Commissioner of Police therefore seeks final orders in respect of the retained items.
Retained items where the claim is based on ownership or possessory title
Throughout this judgment I will use the item numbering in the Commissioner’s interpleader summons dated 2 July 2008. Consistent with my original findings, a number of items ought to be returned to Mr Liddy. The items that ought to be returned to Mr Liddy are items 5, 6, 26, 27, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 50 and 71.
At the time of the original hearing, Mr Liddy said that he no longer owned the balance of the retained items. He said that he had given them to his mother, sold them or given them away to others. His assertions were not tested in cross-examination because he declined to take further part in the proceedings after he gave evidence in chief. I refer to the conclusions I reached in my previous judgment. Mr Liddy declined to participate when advised of the current application.
Mrs Liddy did not claim an entitlement to the items that Mr Liddy asserted that he had given to her. Mrs Liddy has since died. Her executor was advised of the current application and has not elected to participate.
The only claimant to the remaining items is the fifth defendant, Channel Seven. AD concedes that he has no legal claim in respect of these items but supports Channel Seven in its submissions. I note that it is Channel Seven’s intention to provide the assets the victims of Mr Liddy.[1]
[1] Affidavit of Peter Graham Archer sworn on 4 June 2013
In the absence of any other claimant I determine that Channel Seven’s possessory title to items 1 – 4 inclusive and 7 – 25 inclusive, as outlined in my original judgment, entitles it to the return of those items. My original judgment contained a typographical error. I indicated that Item 24, a pistol, ought to be excluded from these items. The item I intended to exclude was item 26. Item 24 is part of a group of items comprising item 25, a pistol paired with Item 24, and item 7, the certificates relating to those pistols. These items ought be kept together and returned to Channel Seven. I correct that error in my original reasons for judgment.
The remaining items
Channel Seven maintains an entitlement to the remaining items on two grounds. First it is said that the items constitute “found property” for the purposes of the police regulations and that Channel Seven is the “finder” of each of those items. In the alternative it is said that the items constitute “unclaimed property” for the purpose of the Police Regulations and that the Court ought to exercise a discretion to release the items to Channel Seven as unclaimed property.
I have received an affidavit of Peter Graham Archer of Channel Seven sworn on 4 June 2013 outlining the assistance provided by the fifth defendant to SAPOL. SAPOL do not dispute the contents of his affidavit or that assistance was provided by Channel Seven. In summary, Channel Seven was approached by victims of Liddy who were concerned that he was disposing of his assets to avoid those assets being available to fund any compensation or settlement sum that the victims hoped to receive from their claims against him. Channel Seven, and private investigators engaged by them, undertook extensive investigations which provided new evidence to the police identifying a number of items formerly in the possession of Mr Liddy. Channel 7 advised the police that these items were likely to be located at Mrs Liddy’s house. On 29 July 2003, acting upon this information, the police executed a search warrant at Mrs Liddy’s house and seized a large number of items from her home including the items with which I am now dealing. I accept that Channel Seven played an active role in locating these assets.
Are the remaining items “found property”?
Regulation 60 of the Police Regulations 1999 sets out the basis upon which “found property” in the custody of SAPOL may be returned to the “finder”.
Regulation 53 of the Police Regulations defines “found property” as “any personal property that has been lost and whose owner is unknown at the time at which it is found”. “Finder” is not defined. “Property” is defined as:
(a)    found property; and
(b)   the personal effects of deceased persons; and
(c)    property that is seized or otherwise taken into the custody of a member of S.A. Police for investigatory or evidentiary purposes.
The relevant time at which the question of whether these items are found property ought to be determined is 29 July 2003. This is the date on which the property was seized from Mrs Liddy’s home and, on Channel Sevens’ case, “found”.
At the time of the original hearing before me, both AD and Channel Seven maintained that this property was Mr Liddy’s and subject to the Mareva order. It was put to me that Mr Liddy had hidden these items in order to avoid the order and to defeat the claims by his victims. I consider that this submission is likely to be correct. Mr Liddy’s evidence was, as I indicated in my previous judgment, very unsatisfactory. The police were investigating allegations of theft of goods from Mr Liddy’s estate after his imprisonment. The police search of Mrs Liddy’s house and the subsequent seizure of the items was based on the view that these items were Mr Liddy’s. No prosecutions were undertaken following the completion of that investigation. For these reasons, I do not consider that, at the relevant time, the owner was unknown. It was more likely than not Mr Liddy. It was only subsequent events that rendered the position less clear.
Channel Seven put to me that the Macquarie Dictionary relevantly defines lost as “no longer to be found” and that:
…Implicit in that definition is the existence of a seeker who, at some point in time could have found the relevant item but who can no longer do so. Importantly the identity of that seeker is immaterial. In this way, an object may be lost to one person, but not to another.[2]
[2] Paragraph 10, further submissions of fifth defendant.
It is said that in deciding whether or not the remaining items were lost I must determine the perspective from which “lost” is to be assessed. It was put that it was open to the court to assess that question from several perspectives including the perspectives of Mr Liddy, Mrs Liddy, Mr Liddy’s associates, Mr Liddy’s victims, the Court, SA Police and the general South Australian community.
It was conceded that if assessed from the first three perspectives it was arguable that the items were not lost. This is plainly correct in respect of Mr Liddy and Mrs Liddy. I am uncertain who is included in the term “Mr Liddy’s associates”. Mr Liddy’s limited evidence suggested that he put the items in his mother’s house. What little evidence there is concerning Mrs Liddy’s position suggests that she was aware, at least in general terms, of the presence of some if not all of these items in her house.
I am however urged to view the matter from the other perspectives. It is said that at the time the Mareva order was made the likely composition of Mr Liddy’s estate was known due to publicity surrounding his collection of antiques. SAPOL were unable to locate those items. Therefore it is contended that those items were “no longer to be found” from the perspective of SAPOL, Mr Liddy’s victims, the Court, and the general South Australian community and were therefore lost.
The parties have been unable to refer me to any case law that might assist on this topic. It is my view however that in the context of the Regulations the meaning of “lost” must be assessed from the perspective of the owner or person entitled to possession. To say otherwise would lead to the undesirable result that owners of property or people entitled to possession could be deprived of their property rights in circumstances where items were not lost to them but where another person asserts that they found the items. Such a position would cut across the usual and longstanding rules relating to rights to ownership and possession of personal property. Further, to impose a subjective test of this nature would make the Commissioner’s position in determining such matters under the regulations virtually impossible.
I am fortified in my view that “lost” must be determined from the perspective of the owner or person entitled to possession by Regulation 60 which sets out the procedure by which a claim by a finder may be made and determined. Regulation 60(2)(a) provides as follows:
If found property is returned to the finder, the finder –
(a) does not obtain title to the property as against the owner or the person who lost the property until the end of five years from the day on which the property was returned to the finder by SA Police
This suggests that an item is lost by a person who owned it or had possession of it at the time it was lost. In this case the only people that owned or had possession of the property at the relevant time were Mr Liddy or his mother. It was not lost to them.
Even if I am wrong about this, there is also uncertainty as to whether the fifth defendant “found” the remaining items within the meaning of the regulations. Channel Seven identified that certain specific items were missing from Mr Liddy’s known antiques collection and that it was highly probable that some of the most valuable items were at his mother’s house. Channel Seven pressed SAPOL on a number of occasions to search Mrs Liddy’s premises for those items. Ultimately, Channel Seven was able to provide sufficient evidence to enable the Commissioner of Police to institute a search of Mrs Liddy’s house and to seize the items.
I am again referred to the Macquarie Dictionary which provides the following definitions:
Found - the past tense and present part to support or find.
Find - to learn, attain, or obtain by search or effort, to discover, to recover (something lost) and find as someone or something that finds
It is contended that it is not necessary for someone to have possession of items in order to find them. Channel Seven says quite rightly that it could not gain access to Mrs Liddy’s house in order to “find” the items. Only SAPOL could do that using a search warrant. Channel Seven says that it did everything necessary, short of obtaining possession of the remaining items, in order to locate them. I do not disagree with that but, in my view, Channel Seven’s actions fall short of finding items. In argument it was said that there was no difference between the rights of a person finding a wallet on the floor and pointing it out to a police officer and those of a person who picks the wallet up to give to the officer even though the former was never in possession of the wallet. I consider those situations to be quite different from the present; in each of those situations the item is in view and it is a known item. In this case, known items from Mr Liddy’s catalogued collection were missing, there was a likelihood that some items were hidden at Mrs Liddy’s home but equally, some or all of the items may not have been there. It was by no means as clear-cut as the wallet examples. The police were investigating allegations that items were stolen after Mr Liddy’s incarceration. If that had been the case – the items could have been anywhere. At best it could be said that Channel Seven told the police where certain items might be located. In the ordinary meaning of the word, if the items were “found”, it was the police that “found” the items.
Finally, I note the definition of “property” in Regulation 53 set out above. This appears to distinguish between “found property” and property seized by the police for investigatory or evidentiary purposes. The latter description is a more accurate reflection of the circumstances of this case.
Accordingly I reject the proposition that the remaining items are found property within the meaning of Regulation 53 of the Police Regulations.
Are the remaining items unclaimed goods?
The fifth defendant contends that if I am not satisfied that the items are found property then I should regard the items as being “property” within the meaning of Regulation 53 and order the Commissioner to release them to Channel Seven as:
the only remaining “finder” of those items for the ultimate benefit of Mr Liddy’s victims.[3]
[3] Further submissions of fifth defendant at para 23
It is said that I have the power to make that order under Rule 202 of the District Court Rules 2004 and s.36 of the District Court Act 1991. It is said that it is appropriate for the Court to make this order because:
If it did not then the Commissioner would have to dispose of the relevant items as “unclaimed goods” pursuant to Regulation 61. The operation of Regulation 62 and 63 would make it likely that the value of the relevant items would ultimately be subsumed into the Consolidated Account thereby defeating the very interests – those of Mr Liddy’s victims – that the Mareva order was intended to protect. It would also achieve Mr Liddy’s apparent aim to frustrate his victim’s claims a result which the Court was previously concerned to avoid.
The first problem with the submission is that I do not consider Channel Seven to be the “finder” of the property. Further, the police did not seize the items to enforce the Mareva order. The items were seized as part of an investigation into allegations of theft. The orders I made directing the Commissioner to retain the items once SAPOL’s investigation was complete were made to protect the rights of the victims in relation to their claims against Mr Liddy. That object has been achieved in the sense that the items were preserved until the claims were resolved. AD’s claim has been finalised and the Mareva order has been discharged.
The Court’s discretion under DC rule 202 and s 36 of the District Court Act 1991 is not unfettered. There must be a proper basis upon which it is exercised. None has been advanced.
Conclusion
I am not satisfied by Channel Sevens’ claim to be entitled to the remaining items. I therefore dismiss that claim.
For completeness I dismiss each party’s claim to entitlement to possession of the remaining items and order that the Commissioner dispose of those items in accordance with the Police Regulations.