BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

Gollan(2)
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 18 FEBRUARY 1988, AT 10.21 AM
Copyright in the High Court of Australia

C2Tl/l/RB 1 18/2/88

MR R.F. REDLICH, QC: May it please the Court, I appear with
my learned friends, MR B.H.K. DONOVAN and
MR G. McGUIRE, for the appellant.
(instructed by Crown Solicitor for New South Wales)

MR M.S. WEINBERG, QC: May it please the Court, I appear
together with my learned friend, MR D.A. BUCHANAN,
on behalf of the respondents.
(instructed by John Bettens and Company)

BRENNAN J: Yes, Mr Redlich.

MR REDLICH: May it please the Court, the appellant in these
proceedings is the second defendant in proceedings
brought by the respondent in the New South Wales
Supreme Court seeking the recovery of certain articles, and alternatively damages for unjustified detention
of the same.

BRENNAN J: Do you have some notes of your argument?

MR REDLICH: I am sorry, yes. I do not learn from past
experience, Your Honour.

BRENNAN J: Yes, Mr Redlich.

MR REDLICH: May it please the Court. Before turning to our
submissions may we say something about the facts of

the case. The appellant is the second defendant in
proceedings brought by the respondents in the New South
Wales Supreme Court. He is a New South Wales police
officer to whom a search warrant under section 355 of
the New South Wales CRIMES ACT was issued by a Justice
of the Peace who is the third defendant in those
supreme court proceedings, the warrant being issued
on 4 November 1983.
The complaint by the appellant which justified the

issue of the warrant was that he had reasonable grounds
to believe that premises at 7 Leichhardt Street, Glebe, contained things relating to the Australian Paedophile

Support Group in respect of which an indictable offence
had been committed, namely a conspiracy to corrupt

public morals. On 5 November 1983 the appellant, with
other police, entered the premises at 7 Leichhardt Street,
Glebe, to execute the warrant and seized the articles
which are the subject of dispute.

(Continued on page 3)

C2T2/2/HS 2 18/2/88
Gollan ( 2)

MR REDLICH (continuing): The items consisted of photographs,
literature and charts which relate to the practice
of paedophilia and some of the goods as
His Honour Mr Justice McHugh found in the course
of the appeal before the New South Wales Court
of Appeal, some of the goods were of a kind which
many, if not most people, in the Australian
community would regard as objectionable. Criminal
proceedings were commenced in Victoria against
some of the owners of the goods but before a
magistrate on 10 May 1984 it was held that there
was no case made out as there was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gollan v Nugent

Details

AGLC: Gollan v Nugent [1988] HCATrans 11
Case: [1988] HCATrans 11
Decision Date

CaseChat Overview and Summary

The appellant, a New South Wales police officer, appealed to the High Court of Australia against a decision of the New South Wales Court of Appeal. The respondents had initiated proceedings in the Supreme Court of New South Wales seeking the recovery of certain articles or, in the alternative, damages for their unjustified detention. The appellant had obtained a search warrant under section 355 of the *Crimes Act 1900* (NSW) from a Justice of the Peace, who was also a defendant in the Supreme Court proceedings. The warrant was issued based on the appellant's reasonable grounds to believe that premises at 7 Leichhardt Street, Glebe, contained items related to the Australian Paedophile Support Group, in respect of which an indictable offence, namely a conspiracy to corrupt public morals, had been committed. The appellant, with other police officers, entered the premises and seized the disputed articles, which included photographs, literature, and charts concerning paedophilia.

The legal issues before the High Court concerned the validity of the appellant's defence in the Supreme Court proceedings, specifically paragraph 27 of his amended defence. This paragraph asserted that the seized articles were forfeited to the Crown under section 355(2) of the *Crimes Act 1900* (NSW) at the time of their seizure. The respondents had applied to strike out this paragraph. The Court was required to determine whether the seized articles were indeed forfeited at the time of seizure, and consequently, whether the appellant's defence was legally sound.

The Court considered the operation of section 355 of the *Crimes Act 1900* (NSW), which provides for the seizure of articles believed to be connected with indictable offences and their forfeiture to the Crown. The appellant contended that the forfeiture provision applied automatically upon seizure, rendering the articles the property of the Crown and thus precluding a claim for their return or damages for detention by the original owners. The respondents argued that forfeiture under section 355(2) was not automatic and required a judicial determination or a formal declaration of forfeiture. The Court's reasoning would likely focus on the interpretation of the statutory language and the circumstances under which forfeiture takes effect.

Orders