Gollan v Nugent

[1988] HCATrans 11

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S64 of 1987

B e t w e e n -

ERIC GOLLAN

Appellant

and

EMU NUGENT, CAROL ANN RUFF,

DEREK PAYNE and TERENCE

SEAN LEAHY

Respondents

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 insufficient

evidence and, indeed, the fact was that there was

no evidence called. That was a decision made before

the receipt of any evidence being provided to the

court.

There have been numerous steps in New South Wales Supreme Court proceedings and the only

relevant ones we need to identify are these: the

statement of claim filed by the respondents is

dated 22 December 1983. It was not until - as the

Court will be advised shortly, it was not until

the middle of the following year, 1984, that a

decision was made not to take any further steps

in the criminal proceedings. So we simply advert

to the fact that at the time that the civil claim

was commenced it was at a time when the criminal

proceedings were still on foot.

There was an amendment made to the statement

of claim on 14 February 1984, a subsequent
defence failed and on 12 April 1984 the second-
named defendant filed a defence which is the subject

of issue in these proceedings, namely, paragraph 27

of the second~named defendant's defence. The

defence in its present form in the particular

paragraph 27 can be found at page 32 of the appeal

book, that is the defence in its present amended

form. Before it reached that form there was an

application by the plaintiffs before Master Sharp

for the striking out of that paragraph; that
application was made on 28 May 1984.	The master

dismissed the plaintiff's motion, the matter went

on appeal to Mr Justice Cantor who, on 13 August 1984,

struck out paragraph 27 of the defence.

(Continued on page 4)

C2T3/l/ND	3	18/2/88
Gollan (2)

MR REDLICH (continuing): Subsequently, leave of the Court

of Appeal was sought and that leave was given,

subject to a number of conditions, one of which

was that an amended paragraph 27 be filed. That

was filed on 20 September 1984 and that is the form

of the amended paragraph 27 as it appears at

paragraph 32 of the appeal book and the Court of

Appeal gave judgment in this matter on 16 March 1987

Mr Justice Cantor that paragraph 27 was properly	by a majority upholding the decision of
struck out.

BRENNAN J:  Am I right in thinking that in the Court of Appeal

there was without amendment a further allegation made,
namely, that if the goods were returned, that they

would be used for an unlawful purpose?

MR REDLICH:  That allegation was made, Your Honour, but it was

not an additional allegation. It was made on the

basis of the amended paragraph 27. Certainly, the

Court proceeded and we have come before this Court

on the basis that it is contended by the appellant

that both the possession at the time of seizure by

the police was for unlawful or innnoral objects and

that if the goods were returned, that they would

be used for such innnoral or unlawful objects.

GAUDRON J: Where is the latter allegation in the defence?

MR REDLICH: In paragraph 27, Your Honour.

GAUDRON J: Yes, but what part of it? I can see the former in

paragraph (iv).

(Continued on page 5)

C2T4/l/SH	4	18/2/88
Gollan ( 2)

MR REDLICH (continuing): It is certainly raised in

subparagraph (c):

the purposes for which the said articles
were to be used or were intended to be

used ..... were such that the said articles should not be returned to the plaintiffs.

It might well be said that that is not a particularly

satisfactory way of raising the allegation that

upon their return they would be used for that

purpose, but what was intended by the pleading was

an ongoing intention by the respondents.

BRENNAN J: I notice a formulation in the judgment of

Mr Justice Glass at page 105. Is that the

formulation, at about line 14- is that the formulation

upon which we should fasten for the purposes of

determining this matter?

MR REDLICH:  We would invite the Court to adopt that formulation.

That is certainly the basis upon which the

matter was argued in the Court of appeal. Indeed,

those are the precise words that were used in

the course of argument as to the basis upon which

the appellant's allegation was being made. If I

may turn then to the - - -

DAWSON J: Is that agreed between the parties, Mr Redlich, or

is it -

MR REDLICH:	I am sorry, Your Honour - - -
MR WEINBERG:	I am sorry, if the Court pleases, it is not

agreed between the parties, and as the Court will

see when we hand up our outline of submissions it is

one of the points that we specifically take that

the Court of Appeal has gone off on a misconception

of what the actual issues arising out of paragraph 27

were and that that court should not have answered

that question and that this Court should not answer

that question as to future use.

BRENNAN J: But is that not the point on which special leave

is sought and obtained?

MR WEINBERG:  I am sorry, Your Honour, I was no aware - - -

MR REDLICH: Well, perhaps we ·could ask you, Mr Weinberg,

since you are closest?

C2T5/l/SR	5	18/2/88
Gollan

MR WEINBERG:  Your Honour, I was not present when

special leave was sought. I am unaware of whether

the Court in granting special leave granted

special leave on that basis or not. Certainly

the question that was raised before the

Court of Appeal and the question that was decided

by Mr Justice Cantor, the question of law as

formulated, did not raise that precise issue

at all and it seems that His Honour Mr Justice Glass

has said, in the course of His Honour's judgment,

that by inference one can construe paragraph 27

as raising the question of future use of the
goods, but we say that that is not the question

that is properly raised by paragraph 27. It does not make that allegation and if special

leave was granted on that basis then it should

be rescinded, with respect.

BRENNAN J:  Was it not one of the bases which was also considered by Mr Justice McHugh?

MR WEINBERG:  Yes, indeed. We rely on every part of

Mr Justice McHugh's judgment apart from the

part where His Honour goes on to deal with that

aspect of the argument. We say it was quite
wrong to deal with it because it was not raised

by paragraph 27, but it is clear, in our submission,

that both Mr Justice Glass and Mr Justice McHugh

dealt with that contention in paragraph 27 as

though it had been raised.	We simply say it
has not been raised.

TOOHEY J: Well, Mr Weinberg, if you look at page 127,

line 6, which is part of the judgment of

Mr Justice McHugh, it said:

Counsel for the defendants argued

that it was sufficient for his purposes

that the goods, if returned, would then

be used for the commission of crime.

MR WEINBERG:  Your Honour will note that the heading that

Mr Justice McHugh uses is "Intention to use

the goods for a criminal purpose" as distinct

.	from certainty that the goods will be used for a criminal purpose. Certainly when the first
paragraph 27 was filed there was nothing in the original paragraph 27 which could conceivably
relate to future use. What has happened is
that with the amendment to paragraph 27 somehow the Court of Appeal has been prepared to deal with the case upon the footing that the paragraph

alleges that the goods, if returned, will be used

for the purpose of criminal offences. Nothing
in paragraph 27 says that.

C2T6/l/AC	6	18/2/88
Gollan(2)

TOOHEY J:  But do you say there was no agreement between

the parties either as to intention or certainty

or anything at all relating to the future use

of the goods?

MR WEINBERG:  Your Honour, it seems as though the matter

has been argued before the Court of Appeal by

both parties in response to that question but we say that the question never arose. It was

not in the pleading. We are, after all demurring

to an existing pleading and the ground has shifted

as it were. We are now being asked to deal

with a matter that was not in the pleading at

all.

(Continued on page 8)

C2T6/2/AC	7	18/2/88
Gollan(2)

MR WEINBERG (continuing): And we have demurred to the pleading as

it stands and what has happened is that we are

then confronted with a new case. We are being
told that even if it is not in the pleading,

"What do you say about this nice question". It

is a very nice question. But it is not a question

that arises out of pleading.

BRENNAN J:	Mr Weinberg, it is a very unsatisfactory position for this Court to find at this point that an issue
which was agitated before the Court of Appeal which formed one of the foundations for its judgment
is then in debate here as to whether that issue ought ever to have been considered after the application
for special leave has been heard and closed.

MR WEINBERG: We understand that, Your Honour.

BRENNAN J:  Now, if your proposition be right and if this

Court ought not to consider that issue, then I
take it that issue would not be considered by this

Court as determined one way or another, finally.

MR WEINBERG:	Yes.
BRENNAN J:	So that if the matter were to remain in this

present state, I presume that the defendants would

then be in a position to apply for a further amendment

to their defence to raise those precise words and

carry it through the Court of Appeal once more

and back to this Court.

MR WEINBERG: Well, that might be so, Your Honour. We say

that there are two issues which were agitated before

the Court of Appeal. The first was the question

of past criminality. We do not know whether the Court which granted special leave in this case - because Their Honours did not give full reasons, as we understand it - granted special leave on

the basis of that question alone or on the basis

of the question of past use plus future use or
merely on the question of future use.	What we

say, however, is that the question of future use

has not thus far been raised in the pleadings.

It did arise in the Court of Appeal, it was discussed,

we say mistakenly. Now that leaves us in the position

where we say the respondents have a right to have

the demurrer determined on the basis of the existing

pleading and if the appellant seeks to then amend again, so be it; let the appellant seek to amend

yet again. But we say we should not be here to

face an issue which is an unfair issue so far as

the respondents are concerned because we did not

demur to that allegation. It is not raised, we

say, by the pleading and this Court is not here

to, with respect, write up a treatize on a very

nice question, perhaps, an important question

but one which does not properly arise between the
parties at this stage and we say that we are well within our

rights, with respect, to take that point and raise the point.

C2T7 / l /MG	8	18/2/88
Gollan(2)

MR WEINBERG (continuing):  The Court has, in the past, revoked

grants of special which have been given when new

facts or matters have been drawn to the Court's

attention upon the hearing of the appeal and it would

certainly be our submission that this would be an

appropriate case to do so so far as that aspect of

the appeal is concerned. We concede freely that the

other aspect of past criminality is a matter that

should be agitated 'and debated before this Court and resolved

by this Court.	I do not think we can take that
matter further.

BRENNAN J: Yes, thank you, Mr Weinberg. Mr Redlich, what do

you have to say about that?

MR REDLICH:  If it please the Court, as may have been apparent

from my unpreparedness to deal with the question,

until this moment the issue has never been raised

that paragraph 27 in its amended form did not

sufficiently raise the issue upon which the appeal

was determined by the New South Wales Court of

Appeal. Our first submission would be that whilst

we would readily accept that paragraph 27 is far

from precise in raising the allegation, that the

references in paragraph 27 to the continuing intention
of the respondents in relation to the articles, is of
itself sufficient to raise the case which was argued
in the Court of Appeal and provided the basis upon

which the Court of Appeal determined the question.

The whole of the appeal before the New South Wales

Court of Appeal was conducted on the basis that paragraph 27 raised that allegation, There is no

suggestion at any suggestion at any stage during the
course of that appeal that it did not arise on the

pleadings and no such suggestion was made when

special leave was sought raising such an issue and

in our submission the matter is properly before the

Court.

MR WEINBERG:  Might I just be heard on that?

BRENNAN J:  I will see if Mr Redlich is finished his submission.

MR REDLICH:  I wish to add nothing in relation to that.

BRENNAN J: Yes.

MR WEINBERG:  My junior who argued the case in the Court of

Appeal has a note in his file that he did raise the
matter with the Court of Appeal but, as he puts it
to me, it fell on deaf ears but he has a note to the

effect that the question whether the paragraph 27

actually raised the question of future criminality

or not was raised before the Court of Appeal and

he has a note to that effect. So, the factual

assertion is one that is challenged.	We cannot take
that any further.

C2T8/l/SH	9	18/2/88
Gollan(2)

BRENNAN J:  I am not sure that I follow exactly. Does that

mean that the Court of Appeal did not accept the
proposition that, on its true construction, the

issue of future use did not arise?

MR WEINBERG:	That must be so, with respect, Your Honour.
BRENNAN J:	So, the Court of Appeal construed it as raising

the question of future use.

MR WEINBERG: Certainly, His Honour Mr Justice Glass says so

in terms and His Honour Mr Justice McHugh deals with

the question so His Honour must have found that

paragraph 27 did raise an issue of that kind. We

say that that was a complete error and should not
have been taken up by the Court of Appeal at all

because, on its face,plainly paragraph 27 does not

raise any such allegation at all. My f~iend wishes

to stretch the meaning of paragraph 27 but the fact

is that we demur to an existing paragraph, an existing

pleading and we say that, properly construed and properly read, it does not contain an allegation

in terms that if these ~oods are restored, they

will be used to cormrl.t criminal offences of whatever kind

in the ruture. It says nothing of the kind, we say

with respect. We are in the Court's hands on that.

We say the matter was raised before the Court of

Appeal, however.

BRENNAN J: But if this Court were to take the view that it would

not entertain argument as to the meaning, different

from that which the Court of Appeal attributed to it,

what would be your attitude?

MR WEINBERG:  Then we would debate the point on the merits, of course, Your Honour.

BRENNAN J: Yes.

DEANE J: Except you might want to know how it is said this

material will be used for the commission of crime.

It is all written or photographic material.

MR WEINBERG:  There are some puppets as well, Your Honour,

but it is all books, photographs and other literature

and, I think, some puppets. The crimes that have

been mentioned in the case thus far are, firstly,

offences under the New South Wales Indecent Offences

Act 1975 and secondly, what is called a conspiracy to

corrupt public morals. We would certainly want to

know how these materials would be used in the course

of an agreement to corrupt public morals. There are

some particulars included in the appeal book and we

would be saying something about that, Your Honour.

C2T8/2/SH	10	18/2/88
Gollan(2)

MR WEINBERG (continuing): In effect, what we are saying

is that it is unfair to the respondents to have
the ground shifted from their original position.

They demur to a pleading, the pleading does not say what my friend says it says and we are here

forced to confront a different allegation from

that which is contained in the pleading.

BRENNAN J:	I think the point was raised by Mr Buchanan in the course of the special leave application, the
point which you are now making.
MR WEINBERG:	I see, I am sorry, Your Honour.

TOOHEY J: There is a further difficulty too, I think. It

is not a difficulty that, perhaps, confronts you,

Mr Weinberg, but the notice of appeal is formulated

largely in terms of the continue,~ use of the goods.
There is a reference to the goods having been used

but I think it is fair to say that the notice of appeal is formulated largely to bring before the

Court an argument in terms of future rather than

past use.

MR WEINBERG:  We understand that, Your Honour. We are not

taken by surprise by the point, we have researched
the point, we are prepared to argue the point and

we will advance arguments as to why the decision

of Mr Justice McHugh should be supported but we

do say, as the Court has raised the point with

my friend right at the outset that the pleading,

fairly and properly construed,does not raise the

allegation upon which the New South Wales Court

of Appeal ruled.

BRENNAN J:	The Court will adjourn briefly to determine the course that it should take in this matter.
AT 10.45 AM SHORT ADJOURNMENT

C2T9/l/ND	11	18/2/88
Gollan(2)
UPON RESUMING AT 10.59 AM

BRENNAN J: The resolution of one of the chief issues debated

whether that issue was properly raised on pleadings.	in the Court of Appeal depends upon the question the respondents to this appeal. That doubt can be
resolved in only two ways. The first is if the
pleading is now amended to raise the precise point
upon which the appellant would wish to rely and
that would involve an application for leave to
amend the pleading accordingly; a matter on which
we would, of course, hear both counsel. The
alternative,if that application is not made or
if made is unsuccessful, is that we must construe
for ourselves the terms of clause 27(c) of the
defence. Those seem to be the two steps upon which
we might direct our attention on this stage. And
the first question then is whether any application
for leave to amend would be made and if so, whether
it would be opposed. Mr Redlich?

MR REDLICH:  As the matter is of some importance, whilst it

is obviously necessary that the pleading be amended

so that the issue is clearly and beyond argument

raised, were we to seek that right now we would

wish to have some time to formulate precisely what

it is that we would wish to have inserted in the

pleading. But, subject to that requirement, a short

time to formulate such an amendment, we would ask

the Court for leave to make such an amendment?

BRENNAN J: Do you wish to say anything in support of_ that

application - anything further, Mr Redlich?

MR REDLICH:	It is, we would submit, to do no more than to formalize what the Court of Appeal took to be the issue raised by the pleading and to be the basis
upon which the matter was argued in the Court of Appeal and to be the basis upon which this Court gave special leave to appeal. And it is being done,
we would submit, for the purpose of clearly
presenting to the Court the issue that was and,
in our submission, is to be litigated. And we would
submit.principally for that reason that an amendment
should be permitted.

(Continued on page 13)

C2Tl0/l/SR	12	18/2/88
Gollan(2)
TOOHEY J:	Mr Redlich,	is it implicit in that approach that

the paragraph as it presently stands does not fairly

and squarely raise the question of future use?

MR REDLICH:  Your Honour used the words "fairly and squarely".

I think I have conceded that it could be far better

expressed to raise the issue, but it is our submission

that when the pleadings talk about a continuing

intention and furtherance of an ongoing conspiracy,

in our submission, it does, as was assumed by the

Court of Appeal, properly raise the allegation that there is a continuing intention to commit such illegal
or immoral acts, and certainly an application for

amendment, we would submit, ought not to be construed

as a concession, that it is not raised, but I would

have to concede not fairly and squarely raised in the

sense that an allegation of such a nature ought to be

unequivocally and explicitly raised; but it is our

principal submission that the matter has been raised

by the pleadings, albeit in an unsatisfactory way.

BRENNAN J:	Mr Weinberg.
MR WEINBERG:	Your Honour, we, of course, would take issue with

our friend when he says the matter is raised fairly and

squarely, or otherwise, by the pleadings. As far as

the application to amend is concerned, Your Honour, our

attitude would very much depend upon the form of the

amendment that would be sought. We really cannot give

an answer to the question of whether we would oppose
an amendment unless we know what the proposed terms of

the amendment are. My friend has asked for some time,

presumably a very short time, to formulate it, and we

would, with respect, ask to be permitted to reserve

our position on the application for an amendment until

we saw the proposed amendment.

BRENNAN J:  Yes. How long would you require, Mr Redlich?

MR REDLICH:  A quarter of an hour, Your Honour.

BRENNAN J:  The Court will adjourn until 11.20.

AT 11.04 AM SHORT ADJOURNMENT

C2Tll/l/HS	13	18/2/88
Gollan(2)

UPON RESUMING AT 11.25 AM:

BRENNAN J:	Mr Redlich.
MR REDLICH:	If it please the Court. The amendment we would

propose is to add a paragraph (e) to paragraph 27

which would be in the following terms: "If the

said articles were returned to the plaintiffs

the same would be used in furtherance of illegal

and/or immoral purposes - - -

BRENNAN J: "In furtherance of".

MR REDLICH: "In furtherance of'-', including those referred

to in paragraphs (a)(ii) to (vi) above.

BRENNAN J:	Am I right in thinking that goes beyond the formulation in the Court of Appeal?
MR REDLICH:	I would not shirk from that, Your Honour.

If that is the sole basis upon which objection

is raised to the amendment, we would propose

an alternative to ensure that the matter can

proceed. As I apprehend it, however, the objection

that would be raised is not to the fact that

it is beyond the view taken of section 27 by

the Court of Appeal.

DEANE J:	Why use an ambiguous word like, "illegal", if
you mean "criminal"?
MR REDLICH:	Indeed, Your Honour. We have used that term,

Your Honour, only because it is consistently

used throughout paragraph 27 but indeed, that

is what we do mean.

(Continued on page 15)

C2Tl2/l/MG	14	18/2/88
Gollan(2)-

BRENNAN J: Well, do you want to change "illegal" to

"criminal"?

MR REDLICH: If it please the Court.

BRENNAN J: Is that all you have to say?

MR REDLICH:  Yes, if it please the Court.

BRENNAN J:  Mr Weinberg.

MR WEINBERG: If the Court pleases, we oppose the application

to amend for the following reasons:  we note

firstly that the original paragraph 27, which was the subject of demurrer, which appears at

page 28 of the application or appeal book contained

nothing, not even a hint, of future criminality

or future illegality or immorality. Secondly,

His Honour Mr Justice Cantor who was the trial

judge whose judgment was the subject of appeal
to the Court of Appeal did not, in His Honour's

judgment, advert to the question of future use

at all in our submission. Thirdly, the question

that was formulated for the consideration of
the Court of Appeal did not raise the question

of future use.

DEANE J: Mr Weinberg, you said demurrer. Is it a demurrer

or is it a striking out?

MR WEINBERG: It is an application to strike out, Your Honour.

I have been using the word demurrer absolutely.

DEANE J:  No. The reason I raise it, there used to be

provisions in the rules preventing amendment

pending demurrer which did not apply to a

striking out. I am talking from long memory.

MR WEINBERG:  Your Honour has caught me totally by surprise

on that aspect and I am simply not in a position
to respond to that at this time.	We had not
anticipated this turn of events.

DEANE J:	But it is striking out and not demurrer.
MR WEINBERG:	It is, sir, yes. The next matter, Your Honours,

is that the proposed amendment is in terms which

ought not to be permitted. Firstly, the language

used "would be used" connotes certitude or certainty. past paragraph 27 formulation and to be asked

to plead or to defend an application to strike out

where it is contended that you will certainly

commit crimes is a little like being asked when

you last stopped beating your wife.

C2Tl3/l/AC	15	18/2/88
Gollan(2)

MR WEINBERG (continuing):  We are not saying that we could

not do it but it is going to be a little difficult.

We do say that it is unfair to permit an

amendment in that particular form. We note that

His Honour Mr Justice McHugh did not use that

precise formulation but spoke, rather, of an intent
to commit future crimes as being the heading under

which the discussion ensued. His Honour then did

use the term "would be used" but continually drew

that back to the notion that there was an intent

to use these goods for the commission of future
crimes and we say there is a vast difference between

having an intention to use goods to commit crimes

and a statement of fact made by an appellant that

they will be used to commit crimes.	The two are
not identical.

The next matter is the words "in furtherance".

We do not understand what they mean in this context.
What does it mean to say that these goods will
be used "in furtherance of illegal", even amended

to "criminal purposes". It is not being said that they will themselves be used as the basis for the

commission of criminal offences. It is rather

being said that they will be used in furtherance

of criminal purposes. There are many things that

are done in furtherance of criminal purposes which

do not amount to offences or crimes and there is
such vagueness in the amendment as to make it almost
impossible to comprehend what it means, let alone
justify an application to strike it out other than

on the basis that it is devoid of meaning.

We will say very little about "immoral purposes"

other than to say that that, again, makes the matter

very difficult from the point of view of the

respondents. These goods are said to be goods which

will be used for immoral purposes and we do not
have any idea what that means. Apart from having

been told that those immoral purposes include the

matters set out in a(ii) to (vi) above, thereby

go beyond the matters set out in a(ii) to (vi)	demonstrating that it is contemplated that they
above and extend to other matters as well.
We say, with respect, that the appropriate course would be for this Court, in the light of what has occurred and in the light of the fact that
it is, in our submission, quite clear that the
Court of Appeal invited counsel to present submissions on a basis quite different to what
was actually alleged in the pleading that this
Court ought to refuse the application to amend
at this time.

C2Tl4/l/ND	16	18/2/88
Gollan(2)

MR WEINBERG (continuing):  We understand that there may be

future applications to amend in other courts or

other places and that may have other consequences

at a later time but we say it would not be

appropriate to grant leave to amend on the terms

proposed by my friend at this time in the light

of all those circumstances. If the Court pleases.

BRENNAN J:  Mr Redlich, do you wish to say anything in reply?

Or, perhaps, I should ask Mr Weinberg first.
Mr Weinberg, there seems to be at least
adumbrated the prospect of an alternative aryplication

to amend in· the terms used by the judgments in the Court of Appeal by which I take it to mean,

because it is the more extensive formulation, that

used by Mr Justice Glass at page 105.

MR WEINBERG:  My friend chooses the judgment of Mr Justice Glass

to base his application on.	We, of course, find it
curious.	Mr Justice Glass, of course, was a
dissenting judgment.	Mr Justice McHugh did not

in terms, we say when one reads the whole of his

judgment, adopt that formulation. Rather, we say,

if we put this as a fall-back position, what

Mr Justice McHugh was talking about was the position

where the goods are returned to somebody who then has
an intention to use them to conmiit criminal offences

and that is a much narrower formulation.

BRENNAN J: Yes.

DEANE J:	But that would be it, would it not, "intended to be
used in the conmiission of crime"?
MR WEINBERG:	Yes, Your Honour. That is as far- as it ought

properly to go, we would submit, rather than the

"would be used" which is a very different matter

indeed. We say that if the Court were to grant

leave to amend, it should not go beyond that

particular conception and that is one that we would

feel perfectly comfortable to meet although we say

the Court should not grant that either.

BRENNAN J: Yes. Mr Redlich.

MR REDLICH:  We are content, if it please the Court, to

formulate an amendment in accordance with the 9-rgument

as identified by Mr Justice McHugh at page 127,

namely, that if the articles were returned, though

His Honour does not talk about intention but merely use, we are content to have the word "intention"

inserted. The articles, if returned, were intended

to be used for the conmiission of crime or for immoral

purposes which is the language which is used throughout

paragraph 27_.

C2Tl5/l/SH	17	18/2/88
Gollan(2)

TOOHEY J:  You would not be content, I take it, Mr Redlich,

to adopt the narrower language used by

Mr Justice Glass at the foot of page 105.

MR REDLICH: ..... , Your Honour.

TOOHEY J: ..... offences under the said Act, which is the

INDECENT ARTICLES AND CLASSIFIED PUBLICATIONS ACT

or in furtherance of the said criminal conspiracy

which is a "conspiracy to corrupt public morals"?

MR REDLICH: No, with respect, Your Honour, because in our

submission it is implicit from the pleading that

they are not the only offences that might be

committed if the allegations of the appellant

were sustained. Or putting it more crudely, if

the appellants made out the allegation that the

articles were to be used for the purpose of the

practice of paedophilia, then there would be a

variety of other offences that could also be caught

by such conduct. That is why we would submit it

is more appropriate to simply talk in terms of
"intended for use in the commission of criminal

offences or immoral purposes."

BRENNAN J:  Mr Redlich, if we are concerned only with an

application which is designed to ensure that the

issue that was before the Court of Appeal is before

this Court, ought the pleading not be limited to
the narrowest of the issues that was before the

Court of Appeal?

MR REDLICH: Yes and no, Your Honour. Yes, to ensure the

matter is determined and to not give rise to

a~gument that the amendment should not be allowed.
The reservation we have, if we may speak frankly,
Your Honour, is that if the amendment is permitted
by this Court, the prospect of any further
amendment before a single justice of the New South Wales

Supreme Court, by which the pleading is broadened

might be contemplated, would in our submission be to encompass such other criminal offences as	exceedingly difficult. The argument would no doubt
be raised that amendment having been sought from this Court that that court should not accede
to a request for any further amendment. That
really is the only reservation we have.

(Continued on page 19)

C2Tl6/l/SR	18	18/2/88
Gollan(2)

BRENNAN J:  I understand that that is a practical problem that

you face, having regard to the issues that have been

raised here. It is not a problem with which we need

be concerned, is it?

MR REDLICH:	We are content, for the purpose of the appeal, to formulate an amendment which is no wider than the
issue considered by the members of the Court of Appeal.
If than means then using the language of Mr Justice Glass
on page 105 of the appeal book we will content ourselves
with that, if it please the Court.
BRENNAN J:	That does not use "intention", does it?
DEANE J:	It would have to be, would it not, that "if the articles are returned, it is the intention of the defendants to use them for the commission of criminal
offences under the Act in furtherance of the criminal
conspiracy"'?
MR REDLICH:	We would seek to add "or for immoral purposes",

Your Honour. Whether that ultimately broadens or

widens the nets - - -

TOOHEY J:	It must do, must it not?
MR REDLICH:	Yes, but otherwise the allegation which is made up

throughout paragraph 27 would not be encompassed by

the issue raised for this Court.

GAUDRON J:  I must say the expression "immoral purposes" would convey nothing to me. "To be used in the course of

immoral activities" might, but "immoral purposes",

I say to you, at this stage, for the purposes of your

argument, really does convey nothing to me.

(Continued on page 19)

C2T17/l/HS	19	18/2/88
Gollan(2)

MR REDLICH:  I am indebted to Your Honour. We will content

ourselves with not including the words "for

immoral purposes".

BRENNAN J:	Could we then have your new formulation -
MR REDLICH:	(e) would then read: "If the said articles

were returned to the plaintiffs it is intended that the same would be used to commit offences under the said Act~.

TOOHEY J: Well you would have to identify the Act, would

you? Or does that appear sufficiently in your

existing paragraph 27?

•	MR REDLICH:	Your Honour, I do not think it does because the Court will see paragraph (a)(i) does not appear
there and that does not appear because it was
struck out in the course of the pleadings being
amended from time to time. The Act, of course,
that is referred to is the INDECENT PUBLICATIONS ACT.

TOOHEY J:  Well then you would need to spell that out,

would you not?

MR REDLICH:  Yes, Your Honour. The Act being the

INDECENT ARTICLES AND CLASSIFIED PUBLICATIONS ACT 1975.

BRENNAN J: Anything further?

MR REDLICH:  No, sir.

BRENNAN J: There are no other words in the amendment?

MR REDLICH:  I am sorry, I am not sure how far I got,

Your Honour.

BRENNAN J: The words I have at the moment are: "If the

said articles were returned to the plaintiffs

it is intended that the same would be used to

commit offences under the INDECENT PUBLICATIONS ACT 1975.' (Continued on page 21)

C2Tl8/l/AC	20	18/2/88
Gollan(2)

MR REDLICH:  The same would be used to commit offences

under the Act or in furtherance of the said

criminal conspiracy.

BRENNAN J: Mr Weinberg, in the light of that reformulation,

have you anything further you wish to say?

MR WEINBERG:  We have put everything that we wish to say

in relation to the matter. We do not resile from

our submission that the Court should not grant

the amendment.

BRENNAN J:  The Court will not immediately determine the

application that has been made but argument

may proceed on the footing that the Court, in due

time,either will make an order granting leave in

the terms that were last discussed or that the to raise the issues which are thus expressed.

MR WEINBERG:	May it please the Cou~t.
BRENNAN J:	Mr Redlich.
MR REDLICH:	May I then turn to the appellant's submissions.

What the appellants contend and is squarely raised by the judgments of the majority in the Court of

Appeal is that by the striking out of paragraph 27

the conclusion has been reached that there is no

rule or principle of the common law that the refusal

to return goods can be justified on the basis that

if returned they will be used to commit criminal

offences. Indeed, that is the conclusion which

His Honour Mr Justice McHugh expressly arrived

at at page 127 of the appeal book.

(Continued on page 22)

C2Tl9/l/ND	21	18/2/88
Gollan(2)

MR REDLICH (continuing):  And it i~ in substance, that

conclusion which we seek to attack on this appeal.

As to point 1 of our outline, we submit that the allegations made in the defence are taken to have

been established and we think it unnecessary to

refer the Court to authority in support of that

proposition.	We submit the pleading is not
obviously unreasonable.	We refer the Court to

the case of ATTORNEY-GENERAL OF THE DUCHY OF LANCASTER V LONDON AND NORTH WESTERN RAILWAY COMPANY, (1892) 3 Ch 274, in support of that

proposition that unless it is obviously unreasonable

it ought not to be struck out. The pleading is

not, in our submission, untenable or beyond argument.

That appears to be the test to be applied as expressed

by this Court in DEY V THE VICTORIAN RAILWAYS

COMMISSIONERS, (1948) 78 CLR 62. We submit the

Court should be reluctant to strike out a pleading

where it raises important and difficult questions

unless it is clear that the answer will not lie

and we rely on GENERAL STEEL INDUSTRIES

INCORPORATED V THE COMMISSIONERS FOR RAILWAYS (NSW),

(1964) CLR 125 at page 129 in support of that

proposition. We submit that the issue raised here

in clearly one that is important and involves a

difficult question.

The second po int we raise is that, the facts

to be assumed are that the respondents acquisition

and continued possession of the said articles was

for immoral purposes as stipulated in paragraph 27

and as all the members of the Court of Appeal assumed,

namely for the - that is the immoral purposes were
namely for the propagation of unnatural sexual

practices involving children. It is also, we submit,

an assumed fact for the purpose of the appeal,

that the respondents' possession was in furtherance

of a common law conspiracy to corrupt public morals

and also that the possession was in breach of the

provisions of the INDECENT ARTICLES AND CLASSIFIED

PUBLICATIONS ACT 1975 and whether it be on the

construction of paragraph 27 which we contend for

or whether it be on the basis of the amendment

that may be granted, we submit that another fact
to be assumed is that on repossession the intention

of the plaintiffs is that they would use the articles

to commit such offences in the future.

We draw to the Court's attention that whether

by virtue of the amendment or in its previous form,

it is implicit within paragraph 27 that the contemplated

purposes would include breaches of various provisions

of the New South Wales CRIMES ACT and I seek to

do no more than list some of the provisions that

might come under consideration if, on the assumed

facts the articles were to be used for the purposes

alleged.

C2T2O/l/MG	22	18/2/88
Gollan(2)

I simply refer the Court to section 61E,

section 66A, section 66B, section 781, section 78H

and 78Q of the New South Wales CRIMES ACT 1900

as being other criminal offences that we would

submit are implicitly contemplated under

paragraph 27.

Point 3 is our contention that the seizure

of the articles by the appellants was lawful.

That allegation is raised in paragraphs 10, 15 and 16

of the amended defence which appears at page 46

of the appeal book. I draw to the Court's attention

that there is a typographical error in

paragraph 15 of the defence, page 46 of the appeal

book.

(Continued on page 24)

C2T20/l/MG	23	18/2/88
Gollan(2)

BRENNAN J: 

Was paragraph 15 struck out?

MR REDLICH: 

No, Your Honour.

BRENNAN J: 

Then why are we concerned with it?

MR REDLICH: 

Because the issue raised by the statement of

claim is whether or not the original seizure by
the appellants was lawful. The statement of claim

was issued at a time when there had been no final

resolution of the criminal proceedings and the
claim in detinue or in the alternative damages is
founded upon the respondents' contention that the
original seizure by the police was unlawful. If

it was not, then the appellants were justified in

their refusal to return the articles and I am

directing the Court's attention to the fact that

the defence puts in issue the plaintiff's allegations

that the seizure was unlawful but there is a

typographical error - - -

BRENNAN J: Well it may, but what is the connection between that

and paragraph 27?

MR REDLICH:  What was contended, Your Honour, in the Court of

Appeal was that there was some concession in the

defence that perhaps the seizure was unlawful and

that contention was based on the word "lawful"

rather than "unlawful" appearing in paragraph 15.

BRENNAN J: Does 27 hinge upon the lawfulness of the seizure?

In other words, if the seizure is unlawful, is it

conceded that paragraph 27 raise no valid ground

for defence?

MR REDLICH:  No, Your Honour. On one view of the authorities

the question of whether the seizure was lawful may

have a bearing upon whether the Court should ultimately

recognize such a defence. We are merely, at this stage,

directing the Court's attention to the fact that the

principle issue raised by the pleadings is whether or

not the original seizure was lawful and that, in our

submission, by the terms of the pleadings, places in

issue the question of the purposes for which the

articles were in the possession of the respondents

and the use to which they were or might have been

put. Put that another way: that if the issue is whether or

not the police officers were entitled to search and

seize, then the respondents to the appeal, the

plaintiffs, will have to, as part of their case,

establish that the warrants were without a lawful

basis, that is, that there was not a basis upon which

the police officers could take the articles. So that

the question of their possession, the use that they

were going to make of the articles would, by the very

nature of the allegations raised by the plaintiff, has
to be considered by the trial tribunal of fact in

resolving the issues raised on the pleadings.

C2T21/l/SH	24	18/2/88
Gollan(2)

But, it is only in that sense, we submit, that

the question of the character of the persons who took the articles is relevant. Otherwise, we would submit

that the seizure of the articles, the circumstances of their seizure or the subsequent discharge of the

respond~nts at committal proceedings are entirely

immaterial considerations for the purposes of this

appeal.

There are some cases that we would take the

Court to that suggest, albeit, in the contractual setting, that unless the illegality is brought to the attention of the Court as part of the cause of action of the plaintiff, that the Court may not take any

illegality surrounding the claim into account and

it is for that purpose that I was directing the

Court's attention to the fact that the question of the nature of the possession of these articles will, by the very nature of the plaintiff's claim, have to

be raised as part of its proceeding.

(Continued on page 26)

•

C2T21/2/SH	25	18/2/88
Gollan(2)

TOOHEY J:  I am not sure that I follow that, Mr Redlich.

Could I just ask you this? Is it relevant for our

purposes, and I emphasize, for our purposes, to

know the circumstances in which the articles were

seized? Or even to know that they are presently

in the possession of a police officer?

MR REDLICH:  Your Honour, what we submit is that on one

view of the authorities an illegality defence

is available when the circumstances of that

illegality must perforce be canvassed as part of

the plaintiff's cause of action, or if not as

part of the plaintiff's cause of action, by one of

the parties by virtue of the issues arising in

the course of the proceedings. And in this case,

we say, if that is the test, and my principle

argument is, of course, that it is not to be limited

to that category of cases where it arises as part

of the plaintiff's cause of action, b~t we simply

put that if the illegality defence can only be

raised where it must perforce become apparent to

the Court by virtue of the plaintiff's case, then

we would say, even on that narrow test the criteria
would be satisfied in a case such as this because

the issue of lawfulness of the seizure and therefore

the nature of the position is raised in the

plaintiff's pleadings.

BRENNAN J: Is this what you are saying, that paragraph 27 can stand on its own as an independent ground of

defence?

MR REDLICH:  Yes.

BRENNAN J: But if, and in so far as it requires to be

supplemented by the allegations in paragraph 15, then

the two together show that there is in the two

together a substantive ground of defence?

MR REDLICH:	Yes, Your Honour, because of - - -
BRENNAN J: It does not matter what the reason is, is that

what you are saying?

MR REDLICH: Yes, that is the essence of it, Your Honour.

Now, if I may turn to point 4. Some of the articles

which were seized are, in our submission, ex facie

for an unlawful purpose. That is, that without

the Court having to receive evidence about the

nature or the circumstances of their position, they

are on their very face, in our submission, for

the purpose of providing instruction as to the

manner in which children might be recruited for

paedophiliac purposes. Now we - - -

BRENNAN J: That is evidence, is not it? That is the evidence

by which you have to prove the allegations in the

paragraph?

C2T22/l/SR	26	18/2/88
Gollan(2)

MR REDLICH:	That is so but - - -
BRENNAN J:	We are not concerned with the evidence, are we?
MR REDLICH:	No, Your Honour, but again in determining whether a defence of illegality is available in
such circumstances it may in some cases, and we
submit this would be such a case, be relevant to
consider the very nature of the articles. I am
still dealing, Your Honour, with the issue of
whether or not the illegality is !'.'aised as part of
the case.  Your Honour, the cases that I will take
the Court to reflect the general proposition that
illegality if it does not arise as part of the
plaintiff's case or the defendant's response there to, but is collateral to and extraneous to it, may not
be relied upon.  Now whether or not that is an
accurate formulation of the principle, it is
certainly a view that is expressed in some of the
cases and we simply say that in this appeal that it reflects the proposition that in some cases
the very possession of articles without evidence as
to the purpose for which they are possessed would be sufficient to raise before the Court the issue of illegality.

(Continued on page 28)

C2T22/2/SR	27	18/2/88
Gollan(2)

MR REDLICH (continuing):  What we then contend is that there

is a ground of public policy that a court may

refuse to enforce a claim for the return of

property when such property has been acquired

or is retained for a continuing illegal or immoral

purpose.

Now, we submit that on the assumed facts

here the repossession of the articles by the

plaintiffs will be unlawful because the articles

will be used to commit either summary or indictable

offences and - - -

GAUDRON J: Is that an assumption that is dictated by

the terms of the amendment - let me call it

the amendment .. I mean I have some difficulty

in making an assumption just at the moment that

possession of the articles will be unlawful -

possession per se - whether or not there is

an intention which is what you are now confined

to, as I understand it. But, perhaps, I have

misunderstood everything.

MR REDLICH:  Your Honour, there are two senses in which

possession can be unlawful. Something can be

intrinsically unlawful such as possession of

herion, possession of a machine-gun and possession

can be unlawful in a different sense altogether

and that is because the court will not enforce

the person's right to that possession.

GAUDRON J:  I see. Yes. And that is all that you

MR REDLICH:  And that is all that we contend by that.

What we submit is that on the purposes which

are to be assumed for the purpose of this issue

the possession is unlawful. The Court in dealing

with the conclusion of the Court of Appeal that

in no circumstances could such a defence be

available must, in our submission, assume that

the appellant would, at the trial of the proceedings,

make out the purposes which or the criminal

object which is contended for in the pleadings.

GAUDRON J:	Yes, but it seems to me that what you will make out - assuming you make it all out - is
something less than unlawful possession.
MR REDLICH:	Your Honour, as submitted,there are two bases

upon which possession is unlawful - - -

GAUDRON J:	Yes.
MR REDLICH:	- - - and it is obvious that we are not suggesting

that the articles in their possession were

intrinsically unlawful.

C2T23/l/AC	28	18/2/88
Gollan(2)

GAUDRON J:	Yes, thank you.
MR REDLICH:	The first basis upon which we submit that,

as a matter of public policy, the Court may,

in appropriate circumstances, refuse the relief

which the plaintiffs seek is because of the

Court's role as custos morum and we have set

out in point 6 of our outline of submission

that this is a role which the courts have adopted

from time to time in relation to ensuring that

the public good is aided and that the criminal

law is properly enforced. And we would refer

the Court - in so far as there be any debate

about the existence of such a role for the Court -

to SHAW V DIRECTOR OF PUBLIC PROSECUTIONS,

(1962) AC 220, in particular the judgment of

• Viscount Simonds at pages 266 to 268.

The House of Lords was dealing with the

indictable offence of a conspiracy to corrupt

public morals and His Lordship, at page 266,

expressed the view that there clearly was such

an offence and then went on to discuss, on

pages 267-8, in a lengthy passage woi~h I will

not read to the Court, that the court does indeed

have a role as custos morum and that, in appropriate

circumstances, it was the court's duty to discharge

that function.

(Continued on page 30)

C2T23/2/AC	29	18/2/88
Gollan(2)

MR REDLICH (continuing):  It should be said that

Viscount Simonds' judgment has been subsequently

critici~ed to the extent that it may have been taken

as suggesting the court can create new offences, and

indeed expressions of opinion to that effect can be

found in the decision of REG V KNULLER (1973) AC 435,

but as to the proposition that the court has an ongoing

role as the superintendent of offences contra bonos mores,

in our submission, the position is well established by

authority that indeed has such a function.

The role of the court in that regard has been

considered, albeit peripherally by this Court, in

was there dealing with the question of an obscene

CROWE V GRAHAM, (1969) 121 CLR 375, in the judgment of

publication and whether or not there had been a

proper conviction in relation to an obscene libel.

His Honour, at page 389, dealt with some of the

epithets that are used in conjunction with the offence

of obscenity and noted the role of the court, since

the 18th century, concerning the protection of public

morals, and on the following page, at page 390,

referred to the role that had developed in the Court

of King's Bench concerned with the duty to be

custos morum. His Honour then went on to consider

whether there had, in fact, been an obscene libel.

The question of custos morum has been considered

in such cases BENNETT V BENNETT, (1952) 1 KB 249, at
page 253, and in other cases where there appears to

have been agreement between husband and wife to oust

BENNETT V BENNETT was cited with apparent approval	the jurisdiction of the court in matrimonial oroceedings and
by this Court in BROOKS V BURNS PHILP TRUSTEE CO LTD., (1968) 121 CLR 433 in which - uph~lding the view that where there was a contract containing provisions in which a promise is made to connnit a criminal act, or
one which is contra bonos mores, that the court has the
power not to enforce that contract, or to sever such
bonos mores. provisions as offend the criminal law, or are contra Mr Justice Hope, at page 100 of the appeal book,
concluded that:

The role of the courts as the custodian

of public morality is wrapped in some

uncertainty -

and appears to have come to the conclusion that

whatever the role of the court as the custodian of

public morality, that its role is irrelevant in actions

for the recovery of property. In our submission, if that

is indeed the conclusion which His Honour was expressing

at page 100, that it is not supported by authority, and

indeed, in our submission, contrary to principle.

C2T24/l/HS	30	18/2/88
Gollan(2)

MR REDLICH (continuing): Seventhly, we submit that it

would be contrary to public policy to grant the

relief sought by the plaintiffs in this case if

such relief is for the purpose of facilitating

the commission of serious criminal offences.

Again, Mr Justice Hope, in the course of his

judgment, expressed the view that there might be

circumstances in which a defence could be

successfully raised to a claim for the return of

property where such return of property was refused

on the basis of safeguarding human life.	I refer
the Court to page 97 of the appeal book.	It perhaps may

be convenient to start at the foot of page 96 of

the appeal book. His Honour said:

Subject to some qualifications it seems

to me that there is no such general principle

in the law relating to accessories before

the fact.

His Honour having analysed the cases on accessaries

before the fact and concluded that somebody who
returns property to the owner knowing that the
owner wishes that property for the purpose of the

commission of an offence is not to be regarded

in law as an accessary before the fact.

His Honour then referred to the statements of

Justice Devlin and then went on:

It may be that there are some circumstances

where the holder of the property would have

a defence to the owner's claim. Thus if the

owner of a shotgun demanded its return by

someone to whom he lent it in order that he

might shoot his wife, I have no doubt that

the borrower would have a defence, based on the protection of the safety or the life of the wife.

DAWSON J: I do not understand that defence. It may be that

you could support what is said there but why is

that a defence? It may be that the person would

be an accessary in those circumstances and, of

course, he can resist that.

MR REDLICH:  I took His Honour to be saying, Your Honour,

that in those circumstances one would have a defence to a·claim in detinue that the gun should have been

returned. That is, in those circumstances, one

would not be obligated to return the property to

the owner.

BRENNAN J: That is so long as the intention remained, perhaps.

MR REDLICH:  Yes.

C2T25/l/ND	31	18/2/88
Gollan(2)

DAWSON J:  But the defence is one of protection of safety

or life of another; there is such a category known

to the law, is there?

MR REDLICH:  We know of no special category that would give

rise to that exception. What we simply submit

is that that concession having been made by

His Honour that there are, in His Honour's view,

exceptional circumstances in which a person who

has the property of another need not return it,

would, in our submission, be enough.

DAWSON J: It is merely an example of the wider

proposition - - -

MR REDLICH:  Indeed, Your Honour, it would be enough for

our purposes to maintain the grounds of appeal

that are raised.

BRENNAN J: The question, I suppose, is whether that is a

defence as a matter of substantive law or whether

the policy of the law is that the courts do not

enforce rights of the kind to which His Honour

was there referring.

(Continued on page 33)

C2T25/2/ND	32	18/2/88
Gollan(2)

MR REDLICH:	We submit it appears that His Honour assumed - - -
DAWSON J:	I mean it is unrealistic, is not it, because

there would be no litigation if the event were an

irmnediate one and the person just refused to hand

it over to the person who was there. But if indeed

someone demanded the rifle over an extended period

of time, it would raise the very questions we are

debating here,would not it?

MR REDLICH:  Indeed, Your Honour. We submit it is implicit

in His Honour's reasoning that if there are

circumstances in which the person in possession

has the right to refuse to return the article

to the rightful owner, then in those circumstances
the court would not enforce - that is whilst the

person was entitled not to return it, no court in

those circumstances would enforce the owner's

right to the return of the property during that

period of time.

DEANE J:	It would be a contradiction in terms? I mean if somebody is entitled to keep something it means
the court has no power to order him to return it.

MR REDLICH: Quite so. What we submit, if it please the

Court, is that whilst there is no crystallized

proposition which supports the appellant's argument

that one can resist a claim in detinue or

conversion where the property has been possessed or

will be used in the future by the owner for the

cormnission of crime, the cases dealing with

illegality in a number of areas reveal, in our

submission, an underlying public policy which

permits the court, in appropriate circumstances, to

refuse such relief to the owner who would

otherwise be entitled to possession.

DEANE J: But is not the threshold problem here the woolliness

of your proposition? I mean,is your proposition

that if it can be shown that a wealthy man is going

to use his money and his car and his clothes in

furtherance of the commission of some crime,that

the police are entitled to go and take all his

money and his clothes and his car? And if that is

not your proposition, do you not have to define

the precise nature of the article, the precise

purpose for which it is intended to use it, the
precise contribution it is going to make to a

particular crime and what that crime is?

MR REDLICH:  Certainly if this was the trial of the action,

Your Honour, and - - -

DEANE J:	No we are dealing with an allegation which you
say if it is made good constitutes a defence? We are
not dealing with an allegation which may or may not
according to further facts proved constitute a defence?

C2T26/1/SR	33	18/2/88
Gollan(2)

MR REDLICH:  With great respect, Your Honour, the proposition

that Your Honour put to me really involves a

a
consideration of the facts of particular case. is that there are circumstances, which are within

the c0urt's discretion to determine, where it is

appropriate to refuse the relief.

(Continued on page 35)

C2T26/2/SR	34	18/2/88
Gollan(2)

MR REDLICH (continuing):  We submit it is no part of

our appeal that we lay down some clear criterion

of the circumstances in which the Court would or would

not do that, Your Honour.

DEANE J:	But that is the point, is it not? I mean, looking
at these articles, take the photo of children on a
bike~ - -
MR REDLICH:	Yes.

DEANE J: - - - to say that that may be used in furtherance of the

connnission of a criminal offence, I would have thought,

neither advances or retards the answer to the question,

"Are you entitled to keep it"?

MR REDLICH:  In the case of that item, without binding my

successors at a later stage, Your Honour, we would

accept that.

DEANE J: Well, now, say there was another item there,

$10, if you put your defence, that is going

to be used in furtherance of the connnission of crime.

I would imagine just about every criminal uses his

money in furtherance of the connnission of crime. no idea whether, even if I have sympathy with

Mr Justice Glass' approach, it is a defence or not.

MR REDLICH:	With respect, Your Honour, the question is not here to decide whether, given a particular fact
situation, it is a defence or not but whether the
majority in the Court of Appeal were right in saying
· in no situation can there be facts which would give
rise to a power in the court to refuse the person entitled to possession, the return of his property.
DEANE J:	I follow that but is it not the question this:
whether the facts alleged, if proved, constitute a
defence. Well, now, what if the answer be no,
those facts, if proved, do not necessarily
constitute a defence? You would have to prove something else as to the connection between the
articles and the particular offence and so on.
MR REDLICH:	Yes, Your Honour.
DEANE J:	Why should a defendant or a plaintiff be faced with
a defence which, on its face, does not constitute a
defence?

MR REDLICH:  I am sorry, Your Honour. I do not follow why the

defence on the face of it does not constitute a defence.

DEANE J: Well, assume the item is $10 and you say if that $10

is returned it is going to be used in furtherance

C2T27/l/SH	35	18/2/88
Gollan(2)

of crime. That allegation of fact is quite meaningless

to me as to whether or not it would constitute a defence.
If the facts were if this $10 is returned, he is going to go out immediately and shove it in somebody's mouth

and suffocate him with it, I think it probably was a

defence. If it is he is going to put it in his bank account and in due course he plans to use it as part

of a deposit on a motor car in which he proposes to

go and rob a bank, I would have said it is possibly

defence.

MR REDLICH:  Your Honour, we are dealing, as Your Honour

appreciates, with a question of principle that is

removed from the facts of this case or any other case. the $10 was going to be used to suffocate the person, the money would have to be returned.

DEANE J:	I follow that. I think what I am putting to you is that your defence does not raise a factual basis on
which the questions of general principle can sensibly
be dealt with.

(Continued on page 37)

C2T27/2/SH	36	18/2/88
Gollan(2)

MR REDLICH:  Well, if I may respectfully submit, that is

in accord with an argument that what is really

being raised before the Court is a hypothetical

situation. In our submission, that is the basis

upon which it was argued in the Court of Appeal.

It may be that in other circumstances it would

be of more assistance to the Court if particulars

of the defence had been required and pleaded before

the matter was argued before the Court of Appeal.

But that is not the basis upon which the appeal

developed and whether or not paragraph 27 is or
is not able to provide a defence in the circumstances

of this case - we would not shirk from what

Your Honour puts - will depend upon what facts the

appellants rely upon to make out that it is going

to be used or has been used for an illegal or criminal
purpose. But, in our submission, we are left in
the position in which we are faced with a judgment

of the Court of Appeal which has said, "Regardless

of what facts you rely upon, no matter how it is

formulated, no matter what evidence is led, this

is not a defence which can ever succeed". So that

the appellants would not be permitted to raise

that defence at the trial and pursue their claim.

BRENNAN J:  Mr Redlich, do you not have to distinguish, I would have

thought, between two things? You are using the

term "defence" and no doubt that is appropriate

because it is in the document so described that this is found. As I understand it, the defence may disappear if the intention to use the goods

for an illegal purpose disappears. So that, are

you really saying that the substantive rights depend

upon the intention to use the goods or are you

saying that the Court will refuse to give effect

to the substantive rights in cases where the Court's decree will assist in the perpetration of the crime?

MR REDLICH:  We are saying the latter, Your Honour. We are

contending that it is not a question - if circumstances

are established to the tribunal of fact's satisfaction

that the articles are to be used in the view of

the Court for sufficiently serious criminal objective,

that the plaintiffs do not have a right which the

Court will recognize. Sometimes it is talked of

in terms of a right that is to be enforced, sometimes

the courts have expressed themselves in the term

as saying, "We will not hear this evidence" or

"We will not recognize this claim".

DAWSON J: That really identifies the problem, does it not?

Because the rights which have been asserted are

the rights of ownership, that is all.

MR REDLICH:  Not, if I might say so, Your Honour - - -

C2T28/1/MG	37	18/2/88
Gollan(2)

DAWSON J:  ..... the Court will not enforce those rights

of ownership and you ask "Why"?	We give you that
answer.	But really, you have to go further than
that and formulate a principle, do you not?	You

have to say, "The Court will not", for example,

"lend its aid to a furtherance of an illegal II

purpose .

(Continued on page 39)

C2T28/2/MG	38	18/2/88
Gollan(2)

MR REDLICH:	Indeed.
DAWSON J:	Then, of course, it can be said he was not doing

that, it is not what it is being asked to do. All
that it is being asked to do here is grant relief

in relation to rights of ownership.	The rest is
something different.

MR REDLICH:  The public policy considerations that we would

rely upon would, in our submission - - -

DAWSON J: Public policy must dictate something by way of

principle. That does it dictate, that the Court

will not do what?

MR REDLICH: It will not recognize or enforce a plaintiff's

right for the return of his property where it is

to be used by that person for a criminal object.

It will not -

BRENNAN J:  You must say ''where it will be used to permit of the conspiracy 11 • That is right. offences under ..... of the Act or in futherance

MR REDLICH:	Indeed, as confined in the pleading.
DAWSON J:	But it is not being asked to lend its aid to the furtherance of any criminal purpose. It is being asked to enforce rights of ownership and that is
all.

MR REDLICH: If the facts are, Your Honour, properly placed before the Court that it is being returned - the

purpose for which possession is sought is for a

specific criminal object then, indeed, the Court

is facilitating -

DAWSON J: That may be a consequence of the man enforcing his

legal rights but that is all it is. It is different

to the case in which the Court is being asked to

enforce an illegal contract, for instance. it is being asked to lend its processes for the Then illegal purpose.

(Continued on page 40)

C2T29/l/ND	39	18/2/88
Gollan(2)

MR REDLICH:  Your Honour, the circumstances in which courts

have refused to aid a party seeking a remedy

in contract have been very broad; have covered

circumstances where the contract is neither

illegal on its face or where the performance

of the contract is illegal but for no other

purpose than that the object of the person getting

his rights under the contract is to pursue a

criminal object.

I arrange to buy something from someone

else for the purpose of using that item for

a criminal purpose and in the event that the

court is appraised of the object of the contract

then although the other party may not be

in pari delicto, although there is nothing unlawful

about the performance of the contract, the courts

have said, in some cases, they will not lend

their aid to the enforcement of the contract

simply because the ultimate object is to achieve

a criminal purpose. And, in our submission,

there are other grounds of public - - -

DAWSON J:  I do not understand that. If the contratt

is not for an illegal purpose, I do not understand

how that can be. I mean, you are going into the

party's motives there and that is not an issue

before the Court.

MR REDLICH:	Indeed. Well, Your Honour, the cases, in our submission, support the proposition that
the motive for which contractual rights are
pursued may provide the circumstances for the
Court refusing the party his contractual rights.
DAWSON J:	No doubt in this area you can find cases that

say a lot of things but ex turpi causa means

that the causa has to be turpis - - -

MR REDLICH:  Yes.

DAWSON J:	and in this case the causa is not turpis.
MR REDLICH: We are no further removed from a	criminal

object where a person seeks back his property

by claiming detinue or conversion where the

ultimate purpose is to use it for criminal purpose
than we are in a contractual setting where it
is not suggested both parties to the contract

are party to the illegal object or that the

performance of a contract is illegal, it is

merely the fact that the purpose - the Court

becomingapprised of the purpose for which the

right under the contract is sought - is for

criminal purpose, the Court may not aid the party.

C2T30/l/AC	40	18/2/88
Gollan(2)

DAWSON J: Well, all I am suggesting to vou is as a matter of

principle that there is a difference between a
case in which the vice is inherent in the cause

of the action ·and in the case in which it is not?

:tvIR REDLICH:  That is why a little earlier, Your Honour, I

pointed to two features. That even if the principle

or the application of public policy considerations

was as narrow as Your Honour suggests, there are

at least two reasons why it is clear in this

case that the illegality surrounding position
must perforce become clear to the Court as part of

the plaintiff's case, because here the plaintiff's

claim to possession is based on an assertion that

the seizure was unlawful and that requires the

plaintiff to establish or it requires, depending

on who the evidentiary onus is, requires the

defendants to establish the objects for which the

possession was retained.

DEANE J: But even if you do not take a technical approach

and say, "Well, the real question is whether for

the court to lend its aid would effectively

involve the court in aiding the commission of

crime in the relevant sense", you still have to

know what it is said is the nature of the article,

what it is said is the alleged way in which it

is going to be used. I mean go back, take a

gun where a plaintiff wants to get it so he can go and shoot his wife. If I were the judge you

would not have much difficulty in deciding me not

to make an order. But say the man wants his

shoes. Is the court to say, "Oh no, give him his

shoes, he is going to wear them to go and shoot

his wife, therefore we will keep him without

shoes for the rest of his life". I would have

thought the simple answer was that you cannot

judge these questions unless the specific facts

which are said to warrant a refusal by the court

to make the order are pleaded with particularity.

Now, you simply have not done that here?

(Continued on page 42)

C2T31/l/SR	41	18/2/88
Gollan(2)

MR REDLICH:  Obviously, we have not done it. The defence

does not descend to particulars in relation to

the objects and the precise way in which it is said

those objects would be used. But the matter did

not proceed before Mr Justice Cantor on that basis

or the Court of Appeal. What the Court of Appeal

has done, Your Honour, is to preclude the very thing which Your Honour says Your Honour might

do in certain circumstances. That is all we seek,

Your Honour, is that the Court correct or set right

the bald - I put that disrespectfully - but the

unequivocal assertion that there are no circumstances

in which a court could refuse the person with

possessory title the return of his property.

In our submission it must, if the public policy

considerations which have for centuries influenced

the courts to refuse relief in a variety of areas,

the court must be left with an overriding discretion

to weigh between competing public interest considerations

on the one hand the right of the person with possessory

title to have his goods returned and on the other,

the considerations of the enforcement of the criminal

law, the due administration of justice. The fact

that a person should not benefit from their

wrong-doing, the fact that a person should not

be assisted by the court if the court is satisfied

that by making the orders sought it will assist

him in the commission of a serious criminal offence.

We would submit that the principles underlying those public policy considerations require the

Court to have that general discretion and if it does not, then circumstances will arise from time

to time where a court has no power to refuse relief

in such a setting.

In our submission, it is a question of fact,

it must be a question of fact in each case for

the Court to weigh up those competing considerations

and in this case the appellants would be deprived

of the opportunity of litigating that issue and

the Court would then not have the opportunity on
those facts of making the determination itself

about whether the relief should be granted.

C2T32/l/MG	42	18/2/88
Gollan(2)

BRENNAN J: 

The question then really arises as to whether

paragraph 27 should be struck out for want of
particularity or whether it should be allowed to

stay there because it is susceptible of being

particularized to raise the precise facts upon

which those principles should be identified.

MR REDLICH: 

Indeed, that highlights the area of contention,

Your Honour.

BRENNAN J:  Do I take it though from the way in which you

are now presenting your argument that you tack

your flag to the mast of future use as distinct from the circumstances of the possession at the

time at which the plaintiff was deprived of

possession of the goods?

MR REDLICH:  No, Your Honour. If we are talking about a

matter of principle, we submit there are
circumstance in which a court would be entitled

to refuse the return of property in a detinue

conversion claim where the possession at the time
of taking was established to be for a serious

criminal object. Obviously, in appealing to a

court's discretion in a particular circumstance

to refuse that relief, the fact that evidence makes

out a case for a continuing intention increases

the probabilities that the discretion would be exercised against enforcing the relief sought.

BRENNAN J:  Then in relation to past events, do you put it

on the same basis as you put it in relation to future events, namely, the Court will not lend

itself or grant its remedies to protect the

possession which was infringed by the defendant even

though the defendant was unjustified in infringing

that possession?

(Continued on page 44)

C2T33/l/ND	43	18/2/88
Gollan(2)

MR REDLICH:  Yes, Your Honour, as we stipulate, only because

as a matter of principle, there are circumstances,

in our submission, where the same public policy

considerations would lead the court to the same
conclusion. For example, the robbers who jointly
obtain the fruits of their illegal activity and
then there is a falling out amongst them as to

the partitioning of the stolen property. In

a case where there was no suggestion of an ongoing

intention by any one of the robbers to use those

proceeds for an illegal object, in our submission, that might well be a circumstance in which a court

would say to one of the robbers, "This was property

to which you had a possessory title, but none the less

we are not going to aid recovery of it in such

circumstances".	So, all we submit, Your Honour, is
that - - -

GAUDRON J: Could you take that a bit further? Does that

mean that if something is in the possession of

a robber and another robber comes and takes it,

that other robber has the potential to retain

that money until such time as some process is

put in train which entitles the police, for example,

to - - -

(Continued on page 45)

C2T34/l/SR	44	18/2/88
Gollan(2)

MR REDLICH (continuing) :  The law appears clear, Your Honour,

that where a thief comes into possession of property

illegally, that none the less another person who

unlawfully takes from the thief cannot set up the

bad title of the thief as an answer to the thief's

right to possession.

DAWSON J:  Yes, and that emphasizes the problem because, you

see, in the first example why there be no recovery

between the two robbers would be because that would

be enforcing an illegal agreement between the two,

the division of the proceeds, something of that sort

but, in the second case, there is nothing of that sort.

The cause of action is free of any legality.

:t1R. REDLICH:  Certainly in the second case there is no illegality

which, in any sense, can taint the claim of the thief,

the original thief.

DAWSON J: But there is in your sense, the man is wanting to

recover the ill.-g:>tten gains to - - -

:t1R. REDLICH: That is because, Your Honour, and the authorities

in our submission are sufficiently clear, because the

illegality was associated with the initial acquisition

of the item. It is complete and that there is no
suggestion that there is any illegality associated with
continued possession or future use. In the case of the

two robbers, notwithstanding that the illegality is

completed, the Court, in our submission, would not

apply one of the principles,which is often expressed

as underlying this public policy consideration, would

not let the robber recover the fruits of his wrongful activity

and it may be very difficult in some circumstances to

distinguish the first case from the second. But, we

do no more than raise illustrations to show that there

must be some circumstances in which a court would refuse

relief for persons seeking return of the property,

although there is no suggestion of a continuing illegal

use associated with it.

GAUDRON J: Yes, but that is not quite the point that is raised

by paragraph 27, is it, in terms of past possession.

The point is raised whether relief will be refused, not

in any positive circumstance, but whether it will be

refused in the circumstance which you have specified

in so far as you can call it "specified" in

paragraph 27.

CContinued on page 46)

C2T35/l/SH	45	18/2/88
Gollan(2)

GAUDRON J (continuing):  Similarly in terms of future possession

the question is not whether there is not some matter related to future possession which might bring about

a situation in which a court would refuse relief,

but whether it is the matter of an intention coming
into existence in the event that the goods are
returned, or existing now as to what would be done
with the goods if they were returned, but an intention

only, and not even a reasonable probability, as I

understand the amendment, that they will be so used.

You see, you need somewhat more than the means and intention to commit a crime. You need to do

something else, in the generality of crime.

MR REDLICH: 

Your Honour, whilst the goods are out of the

possession of the plaintiffs, the most that can ever be
said about them is that - the highest that it could
ever be put is that the plaintiffs have an intention to

use those goods in a particular way if they are

returned.  Your Honour, shorn of all of its formalities,

paragraph 27 simply asserts that the plaintiffs had

these articles in breach of the provisions of the

obscene publication legislation, had them in their

possession for the purposes of this conspiracy to
corrupt public morals and, if they are returned,will

use those articles for those purposes.

GAUDRON J: 

That is not what I understand by the amendment,

that if returned they will use those articles for

those purposes. What I understand is alleged

a present intention, either a present intention - yes,
it must be a present intention. It is the intention

which is, one assumes will be projected forward to

the hearing date and if established to then be in

existence will disentitle them to relief.

(Continued on page 47)

C2T36/l/HS	46	18/2/88
Gollan(2)

GAUDRON J (continuing): But that is all I understand it to be and

that the disentitlement - if we can use that -

whether or not that encompass the notion of

a defence - but the disentitlement hinges on

the intention and I presume must therefore be

co-extensive with the intention.

MR REDLICH:	Yes.
GAUDRON J:	So that if the intention at any point changes

there is an entitlement to possession.

MR REDLICH:  I would not shirk from that p~oposition,

Your Honour, it is a question of the trial judge

or the jury would, amongst other things, then

have to consider that question.

GAUDRON J:  So your entitlement depends not on whether

or not you have, in fact, or will in fact, commit

a crime but on whether or not you have got a

firm purpose not to commit a crime.

MR REDLICH:  Your Honour, the facts which the Court is

required to assume are that at the trial of

this action the appellants will establish that

there is an existing - a present intention at

that time by the plaintiffs that they will use

these items for the said purposes.

DAWSON J:  An intention which may never be carried out.

You may be able to station a policeman at the

elbow of each of the defendants and that precludes them

from carrying out their intentions.

MR REDLICH:  Well, Your Honour, that may well be a circumstance

which would lead the Court to rejece the defence

of illegality. The notion that the plaintiffs

might repent their illegal object is not unknown

to the law and, indeed, there are a number of

cases where it is that consideration which has

ultimately led the Court to say, "We will giue	the plaintiff back his property because although
he did initially acquire it for illegal object, he has repented."

(Continued on page 48)

C2T37/l/AC	47	18/2/88
Gollan(2)

DAWSON J: No, I am putting something different. Although

he does intend now to commit a crime he, in fact,

cannot do that for various reasons, and his

intention will not be effectuated?

MR REDLICH: Inherent in our proposition, Your Honour, is the

only reason that he is not doing so is because we

have the property and not them.

GAUDRON J: But that cannot be the only reason, can it?

MR REDLICH:  Your Honour, assume the situation where there

is evidence led that really - it may be, Your Honour,

that if it comes down to how would you prove

an existing intention. Now one way it may be proved

is by establishing there is an ongoing course of

criminality by a plaintiff, the criminality of

the type which the defendant contends will involve

the use of this article if it is returned to him.

And in our submission, if that were the evidence

then the tribunal of fact would readily conclude that

the present intention existed and that upon return

of the articles they would be applied with the
object contended for. Ultimately it would become
a question of fact. All we contend is the
discretion to refuse the relief ought not to be

removed as a matter of principle in all circumstances,

if it please the Court.

BRENNAN J:  Mr Redlich, how long do you think your argument

will take?

MR REDLICH:  I expect I will be some time this afternoon,

Your Honour_ I would be hard pressed now, I think,

to conclude the argument.

BRENNAN J: The Court will not be able to resume, in any

event, before the usual time so the Court will therefore

adjourn until 2.15 pm this afternoon.

AT 12.52 PM LUNCHEON ADJOURNMENT

C2T38/l/SR	48	18/2/88
Gollan(2)
UPON RESUMING AT 2.16 PM:

BRENNAN J:  Yes, Mr Redlich.

MR REDLICH: May it please the Court. If I may turn to

paragraph 8 of the submissions. In relying on
public policy considerations as supporting our

argument, we refer to the Court to the well-known

passage in Viscount Haldane's judgment in

RODRIGUEZ V SPEYER BROS, (1919) AC 59 at page 81,

where His Honour observed that there are categories

of cases in which public policy has developed some

recognized rules which remain subject to the general

moulding influence of the real reasons of public

policy from which they proceeded. Now, what we

say in relation to these grounds of appeal are,

in the public policy doctrine which we seek to

invoke, that there are at least three separate

policy strands which have been identified in the

cases as underlying this particular public policy

notion and they are firstly, the public interest

in the enforcement of the criminal law as an

important element in the administration of justice.

Secondly, the integrity of the judicial process 1n the - that the integrity of the judicial process

is preserved by frustrating the possibility that

a party may found a cause of action upon or in

furtherance of his own wrong-doing. And thirdly,

that the defence of illegality should reflect the

policy that one should not be able to profit from
one's own wrong. In relation to the first of-those

strands we would refer the Court to the recent

decision of this Court in AV HAYDEN, (1984) 156 CLR 532.

That is, the Court would be aware, .. a case in which

Commonwealth employees were seeking to rely upon

a provision of their contract of employment which

would prevent the disclosure of their identities

in certain proceedings. Chief Justice Gibbsat

page 556 of the report stated in the bottom paragraph

of the page:

(Continued on page 50)

C2T39/l/MG	49	18/2/88
Gollan(2)
MR REDLICH (continuing):

It is obvious that the public interest

in the enforcement of the criminal law as

an element in the administration of justice

would be seriously impaired if the citizen

were at liberty to assume in return for a

benefit an obligation not to disclose

information concerning the - - -

I am sorry, that is the judgment of Mr Justice Mason -

The enforcement of the criminal law cannot

be allowed to hinge on the willingness of the

citizen to make a profit out of his silence,

whether the contract be made before or after
the cotm:11ission of the offence. The existence
of s. 326 of the CRIMES ACT does not supply a
reason for confining the public interest in
the enforcement of the criminal law to the
extent to disclosure of serious indictable
offences. There is no fundamental inconsistency
in recognizing the wide public interest in the

administration of justice generally and in

making it a criminal offence to conceal for a

benefit serious indictable offences only.

His Honour, then, referred to EGERTON V BROWNLOW

and observed that:

Any contract having a tendency, however slight,

to affect the administration of justice is

illegal.

Reference was then made to HOWARD V ODHAMS PRESS LTD and His Honour went on:

Sometimes it is said that a contract to

which the principle applies is void; at other

times it is said that the contract is
unenforceable or, as Lord Tenterden C.J.,
.	expressed it in WETHERELL V JONES, that the court will not lend its aid to the enforcement of the contract ..... the court will decline to
enforce the particular provision in a valid contract in particular circumstances.

His Honour, then, considered the question of whether

or not a particular passage of the contract should be

properly taken as one where, at the foot of the page:

The court refuses a remedy on the ground of public policy.

His Honour then traced the history of this particular -

element of public interest, at page 558, observing the

place of public policy in the formulation of the counnon

law and referred, again, to the judgment of Lord Chief

Baron Pollock in EGERTON V BROWNLOW.

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MR REDLICH (continuing): And on page 559, despite criticisms

in FENDER V ST JOHN-MILDMAY, reinforced the

proposition that these are still matters which

must be considered by courts where they are concerned

to discern what is for the public good.	His Honour
went on:

The refusal of the courts to enforce contracts on grounds of public policy is a

striking illustration of the subordination

of private right to public interest. The

problem is one of formulating with any degree

of precision the criteria or the circumstances

which will justify a court in refusing to
enforce a contract on the ground that there

is a countervailing public interest amounting

to public policy.

At the bottom of that paragraph:

Here, however, the head of public policy

invoked is well recognized and it relates

to the enforcement of the criminal law - a

field in which the courts have a special

interest and experience.

If I may just return to the judgment of

Chief Justice Gibbs, His Honour, at page 543, observed, in the bottom paragraph:

There is no doubt that a contract which tends

to pervert or obstruct the course of justice

is against public policy. It is quite

unnecessary for present purposes to consider

whether it is right to say that such a

contract is "illegal and void" or rather

"unenforceable".

And on page 544, His Honour observed, at about

line 10:	Where a contract is not unlawful on its
face and is capable of performance without
any violation of the law, it will be
enforceable unless it is proved that one or
both of the parties intended to perform it
in an illegal manner or to effect an
illegal purpose.

And His Honour cited as authority for that

proposition: WAUGH V MORRIS, HUTCHINSON V SCOTT,

PATTERSON V LOWE.

If I may then take the Court to the iudgment

of Justices Wilson and Dawson. At page 571,

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Their Honours referred to the case of WILKINSON

V OSBORNE and:

"The rule of law as to contracts against

public policy is constant - namely, that every
bargain contrary to such a social governing
principle is regarded as prejudicial to the

State, or, in other words, contrary to

'public policy', or, as it is sometimes called,

'policy of the law', and the State by its

tribunals refuses to enforce it."

(Continued on page 53)

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MR REDLICH (continuing):  They referred to the decision of

COLLINS V BLANTERN, which I will later take the
Court to, but preceding reference to that case,
Their Honours noted:

Interference with the administration of justice has long been recognized as

a head of public policy to which the courts
will have regard when asked to enforce

a contract.

And, as we, in our submission, demonstrate that

application of the recognized head of public policy
is not limited to contractual questions and they

then quoted from Chief Justice Wilmot in

COLLINS V BLANTERN, where His Honour observed that

in relation to that case that was:

a contract to tempt a man to transgress

the law -

and His Honour noted:

You shall not stipulate for iniquity.

All writers upon our law agree in this,

no polluted hand shall touch the pure

fountains of justice.

Then Their Honours referred to GARTSIDE V OUTRAM and the judgment of Vice Chancellor Wood as to the

application of the public policy consideration.

In the judgment of Mr Justice Brennan at page 587,

His Honour observed:

The Crown cannot bargain away its ability

to act in the public interest.

Referring to SYKES V DIRECTOR OF PUBLIC PROSECUTIONS

and:

the duty of every citizen to assist in the

detection and suppression of crime. That

may be pitching it too high if his Lordship

had a legal rather than a moral duty in

mind, especially when misprison of felony

has gone from the criminal calendar in

Victoria with abolition of the distinction

between felonies and misdemeanours ..... But

the ability of any citizen to assist in

the detection and suppression of crime

cannot be bargained away except where the

crime is not a matter of public concern.

And on page 588, His Honour observed:

The term is void because it is contrary

to public policy.

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In the judgment of Mr Justice Deane at page 592,

His Honour, at the commenc.ement of his judgment,

after describing the plaintiffs, noted:

The two rocks upon which they founder are, however, propositions of law which are not

to be moved to meet the exigencies of
hard cases. Shortly and relevantly stated,
those propositions are: (i) that neither

the Crown nor the executive has any common

law right or power to dispense with the

observance of the law or to authorize

illegality and (ii) that the courts of

this country will not enforce the terms of a

promise not to disclose information in

circumstances where such enforcement would

obstruct the due administration of the

criminal law.

(Continued on page 55)

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MR REDLICH (continuing):  On page 595, towards the foot of

the page:

the enforcement by the courts of such

a private right to insist that another fail

or refuse to disclose relevant information

would involve the courts in the obstruction

of the due administration of the criminal

law which is a mainstay both of the rule of

law which they exist to serve and of the

very existence of effective private rights.

We rely also on the passages at the bottom of page 596 and

page 597 where further reliance is placed on this

public policy consideration in terms of the due
administration of the criminal law and at the bottom

of page 597 His Honour observed:

While general considerations of public policy,

such as considerations of national security,

may prevail over a prima facie entitlement to

discovery, production or disclosure in the

actual course of the administration of justice

by the courts, they provide neither foundation nor justification for the making by a court of

a positive order which would obstruct the due

administration of the criminal law at the suit
of one who is asserting some contractural or

other private right. The proposition that the

courts of this country will not lend their aid

to enforce a promise not to disclose

information where the circumstances are such

that enforcement or insistence upon

observance of the promise would obstruct the

due administration of the criminal law which

it is a function of the courts to advance is not

a provisional one which is subject to being

overruled by some perceived balancing of other

considerations of public interest.

We would submit that it appears that His Honour

recognized that that consideration would apply not only

where one was asserting a contractural right, but some

other private right.

(Continued on page 56)

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MR REDLICH (continuing): In relation to the second of the

underlying strands which supports this general
public policy consideration is the case of

COLLINS V BLANTERN which was cited without approval by Mr Justice Mason in his judgment in HAYDEN's

case. And in relation to the proposition that

the defence of illegality reflects the consideration

that one should not be able to profit from one's

wrong, we refer the Court to the well-known case

of BERESFORD V ROYAL INSURANCE COMPANY, (1938) AC 556.

Now, the public policy that we speak of has been applied
in a vast array of cases and in relation to a variety
of causes of action. In BERESFORD V ROYAL INSURANCE,

it was applied in relation to an insurance fraud

where a claim was being made under a policy where

the plaintiff had brought about the events upon

which the claim was based and in such cases the

courts will not enforce the claim of the plaintiff. If I may then turn to proposition 9. In many

of the cases it is simply asserted by the courts

that they will not lend their aid to those who

must rely upon an immoral or illegal act to maintain

their action. And the locus classicus to support

that proposition is the case of HOLMAN V JOHNSON,

1 Cowp 342, 98 ER 1120.

BRENNAN J:  How does that proposition bear at all upon

paragraph 27?

MR REDLICH:  Because, in our submission, the plaintiff in

establishing his right to possession would, on

the facts assumed, be required to disclose the

unlawful nature of his possession.

BRENNAN J:  How is that? Why does he not simply say, "These

are my goods, they were taken from me"?

MR REDLICH:  Because he must contend, Your Honour, that they

were taken unlawfully, that is, the seizure was

unlawful.

BRENNAN J: '"They were taken from me without my consent."	(Continued on oage 57)
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MR REDLICH (continuing): The pleading upon which he relies,

Your Honour, is that they were unlawfully seized

and that he challenges the assertion in the warrant

that they were seized because of a reasonable belief

by the officers concerned that they were being used

in relation to a conspiracy to corrup:public morals.

BRENNAN J:  But that is by way of reply, is it not? In other

words, he says, "These were taken from me without

my consent".

MR REDLICH:	Yes.
BRENNAN J:	You say they were taken under authority of a warrant.

He says the warrant is a bad one.

MR REDLICH: Well, I think the authorities make clear, with

respect, Your Honour, that it matters not whether

it emerges from the statement of claim or defence

or from the reply or even if it is not pleaded by

any of the parties, if by virtue of the evidence

which the Court hears or the issues which are raised

in relation to the case of one or the other party,

those facts are brought to the Court's attention.

BRENNAN J:  But we are concerned only with striking out of

paragraph 27. We are not conducting a general review

· of the issues that could arise on the pleadings and

I must say, for the moment, I do not see how

paragraph 9 bears upon the contents of paragraph 27.

MR REDLICH:  We rely on the application of a well-identified

head of public policy. The argument rejected by the

majority in the Court of Appeal was that that head

of public policy could apply in relation to the acts

supposed or raised in paragraph 27 of the defence.

That is, whatever scope that head of public policy had, it had no operation where, in the circumstances

of this type of case, where somebody was merely trying

to get back goods to which they had possessory title.

BRENNAN J: Could you identify for me an example of the immoral

or illegal act of the kind referred to in paragraph 9

of your notes within paragraph 27 of the defence?

I mean, any act at all. What kind of act are you

speaking of.

MR REDLICH: Well, we are speaking of acts associated with

sexual activity with minors or the publication of

obscene material to other adults for that ultimate

purpose.

BRENNAN J: 

But the plaintiff is not relying on those acts.

asserting that the seizure was unlawful, contends
that there was no basis for the reasonably held

MR REDLICH: 

The plaintiff, with respect, Your Honour, in

belief of the police officers that these offences

were being committed and that such material was

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being used for those purposes. I have said, perhaps,

inadequately earlier today,that we only rely on -

if the application of that head of public policy is

to be narrowly construed as only operating where the

illegality is raised by the plaintiff or the defendant

as part of their case, we would say, even in that

narrow application of the public policy considerations,

it is raised in this case because, whether it is by

virtue of the plaintiff's pleading and the evidence

called to support it or the defendants', the Court

would, of necessity, have to consider the questions
or the allegations which appear on the face of the

warrant which is said to justify the seizure of the

material. We do not rely strenuously on that, save

to say, that, if one takes the most narrow application
of those heads of public policy in some of the cases
where it is said unless it is part of the cause of

action of the plaintiff, even then we would say in

such a case it is part of the cause of action.

(Continued on page 59)

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MR REDLICH (continuing):  Our primary submission is that the

balance or the weight of authority is not that it

must be part of the plaintiff's cause of action

at all, but if it is something which the court

becomes aware of during the course of the case,

whether it be a part of the plaintiff or the

defendants' case or not, then it is something which

the court may take into account, depending again

no doubt on a variety of considerations. Those

cases that support the proposition in paragraph 9,
there is the well-known dicta of Lord Mansfield,

which is frequently cited in subsequent cases in

which this defence is being pleaded, whether in

contract or in other causes of action, in which

His Lordship said:

No Court will lend its aid to a man who

founds his cause of action upon an immoral

or an illegal act. If, from the plaintiff's

own stating or otherwise, the cause of

action appears to arise ex turpi causa,

or the transgression of a positive law of

this country, there the Court says he has

no right to be assisted. It is upon that

ground the Court goes; not for the sake of

the defendant, but because they will not

lend their aid to such a plaintiff. So if

the plaintiff and defendant were to change

sides, and the defendant was to bring his

action against the plaintiff, the latter would then have the advantage of it; for

where both are equally in fault, potior

est conditio defendentis.

We would just in passing refer the Court to the

judgment of Lord Justice Denning in MARLES V PHILLIP

TRANT & SONS, (1954) 1 QB 29 at page 38. And then

if I may take the Court to the judgments of

the Court of Appeal in GORDON V THE CHIEF COMMISSIONER

OF METROPOLITAN POLICE. That was a case which

the respondents much relied upon in the Court of

Appeal concerning money which had come into

the possession of the plaintiff as a result of illegal gambling. And the Court held that the

plaintiff was entitled torecover such moneys which

had been seized by police in circumstances
where it is clear that the Court was concerned

with a past illegality and that in the circumstances
it was held to be collateral to the claim of

the plaintiff.

If I may refer the Court to the judgment of

Lord Justice Vaughan Williams at page 1086. He

referred to the judgment of the learned trial judge

Justice Warrington:

In order to establish his title to the

money, which is put in issue, he has

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proved that the money was the result of

an unlawful act on his part, and one

prohibited by statute; and the defendant

relies on this - that, since the plaintiff

in proving his title to recover has

proved that the money was the result of

an illegal transaction, the Court has no

right to lend him its assistance, and

ought to dismiss the action on that

ground.

And Justice Warrington cited HOLMAN V JOHNSON in

support of that. There is then reference to the

well-known dicta of Lord Justice Lindley in	SCOTT V BROWN, ref erring to the maxim '1Ex turpi causa".
And then on page 1087, His Honour said:

The questions which seem to arise

on this judgment are, first, does the

principle of the maxim "Ex turpi causa non

oritur actio" apply where the plaintiff

is seeking to enforce a right other than

a right arising out of contract? Secondly,

what is the effect of the finding of

Justice Warrington as to the plaintiff's

property?

Now, as to the first question, I do

not think that the application of the

maxim "Ex turpi causa non oritur actio" is

limited to cases in which a plaintiff is

seeking the assistance of a Court of justice

for the purpose of enforcing an illegal

contract or a contract springing out of

an illegal transaction. The maxim clearly

is not limited to actions to enforce

contracts which by their terms bind the

parties to do that which is prohibited

and illegal. It extends to contracts

which by their terms are not illegal but

which arise out of an illegal transaction.

In other words, it applies not only where

the contract is on its face illegal, but
also where the contract is opposed to
public policy as arising out of an illegal

transaction.

(Continued on page 61)

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MR REDLICH (continuing):

It follows, then, that money won at playing

an illegal game cannot be recovered. The

action, however, in such a case is an action

for a breach of contract arising out of an

illegal transaction.

Their Honours referred to the judgment of

Lord Mansfield and then referred to the case of

TAYLOR V CHESTER on page 1088. That was a case

in which:

the plaintiff, having deposited the half of

a £50 note by way of pledge to secure the

payment of money due to the defendant for wine
supplied in a brothel to be consumed by
prostitutes for the purpose of inciting

debauchery, brought an action to recover the

half of the £50 bank note, and declared upon
a bailment of half of a £50 Bank of England

note to be redelivered upon request, alleging

a refusal to redeliver such half-note, and,

secondly, in detinue for the same half-note.

The defendant pleaded a pledge to secure money

lent which was still due. The plaintiff

replied setting up that the money was lent

for the purpose of being expended in the

ground that the plaintiff could not recover without shewing the true character of the deposit, and, that being upon an illegal

brothel in debauchery and immoral conduct.

consideration to which he himself was a

party, he was precluded from obtaining the

assistance of the law to recover it back.

That, if I may interpolate, was a case both in bailment - suing on a contract of bailment - and

in detinue and the defence prevailed. His Honour

observed:

In the case of TAYLOR V CHESTER the plaintiff

was seeking to recover by the count in
detinue his property, and failed because he

could only defeat the defendant's plea through
the medium and by the aid of an illegal

transaction to which he was himself a party,

and which was the basis of the replication

set up in answer to the plea.

His Honour observed:

This case of TAYLOR V CHESTER seems to affirm

the proposition that, even in a case where

the plaintiff is seeking to recover property,

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he may be defeated if to a plea setting

up a right to detain the property as

security for money lent the plaintiff has

to rely by way of replication upon the

immoral consideration for the contract.

His Honour also referred to FERET V	HILL which was
a second case which was much relied	upon by the
respondents in the Court of Appeal.	As to that
case, His Honour observed at 1089:

Thus in FERET V HILL, which was an action

of ejectment, the Court allowed the plaintiff

to recover notwithstanding the fact that the

plaintiff used the premises for immoral

purposes and intended to do so at the time

he became tenant of the premises; but the

decision of the Court was based upon the

proposition that the estate having passed

by the lease could not be divested by a

collateral fraud or by the immoral intention
of the plaintiff at the time he became lessee,
or by immoral use made by him of the

premises after he got possession. In FERET

V HILL the defendant was quite innocent of

the intended user by the lessee. The Court

treated the intention of the lessee as a

collateral matter. I agree that in a sense

the Court refused to defeat the plaintiff's

right of action on the ground that the

plaintiff was not seeking to enforce a

contract, but to enforce a right of property,

but it is plain from an observation of

Jervis CJ - "The difficulty is that an

agreement was not void at the time of its

execution" - that the Court would have

applied the doctrine if it had not held that

the matter relied on to prevent the plaintiff

recovering was collateral only and did not

affect his right of possession or the validity of the conveyance, whereas in the

present case the receipt of the money by the

plaintiff was illegal at the moment of

receipt; and according to the dictum of

Mellish LJ in TAYLOR V BOWERS "If money is

paid or goods delivered for an illegal

purpose, the person who had so paid the

money or delivered the goods may recover them

back before the illegal purpose is carried

out," and, if this is so, it would seem that

the men who paid the sums could have
recovered the money if they had chosen to

abandon the bet before the race was run -

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MR REDLICH (continuing): And I make reference also to what

His Honour then said at the foot of page 1090:

The thing the subject of the action must have

been directly acquired through the medium

of a transaction which was fraudulent or illegal.

It is not sufficient to induce the Court to

refuse its assistance to a plaintiff that

he has acquired the property under a contract

which is void in law. The property must have

been acquired in an illegal transaction.

The fact that the property was acquired by

a contract void in law may, as between parties

to the transaction under which the property

is alleged to have passed to the plaintiff,

afford a good defence, but it will not be

a ground upon which the Court will refuse

its assistance. Prima facie it does not seem

just that the defendant, the Chief Commissioner

of Police, who is a stranger to the transaction

and has given no consideration, should, as

a result of the Court's refusal to assist

the plaintiff, retain this money for the police

fund. The effect is that the money is forfeited

because the plaintiff received it in the course

of a transaction made illegal by the STREET

BETTING ACT, 1906, which Act, while it makes

several things liable to forfeiture, does

not make money seized by the police when arresting

persons engaged in street betting liable

to forfeiture -

And if we may interpolate, His Honour Mr Justice McHugh

in his judgment placed, we would submit, great

weight on the proposition that the Court must enforce
the plaintiff's claim in this case, because to

recognize the defence raised by the defendants

would, in effect, be to result in a forfeiture

of the goods which the plaintiff seeks to recover
and we submit in relation to that particular suggestion

it is clear from all of the cases	where the
defence of illegality is raised.	But it is not

correct to characterize the result of the application

of that defence as producing a forfeiture of the

goods that Lord Mansfield said in HOLMAN's case

and in other decisions of the time and that have

been much repeated since, the Court in refusing

to aid the plaintiff simply then brings about a

situation in which the goods fall where they lie.

If they have the consequence of benefiting a

particular defendant who raises a defence of illegality,

that is by the way. But the refusal to aid

the application is not to be regarded, in our
submission, in any sense as a forfeiture of the

goods.

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TOOHEY J:  Mr Redlich, I do not really understand the relevance

of a number of these cases to the question we have

to decide. Paragraph 27 of the defence purports

to stand on its own, does it not, as a complete

answer to the plaintiffs' claim, all other

considerations aside? It does not have built into

it any contention that the goods were seized originally

pursuant to a valid warrant and that that in some

way supports the other propositions that appear

in paragraph 27. It is based entirely on the

proposition that the possession is illegal and

unenforceable for various reasons that are spelt

out, including the intention to make use of the

goods for the commission of a crime. But I do

not understand in what way it is said that the

plaintiff, so far as paragraph 27 is concerned,

have in some way to rely upon an illegal contract

or an unlawful possession of the goods or an unlawful

acquisition of the goods. It just seems to me

to be irrelevant to paragraph 27. Although it

may well be relevant to other parts of the pleadings.

(Continued on page 65)

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MR REDLICH:  Your Honour, in some of the contract cases in

which the defence of illegality has not been

successfully raised it has been because the court

has said that it is not part of the cause of action

which the plaintiff must maintain. Our principle

submission is those cases that have so found involve

a narrow application of the public policy head

that we rely upon. What we are simply submitting

is that, even if - the application of this public

policy consideration is to be as narrowly

interpreted as that, that it cannot be relied upon

as a defence unless it has got to be raised as part

of the case of either of the parties.

I was simply making the point it is - on the face of the pleadings here, it is clear that it would be

raised in this case.

TOOHEY J:  But you can only say that, can you not, by taking

us away from paragraph 27 to other parts of the

pleadings'?

MR REDLICH:	That is so.
TOOHEY J:	Well, when you do that do you not then take us away from the very question that we are being asked to
determine, that is whether paragraph 27 can stand?
MR REDLICH:	The defence of illegality, in our submission,

cannot be - even though paragraph 27 raises the
defence in isolation, in looking at whether it is a
defence which may be good in law one must, in our

submission, still look at what would be the issues that

are likely to be raised in the course of the action

between the parties, and the pleading - - -

BRENNAN J:	Why does one speculate about the course of a trial?
MR REDLICH:	Not the course of a trial, Your Honour.
BRENNAN J:	Or the issues that will be raised in the

course of the litigation?	Why does one speculate about
that?

MR REDLICH:	It is submitted it is not speculation to simply look at the pleadings to see what allegations of fact
and law are raised and put in issue by the pleadings,
but those considerations to one side, even if one is
not to have regard to the issues raised by the plaintiff and the way they are responded to by the defendants in the pleadings, the cases, in our submission - and the
case of GORDON V CHIEF COMMISSIONER OF POLICE is one - make clear ---that· if such. - matters . are
raised in the course of the action before the court,
that as part of the plaintiff's or the defendant's
case then that is the basis upon·which the Court would
have to consider whether or not, in the circumstances, aid or relief should be provided to the plaintiff.

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The respondents place great weight on GORDON's

case, it being said it was, in effect, apposite to the circumstances which pertain in this case. We simply say as to that that the court was there dealing

with some money which had been initially acquired in

an illegal manner.	That was the end of the
illegality.	The court was there concerned with a

plaintiff who, having come into possession of property

and at some later point of time being dispossessed of

that property and, in our submission, the judgments

in GORDON's case have little or no bearing upon the

issue which falls for consideration here because the

issue, of course, raised by paragraph 27 is that at

the time that the plaintiffs were dispossessed the

money was held for criminal purposes and that if the

articles were returned that they would then be used

for - the intention is that they would then be used for

such criminal purposes. So GORDON's case does not

address the question which is raised, in our submission,

by paragraph 27.

(Continued on page 67)

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MR REDLICH (continuing): The Courts have looked at the question

of the application of public policy in this area by

applying different tests. Thus, in the case of

HARDY V MOTOR INSURERS' BUREAU, (1964) 2 QB 745 at

page 767 to 768, Lord Diplock, dealing with the question

of whether a third party insurer should have to

indemnify an injured plaintiff where a vehicle was

being used contrary to the provisions of the ROAD

TRAFFIC ACT in relation to it not being registered,

as required under the Act, His Lordship said at

page 766 dealing with the defence by the insurer

that, because the vehicle was being used in an

unlawful way, that no third party indemnity insurance

could arise. His Lordship said at page 767:

The whole of this argument depends on

the correctness of the major premise of the

syllogism in Part I of this argument. In

my view it is a false premise, if by an

unlawful contract is meant a contract which

is incapable of giving rise to any right on

the part of any person to enforce its terms

by action in the courts. The rule of law

on which the major premise is basis - ex

turpi causa non oritur actio - is concerned

not specifically with the lawfulness of
contracts but generally with the enforcement

of rights by the courts, whether or not such

rights arise under contract. All that the

rule means is that the courts will not enforce

a right which would otherwise be enforceable

if the right arises out of an act committed

by the person asserting the right (or by

someone who is regarded in law as his

successor) which is regarded by the court

court's refusing to enforce that right. as sufficiently anti-social to justify the

DAWSON J:  Do you say that supports you?

MR REDLICH:	Yes, Your Honour.
DAWSON J:	I am afraid it escapes me.

MR REDLICH: Well, Your Honour, with respect, the Lord Justice

makes two observations. One is that the ex turpi causa

maxim or the policy upon which it is based is not

confined to contractual remedies but will apply in

relation to any right which would otherwise be

enforceable.

DAWSON J:  But what is being asserted here is a right of

ownership. That is not anti-social.

MR REDLICH:  But the use to which the - - -

C2T50/l/SH	67	18/2/88
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DAWSON J: That is not what is is talking about.

MR REDLICH:  The use, Your Honour:

All that the rule means is that the courts
will not enforce a right which would otherwise

be enforceable if the right arises out of

an act committed by the person asserting

the right -

In our submission, His Honour is not ~ealing merely

with the rig;..~t but the circumstances associated with the

exercise of that right.

DAWSON J: Well, he is certainly not talking about conduct of

consequence upon the assertion of the right.

MR REDLICH: Well, with great respect, His Honour is not merely

dealing a right but with the circumstances in which

that right is being asserted.

(Continued on page 69)

C2T50/2/SH	68	18/2/88
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DAWSON J:  The only circumstances here are ownership,

that is all that has to be asserted. It is

you who are introducing the other - - -

MR REDLICH:  With respect, that then raises the very point

made earlier, that it is the plaintiff who contends

that that right was unlawfully violated and if
the test is to be - and we submit it is not as

narrow as that - must the plaintiff, in asserting

the right establish the illegality, then we say,

"Well, that would arise in this particular case."

But, in our submission, it matters not whether the plaintiff must rely on those surrounding circumstances to make out the right if, indeed, the matter comes properly before the court then the court, in appropriate circumstances, should not turn its face from such consideration.

GAUDRON J: Mr Redlich, I understand you to have put that proposition

several times and I must confess I have never

once understood it, I am sorry.

MR REDLICH:	I am sure it is my fault, Your Honour.
GAUDRON J:	I simply do not understand why it is that the

illegality must come out, •particularly in the

context of the present pleadings. I would assume that

one only gets to this issue on the basis of

your unlawful seizure. Now, that basis being

the hypothesis by which you get to paragraph 27,

I simply to not see how it is that this illegality

necessarily comes out.

MR REDLICH:	On the plaintiff's case
GAUDRON J:	On anyones.
MR REDLICH:	On the plaintiff's case, Your Honour, the

plaintiff made a demand for the return of these

goods at a time when they were then properly

in the possession of police officers.

GAUDRON J:  I think they would admit that they were then

in the possession of police officers.

MR REDLICH:  I am speaking about on the assumed facts,

Your Honour, that they were then properly in

possession of the police officers. For the plaintiff

to suggest - - -

GAUDRON J: That is not an assumed fact that appears within

paragraph 27.

MR REDLICH:  No, it is an assumed fact in the pleadings,

Your Honour; for the purpose of deciding paragraph 27

the Court, we would submit, must accept the facts
contained in the whole of the pleadings of the

defence.

C2T51/l/SDL	69	18/2/88
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GAUDRON J:	They are in issue.	The central fact in issue

is the lawfulness of the seizure by your clients -

or those acting through your clients.

MR REDLICH:  That is a matter that - - -

GAUDRON J: It is because that matter is in issue that

I simply fail to see how it can be said that

illegality will necessarily become apparent in

anyone's case. It is not that I wish to detain

you greatly, because I - - -

MR REDLICH:  I am grateful for Your Honour's observation

but we simply submit that whether it is the plaintiff
who seeks to undertake to establish, as part
of its evidentiary onus, that the search warrants

were unlawful or whether it is the defendants

who, by virtue of their pleading~ seek to establish

that the assertions or allegations made on the

face of the warrant were justified one way or

the other, the court will then receive evidence

about the circumstances of possession.

(Continued on page 71)

C2T51/2/SDL	70	18/2/88
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DAWSON J:  Bu~ anywa~ the illegality is a different one? As

far as the search warrants are concerned the

illegality is a past illegality, if it exists

at all. The illegality we are talking about here

in relation to paragraph 27 is a future illegality -

different things? But, you rely on the past

illegality to support the search warrant, that is
what you are talking about in that context, is

not it?

MR REDLICH:  Your Honour, we do not seek to categorize the

illegality, we simply say that paragraph 27 asserts

an illegality associated with acquisition, with

continued possession and with future use. And we

would submit, that that being the allegation raised,
the Court would have to consider the evidence

in that context, not merely treat it simply as

an allegation of future illegality.

DAWSON J:  ..... understand this. The plaintiff claimed

back the property, you reply you are lawfully in possession of it, the plaintiff says, "No,

you are not", and on that issue it is a question

of whether you are retaining that property
pursuant to the search warrant, which is executed

on the basis that an offence had been committed.

Well that is past illegality?

MR REDLICH:  Yes, sir.

DAWSON J: Yes. Otherwise, you say, the plaintiff is not

entitled to property because they intend to

commit an offence with it, that is a future

illegality? A different thing is not it?

MR REDLICH:	Indeed it is, but what we submit - - -
DAWSON J:	So that they do not have to rely, in relation to

their claim for the property as related to

paragraph 27, on the past illegality at all?

MR REDLICH:  But, it is a question of whether the court

becomes appraised of the circumstances of

necessity by virtue of the issues that are raised.

The past illegality may not apply to the

application of paragraph 27, but the evidence

will b"e before the Court. If I may hypothesize,

Your Honour - - -

DAWSON J:  I do not want to interrupt you, but you could put

it this way:  assume that the goods were seized,

the plaintiffs were prosecuted, they were convicted

and they underwent their punishment and now they

come and say, "Well, now we want our property back

please". Well, the past litigant has got nothing

to do with it? And all you could rely on, and

C2T52/l/SR	71	18/2/88
Gollan(2)

indeed all your rely on in relation to your argument

is the future illegality?

MR REDLICH:  That is so. We would readily accept that were

a fresh claim to be made for the property by way

of another action commenced, then nothing would

turn on past illegality.

DAWSON J: The plaintiffs do not have to rely on any

illegality to assert their claim at all?

MR REDLICH:  With great - - -

BRENNAN J: Let me understand that correctly. Is this what

you are saying, that because the seizure in this

case from the plaintiffs in the action was

a seizure which took place while their possession

was an unlawful possession because it was in

breach of the statute, therefore any action which

is founded on that dispossession falls under this

maxim ex turpi causa, is that the proposition?

MR REDLICH:  Under the narrow application of it, Your Honour,

that is looking at the most restricted circumstances

in which it has been applied, where it has been

said in some courts, it must arise as part of the

plaintiffs or must arise as part of the case of

either plaintiff or the defendant. And we do not

contend that that is a correct formulation of

the principle, we submit, that it is wider than that,

but even on that basis we simply say by virtue

of the issues which were raised in this case it

must inevitably come before the Court.

BRENNAN J: What you say then is that the plaintiff may

prove his possession as the essential element, but

then if you prove that that possession was

unlawful, that possession thus shown to the court

is one from which an action will not arise?

MR REDLICH:  Indeed.

(Continued on page 73)

C2T52/2/SR	72	18/2/88
Gollan(2)

BRENNAN J:  Now what is your best authority for that

proposition?

MR REDLICH:  I have no authority that deals with that

precise circumstance, Your Honour, but the cases

we rely on, apart from HOLMAN V JOHNSON, the

judgment of Lord Justice Denning in MARLES V

PHILIP TRANT, NORTH WESTERN SALT COMPANY LIMITED

V ELECTROLYTIC ALKALI COMPANY, (1914) AC 461,

it was said that the relief may not be given if the Court learns of the illegality even without it being pleaded or relied upon by the parties.

And similarly in SNELL V UNITY FINANCE LIMITED,

(1964) 2 QB 203.

If I may come back to HARDY, Your Honour,

in our submission, the reading of what

Lord Justice Diplock has said, in our submission,

~ust be taken as refe~able to the tirc~mstances

in which the right is sought to be enforced.	And
on page 768, or the very foot of page 767, His Lordship went on:

The court's refusal to assert a right, even

against the person who has committed the

anti-social act, will depend not only on the

nature of the anti-social act but also on

the nature of the right asserted. The court

has to weigh the gravity of the anti-social

act and the extent to which it will be

encouraged by enforcing the right sought to

be asserted against the social harm which

will be caused if the right is not enforced.

And we rely upon that in support of the proposition

that ultimately it is a matter for the Court in

weighing up competing public policy considerations.

This notion that the courts will not aid

a plaintiff in such circumstances has been discussed

in a variety of contexts.

to the CHURCH OF NEW FAITH V COMMISSIONER FOR We would refer the Court

PAY-ROLL TAX, (1983) VR 97, at page 141. That was a case in which Scientology was seeking tax exemption for its affairs and in the judgment of

Mr Justice Brooking His Honour relied upon,

amongst other arguments, the proposition that as

it was an unlawful activity it was not one which

could be aided by the courts. His Honour said,

at_page 140 to 141, observing:

lt is a principle of public policy that no

court ought to assist a criminal to derive benefit from his crime. The absolute rule

is that the courts will not recognize a

benefit accruing to a criminal from his crime;

C2T53/l/ND	73	18/2/88
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He then cited CLEAVER's case which was referred to in BERESFORD V ROYAL INSURANCE CO; observed:

The correctness of this view may be doubted -

that is the application of the maxim	ex turpi
causa -

The correctness of this view may be doubted -

referring to Mr Justice Windeyer's judgment 1n

SMITH V JENKINS -

but the question need not be pursued, since

it is clear that the principle is not

confined to claims relating to contracts or

dispositions of property.

I will not read the following paragraph but

His Honour referred to a variety of cases to support the position that it is not confined to

contractual issues.

(Continued on page 75)

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MR REDLICH (continuing):

The principle -

His Honour said -

must be applied to all cases to which

it can be applied without reference to

the particular character of the right

asserted or the form of its assertion.

At the foot of the page:

It has been said that many criminal offences

would afford no moral justification for a

court to apply the principle of public policy

that rights directly arising to the person

asserting them from his crime are not to be

enforced.

And reference is then made, amongst other cases, to

HARDY V MOTOR INSURERS' BUREAU. In YANGO PASTORAL

CO PTY LTD V FIRST CHICAGO AUSTRALIA LTD, (1978)

139 CLR 410 at page 427, Justices Mason and Aickin,

dealing with a defensive illegality in a contractual

setting in which the plaintiff was seeking to recover

under a mortgage and the defence was raised that the

provisions of the mortgage contravened certain
prohibition of the BANKING ACT, 1959. Their Honours
said at page 427:

The question therefore remains whether the court will allow the plaintiff to enforce the contract. The suggestion is that the

court will not do so and that its refusal

so to do is dictated by the principle ex

turpi causa non oritur actio or by the

more specific rule that the court will

not enforce the contract at the suit of a

party who has entered into a contract with

Then reference was made to CLEAVER V MUTUAL RESERVE the object of cotmnitting an illegal act.

FUND LIFE ASSOCIATION and, then, if I may take the

Court, to the bottom of page 428:

The weighing of considerations of public

policy in this case and the decision in favour of enforcing the contract is influenced by the

form of the particular legislation.

And then reference is made to the penalties that were

created by the provision of the statute and then

Their Honours note at the foot of that paragraph on

page 429:

C2T54/l/SH	75	18/2/88
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The main considerations from which the

principle ex turpi causa arose can be

seen in the reluctance of the courts to

be instrumental in offering an inducement

to crime or removing a restraint to crime.

And then, at the foot of the page:

It may be that the true basis of the principle

is that the court will refuse to enforce a

transaction with a fraudulent or immoral

purpose. On this basis the common law

principle of ex turpi causa can be given

an operation consistent with, though

subordinate to, the statutory intention,

denying relief in those cases where a plaintiff

may otherwise evade the real consequences of a

breach of a statutory prohibition.

That, in our submission, is another illustration of
the basis upon which the public policy consideration
is to operate. Similarly, in another area altogether,
the courts have held that an action for a mandamus
requiring an officer of the Crown to discharge his

public duty would not be enforced where there was

illegality and I refer to the case of REG V THE
SECRETARY OF STATE EX PARTE PUTTICK, (1981) 1 QB 767
and the judgments of Lord Justice Donaldson at page 775

and Justice Forbes at 776. The same public policy

considerations were applied.to refuse an application

compelling a person charged with a statutory duty from

discharging that duty.

(Continued on page 77)

C2T54/2/SH	76	18/2/88
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MR REDLICH (continuing): That was a case where the plaintiff

had by fraud become a United Kingdom citizen and

had then married by further fraud in relation to

her identity and address and subsequently she sought

to force the Secretary of State to have her registered

as a citizen and because of her earlier illegal

activity the court was not prepared to direct that

a writ of mandamus should go and that because of

the earlier illegal activity of the applicant.

In FIRE AND ALL RISKS INSURANCE COMPANY V POWELL,

(1966) VR 513, in a joint judgment of

Justices O'Bryan and Pape, the court held on an

application by the defendant to refuse insurance

indemnity relief because the vehicle which had

been involved in an accident was in excess of the
height stipulated by certain regulations. The

court, in our submission, correctly considered

the application of this head of public policy.

At page 520, Their Honours at the top of the page

said:

The case, therefore, in our opinion, comes

down to the question whether as a matter of public policy the insured must be precluded

from recovering under his policy of insurance

because at the time the loss occurred he was

engaged in an illegal and, indeed, a criminal

act. In considering this question it is desirable

to state what is not involved. First, this
is not a case in which it can be said that

the policy of insurance was, itself void in

its inception. To produce this result it

would be necessary to establish that at the

time when the policy was issued the defendant intended to carry loads of a height exceeding

13 ft. 6 ins. without obtaining a permit,

and that the third party knew it -

Reference is made to HARDY V MOTOR INSURERS' BUREAU

and then if I may take the Court to 521 at the

bottom of the page:

So much for the special application of the

maxim ex turpi causa non oritur actio to contracts

of insurance against third-party liability.

The principles upon which this maxim 9perates

in general are more difficult to state with
precision. In what cases does public policy

demand that a person shall not be allowed

to recover damages or an indemnity or

contribution, as the case may be, from another,
when the event upon which such claim is based

has happened while the claimant is engaged

in doing an unlawful or maybe a criminal act?

When does public policy demand that the claim

shall not be entertained in the courts of

justice? It may be that each case is to

be decided on it own particular facts.

C2T55/l/MG	77	18/2/88
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And then Their Honours refer to BERESFORD's

case and HARDY V MOTOR INSURERS and at
page 523, Their Honours conclude:

There would thus seem to be sound reason for saying that it is not the law that every act

deliberately done and which is prohibited

by law - whether by the common law, by statute

or by ..... regulation - and which is, whether

remotely or directly, causally connected with

a loss which is the subject of indemnity under

an insurance policy, so operates on the contract

of indemnity that the courts are bound on

the ground of public policy to deny to the

actor the benefit of his contract. Such a

doctrine would be mischievous in the extreme.

(Continued on page 79)

C2T55/2/MG	78	18/2/88
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MR REDLICH (continuing):  And it is clear from Their Honours'

judgments that they treated the question as a

discretionary one in which a balancing exercise would

have to be conducted by the court. The third basis

upon which we submitted that this public policy

consideration can be seen to apply is that justice

would be tainted and the dignity of the court offended

if relief were granted in such circumstances, and we

simply say as to that that a very real consideration

of cases such as this would be that were the court to

be properly informed as to the nature of the illegality

complained of,that that is a very real consideration

which the court must entertain.

There are a number of older cases in which the

Court considered this question.	I would take the
Court only to a few of them. If	I may refer the Court
to FORES - - -

MR WEINBERG:  If I could be heard for just one moment, - I hesitate

to interrupt my friend - it now appears as though this

matter will not complete today, and indeed, my friend

seems to have a great deal longer to go with his

argument. I did propose to him before lunch that if

he would give me perhaps half an hour this afternoon

the matter could be completed by written submissions.

It seems that propositions of law directed to cases

are now being discussed, rather than questions of
general principle. From the point of view of our

client, if the Court pleases, there is prejudice by

us having to come back to this Court at a future time.

There will also be many difficulties and we would

simply put to the Court that this is an appropriate

case for giving the respondents a short time to make

some oral argument and then having the rest of the

matter dealt with by written submissions. Otherwise,

it seems as though it is going to go for a very long

period of time and well into another day, with respect.

BRENNAN J:  What do you say about the course, Mr Redlich?

MR REDLICH:	I am entirely in the Court's hands.
BRENNAN J:	If we were to adopt the course that Mr Weinberg

you would then be left to add further submissions in

seeks that would cut you off at a certain point and then

writing with Mr Weinberg having a right of reply.

MR REDLICH:  I am content to follow that course, if it please

the Court.

BRENNAN J:	You also, of course, would have a right of reply.
MR REDLICH:	I assumed as such, Your Honour.

C2T56/l/HS	79	18/2/88
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BRENNAN J:	Well then, what is the division of time between now and a quarter past four?
MR REDLICH:	Perhaps if I could take another ten minutes,

Your Honour, just to sunnnarize the points that we wish

to make, and amplify them by way of written submission.

BRENNAN J:  How does that appeal to you, Mr Weinberg?

MR WEINBERG:  We will do our best, Your Honour. We will

certainly finish by a quarter past four, obviously.

BRENNAN J:	Very well, then, another ten minutes.
MR REDLICH:	I will try and be less than ten minutes, to

accommodate our learned friend. We have already

submitted to the Court that there is a class of cases,

namely what are conveniently called insurance fraud cases, where the application of this public policy

can be seen to operate. Similarly the policy has been

applied in relation to refusals to enforce testamentary

provisions and inter vivos dispositions, where it is

said that there is a continuing purpose associated with

such dispositions or provisions which are of an illegal

nature. The question which appears to have occupied

the majority in the Court of Appeal, namely whether

the maxim ex turpi causa is confined to contracts or

whether it can be applied in other areas, in our

submission, is not to the poin~ that the authorities

are clear that whether the maxim applies, the principles

from which the maxim emanates are clearly applicable to

a variety of action other than contract.

(Continued on page 81)

C2T56/2/HS	80	18/2/88
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MR REDLICH (continuing):  We submit that the public policy

head is applicable to any kind of cause of action

and, indeed, Mr Justice Windeyer in his judgment

in SMITH V JENKINS, we would submit, recognizes

the same. We refer the Court to the long line

of cases in which the principle has been applied

where damage is sustained by a plaintiff in the

course of criminal activity. It has been held

to apply in actions for negligence; it has been

invoked in circumstances where part of the plaintiff's

claim is to claim a head of damage which

involved loss . flowing from some illegal activity

and it has specifically been applied in a variety

of circumstances where a plaintiff sought to

recover money or property paid or delivered pursuant

to an agreement or arrangement and where the

Courts have refused to allow the plaintiff to recover that property.

The high watermark, we would submit,

as far as the respondent is concerned, is those
cases where a claim of illegality has not been

recognized, are the cases of GORDON V CHIEF COMMISSIONER

OF METROPOLITAN POLICE, which we have referred

the Court to, and the decision of this Court

in RUSSELL V WILSON, (1923) 33 CLR 538. Those

cases are concerned with the refusal of the Court
to take note of illegality where it was merely

associated with the original acquisition of the

property which is the subject of the claim.

RUSSELL V WILSON, like GORDON's case, is a case

where property was acquired contrary to statutory

provisions prohibiting street betting and the

Court held that whatever the circumstances of

the original illegality associated with acquisition, that

that illegality had no bearing on the present

possession of the plaintiff at the time that

the plaintiff was dispossessed. Reference to

RUSSELL V WILSON will disclose that it ultimately

turned on the provisions of the statute which,

in fatt; contained specific provision for forfeiture -

that is in circumstances where property was properly

seized because it was in contravention of the

Street GAMING AND BETTING ACT that it provided

for the circumstances in which property so seized

could be forfeited.

We have, hopefully, made the concession

that we are not suggesting here that -and this

is not a case which involves any assertion that

police officers who rightfully had come into

possession of property pursuant to a search warrant

can forever retain the same. The authorities

are clear that there comes a point of time when

such property must, in ordinary circumstances,

be returned and the principles which apply in

that setting are well set out by Mr Justice Shepherdson

in ALLIED MILLS INDUSTRIES LTD V TRADE PRACTICES

COMMISSION, 34 ALR 105.

C2T57/l/SDL	81	18/2/88
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Our submission, in principal, is that where on

the evidence before the court the court is made

aware of the fact that a party maintains his

criminal object; that the court will not necessarily

order the restoration of that property. We refer -

I will simply cite the cases to the Court; time

does not permit an examination of them. We refer

the Court to such cases as PERPETUAL EXECUTORS

AND TRUSTEES ASSOCIATION OF AUSTRALIA LTD V WRIGHT,

(1917) 23 CLR 185 at 196; GEORGE V GREATER ADELAIDE

LAND DEVELOPMENT CO LTD, (1929) 43 CLR 91,

WATSON V MILES, (1953) NZLR 958, PARKINSON V

COLLEGE OF AMBULANCE LTD, (1925) 2 KB 1,

ALEXANDER V RAYSON, (1936) 1 KB. 169, and the

cases referred to by Chief Justice Gibbs in

HAYDEN's case in the passage that I have already

read to the Court dealing with refusal to

enforce a contract where the illegal purpose

was still being pursued.

(Continued on page 83)

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:tvIR REDLICH (continuing): All we wish to say, having regard

to the procedure to be followed, about the

principal arguments maintained by the majority

in the Court of Appeal, is in so far as the

court placed reliance upon the decision of

FERET V HILL, that being a case where the court

refused to remove a tenant from a leased premises

because the tenant was intending to use the premises

for an innnoral purpose - that case was relied

upon significantly by the respondents and seems to

have carried great weight with both Mr Justice McHugh

and Mr Justice Hope. We would submit that that

decision cannot be reconciled with a number of

other decisions which we simply list for the

Court: PEARCE V BROOK~ (1866)	1 LR 1 Ex 213,
GIRARDY V RICHARDSO~ (1793)	170 ER 265,
COWAN VMII.IDURN, (1867)	LR 2 Ex 230, and if I may

just interpolate, in relation to COWAN V MILBOURi.~,

we particularly draw the Court's attention to

various passages in the judgment of Baron Bramwell,

where His Honour drew the distinction between

unlawfulness per se and unlawfulness arising

because the courts will not recognize or enforce

a right. That passage in the judgment of

Baron Bramwell was quoted with approval in the

decision of BOWMAN V SECULAR SOCIETY, which I

referred the Court to earlier, although the decision

in COWAN V MILBOURN was disapproved on other grounds.
1he passage of Baron Bramwell's judgment that
I have just referred to was cited with approval in

BOWMAN V SECULAR SOCIETY.

We say also, that in so far as it was suggested

in the judgment of Mr Justice McHugh and

Mr Justice Hope that to accede to our submission

involved an extension of the law which, it was

said, the courts cannot undertake, we submit that

what is being urged upon the Court here does not

involve the creation of any new law, nor can it be

said tq be an impermissible extension of existing

public policy. It is perhaps unnecessary to now

refer the Court to the cases in support of that

proposition.

BRENNAN J: Not only perhaps unnecessary, but the time seems

to have beaten you, I think?

:tv!R REDLICH:	Yes, all right, if it please the Court.
:tv!R WEINBERG:	If it please the Court, may we hand to the

Court copies of our outline of submissions. May

we say that our task of putting our oral argument

very briefly is made considerably easier because

of the fact that we are able to adopt the reasoning
of the majority of the Court of Appeal in

New South Wales, in particular the judgment of His Honour Mr Justice McHugh. We do adopt the

reasoning of His Honour in totality.

C2T58/l/SR	83/84	18/2/88
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MR WEINBERG (continuing):  We also say that because of the

comprehensive nature of His Honour's judgment,
we do not propose to read to the Court any of the
passages that His Honour cites from authority but
might seek very briefly to supplement those

passages with the addition of one or two other

passages. Our primary submission is that a person

who unlawfully seizes the property of another cannot

resist an action for return of that property

or damages for its wrongful seizure on the ground
that the property has been, or if returned, is
intended to be used for immoral or illegal purposes.

We say that there is no rule of the common law

and no head of public interest which prevents a

citizen from vindicating his legal rights to

protection of his property by suing for infringement

of his rights to that property in the circumstances

set out in paragraph 27 of the now amended, amended

defence.

DEANE J:	Why, in approaching this paragraph,do we not assume that the seizure was lawful?
MR WEINBERG:	Because, Your Honour, the paragraph has to

be good and sufficiently capable of dealing with

both an illegal and a legal seizure and if it cannot

deal with both of those contentions then it cannot

be a good pleading, in our respectful submission.

It must be struck out because the paragraph is

designed to be a comprehensive answer to the

allegations made by the plaintiff in the statement

of claim. His Honour Mr Justice McHugh treated

the assumed facts of the case as including the

fact that the seizure was unlawful for the purposes

of determining whether paragraph 27 could be a

good answer to the plaintiffs' case and we submit

that was entirely correct, with respect.

DEANE J:	But if it appears in the statement of defence that
alleges that the seizure was lawful and seeks to
justify the retention on these further facts, why
should you strike the whole thing out?
MR WEINBERG:	Because it is a different defence. It is an

additional defence which says, "Even if our other
defences fail, we have previously pleaded that

the seizure was lawful and that is a complete

answer". But it says over and above that, "Even

if every one of those defences fail, then by reason

of these grounds we are entitled to refuse to return
these goods".

DEANE J: Well, I have not made myself clear. Assume that the effect of the rest of the statement of claim

is that the seizure was lawful but that retention

is no longer justified, why cannot this paragraph

supplement that situation?

C2T59/l/MG	85
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MR WEINBERG:	The statement of claim, Your Honour, raises

causes of action concerning both the circumstances of the original seizure and the present detention.

There are actions for trespass, conversion

and detinue. In so far as the plaintiffs are seeking

to have their property returned, what has happened

is that the defendant has raised a number of points

of defence in his defence. One of those points

is an all embracing point which says, in effect,

as paragraph 27 says, "It does not matter if we

have no justification for seizing these goods.

It does not matter if you were the person who

owned them. It does not matter if you were the

person who was last in possession. It does not

matter if we are not holding them for the purpose

of use as evidence in a future proceeding. It does

not matter that there is no person with better

title. By reason of the facts that we allege in

paragraph 27 we have a complete answer to everything

that you allege in your statement of claim".

BRENNAN J:  Why sh::ruld itnot be construed as meaning, "further

or in the alternative" - paragraph 27.

MR WEINBERG:	We say, Your Honour,· that it purports to be an answer to the claim made by the plaintiffs because
it purports to say that their possession was a void possession. It is an extinguished possession,
it is no possession at all. It purports to be
a complete answer to the claim made by and on
behalf of the plaintiffs. It is not necessarily
part of our case to have this Court assume that
the seizure was legal. It is sufficient to say
that the plaintiff is able to establish that it
was the owner of the goods and was in possession
and that no other person is able to come forward and say that it has a better title, either legal
or possessory, than the original plaintiff. That
is what the plaintiff has pleaded in its statement
of claim in so far as it seeks to succeed on detinue.
The answer that has been given by the defendant
in paragraph 27 is an answer which says, "By reason of these considerations and these allegations which
we make, we have a complete defence to that part
of your claim, indeed, to your whole claim".

(Continued on page 87)

C2T59/2/MG	86
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MR WEINBERG (continuing):	We say, with respect, that that

allegation, even if true, is no defence to the

statement of claim and we say that His Honour

Mr Justice McHugh was quite right, with respect,

to characterize and pose the question in the way

that he did and in the way that we have.

BRENNAN J: If paragraph 27 is read with paragraph - I think it

is 15 - do you still maintain that paragraph 27

should be struck out?

MR WEINBERG:  Yes, Your Honour, certainly, although we say that

it should not be read with any other paragraph.	We
say it should be read alone and it should be analysed by the Court in isolation.

GAUDRON J: Well, it does not really matter how it is isolated.

If it applies in any of the situations, it stands.

MR WEINBERG: Well, yes, Your Honour. What we are putting,

though, is that if it is to be a good defence, it

must be a good defence in circumstances where the

seizure was unlawful and in circumstances where the

seizure was lawful.

BRENNAN J:  Why?

GAUDRON J: Well, I do not think that is right.

BRENNAN J:	If the seizure was lawful and paragraph 27 is there, what gives you entitlement to have paragraph - - -
MR WEINBERG:	Paragraph 27 does not plead that the seizure was

lawful, Your Honour.

BRENNAN J: But if other paragraphs do, if paragraph X,whatever

it might be, pleads lawful seizure, and paragraph 27 pleads

these other facts - - -

MR WEINBERG:  Paragraph 27 does not plead that the seizure was

lawful. It pleads that the title or possession of
the plaintiff was extinguished or void or non-enforceable

by reason of certain facts which are alleged.

Now, had paragraph 27 in terms asserted that the

seizure was lawful, there might be room for argument

about whether paragraph 27, in its present form, could

stand or cannot stand but it does no more than allege

that, by reason of certain facts, the plaintiff is to

be prevented from coming to court; the plaintiff is to

be stopped from vindicating rights which otherwise appear

in the statement of claim and - - -

DAWSON J: What you are really saying is the character of the

seizure is irrelevant for the purposes of 27.

MR WEINBERG:  Yes, indeed, Your Honour ,but, as far as points

C2T60/l/SH	87	18/2/88
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of policy are concerned,when we come to those in just

a moment or two, there are considerations of policy

which should be taken into account by the Court in

terms of the consequences that would flow from my

friend's submissions being correct, assuming that the

seizure was unlawful because if my friends's argument

is correct, even if the seizure happens to be unlawful,

then, as he puts it, the loss lies where it falls and

we say there are policy considerations against it.

DAWSON J: Just before you pass from that and I do not want to

take any of your precious time but am I right in

understanding that whether the seizure was lawful or

unlawful, it is spent now.

MR WEINBERG:	Yes, that is so, Your Honour.
DAWSON J:	It is not being suggested that the possession is

entitled to be retained by reason of the seizure.

MR WEINBERG:	The only reason that is now given for not returning the goods is the reason that is advanced
in paragraph 27.  It has nothing to do with the
lawfulness of the seizure of otherwise because, even if the seizure was lawful, the fact is that the
occasion for the seizure has now passed and - -

DAWSON J: And it does not justify retention.

MR WEINBERG:  - - - it does not justify retention. That is our

submission. We say that the appellant's quest for a

broader principle, hitherto, unrecognized by the

conmon law, to justify the continued retention of

these goods stretches existing principle beyond an

appropriate point and we say that it does raise

certain realistic dangers to the legal rights of

members of this conmunity. We note that the

paragraph itself, paragraph 27, does not allege that

any of the, goods in question are 'intrinsically	contraband; to use the term used by His Honour
Mr Justice McHugh. It is not contended that the
mere possession of these goods alone, by virtue of
their nature, constitutes or would constitute a
criminal offence. In fact, it is no offence to merely possess any of the goods in this particular
collection of goods which have been seized. It has
been put that many of the goods, or some of the goods,
would be regarded by some persons in the connnunity as
objectionable and others would not and we say nothing turns upon that at all. It matters not whether they are objectionable or not objectionable and we will not
conment about the individual items in the list.

C2T60/2/SH	88	18/2/88
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MR WEINBERG (continuing):  The appellant contends that if

these goods were used in the course of or

furtherance of criminal offences in the past then

the consequence must be that any person who sees

them, whether lawfully or unlawfully, would

not be obliged by any court to return them because
the person previously in possession would be

prevented from corning to the court to vindicate

his rights. And we say that is a sweeping and,

with respect, almost breathtaking proposition.

It is not surprising that it finds no

support at all in the common law cases that have

been cited to this Court and that my friend has

had to resort to cases which he says support the

principle by analogy and, we say, by a very far-

fetched and stretched analogy indeed. The

consequences can be easily demonstrated of a

principle of that width being accepted by this

Court. Any person who has in the past used a

video recorder to play X-rated videos in New South

Wales may find that that video recorder can be

picked up and taken by any person, not just a

police officer, and re·tained with complete

impunity. The owner of the recorder could not

come to a court and seek to have it returned.

To take another example: even a screwdriver

which belonged to a burglar who had used the

screwdriver to carry out a burglary would be an

item which could be taken by any person in the

community, there would be no right in the burglar

to come to court to seek to have that item

returned. We note that His Honour Mr Justice Hope

did not treat this kind of argument even seriously

in the Court of Appeal. His Honour concentrated

his attention upon the aspect of future intent

rather than past criminality and we say, with
respect, that that is correct. We say that if there is a power in the police

or any other person to simply take items which

have been used to commit offences in the past and

it is difficult to explain why there are so many
provisions in so many States which specifically

authorize, in particular circumstances, the

retention of property which has been used to

commit offences, including drug legislation, crimes

legislation and so forth. If the common law already

provided that power then we have all been acting

under a great misapprehension for the last century

in enacting statutes of that kind.

We further say that this would constitute

an extension of the concept of deodandage, if

that is the expression, which was abolished by statute in the middle of the 19th century to a

C2T61/l/ND	89	18/2/88
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width that not even the doctrine of deodands

ever approached, deodands being items, as the the

Court will recall, which were used to cause

immediate and accidental or violent death being

forfeited to the Crown as, no doubt, a measure

of revenue to the Crown. But we say that this

is deodandage gone berserk. There cannot be a

principle which says that merely because an item

was used to facilitate the commission of a crime

anyone in the community can come forward and take

the item with impunity so far as the civil courts

are concerned and there can be no civil action

to recover it.

As far as the question of future intent is

concerned we say this:  so far as intention to

use the goods for a criminal purpose, and we say

that if the Court grants the amendment it is the
limited criminal purpose which the Court spoke
of this morning, the common law does not recognize

any concept of preventive detention either of the

person or of property. Now, we say that that is

important. There is no distinction to be drawn

between preventive detention of persons or preventive

detention of property.

It is no crime to intend to commit a crime.

It is no tort to intend to commit a tort. The

fact that one intends to use an item for an unlawful

or, as my friend would put it, immoral purpose, if it is restored to him, does not bar a person

from vindicating his legal rights. My friend has

talked a great deal about the discretion of the

courts in this area. We have never understood

a common law remedy as such to be a discretionary

remedy and there are many examples of equitable

remedies being discretionary.and many examples
of administrative law remedies being discretionary

but we have not, hitherto, heard that a plaintiff

is to be. debarred from vindicating a recognized

legal right because of some discretionary

consideration.in those terms.

(Continued on page 91)

C2T61/2/ND	90	18/2/88
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MR WEINBERG (continuing):  We say the contract cases are

different and fall into a category of their own.

It may be that the basis for that is simply that there
is a moral basis for enforcing a contract and that

this has led the courts to apply the doctrine of

ex turpi causa in a limited way to the contractual

transaction situations which the cases reflect.

In any event, we say this Court has already in

SMITH V JENKINS limited and properly limited the

doctrine of ex turpi causa to situations of contract,

and we rely upon the judgment of

His Honour Mr Justice Windeyer.

We say the cases involving joint involvement in

crime are different and the cases indicate, we say,

that no public policy is the basis for disallowing

a claim by one of the two joint participants in crime

against the other. As we read the cases, they turn

rather upon questions of consent, volenti, and duty of

care, but not public policy barring one person from

suing the other. We say there are important

questions of principle at stake in this case, so far as

future intent is concerned.	It is nothing more than
an expression of intent. We have a person who	has

manifested an intent to use the property to connnit a

criminal offence. Is he thereby to be - - -

DEANE J:	If you have a criminal offence which damages or will damage the person, the person who will be damaged could
.obtain an injunction - - -
MR WEINBERG:	Undoubtedly, Your Honour.
DEANE J:	- - - and that injunction could go not only to stop

the commission of the offence in terms, it could also

go to stop conduct prior to the offence in

circumstances where the courts could not effectively

intervene between the commencement of that conduct

and the actual damage.

MR WEINBERG:  Yes, Your Honour, that is so, and we do not resile

from that and we say it does not affect the general

principle which we are putting forward.

DEANE J:  Now, what say if it appeared that the person seeking

the goods was planning to engage in a course of conduct

which would constitute a criminal offence against the

person of unidentified people?

MR WEINBERG:  Your Honour, we say the answer to that is, as

Mr Justice Hope put it, and as Your Honour put it this

morning, that no, the courts would not grant a crazed

lunatic who came to the court seeking an order for

restoration of his loaded weapon the weapon so that

he could go outside and shoot his wife immediately.

We say that we can accept that quite readily and quite

happily and none the less put forward the principle that

C2T62/1/HS	91
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we have because there are altogether different bases

for the court refusing to grant the restoration of

the weapon in those circumstances.

DEANE J:	Then let us say that your clients were the teachers
and the only teachers in an infants boarding school
and it was apparent and proved that they proposed to
use - and these items seem a strange collection to
me, but let us make the items a lot worse - - -
MR WEINBERG:	They inlude Kate Millet's Sexual Politics, Your

Honour.

DEANE J:  Yes - that they proposed to use these items to assault

the children in their care in the situation where it

would be obvious that the court would have no real

chance of intervening to protect the children;

does one say, "There is no application for an injunction",

and "We do not know who they are so we will make an

order that they have them all back and the policemen

can stand at their right hand"?

MR WEINBERG:  Your Honour, the answer that we give to that is

that at common law there has always been a power and a right in a private person and indeed in the police

to arrest any person in circumstances where there is

an immediate danger of treason or felony being

committed, or a breach of the peace is reasonably

apprehended.

(Continued on page 93)

C2T62/2/HS	92	MR WEINBERG, QC 18/2/88
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MR WEINBERG (continuing):  As soon as a person came into

possession of such an item he would plainly

be in a situation where he could be arrested there

and then. The example is extremely far-fetched

although it is one plainly designed to test the
limits of the respondents' contentions but we
have put together simply a list of the existing

provisions dealing with statute, the FIREARMS ACT

and common law which would ensure that the Court

need not concern itself with the risks of persons

being awarded loaded guns and going outside and

shooting somebody. The existing common law
and statute amply provide powers to cope with

that situation. Not only could the person be

arrested but any goods which he had upon him

in those circumstances could be seized pursuant

to that power of arrest and retained. There

are ample provisions available to protect the

community in that kind of situation where an

imminent breach of the peace would be constituted

by the return of objects. We are not talking

about that in this type of case at all.

DAWSON J:  But you say the Court is justified of its own

motion, as it were, refusing to return the goods.

On what basis does that occur? That is not arresting

someone or granting an injunction - - -

MR WEINBERG:	The Court would be saying that putting the item into that person's hands in that person's
state would be giving rise to, or would give rise to, an immediate breach of the peace. It
would give rise to an immediate danger to human
life and that the very act of placing the item
in that person's hand would give rise to a basis for that person's arrest and the immediate seizure
of the item.
It may be that the appropriate course would be to order the item to be returned and have
it taken from the person immediately.
DAWSON J:	The test is just one of the degree of "immediacy",

then?

MR WEINBERG:  It must be so, Your Honour, we sa~ with respect,

because the question posed by His Honour

Mr Justice Deane, and the answer given this morning by His Honour, is one that we would not resile

from. We could not consider a court ordering

a loaded weapon to be handed to somebody so that

that person could go out immediately and shoot

somebody - and we say there has to be an answer

to that and we confront that quite squarely.

But it does not follow, with respect, because

a court would not order that that my friend is

entitled to say, "Well, the principle then carries

C2T63/l/SDL	93	18/2/88
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over right across the board and wherever you have

any intent to commit any kind of criminal conduct

at any time in the future, where there is no

immediacy of breach of the peace, or whatever,

then the court will not order the return of the

property."

BRENNAN J: If it is not a matter of a question of fact

and degree, can you postulate the proposition
of principle which divides the admissible from

the inadmissible cases?

MR WEINBERG:  Your Honour, my friend resiled from that

when it was put to him. All that we can say

is there are ample powers available where there
is an imminent danger of a breach of the peace

to enable the court, in those circumstances,

to ensure that that harm does not occur; that

the various harms spoken of by my friend to the

integrity of the administration of criminal justice

do not occur. It may be that the appropriate

course is to order that the item must be returned
but as soon as it is handed over it is taken

from the person who is immediately arrested.

(Continued on page 95)

C2T63/l/SDL	94	18/2/88
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MR WETIIBERG (continuing):  It may be that that vindicates purity of

principle and protects the public adequately.	The
power to arrest is there under the firearms
legislation in those circumstances.	We will hand

these to the Court, if we may, at - - -

BRENNAN J: What do you say to the proposition, and I am

endeavouring to recapitulate your words, that the

dividing line is at the point of the imminent

risk of a breach of the peace?

MR WEINBERG:  Your Honour, we would say that purity of principle

would dictate that the Court would order the

return of the goods and rely upon other agencies

to protect the public. But failing that the

appropriate dividing line may very well be an

imminent breach of the peace which the Court will

not condone. It may be that we are talking about

an assumed state of facts here which involve an

intention of an indeterminate kind to commit crime

at some time in the future and that that takes

this case outside that ambit.

DAWSON J:  I suppose an anology arises where you have a

prisoner who you know or have every reason to know

he is going to commit an offence when he has finished

his term of imprisonment, is released.	You do
not keep him in prison?

MR WEINBERG:  No, you do not, Your Honour, you release him,

precisely. Your Honour, could we finish our

submissions by saying that we recognize two

important points of principle as co why my

friend's submissions should not be accepted by this

Court. The first is the danger of self help. Now

we say that any civilized community moving towards

a more civilized legal system deprecates

self help and moves away from self help. The logic

of my friend's argument is one which would greatly

advance the principle of self help because if

our clients find that they cannot come to court to

recover their goods, the question is what arises

then. It seems that it would be open to them to

take back from the police their goods and just

repossess them. The police, we would say, could

scarcely sue our clients in detinue or conversion

if we did that because we would raise our own

title unless it is argued that in some way our title

has been extinguished and that raises some very
interesting propositions as well, in terms of when
the title is extinguished and whether it revives

when the intent in question dissipates. But, we

say that is, with respect, just an illustration of the

dangers that my friend's submission lead us to.

C2T64/l/SR	95	18/2/88
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MR WEINBERG (continuing):  The police could theoretically

charge us with stealing our own property in those

circumstances although, again, we say it would be

difficult to resist the proposition that we are
the owners of the property, we cannot go to court

to recover it but that would not prevent us from

asserting a claim of right. We say that this

proposition is not one which is confined to police,
as my friend puts it, it must involve strangers.

And the principle that he puts is one which is just a recipe for self help. The Chief Justice

Mr Justice Gr±ffith in DOODEWARD V SPENCE, I think,

the famous case about the two-headed baby, has

an important passage in His Honour's judgment which

we have referred to in our outline where he talks

about the dangers of self help as underlying the

reason why persons who can come to court and vindicate

their rights should be permitted to do so absent

extremely compelling reasons.

The other principle that we say is important

his is a principle of unjust enrichment. M1y friend

says "Let the property lie where it falls" and there

may be property which is of an extremely valuable

kind. My friend's principle would operate even

where that property was unlawfully taken and the

property would lie where it falls is an unjust

enrichment of a very real kind, we say, in that

situation. My friend relies upon the maxim, "No

man should profit from his own wrong." Well, if
that is so we rely on it as well. The person
who unlawfully takes our goods should not profit

from his wrong. Anyway,who is seeking to profit?

W: just want our property back. We are not seeking

to profit, we want recovery of what is ours, ·what

belongs to us.

My final point, Your Honours, in terms of

principle is simply this, that it is a misuse of the

law of torts to seek to invoke it to deter future crime. It is not the function of the law of torts

to act as an aid, to deterrence a crime. The

criminal law adequately deals with that particular
public interest and we say it is for Parliament,
if Parliament wishes to do so, to enact legislation
which would have the effect of authorizing the
retention of goods of this kind in the hands of

the police.

Could we conclude our submissions by simply

saying this. My friend has spoKen of some of these

goods being obscene. They are not obscene and in

any event ever if they were it would not matter

because obscenity is not an offence in New South Wales

and has not been since 1975. The relevant term

is "Indecency".

C2T65/l/MB	96	18/2/88
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MR WETh'BERG (continuing): Secondly, we say that, so far as the

actual dates are concerned of these proceedings, the

charges were dismissed in Melbourne in May of 1984;

the goods have not been returned since then; no further charges of any kind have been laid against any of these respondents. We have this morning filed with the

Court simply a letter from the Victorian Director

of Public Prsecution, confirming that no prosecution

forconspiracy to corrupt public morals will be

launched ex officio, so that the risk of that

occurring is simply non-existent, we say. Those are

our submissions to the Court which we shall endeavour

to supplement with full written submissions. If

the Court pleases.

BRENNAN J:  Do you wish to make further written submissions

in amplification of your argument in-chief?

MR WEINBERG:  Yes. We have not dealt with the authorities,

Your Honour, and the nature of our submissions would

only be to actually take the Court to some additional

authorities and, if we can call it, legal submissions

of that kind, they would not be additional submissions

beyond the relevant cases that have not been cited.

There are several authorities which we have picked up

from Canadian jurisdictions and several old English

cases which support our contentions, which are not

in our outline.

BRENNAN J:  In other words, you want general leave to supplement

your

MR WEINBERG:  We would seek such general leave, Your Honour,

yes.

BRENNAN J:  Thank you. Mr Redlich, do you wish to put some

further written submissions to supplement what you

have said orally in-chief?

MR REDLICH: Hopefully, not to supplement what has already been

said, but to complete what I was unable to say.

BRENNAN J: And, I take it, to respond then to whatever

comes from Mr Weinberg.

MR REDLICH:  Indeed. We have no objection to the filing of

the material referred to.

BRENNAN J: The course which the Court proposes, then, is to

give leave to the appellant to submit further

written submissions, and after that, for the

respondent to deliver written submissions which

will not only amplify the oral submissions thus far
made, but respond to the appellant's further

submissions and then to give the appellant an

opportunity to respond in reply. The time which we would

propose should be limited for those documents is

14 days from today for the appellant; 14 for the

C2T66/l/VH	97	18/2/88
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respondent and 7 in reply for the appellant. Those

are the times which limited; they are not the times

that we hope counsel will need to take, because if

we put those times together we come to five weeks

in all, which is a fairly lengthy period. So that

we would urge counsel to make their submissions as

quickly as possible and, in any event, any period

of time is to commence from the day on which the

antecedent step was taken. The Court will thereafter

consider its judgment in this matter.

AT 4.05 PM THE MATTER WAS ADJOURNED SINE DIE

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