Littlejohn v Wicks - [1990] TASSC 10

Serial No 4/1990

List "A"

CITATION: Littlejohn v Wicks [1990] TASSC 10; A4/1990

PARTIES:  LITTLEJOHN
  v
  WICKS

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  LCA 24/1989
DELIVERED ON:  7 March 1990
JUDGMENT OF:  Underwood J

Judgment Number: A4/1990
Number of paragraphs: 22

Serial No 4/1990
List "A"
File No LCA 24/1989

LITTLEJOHN v WICKS

REASONS FOR JUDGMENT UNDERWOOD J

7 March 1990

This is an appeal against an order of a magistrate disposing of certain property in the possession of a police officer. The jurisdiction to make the order is conferred by the Justices Act 1959, s138. The applicant's complaint is that he was entitled to the property, or the majority of it, and that the learned magistrate erred in failing to order that the property be delivered to him.

The Act, s138

The Justices Act 1959, s138 provides as follows:

"138–(1)         When possession has been taken by a police officer of property in relation to which an offence is alleged to have been committed and –
(a)       proceedings taken against the alleged offender have terminated by his conviction or discharge; or
(b)       the alleged offender is not known or cannot be found,
or when property reasonably supposed to have been stolen has come into the possession of a police officer, and in either case the police officer is not satisfied as to who is entitled to the property, he may apply to a court of petty sessions for directions for the disposal of the property.
(2)       The justices, after such inquiry as they may think sufficient, may make an order for the delivery of the property to any person who appears to them to be entitled thereto, or if no claim to the property is established may make an order that it shall be sold or otherwise disposed of, and that the net proceeds of the sale, if any, shall be paid into the Consolidated Revenue if no claim thereto is established within 3 months after the date of their order.
(3)       If there are several claimants to the property, the justices, after hearing the several claimants appearing before them, may make an order for the delivery of the property on such terms as they may think necessary for securing the safe custody thereof pending any action which may be brought for the recovery thereof.
(4)       An order under this section does not prejudice the right of a person to recover in a court of competent jurisdiction the property to which the order relates from the person to whom it is so delivered if proceedings for the recovery thereof are taken within 6 months after the order is made."

Similar legislative provisions are common. See for example, the Police (Property) Act 1897 (UK), s1, which authorises "an order for the delivery ... to the person appearing to the magistrate ... to be the owner ..."; the Police Regulation Act 1958 (Vic), s125 which refers to claims of entitlement to…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Littlejohn v Wicks

Details

AGLC: Littlejohn v Wicks [1990] TASSC 10
Case: [1990] TASSC 10
Decision Date: 7 March 1990

CaseChat Overview and Summary

The appeal in Littlejohn v Wicks was brought before the Supreme Court of Tasmania by Phillip Lloyd Littlejohn, who contested the magistrate's decision regarding the disposal of certain property seized by Detective Sergeant Wicks. The central legal issue in this case was whether the magistrate erred in not ordering that the seized property be delivered to Littlejohn. The case hinged on the interpretation of s138 of the Justices Act 1959, which governs the procedure for disposing of property in the possession of a police officer when the rightful owner is unclear. Littlejohn argued that he was entitled to the property or at least the majority of it and that the magistrate had erred in not delivering it to him.

The court's reasoning focused on the purpose of s138, which is to provide a procedure for the disposal of property in the possession of a police officer when the rightful owner is uncertain, protecting the police officer from potential legal action. The court highlighted that s138(4) preserves the right of a person with a superior title to recover the property within six months. The court found that the magistrate's decision to not deliver the property to Littlejohn was not erroneous, given the lack of evidence supporting Littlejohn's claim of lawful possession at the time of seizure. The court concluded that the magistrate had appropriately ordered the safe custody of the property pending any recovery action by the rightful owners.

The final orders of the court were to allow the appeal, set aside the magistrate's order, and substitute an order for the safe custody of the property pending any recovery action by the rightful owners. The court invited counsel to propose the terms of the substituted order.

Orders