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

1. 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

1. 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 possession of goods and, the Justices Act 1886 (Qld), s39 which, like the UK Act, refers to the person appearing to be the owner.

1. The object of this legislative provision was described by Cleasby B in Bullock v Dunlap [1876] 2 Ex D 43 at pp45–46:

"It was to protect a person who is placed by virtue of his office in possession of the property of some other person to which he has no title himself. That is always a dangerous position for a man to be in, because, although he may take time to make up his mind what to do, he is eventually bound by what he does, and makes himself responsible if he does not deliver the property to the right person. The object of this section obviously was to protect a constable from that difficulty and to enable him to go to the magistrate and say, 'Tell me what I am to do with these goods which do not belong to me, and to whom I am to deliver them'. The section says it shall be lawful for the magistrate to make the order; and the person who obeys that order would be protected in obeying it without any reference to the title of the person claiming."

That the purpose of the legislation has remained constant for over 100 years is apparent from R. v Uxbridge Justices Ex parte Commissioner of Police of the Metropolis [1981] 3 All ER 129 where Lord Denning said in his characteristic manner at p131:

"It is a very necessary procedure for the protection of the police. If these currency notes were stolen property, and the police had handed them over to Mr Prasad without a court order, the true owners could have come down on the police for conversion and damages. So it was absolutely essential that Mr Prasad should get a court order in his favour."

1. As to the nature of the jurisdiction given by s138, it is significant that subs(4) expressly preserves the right of any person to recover property which has been the subject of an order of disposal made under subss(2) or (3), by an order of a court of competent jurisdiction provided such proceedings are commenced within six months after the order of disposal has been made. Clearly then, an order under s138 does not conclusively determine either ownership or right to possession of any goods. The effect of the equivalent United Kingdom provision, was closely examined by the Court of Appeal in Irving v National Provincial Bank Ltd [1962] 2 QB 73, a case in which the facts were not dissimilar from those in this appeal. A number of banks were broken into and money stolen. The plaintiff was arrested and the police seized the money then found on his person. The plaintiff was convicted but on appeal, his conviction for burglary of and stealing from the National Provincial Bank was quashed. Between the conviction and the appeal an order was made pursuant to the Police (Property) Act that the money seized on arrest be delivered to the National Provincial Bank. After the appeal and within six months of making that order, the plaintiff sued the bank for the return of the money. It was held that, until the expiration of six months after the making of an order, the Act does not affect the right of any person to take proceedings to recover the property in question. An order under the Act alters the right to possession. Holroyd Pearce L.J. described the nature of an order made under the Police (Property) Act 1897 at p79 as follows:

"Thus the order is somewhat in the nature of an order nisi which, when it becomes absolute in six months, vests the final and unassailable right to possession. Its effect is therefore that for six months the defendant has a title defeasible at the suit of the true owner. After that period his defeasible title becomes an indefeasible and absolute one."

1. His Lordship considered that the view expressed by him was in accordance with the decision of Buckley v Gross (1863) 3 B & S 566; 122 ER p213, a case to which reference will be made later. Wilmer LJ said (at p82) that the effect of an order under the Act was to lawfully transfer possession into the hands of the beneficiary of the order who thereby obtained a "title which is defeasible at the suit of the true owner; after the lapse of six months their title becomes an absolute title". Davies LJ agreed with the other two members of the court. He said (at p82) that the plaintiff could not rely upon the possession he had at the time the police seized the notes in a suit to recover the notes because, by virtue of the order of the Magistrate's Court, at the time the suit was instituted his possession had been lawfully transferred to the National Provincial Bank and consequently, the plaintiff carried the onus of establishing a superior title to the bank's lawful possessory title. (It should be noted that the terms of the limitation of action provision in the United Kingdom Act is slightly different from s138(4) (Tas) but, for present purposes, the difference is of no significance).

1. Dover v Child [1876] 1 ExD 172 concerned a provision in the Metropolitan Police Act 1839 (UK) which contained a proviso similar to s138(4) (Tas). Cleasby B said (at p175) that the order of the magistrate is not like a judgment for it may be questioned, and that the magistrate has no power to absolutely determine the title to goods.

1. Section 138 does not require any notice to be given to any person. It merely requires, by subs(2), that the justices make "such enquiry as they may think sufficient". Determination of a proceeding under s138 does not conclusively determine title. An order relieves the police officer in possession of goods from the risk of a suit for damages for conversion at the hands of the true owner or person entitled to possession and lawfully transfers possession from that officer to the beneficiary of the order. The section requires the justices to determine to whom the possession should be transferred in the knowledge that, subs(4) preserves the right of a person with a better title to recover them within six months. It does not require the justices to determine a question of title between competing claimants but merely to order transfer possession from the police officer to the person who appears to them, after enquiry, to be entitled to the property leaving matters of title to be determined by a court of competent jurisdiction. Subsection (3) clearly recognises that there may be cases where the title or right to possession in goods is far from clear and the appropriate order to make in those circumstances is one which will relieve the police officer from the burden of possession and the risk of proceedings, and preserve the custody of the goods pending determination of title. Although the provisions of subs(3) have no counterpart in the United Kingdom legislation the following remarks of Lord Widgerey CJ in Raymond Lyons v Metropolitan Police Commissioner [1975] 1 All ER 335 at p338 are apposite:

"It has been said over and over again that the latter summary procedure [orders for compensation made at the end of a criminal trial] is not to be used in difficult cases involving tricky questions of title or large sums of money. It is much better that the civil courts should handle disputes of that kind. What is intended both in regard to compensation orders and orders under the Police (Property) Act 1897 in my judgment is that in straight forward, simple cases where there is no difficulty of law and the matter is clear, the justices should be able to make a decision without involving the expense of civil proceedings. But I would actively discourage them from attempting to use the procedure of the Act in cases which involve a real issue of law or any real difficulty in determining whether a particular person is or is not the owner".

1. The same view of the nature of that provision was taken by Lord Denning in R v Uxbridge Justices (supra). He said at p131:

"That [Police (Property) Act 1897, s1] is a procedure which is available in straight forward, simple cases where there is no difficulty of law and the matter is clear".

This appeal falls to be determined in accordance with the foregoing construction of s138 and the question is whether the learned magistrate erred in making the orders that he did.

The Proceedings before the Magistrate

1. The proceedings before the magistrate related to eleven pieces of furniture and one piece of Burnie Board which apparently belonged to one of the pieces of furniture. The evidence of the circumstances in which these items came into the possession of the police officer, Detective Sergeant Wicks, is scanty. Sergeant Wicks made application to the magistrate for an order of disposal and said in evidence that the contents of his written application were true and correct. Apart from the contents of that application, which was tendered in evidence and not challenged, there was almost no evidence concerning the nature of the applicant's possession of the items at the time of seizure. Indeed, apart from the written application there was almost no evidence to explain why Detective Sergeant Wicks seized the goods in the first place. The application provided:

"I, Thomas Alfred Wicks

of Criminal Investigation Branch, George Town

make application for The disposal of the following property reasonably believed to have been stolen and found in the possession and under the control of Phillip Lloyd Littlejohn.

The circumstances relating to the confiscation of this furniture are:– Between 1985 and 1987 a number of Joiners shops were burgled and a large quantity of new furniture was stolen.

As a result of Police investigation a number of premises were searched as well as the residence of Phillip Lloyed [sic] Littlejohn and the property referred in the attached annexure was located. Each house in which the property was located was occupied by a relation of Mr Littlejohn and statements obtained by myself and other officers revealed that the property was left there for storage by Mr Littlejohn.

Following this confiscation the property was viewed by the managersowners of various joinery shops and retail outlets and identified as having been stolen from their business on different occasions during the above three year period.

Mr Littlejohn was charged with burglary and stealing of this property, the charges were ammended [sic] to possession of stolen property and Mr Littlejohn was committed for trial at the Launceston Supreme Court but the Crown did not proceed with the indictment and Mr Littlejohn was discharged.

Dut [sic] to the positive identification of this property as being stolen and the various alleged owners having been located together with the fact that Mr Littlejohn maintains his claim that all these items he personally made and are his property. I therefore make application for this property to be disposed of by a Police Magistrate under Section 138 of the Justices Act 1959."

1. The items seized by Detective Sergeant Wicks became exhibits on the hearing before the learned magistrate and were marked as follows:

Exhibit No.     Description of Property

P2       One Queen Anne bedhead

P3 A and B      Two chests of drawers

P4       One carved table pedestal

P5       One blackwood Queen Anne bedfoot

P6       One myrtle cheval mirror and stand

P7       One blackwood cheval unpolished
           mirror frame and stand

P8       One huon pine vanity mirror frame
           and stand unpolished.

P9       One blackwood Queen Anne nest of
           tables

P10     One piece of Burnie Board

P11     One coffee table

P12     Two wine tables

At the hearing the applicant, Phillip Lloyd Littlejohn, claimed to be entitled to all of the items. That entitlement was disputed as follows:

As to P2 and P3, by Mr Simpson of Gala Furniture.

As to P4 by Mr Nieuwhof of Duro Furniture.

As to P5 – 10 by Mr Gillie of Clifton Furniture.

As to P11 and 12 by Mr Young of Glenwood & Co.

1. All the last mentioned claimants carried on the business of manufacturing and selling furniture almost exclusively to retailers. The applicant's claim was that he made exhibits P2, P3, P6, P7, P9 and P10 and purchased all the others. It is unnecessary to canvas the evidence in any detail which is fortunate as the transcript of proceedings is difficult to follow. In many cases it is obviously corrupt and frequently, the witnesses discuss the various items without reference to the exhibit numbers. The learned magistrate found that he could not accept the applicant's claim with respect to any of the items. He found that the other claimants were honest witnesses and accepted the thrust of their evidence. However, with respect to some of the items, he was not satisfied on the balance of probabilities that the competing claimant was entitled to the exhibit and in result made the following orders:

Exhibit No.     Person Entitled

P2       )          Mr D. Simpson (Gala Furniture)

P3 A and B)

P4                   Mr H.G. Nieuwhof (Duro Furniture)

P5                   Entitlement not established

P6       )

P7       )          Mr D.W. Gillie (Clifton Furniture)

P8       )

P9                   Entitlement not established

P10                 Mr D.W. Gillie (Clifton Furniture)

P11     )          Mr B.A. Young (Glenwood & Co.)

P12     )

With respect to the items above noted, "entitlement not established" the learned magistrate made an order that they be sold by public auction if no claim is established within three months after the date of the order.

1. At the time of the proceedings before the learned magistrate, the applicant was serving a sentence of imprisonment for the crimes of forgery, uttering and false pretences. He had then been in prison for 14 months following his extradition from New South Wales. He had prior convictions for dishonesty. P3, which the applicant claimed he had made himself, was positively identified by Mr Simpson as a chest of drawers returned to his factory for adjustment and stolen in a burglary. The exhibit bore the customer's name and the retailer's code number as well as the initials of the cabinet maker who assembled the drawers. P4, which the applicant claimed he had bought, was a unique item which was positively identified by Mr Nieuwhof as belonging to his company. Not surprisingly, the motion to review does not include these two items but of course, the evidence of Mr Simpson and Mr Nieuwhof which the magistrate accepted had a devastating effect on the credit of the applicant's evidence generally.

1. Generally speaking, with respect to the other items, the other claimants were unable to specifically identify any one of them as belonging to them, although, in the majority of cases, they were able to swear that the design and manufacture was such that at some stage they had been the owner but the possibility remained open that the exhibits, other than P3 and P4, had been manufactured by the other claimants, subsequently sold by them and thereafter, by some unknown means, ended up in the possession of the applicant. In his written reasons, the learned magistrate made it clear that he did not accept any of the applicant's accounts of how he came to be in possession of the disputed items and that there was no acceptable evidence that the applicant had acquired them by lawful means. On this motion, counsel for the applicant did not seek to avoid the finding made with respect to the applicant's evidence.

The Applicant's Submission:

1. His argument was that at the time Detective Sergeant Wicks seized the items, they were in his possession and that such possession is good against everyone other than one who can establish a better title. In the absence of evidence that any of the other claimants had a better title to the actual exhibits (as opposed to the ones similar to those exhibits) the mere fact that the applicant had possession at the time of seizure established that he was the person entitled within the meaning of s138(2). The submission raises a complex question of law which in the end, I find unnecessary to resolve on this motion.

1. O'Keefe v Bunton [1953] VLR 94 is a case similar to this one concerning the Police Regulation Act 1928 (Vic), s80, a section substantially the same as the Justices Act (Tas), s138. The facts were that two detectives visited the home of the appellant and there took possession of some bags of greasy wool, some motor tyres and some ingots of lead. The appellant was later charged with unlawful possession of all these articles. The charge in relation to the wool was dismissed but there was a conviction with respect to the tyres and the lead. On appeal, each of the convictions was set aside. The detectives who seized the goods made an application for an order of disposal. The claimants to all the goods were the appellant and the Melbourne Stevedoring Company. An order was made that the wool and tyres be delivered to the appellant. No order was made in his favour with respect to the lead. Coppell AJ relied on Field v Sullivan [1923] VLR 70 and concluded that to be entitled to an order, the appellant carried the onus of establishing that at the time of the seizure by the police his possession was lawful. In Field's case, the Full Court of Victoria closely examined the well known case of Buckley v Gross (supra). MacFarlane J said at p84:

"The real decision in Buckley v Gross, in my opinion, goes no further than this: where A has feloniously or unlawfully taken possession of goods shown to be the property of a third person, who is known, and that possession has been divested out of A by a lawful seizure by the police, followed by an order of a magistrate made under statutory power, the goods are held by the police for the true owner and if the police wrongfully (that is without the authority of the true owner) dispose of the goods to C, the only person who can complain is the true owner."

He went on to say:

"The true position, in my opinion, is as follows:– if A is in possession of goods, he is prima facie in lawful possession of them, and prime facie has the right to that possession; in the absence of any evidence to the contrary, in any proceedings that possession is proof of ownership; but that possession may be divested out of him, either lawfully or unlawfully. If unlawfully, his right of possession remains. As against the person who unlawfully deprived him of his possession (B), or those claiming through him (C), A's possession (even if wrongful) up to the time of seizure, is sufficient evidence to establish his right to possession; nor can those persons set up that the goods were in A's possession, but were really the property of X, though, of course, if B took possession on behalf of and with the authority of X, who is shown to be the true owner, that might be set up to show that B's seizure was not unlawful".

And finally at p86:

"In the case of seizure under authority of law, prima facie, when B's right of detention is ended, the only person entitled to possession is A, from whom B lawfully took them. If, however, it appears that A (at the time when B, acting under authority of law, so took possession of them), was in unlawful possession of them, and therefore was not entitled to possession of them, that prima facie presumption is rebutted, and there is nothing in principle or in reason to prevent B in an action by A from setting up that A was not entitled to them."

1. That there is doubt about the correctness of the proposition advanced by counsel for the applicant, that unlawful possession will sustain an action in detinue is evident from the discussion on the topic in Bird v Fort Frances [1949] 2 DLR 791, a decision, which so far as my researches went, has not been cited in any reported case in Australia. In that case, the plaintiff found and took some money. Whether or not his taking was wrongful was not entirely clear. Eventually, the police seized the money but, on being unable to find the true owner, handed it to the local municipality. The municipality was successfully sued by the plaintiff for the return of the money. The judgment canvasses the difficulties which arise on a claim based on a possessory title which was obtained by unlawful means. Ultimately, McRuer CJHC concluded that it was not necessary for him to decide whether the taking was with felonious intent or not as on the facts of the case in either event the result would be the same.

1. In Jeffries v Great Western Railway Co 5 E & B 802 at p805; 119 All ER 680 at p681 Lord Campbell CJ said:

"The law is that a person possessed of goods as his property has a good title as against every stranger, and one who takes them from him, having no title in himself, is a wrongdoer, and cannot defend himself by showing that there was title in some third person; for against a wrongdoer possession is a title". [My emphasis].

1. In Gatward v Alley (1940) 40 SRNSW 174 Jordan CJ, delivering the judgment of the District Court of Appeal, cited the above passage at p180 as authority for the proposition:

"In other words, de facto possession of a chose in possession is prima facie evidence of ownership, and also of itself creates a legal right to possess which is enforceable against anyone who cannot prove that he has a superior right to possess: any person who interferes with this legal right, without being able to prove a superior right, is therefore a wrongdoer."

However, on the facts of the case it is clear that the possession relied upon was not wrongful.

1. Parker v British Airways Board [1982] QB 1004 was a case concerning an honest finder of a bracelet on premises occupied by another. Donaldson J said at p1010:

"One might have expected there to be decisions clearly qualifying the general rule where the circumstances are that someone finds a chattel and thereupon forms the dishonest intention of keeping it regardless of the rights of the true owner or of anyone else. But that is not the case. There could be a number of reasons. Dishonest finders will often be trespassers. They are unlikely to risk invoking the law, particularly against another subsequent dishonest taker, and a subsequent honest taker is likely to have a superior title: see, for example, Buckley v Gross (1863) 3 B & S 566.

However, he probably has some title, albeit a frail one because of the need to avoid a free–for–all. This seems to be the law in Ontario, Canada: Bird v Fort Frances (1949) 2 DLR"

Counsel for the applicant relied upon Russell v Wilson (1923) 33 CLR 538. Although that decision confirmed the general proposition expressed in Jeffries v Great Western Railway Company (supra) and cited above, the claimant in that case was in lawful possession of the money in question, albeit in the course of engaging in illegal gambling.

1. What ought the magistrate have done on an application for an order under s138 being faced with complex questions of law requiring determination upon a threadbare factual framework which was not directed to the principal legal issues? No authority was cited to him.

1. Having regard to the summary nature of the proceedings and having regard to the finding that there was no acceptable evidence that the applicant was in lawful possession of the claimed goods at the time of seizure by the police, it could not be said that the learned magistrate erred in declining to order that the goods be delivered to the applicant. He was required to make an order for delivery from the police officer whose right to retain possession no longer existed. Such an order would fulfil the purpose of the legislative provision by protecting the police officer from proceedings which might arise in the event of him either retaining possession or divesting himself of possession to another without the protection of an order. Upon the findings of fact made by the learned magistrate it was unclear whether, at the time of seizure, the person entitled to possession of each actual exhibit (other than P3 and P4) was the applicant or one of the other claimants. It was in my opinion an appropriate case for the application of the provisions of subs(3), and the making of an order "for the delivery of the property on such terms as [were] necessary for securing the safe custody thereof pending any action which may be brought for the recovery thereof".

1. An order of this kind formed no part of the submission on the hearing of the motion to review. The applicant's case was confined to the proposition that error occurred in the failure to make an order delivering the property to him. For the reasons given I conclude that there was no such error. The applicant is within time to commence proceedings to recover the goods but, as possession is now lawfully in the hands of the other claimants, he would have to establish that his right to possession is superior to that of the other claimants. See Irving v National Provisional Bank Ltd (supra). Thus the order made should be set aside and an order in the terms contemplated by subs(3) should be substituted. The appeal will be allowed and I will hear counsel with respect to the terms of the order which should be made.