McCullough v Otto; ex parte McCullough - [1996] QCA 507

IN THE COURT OF APPEAL	[1996] QCA 507
SUPREME COURT OF QUEENSLAND

Appeal No. 709 of 1996.

Brisbane
[McCullough v. Otto & Anor.]

BETWEEN:

TERRY McCULLOUGH

Appellant

AND:

DEBRA PATRICE OTTO AS ADMINISTRATRIX
OF THE ESTATE OF BRIAN JOSEPH FEE,
AND IN HER PERSONAL CAPACITY

Respondents

EX PARTE: TERRY McCULLOUGH

___________________________________________________________________

Macrossan C.J.
Pincus J.A.
Thomas J.

___________________________________________________________________________

Judgment delivered 10 December 1996

Separate Reasons for Judgment of each member of the Court, Pincus J.A. and Thomas J.
concurring as to the order made, Macrossan C.J. dissenting.
___________________________________________________________________________

1.         ORDER THE NAME OF THE RESPONDENTS BE AMENDED TO READ "DEBRA PATRICE OTTO AS ADMINISTRATRIX OF THE ESTATE OF BRIAN JOSEPH FEE, AND IN HER PERSONAL CAPACITY".
2.         APPEAL ALLOWED; ORDER NISI MADE ABSOLUTE.
3.         SET ASIDE MAGISTRATE’S ORDER, AND IN LIEU ORDER THAT THE PROPERTY DEALT WITH BY THAT ORDER REMAIN IN ITS PRESENT CUSTODY.
4.         NO ORDER AS TO COSTS.

___________________________________________________________________________

CATCHWORDS: Property - Justices Act s. 39 - order for delivery of property to a person who appears to be its owner - owner - possession - possessory title - interference with property rights - whether need prove lawful possession - what to happen to property - competency of appeal - "person aggrieved" under s. 209 of the Justices Act.

Counsel:	Mrs L Clare for the applicant. Mr R V Hanson QC for the respondents.
Solicitors:	Queensland Director of Public Prosecutions for the applicant. Cranston McEachern for the respondents.
Hearing date:	6September1996.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 709 of 1996

Brisbane

Before

Macrossan CJ
Pincus JA
Thomas J

[McCullough v. Otto & Anor]

BETWEEN:

TERRY McCULLOUGH

Appellant

AND:

DEBRA PATRICE OTTO AS ADMINISTRATRIX
OF THE ESTATE OF BRIAN JOSEPH FEE,

AND IN HER PERSONAL CAPACITY

Respondents

EX PARTE : TERRY McCULLOUGH

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 10 December 1996.

A magistrate has made an order under s.39 of the Justices Act 1886 that there be delivered into

the joint possession of the Estate of Brian Fee and Debra Patrice Otto property which had been taken

into police custody in the course of investigation of criminal offences.

Section 39 is as follows:
Power of court to order delivery of certain property

"39. (1) If property -
(a) has come into the custody or possession of the police-

(i) in connection with any charge or prosecution; or
(ii) otherwise in the course of their duty; or

(b)

has come into the possession of a Magistrates Court or clerk of the court, whether as an exhibit or otherwise, in connection with a summary proceeding under this Act;
the Magistrates Court may, on application by a police officer or the clerk of the
court or by a claimant of the property-
(c) make an order for the delivery of the property to the person who appears to be its owner; or
(d) if the owner cannot be ascertained…

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.

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Details

Case: [1996] QCA 507
Decision Date: 10/12/1996

CaseChat Overview and Summary

In McCullough v Otto; ex parte McCullough, the Supreme Court of Queensland addressed an appeal concerning the disposition of property seized by the police in the course of a criminal investigation. The police had seized a vast quantity of personal property from the property of Brian Fee and Debra Patrice Otto, suspecting it to be stolen or unlawfully obtained. After the anticipated criminal proceedings were terminated by Mr Fee's death, Ms Otto made an application under section 39 of the Justices Act for the delivery of the property to herself and the estate of Mr Fee. The magistrate granted the order, prompting an appeal by the police officer who had made the application, Detective Constable McCullough.

The Court of Appeal, in its judgment, considered two primary issues. The first issue was whether the police officer had standing to appeal the magistrate's order as a "person aggrieved" under section 209 of the Justices Act. The Court found that the police officer did have standing, as he was the person who had applied for the order and was aggrieved by the magistrate's decision that did not align with his application.

The second issue was the interpretation of the term "owner" in section 39(1)(c) of the Justices Act and whether the magistrate was justified in ordering the delivery of the property to Ms Otto and the estate of Mr Fee. The Court held that the term "owner" in the statute refers to the true owner of the property, not merely someone with a possessory title. The Court further determined that the magistrate had erred in concluding that Ms Otto and the estate of Mr Fee appeared to be the owners of the property, as there was no credible evidence presented to establish lawful ownership of any part of the seized property.

Consequently, the Court of Appeal allowed the appeal, set aside the magistrate's order, and ordered that the property remain in its present custody. The Court emphasized the importance of ensuring that the disposition of seized property does not unjustly deprive true owners of their rights and highlighted the need for a careful and legally sound approach when making orders under section 39 of the Justices Act.

Orders