McCullough v Otto; ex parte McCullough
[1996] QCA 507
•10/12/1996
| 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 - make such order in relation to the property as the court considers appropriate.
(2) Subject to subsection (3), the order does not prevent a person from recovering the property by action from the person to whom the property is delivered under the order.
(3) An action for the recovery of the property may only be brought within 6 months after the making of the order.
(4) A regulation may make provision with respect to disposal of property mentioned in subsection (1) if-
(a) the owner has not been ascertained; and
(b) an order of a court of competent jurisdiction has not been made for the disposal of the property.
(5) The regulation may authorise the sale of the property and the application of the proceeds of sale.
A police officer, Detective Constable McCullough, had brought an application under s.39 after
the anticipated criminal proceedings were brought to an end by the death of Mr Fee. On the hearing
of the application, there had been only one claimant for the property, Ms Otto, and apart from her and
the police, no other interests were represented. Before the order was made that is now appealed
against, Ms Otto had been appointed administratrix of the estate of Brian Fee.
The magistrate delivered lengthy reasons in what he obviously regarded as a difficult matter.
A very great number of individual items of personal property were involved. The magistrate described
the extent of the property as "vast" and its probable value as "many thousands of dollars". The police
at the hearing suggested that if the Court was not satisfied that the claimant, Ms Otto, was the owner
of the property, then consideration should be given to forfeiting the property to the Crown.
Mr McCullough has now appealed by way of order to review claiming to do so as a "person
aggrieved" under s.209 of the Justices Act. On the hearing of the appeal there was some uncertainty
as to the disposal order that was sought on the appellant's behalf. In the end, counsel for the appellant
submitted that an order should be made for delivery to the Public Trustee (to whom, it seems, no notice
had been given) or alternatively no order at all, leaving possession of the seized items to remain in the
hands of the police, with Ms Otto free to take civil action against the police if she chose.
In respect of the items which remained in contention before the magistrate, police investigations
had failed to trace any third parties who might have a claim of some kind. At an earlier stage, some of
the items originally seized had been delivered by the police to persons whom their investigations led
them to believe were the owners. There was a further handful of items, as to which non-contentious
disposal orders were made by the magistrate and no issue presently arises in respect of them.
On the appeal it was argued for the respondent that because of the nature of the proceedings
below, Mr McCullough could not be regarded as a "person aggrieved". Dealing with the merits, counsel
for the respondent argued that it was not shown that the magistrate's order for disposal of the property
was wrong or that it should be interfered with, except perhaps for correcting an inappropriate reference
to "estate Brian Fee", changing it to Ms Otto, "as adminstratrix of the estate of Brian Fee".
Before the two issues just mentioned are further considered, it is desirable by reference to the
reasons given below, to state more precisely what the magistrate has decided.
Ms Otto was described by the magistrate as being the de facto partner of Mr Fee for some
seventeen years prior to his death. The items seized by police were located on a large property, many
acres in extent, where they were housed in roughly constructed sheds inside a fenced compound.
Ms Otto gave evidence, but she was regarded as an extremely unsatisfactory witness. Her
claim, never persuasively put, was that the subject items simply represented an accumulation over many
years by her partner and herself. The magistrate has not accepted that claim. The case is one,
however, where at the end of his consideration, the magistrate has not declared any specific items to
be the property of other persons, whether known or not. He has found in respect of the mixed
collection, that some of the items belonged to Fee and Otto, although those items also were not capable
of being identified. As to the other items, he has said that there was a "distinct possibility" that they may
have come into the hands of Otto and Fee "by unlawful means". He restated his conclusions in different
words declaring that he was satisfied "on balance, that there is a percentage of the property that almost
certainly belongs to the estate of Mr Fee and to Ms Otto" and also "on balance, that there may be a
percentage of that property that, whilst taken from their possession by the police officers from their
property, may have come into their possession by dubious and perhaps nefarious means". He also said
that it was "impossible, in all the circumstances, on the material .... to make some division or
apportionment of the property to enable (him) to order certain items to be delivered to the applicant"
and another order forfeiting other items to the Crown.
Two things should be mentioned at this point. No authority for making a forfeiture order in
favour of the Crown was drawn to our attention on the hearing of the appeal. The second point to be
mentioned is that it is clear that the magistrate, notwithstanding the suspicions he entertained, has refrained from making a firm finding that some of the property, whether an identifiable part of it or not,
had been stolen or was subject to superior claims which could be asserted by other persons.
The magistrate, having considered certain authorities to which he was referred, including,
particularly Field v. Sullivan (1923) VLR 70, and placing what he declared to be "some considerable
weight on (the) aspect of `best and last possession' ", said he thought "the appropriate order" he should
make "with some reluctance" was that all of the outstanding items "should be delivered into the joint
possession of the Estate of Mr Brian Fee and Debra Patrice Otto", they being "persons (who appear)
to be the owners".
The form of the order made reflects the wording of s.39(1)(c) and it is obvious that the
magistrate considered that he was acting under that subsection.
Before us, counsel for the appellant submitted that the order could not properly be made under
the subsection just referred to because the magistrate obviously did not find himself able to conclude
in terms of it that Otto and Fee were the "owners" of all of the outstanding property. For that reason,
it was said that the order should be set aside and the appeal allowed with the respondent losing the
benefit of an order for delivery to her of any of the property.
It seems to be a possible interpretation of s.39 that "owner" as referred to in (c) should be
construed as "true owner" (i.e. having a title good against all others) but the word should be narrowly
construed in this fashion only if wide scope is given to (d) to implement what it can be accepted is an
eminently sensible policy intended to apply. For the purposes of this case and without finally deciding,
I am prepared to assume that "owner" in (c) has the narrow meaning mentioned although the
observations in Russell v. Wilson (1923) 33 CLR 538 per Isaacs and Rich JJ at 546-547 and those
in Field v. Sullivan (supra) might provide some encouragement for adopting a wider interpretation of
the phrase, "appears to be its owner".
One response to the appellant's submission which was made on behalf of the respondent, was
that the magistrate, on the basis of his findings, was intending to make an order for delivery to Fee and
Otto as the persons with the "best and last possession", merely adding something that seemed to him
to follow from that description but which was not an essential precondition for the making of an order
in favour of Estate Fee and Ms Otto. It was said that the operative part of the order did not depend
on conformity with the requirements of subs.(c): it could just as well, in terms of the magistrate's
obvious intention, find justification under subs.(d). As well as this, the respondent maintained her
contention that because of their best and last possession, Estate Fee and Ms Otto should be taken as
persons who "appeared to be the owners". The conclusion that I have reached will not depend upon
this last contention.
The substantial question on the appeal, apart from the matter of Mr McCullough's standing, is
whether, on the magistrate's findings, it was a justifiable and appropriate order that delivery of the
property should have been directed to Ms Otto in her two capacities.
In English law, there will often be a difficult relationship between concepts of "ownership" and
"possession" and in a particular case the borderline may be difficult to state in a way that is beyond
argument. The common use of the phrase "possessory title" illustrates this. A good possessory title can
often be the practical equivalent of ownership. At common law, the situation is that a person who is
in possession of an item of personal property is, by virtue of that fact, entitled to claim it back from
another person who, not being the owner or deriving title from the owner, takes it out of his possession
without his authority. As Isaacs and Rich JJ said in Russell v. Wilson (supra) at 546-7: "Possession
... is not merely evidence of absolute title: it confers a title of its own" and " possessory title is as good
as the absolute title as against, it is usually said, every person except the absolute owner".
Police officers, in carrying out their duties and undertaking investigations, have authority to seize
and retain property suspected of being stolen or as providing evidence to support the laying of criminal
charges. A careful examination of the authorities applying in this area was undertaken in Chic
Fashions (West Wales) Ltd v. Jones [1968] 2 QB 299. It establishes the position to be as just
stated, but it also shows that there is a limit to the situation in which the police are entitled to retain
property taken under this power. After the purpose of the seizure is completed, the goods are to be
restored to their rightful owner: per Diplock LJ at 316. Denning MR in the same case at 313 said that
a police officer, if justified in originally taking goods, may be unprotected against claims for their
detention, if he retains them "longer than necessary". Isaacs and Rich JJ in Russell v. Wilson (supra)
said at 548, 549, "when the proceedings authorising the seizure are terminated, the powers of retention
by the police are terminated also and as against the prior possessor, the police become wrongdoers".
This last rather dramatic statement is essentially to the same effect as the observations in Chic Fashions
(supra).
Section 39 of the Justices Act and its equivalents, exist for the protection of police officers and
certain other public servants as a provision to facilitate the carrying out of public duties and to regularise
their dealing with goods coming into their possession. Otherwise, if these officers retain goods against
the demand of someone entitled to their return they will be liable for unlawful detention, and also in a
case that is less than clear if they mistakenly return them to someone not entitled to receive them, they
will be liable for conversion at the suit of the owner. The statutory provision, which in one form or other
is of considerable antiquity, provides a "necessary procedure for the protection of the police", per
Denning MR in R v. Uxbridge Justices ex parte Police Commissioner [1981] 1 QB 829 at 834.
It has been observed that the legislation provides "practical machinery to deal with a practical situation"
but does not provide a "final decision between competing claims", Irving v. National Provincial Bank
Ltd [1962] 2 QB 73 at 78. The detail of the jurisdiction which is to be exercised under the section is very sketchily outlined but it has been accepted, and indeed is obvious, that when it is utilised the
applicant police officer or public official should give notice to persons known to be making a claim or
asserting an interest: see e.g. Raymond Lyons and Co. Ltd v. Metropolitan Police Commissioner
[1975] 1 QB 321. With reference to some of the remarks made in that case, it may be added that
although there can be circumstances where conflicting claims are made which are difficult to resolve and
should be left to the civil courts (with perhaps reliance on interpleader), the legislation nevertheless has
such practical utility and relative inexpensiveness, that if situations can reasonably be dealt with under
it, there will obviously be advantages in using it.
To return to the present case, in view of the magistrate's findings, I conclude that it was not
inappropriate to order that the goods should be delivered to Ms Otto in her two capacities. It will not
give her title against any true owner, since if one exists, he can claim from her although only within the
time limit which the statute, as a matter of policy, allows, i.e. the six months referred to under subsection
(3). In the meantime the order made will confer the necessary protection upon the police. As a result
of the police efforts to date, it already appears likely that true owners who are able to assert a superior
claim to Ms Otto will not emerge. It is understandable that the magistrate could have thought it
inappropriate to order delivery to be made to someone other than Ms Otto when he was persuaded
that she had a good title to some part of the collection of goods although he could not specify which
part. To proceed in a way other than he did would have put the one person, whom the magistrate
thought had a good claim to some part of the goods, to the expense of taking further proceedings. It
may also have placed Ms Otto in the position where she would have had to show the title of true owner
to succeed: see Irving (supra). However, unless an attempt were to be made to achieve an
expropriation of Ms Otto's goods because of a suspicion that she and Mr Fee had acquired some of
the total collection by wrongdoing (and this does not seem to be a policy that this section is designed to implement) then an approach which would place possession away from Ms Otto does not seem to
have any particular claim for acceptance. The police have no general discretionary right to confiscate:
cf. the observations of Starke J. in Russell v. Wilson (supra) at 554. Forfeiture orders can be available
in the circumstances specified under the Crimes (Confiscation) Act 1989: (see e.g. sections 9, 14, and
17) but that avenue, to which prescribed time limits apply, was not pursued here. No regulation which
might fall within the scope of subsections (4) and (5) of s.39 was drawn to our attention and any such
regulation would not apply when an order is made under s.39 in response to an application under that
section.
While I think that the magistrate's conclusion that Ms Otto in her two capacities "appeared to
be the owner" might arguably be supportable as a correct conclusion where he was positively persuaded
that she was the true owner of some unspecified part of the total and, apart from the police seizure, had
a good possessory title to the remainder with other claimants absent, it is not necessary to come to a
decision on this point. To avoid what would, in the present circumstances, have been an essentially
sterile debate about the meaning of "owner" in subs.(c) the magistrate should, in making his order, have
explained it in terms such as these: "she, appearing to be the owner of some unspecifiable part of the
goods the subject of the application and the person with a good possessory title to any remaining part".
An order made on this basis would clearly seem to be justified by subs.(d).
Since the appeal is before us and we have heard full argument we should, in the interests of
isolating unnecessary debate, formally amend the order made below by ordering the removal of the
words, "the persons appearing to be the owners" from that order.
There is a further reason why the appeal should not succeed. It should be concluded that Mr
McCullough does not have standing because he should not be regarded as a "person aggrieved". I
accept that for the beneficial administration of justice in this day and age, no restrictive interpretation should be placed upon that phrase. A broader approach to its interpretation can be traced at least to
Attorney General of The Gambia v. N'Jie [1961] AC 617 at 634. Reference may also be made
to the remarks of Gibbs J. in Koowarta v. Bjelke- Petersen (1982) 153 CLR 168 at 184-185 and
the persuasive approach adopted in Cook v. Southend-on-Sea Burrough Council [1990] 2 QB 1.
At 17-18 of the case last referred to, it was accepted that it was not essential that a legal burden should
be placed upon a person by a decision for him to "feel aggrieved": it was sufficient if there was a
decision "against" him. But in that case, a public authority had public duties to perform in the
maintenance of a suitable taxi service and a policy that it was seeking to implement so that it could feel
aggrieved by a decision adverse to the stand it was attempting to enforce in respect of the grant of a
licence. In the present case, although the police officer seeking the order should have felt obliged to give
the greatest assistance to the magistrate when he was deciding upon his order, he had no recognisable
interest in maintaining that one destination for the goods should have been chosen rather than another.
Provided that some order under the section was made, the police would achieve the protection which
an order under the section can confer. From a general policy point of view, it is desirable that
possession of goods seized in execution of police duties should be placed apart in some designated
quarter when the police duties in respect of them have come to an end, and it is desirable also that the
police should not be regarded as having an interest in the choice of destinations. Strict police neutrality
in this respect has a number of advantages. Further, although the Attorney General's interest in the due
administration of justice is a wide one (cf. Attorney General for The Gambia (supra)) and he may well
have had standing to appeal, cf. Attorney-General of British Columbia v. Forseth (1993) 83 CCC
(3d) 178 at 185-6, it cannot be accepted that in making an application under s.39 a police officer
represents the Attorney and similarly in the appeal against the order which in this case has been brought
in the name of the police officer alone. Although the words in s.209 of the Justices Act are wide in their
scope, the appellant officer should not be regarded as a person aggrieved.
Pursuant to s.213(1) of the Justices Act, the order made below should be amended so that it
is ordered that the property in question be delivered into the possession of Debra Patrice Otto in her
personal capacity and as administratrix of the Estate of Brian Fee, otherwise the order to review to be
discharged with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 709 of 1996.
Brisbane
Before Macrossan C.J.
Pincus J.A. 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 - PINCUS J.A.
Judgment delivered 10 December 1996
This is an appeal by way of order to review relating to an order made in the Magistrates Court at Bundaberg on 5 December 1995. The order required that certain property "should be delivered into the joint possession of the estate of Mr Brian Fee and Debra Patrice Otto, the persons appearing to be the owners"; I shall refer to the persons in whose favour the order operated as the respondents. The order is plainly bad, insofar as it mentions the estate of Brian Fee, as the estate is not a person; as will appear, the magistrate made the order under a provision which empowered the court to order delivery of the property to a "person".
The appeal raises what appears to be a point of some practical importance, as to the disposition of goods suspected of having been stolen. Not all the implications of the problem were comprehensively discussed before us. The circumstances are such that the order made seems likely, if allowed to stand, to deprive of their property persons having no notice of the proceedings.
Police seized an enormous quantity of chattels, said to be worth hundreds of thousands of dollars, acting under search warrants. It is no part of the respondents’ case that the seizures were unlawful. When questioned about the chattels the late Mr Fee told police, "I’m a mechanic, I need all that gear for my work". In view of the nature of the property, it is clear that this was a lie. The basis of seizure of the property by the police was the formation of an opinion that it was stolen or unlawfully obtained. Once the property was in the possession of the police they made some attempts to locate the owners, by various means including checking on what were described as the "numerous aliases" which had been used by Mr Fee and the respondent Otto. But most of the property was unclaimed, other than by Otto. Mr Fee was charged with possession of property suspected of being stolen, but the charge was never heard, the reason presumably being that Mr Fee died. The goods were located on land registered in a name which was one of Mr Fee’s aliases. There was a remarkable amount and variety of equipment, according to the list which is in the record - for example, many power tools, a great variety of hardware, camping equipment, household goods, gardening tools, television sets, radios, electrical equipment and so on. The evidence placed before the magistrate showed that a considerable number of the items had been stolen. An example is a number of CIG gas cylinders, which were inspected by B J Crothers and said to be cylinders of a particular type which are not made available to the public or sold. Another is a collection of fish hooks which were stolen from a reef fishing vessel, in 1992; someone had broken in. A third is a collection of property which was it appears stolen from Aussie Auto Trend, a store at Zillmere. But as to the bulk of the property, there was no acceptable evidence of true ownership
The appellant complains that the learned magistrate ordered that all of the property other than some specifically identified as having been stolen, be returned by the police to the estate and to the respondent Otto. The proceedings in the Magistrates Court were begun by an application pursuant to s. 39 of the Justices Act. This section was inserted by the Justice Legislation (Miscellaneous Provisions) Act 1992, in substitution for a previous section to similar effect. Under s. 14C of the Acts Interpretation Act 1954, because this change seems to have been made "for the purpose of implementing a different legislative drafting practice", the "ideas" expressed in the new section "must not be taken to be different merely because different words are used". Although it is difficult to be certain, it appears to me that, so far as is relevant to the present case, it is safe to rely upon the form which s. 39 was given in 1992:
" 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 - make such order in relation to the property as the court considers appropriate.
(2) Subject to subsection (3), the order does not prevent a person from recovering the property by action from the person to whom the property is delivered under the order.
(3) An action for the recovery of the property may only be brought within 6 months after the making of the order.
(4) A regulation may make provision with respect to disposal of property mentioned in subsection (1) if -
(a) the owner has not been ascertained; and
(b) an order of a court of competent jurisdiction has not been made for the disposal of the property.
(5) The regulation may authorise the sale of the property and the application of the proceeds of sale. "
Competency of Appeal
Mr Hanson Q.C. argued for the respondents that the appeal could not be brought under s. 209 of the Justices Act because the appellant, a member of the Police Service, was not a "person aggrieved" within the meaning of that provision. Reliance was placed upon the decision of the Privy Council in Attorney-General of the Gambia v. N’Jie [1961] A.C. 617. In that case the respondent was a lawyer who had been struck off the roll, but on appeal the order was set aside. On further appeal by the Attorney-General it was held that the appellant was a "person aggrieved" and therefore had standing to appeal; the argument to the contrary was that the Attorney had not himself suffered any grievance as no decision had been given against him. The Privy Council, following authority, held that the expression "person aggrieved" is "of wide import and should not be subjected to a restrictive interpretation" (634). The Attorney-General was held to represent the Crown as the guardian of the public interest and it was pointed out that he had a duty to bring before the judge any misconduct of a lawyer warranting disciplinary action.
The appellant in this case is not the Attorney-General but, so far as concerns the issue with which the magistrate was concerned, he occupied a comparable position. This view is consistent with reasons given in the Court of Appeal relating to the corresponding English provision: R v. Uxbridge Justices, ex parte: Police Commissioner [1981] 1 Q.B. 829. Lord Denning M.R. said:
"Viewed in the eyes of the civil law, the police were bailees of the goods. Their
custody was like that of a sheriff - custodia legis."(836)
In the same case Sir Stanley Rees referred to " . . . the exceptional nature of the role of the police as custodians of the property in issue . . . "(848).
I suggest below that, apart from protecting the police, an order under the section can have an important effect, in depriving persons having an indisputable title to property. The police role, as bailees or custodians, should no doubt take account of the interests of those who own or may own the goods and they would be expected to have regard to those interests in approaching the Court. I see no reason why the role of a public official as custodian of the interests of unidentified members of the public, rather than the public as a whole, should be insufficient to confer standing to appeal. Mr Hanson Q.C. for the respondents was inclined to concede that if a magistrate made an order under s. 39 which was plainly wrong it must be capable of somehow being upset; it appears to me that if the order is wrong, whether plainly or not, the same must apply and that the member of the Police Service who has brought the matter before the magistrate may challenge, under s. 209 of the Justices Act, such an order.
The Merits
In summary, the view the magistrate took was that evidence given by the respondent Otto in explanation of the possession of the property in question by the late Mr Fee, the respondent Otto, or both, was generally not credible (some of that evidence was, to my mind, absurd); that there was "a percentage of the property, that almost certainly belongs to the estate of Mr Fee and Mrs Otto"; that it was impossible from the material before him to make any division or apportionment of the property as between that which was owned by the respondents and that which was not; and that:
"Placing some considerable weight on this aspect of ‘best and last possession’, I consider the appropriate order I should make in this case, with some reluctance I might say, is that the property now the subject of this application, apart from that listed below, should be delivered into the joint possession of the estate of Mr Brian Fee and Debra Patrice Otto, the persons appearing to be the owners". (318)
The property excepted from this order was, it appears, successfully claimed by two persons other than the respondents.
In reaching his conclusion the magistrate relied upon the Victorian decision in Field v. Sullivan (1923) V.L.R. 70. On examination, that decision can be seen to have involved the application of the general law, not a statute, to facts rather different from those with which the magistrate was concerned; the case is discussed below. It appears to me that the magistrate was not satisfied that the respondents were the owners, in the ordinary sense, of the property or indeed of any particular part of it. The approach his Worship took was to note that before the police came into possession of it the respondents had it in their possession; his Worship appears to have regarded that possession as prima facie evidence of ownership and, since there was no other claim, he regarded it as proper to regard the respondents as the owners.
The expression "appears to be its owner" in s. 39(1)(c) is no doubt used in recognition of the fact that the material before the magistrate may be incomplete and also perhaps because the magistrate’s view about ownership, formed at that stage, is not immediately binding; the true owner may sue within six months, despite the magistrate’s order. But it is important to note that the order has the effect, subject to the possibility of suit within six months, of giving the person in whose favour it is made a good title. That was pointed out in a decision on the corresponding English statute, Irving v. National Provincial Bank Ltd [1962] 2 Q.B. 73. Bank branches were broken into and money was taken. The plaintiff Irving was convicted of breaking and entering, but that was quashed on appeal; in the meantime an order had been made under the English provision corresponding to our s. 39, i.e., s. 1(1) of the Police (Property) Act 1897. That order was for delivery to the bank, as the apparent owner, of money found on the plaintiff by the police. Discussing the effect of the order, Holroyd Pearce L.J. remarked:
"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." (79)
The point there at issue was whether, as the person in possession of the bank notes at the time when the police took them, the plaintiff was prima facie the owner; it was held in the Court of Appeal that the burden of proof in the action was on the plaintiff and, not being a witness of credit, he had failed to discharge it.
It was pointed out in this Court that a purpose of s. 39 and its analogues elsewhere is to protect the police; that cannot be said to be the sole purpose. Once an order is made, as it was in the present case, in favour of persons appearing to the court to be the true owners, all that has to happen is for six months to elapse and the property is absolutely vested in them; in a case of this kind, and one would suspect in many other cases, this might seem an unjust consequence. Experience suggests that, particularly in relation to thefts of jewellery and the like, police attempts to locate the owners of stolen property often fail, either for a considerable period or completely. It would seem an odd result if the true owner could not recover what had been his or her own property because, perhaps through inefficiency on the part of the police or simple ill-luck, the location of stolen property came to the knowledge of the owner only after the sixth month had expired from the making of a s. 39 order.
Against this background, questions directly relevant to the present case arise. The first is whether the reference in s. 39 to the "owner", in the expression "the person who appears to be its owner", means merely a person with a possessory title, or on the other hand one who is in an absolute sense the owner. That this distinction is one recognised by the law is clear from Russell v. Wilson (1923) 33 C.L.R. 538 at 546 and 547; at those pages a distinction is drawn between a mere "possessory title" and the title of the "absolute owner"; cf., also, what was said about the meaning of "belonging to" in Myerson v. Collard (1918) 25 C.L.R. 154 at 164. The effect of the distinction for present purposes is neatly illustrated in Raymond Lyons & Co. Ltd. v. Metropolitan Police Commissioner [1975] 1 Q.B. 321, a case decided under the English Act of 1897, to which I have referred above. There, the appellant was a jeweller; an expensive ring was left, in suspicious circumstances, for valuation and so the police were contacted and the ring handed to them. The owner could not be located. The jeweller applied for an order that the ring be delivered to it as the "person appearing to the . . . court to be the owner", but that was refused and the refusal was upheld on appeal.
It was clear that there was no question of the jeweller being the owner in an absolute sense; the argument was that the term "owner" means "the person appearing to the court to have the best right to possession in a case before civil courts", such a person having good title against all except the true owner. But the Divisional Court rejected that contention and held that the word "owner" was to be given its "ordinary popular meaning". The test adopted in the Lyons case was applied in Chief Constable of West Midland v. White [1992] 157 J.P. 222 at 224.
The magistrate, who decided this case on the basis of the respondent’s possession, was not referred to these English authorities. If the view adopted in the Lyons case had been applied by the magistrate, his Worship must have come to a different conclusion. It seems clear, reading his reasons as a whole, that he was by no means prepared to find that the respondents were the owners of all or of any particular item of the property, in a true sense, although it appeared that they must have owned some of it.
It is my opinion that the view taken in the Lyons case should be applied to the construction of s. 39. One reason for this conclusion is that otherwise unfortunate results would appear to ensue. It may be repetitive to make the point, but suppose a person is in possession of a considerable quantity of property in circumstances where it seems that much of it was illegally obtained, but only a small part has been claimed by true owners. If a possessory title is sufficient, then, unless the police can prove positively, in respect of a certain article, that it is owned by some person other than the possessor, a magistrate may (if this order is to be upheld) make an order for delivery of all the property to the possessor. The result will be to advance the possessor’s position considerably, and in a quite unjust way, by vesting in him the potential absolute title referred to above; under the Limitation Act 1974, the possessor would be liable, if the goods were stolen, to be sued by the true owner 6 years after demand for return of the property.
Another reason for favouring, as I do, the view taken in the Lyons case, is the presumption against interference with property rights. If s. 39, in speaking of delivery to the person appearing to be the owner, is read as contemplating delivery to a person who can show no more than a possessory title, it interferes with such rights more drastically than it would if the English interpretation were applied. Clear language is necessary to justify a reading of the statute as achieving the taking away of vested rights including of course property rights: Clissold v. Perry (1904) 1 C.L.R. 363, Colonial Sugar Refining Co. Ltd v. Melbourne Harbour Trust Commissioners [1927] A.C. 343, Wade v. N.S.W. Rutile Mining Co. Pty Ltd (1969) 121 C.L.R. 177.
A strong instance of the application of this principle, so far as property rights are concerned, is the decision in Coco v. The Queen (1994) 179 C.L.R. 427. That case concerned the exercise of a different sort of police power and the question was whether general words in a statute made a trespass lawful; it was held, in effect, that an intention to do so must be "clearly manifested by unmistakable and unambiguous language" (437). The right in question there was the right to keep other people off one’s property; a right not to be deprived of ownership of one’s property must be at least as strongly protected.
I turn now, as foreshadowed above, to the Victorian case which the magistrate purported to follow, Field v. Sullivan. The police entered Mr and Mrs Field’s premises and seized property, the ground of the seizure being that they suspected that the property had been stolen. Mrs Field sued the police for damages, in respect of the seizure; the question was whether she had title to sue. She had been discharged, in proceedings brought against her for having in possession goods suspected of having been stolen; Mr Field was convicted of that charge, with respect to some of the goods seized. It was held that at that point, i.e. when she was discharged, the right of the police to keep the goods ceased and Mrs Field’s right to possession operated again (85). The view was taken by the majority that in the absence of evidence of title in a third person, Mrs Field’s right to possession was sufficient to entitle her to succeed in a civil action to recover the goods. The Chief Justice dissented, for reasons which seem convincing; but it is unnecessary to discuss the differences between his Honour’s view and that of the majority. I should add that the majority appeared to assume that Mrs Field did not have to satisfy the Court that her former possession was lawful - a questionable assumption; she did not have actual possession, and so had to prove a right to possession: see Trindade and Cane on Torts (2nd Ed.) p. 138 and Vol.18 American Jurisprudence (2d) p. 200.
The principal points of distinction are two. First, for Mrs Field to succeed in her civil suit it was necessary for her to show only a possessory title, not absolute ownership; the contrary, for the reasons I have attempted to express above, is so here. Secondly, there is no basis for suggesting, in the present case, that at the time the matter came before the magistrate the police were not lawfully in possession of the goods. No submission was made to that effect, nor does any basis for such a contention appear.
A separate question is whether the onus lay on the respondents, in this case, to prove that their possession was lawful. In O’Keefe v. Bunton [1953] V.L.R. 94, a case concerning a Victorian police regulation analogous to that with which we are presently concerned, Field v. Sullivan was relied on by a person, Bunton, found in possession of a substantial quantity of chattels. Bunton said he had a possessory title, but it was held (97) that he failed in his claim because he was unable to prove that he was in lawful possession at the time of the seizure; the judge treated the onus on this issue as being one which fell on Bunton. In the present case, the only evidence adduced to prove that the possession of the respondent had been lawful was that of Otto; it does not seem that the magistrate was prepared to accept it.
In Littlejohn v. Wicks (1990) Tas.R. 34, Underwood J. referred to O’Keefe v. Bunton in a case concerning a claim under a section of the Tasmanian Justices Act 1959 in terms somewhat similar to our s. 39. It was argued (40), as in the present case, that the person from whom the police had seized suspect property was entitled to an order in his favour, based on the mere fact of possession at the time of seizure. There was no evidence of a better title in anyone else.
Underwood J. said:
"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 the 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." (44)
The cautious language used is at least not inconsistent with the view taken, as to onus, in O’Keefe v. Bunton. Underwood J. went on to say in effect that because it was unclear who was entitled to each of the items, it was appropriate to make an order under a Tasmanian provision designed to secure safe custody pending action for recovery of the goods. In our section there is no specific provision for interim custody, but no doubt an order of that kind could be made under (1)(d). I shall return to that point.
My conclusion is that the magistrate’s order should be set aside; it appears to me that the order was made on the mistaken basis that it was sufficient for the respondents to show, as to any item in issue, that they had been in de facto possession of it at the time of seizure by the police and that there was no other claimant. What the magistrate had to consider was whether it appeared, as to each of the items in question, that the respondents appeared to be the owners in the absolute sense I have discussed. His Worship did not, and could not sensibly have, decided that issue in favour of the respondents. As to onus, I would be inclined to follow the view that the onus, even if proof of possessory title was enough, was on the respondents to prove the lawfulness of their possession; but it is unnecessary to reach a decided opinion on that point.
There remains to consider what order if any should be made, in lieu of the magistrate’s
order.
Should the Magistrate have made any order?
To put the matter summarily, the conclusions stated above are that the magistrate was not and could not have been satisfied that the respondents owned all the property or that they were in lawful possession of it; that he wrongly thought that it was sufficient if they showed a possessory title; that on the authorities his Worship should have considered whether it appeared, from such evidence as was available, that the respondents were the absolute owners. It must be acknowledged, however, that the magistrate harbored suspicions and was reluctant to make the order which is presently under attack; the reluctance no doubt stemmed from the inference which seemed inescapably to flow from the circumstances that much, although an unidentified part, of the property had probably been stolen.
The magistrate had a discretion as to whether to make any order at all and there is authority for the view that no order of the kind in issue should be made except in "straight- forward simple cases": R v. Uxbridge Justices (above) at 839. This was hardly such a case. It seems possible that the magistrate was influenced in taking the course he did by the thought that otherwise the question of the right to the property would be left undecided, that the property would be left ownerless.
Perhaps he took that view of the law which Goethe espoused: "The state is interested only in seeing that property is certain and secure; whether it is lawfully held concerns it less": quoted in P Gay, "The Enlightenment"; Norton Library, p. 425. Goods whose true owner cannot be found will remain vested in that person however great the lapse of time, for time does not begin to run against the owner, in detinue, until demand is made: Palmer on Bailment, 2nd Ed. pp. 242, 1431, 1432. But that is subject to statutes which make special provision for the disposition of property in police possession; the principal such statute appears to be s. 10.15 of the Police Service Administration Act 1990 (the regulations are in the Queensland Government Gazette of 16 June 1990, p. 930 of Vol. 294); another example is s. 16 of the Vagrants, Gaming and Other Offences Act 1931. If property is in fact shown to be ownerless, in the sense that it is impossible to identify an owner, then it may be that it will vest in the Crown as bona vacantia, a doctrine which does not apply to goods which are lost or purposely abandoned: Halsbury Vol. 2, para. 1811; Vol. 8, para. 1503 (4th Ed.). Some of the texts place other limits on the doctrine that bona vacantia vest in the Crown, but the better view is that "the King is the owner of every thing which has no other owner": Middleton v. Spicer [1783] (1 Bro CC 201, 28 E.R. 1083); see the discussion in re Wells [1933] 1 Ch. 29 at 43 per Lord Hanworth M.R. at 43, 44;
Lawrence L.J. at p. 49 took a similar view. In the present case, the applicability of this doctrine was not argued; the Crown was not represented.
The remaining question requiring discussion is the possibility of making an order under s. 39(1)(d). Although given in general terms, the power given by this paragraph cannot include power to make an order for delivery of property to a person on the basis of that person’s title or apparent title; that subject is exhausted in para. (c). It was contended by Mrs Clare on behalf of the appellant that the magistrate should have ordered that the applicant or the Crown hold the property; Mrs Clare suggested that if after six months no action was brought the property would be forfeited to the Crown.
One question which arises, as to that submission, is whether the provisions of subss. (2) and (3) would apply to a mere order continuing custody, as opposed to an order made under (1)(c). This was not a point which was debated at the hearing, but it is possible that subss. (2) and (3) were intended to relate only to an order made under para. (1)(c), that is, to one under which property is delivered to a person on the basis that he or she appears to be the owner. At least, it seems likely that subss. (2) and (3) relate only to an order under which property is delivered to someone; so much appears from the terms of subs. (2).
Alternatively, Mrs Clare said, the property should be delivered to the Public Trustee, but I must confess to a lack of certainty about the advantage of such an order.
The assumption the magistrate made was I think that he should do his best to provide a practical solution; but in taking that course his Worship fell into error, in my respectful opinion, for the reasons I have attempted to explain. It appears to me that the best course is to replace the magistrate’s order by one that the property remain in its present custody. I appreciate that such an order will leave the ultimate fate of the property undetermined unless and until some further step is taken - for example, an attempt to sell under s. 10.15 of the Police Service Administration Act 1990, referred to above. But in the circumstances of the present case that appears to be all that can lawfully be done.
It is necessary, in order to regularise the proceedings that the names of the respondents be amended to read "Debra Patrice Otto as administratrix of the estate of Brian Joseph Fee, and in her personal capacity".
I would allow the appeal, make the order nisi absolute, set aside the magistrate’s order and in lieu order that the property dealt with by that order remain in its present custody; I would make no order as to costs.
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 FEEAND IN HER PERSONAL CAPACITY
Respondents
EX PARTE: TERRY McCULLOUGH
REASONS FOR JUDGMENT - THOMAS J
Judgment delivered 10 December 1996
The relevant facts and issues are stated in the respective reasons of the Chief Justice and
Pincus JA. It is necessary for me to express my views upon the principal issues.
1. Standing of the appellant
The appellant police officer was the applicant before the magistrate in an application under s.39
of the Justices Act. The respondent submits that he is not a "person aggrieved" within the meaning of
s.209 of the Justices Act, under which the present appeal is brought.
Whilst the primary aim of a police officer in an application under s.39 may usually be to obtain
relief from liability in relation to the further possession of good seized or otherwise obtained in the course
of a criminal investigation, a s.39 application serves a number of purposes and may achieve a number
of results. One of its consequences may be to deprive a true owner of ownership. The only person
contemplated in such proceedings as protecting the public interest, including the potential interest of
persons who have not yet made claims, is the applicant police officer. The authorities, including Koowarta v. Bjelke Petersen (1982) 153 CLR 168, 184-185, and Cook v. Southend Borough Council
[1990] 2 QB 1, 17-18, suggest a broad approach to the words "person aggrieved" is regarded as
appropriate.
In the present matter the magistrate made orders contrary to those sought by the applicant, the
orders being made in favour of the successful respondent. There is no intention manifest in s.39 that
such determinations are to be final or free from the ordinary appellate process. In my view the applicant
was a person aggrieved by the order that was made and he has the standing to come to this court as
a person aggrieved under s.209.
2. The meaning of the word "owner" in s.39(1)
For the reasons given by Pincus JA, I consider that references to "owner" in this section are
references to the true owner of the particular property. That is what I take to be the "ordinary popular
meaning" preferred by the court in Lyons & Co Ltd v. Metropolitan Police Commissioner [1975] 1 QB
321.
I do not think that this conclusion is weakened by the context of the words "the person who
appears to be its owner." The words "who appears to be" suggest that only a low standard of proof
and persuasion is required; and the words "its owner" mean the true owner of the chattel according to
the common usage of those words.
This means that, on the findings of the magistrate, it was not open to make any order under
s.39(1)(c). It leaves open however the question whether it was appropriate for some order to be made
in favour of the respondent under s.39(1)(d).
3. Multiple chattels
This particular case was concerned with a very large number of chattels found within a barbed
wire compound containing a number of buildings and inhabited by Mr Fee and the respondent. Even
after return of a considerable number of items to the true owners who could be located, there remained
before the magistrate approximately 1200 items, some of which items themselves consisted of numerous
chattels.
The stipendiary magistrate thought that "some" of the goods were owned by the respondent.
That was not a finding in respect of any particular chattel or any particular item. In my view the duty
of the court under s.39, burdensome though it may be in a case involving multiple chattels, is to consider
the question of "ownership" of particular chattels. It may of course be appropriate for items to be
considered in batches, but the end object of the exercise is to decide the apparent ownership and
disposition of particular chattels. If at the end of the day all the magistrate can say is that there must be
some chattels in an inchoate collection which belong to a claimant, although not a single item can be
nominated as apparently owned by that person, he is not able to find ownership in favour of that
claimant of any particular chattel. In the present case, as a result of a global approach (rather than a
distributive one) the magistrate held that the respondent (in her dual capacity) appeared to be the owner
of all the chattels and made an order, the effect of which would almost certainly be to vest ownership
of all the chattels in the respondent.
This was plainly erroneous insofar as the making of any order under s.39(1)(c). It also highlights
the difficulty of making any appropriate order under s.39(1)(d) to the effect that particular chattels
should be directed to go to the respondent. It in my view any order (varied or otherwise) that all the
items should go to the respondent cannot be justified.
4. The order that should now be made
The magistrate erred in his interpretation of the word "owner" in s.39(1), in making an order
under 39(1)(c), in relying (in the circumstances of this case) upon "best and last possession", and in
directing delivery of all the chattels into the possession of the respondent and of the estate of Mr Fee.
This court is therefore free to substitute the order which seems to be appropriate, or alternatively refer
the matter back to the magistrate for decision according to law.
The solution to the present impasse is by no means easy. In my view given the circumstances
of the respondent's possession, her association with the deceased for eighteen years during which it may
be inferred all the property was obtained, and her failure to provide reasonable or acceptable evidence
as to the lawful acquisition of any of it, I do not think it would be a correct exercise of discretion to
order that all the property be delivered to her. In the absence of credible evidence making it "appear"
that the respondent (or initially The Fee) obtained lawful possession of particular chattels, I do not think
that it would be a correct exercise of discretion to order that any of the property be delivered to her.
In the present case an onus lay upon the respondent to prove that the possession was lawful (O'Keefe
v. Bunton [1953] VLR 94). Plainly in the present case the magistrate was not prepared to accept the
evidence of the respondent as establishing lawful possession of any particular item.
In these circumstances I agree with Pincus JA that the appropriate order should be that the
chattels remain in their present custody. I do not presume to suggest the final outcome but note the
possibility of an application being made by the Public Trustee under s.104 of the Public Trustee Act
1978, in pursuance of which any meritorious claims of the respondent could be given effect to.
I agree with the orders proposed by Pincus JA.
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