Plegas, Constantinos v McCabe, R

[1984] FCA 270

Re: CONSTANTINOS PLEGAS
And: R. McCABE; JOHN BURROWS and RAY NEAL
No. G210 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.

CATCHWORDS

Administrative Law - application for judicial review - decision by Australian Federal Police not to return Australian currency and other property seized at airport - no authority from Reserve Bank to take currency out of Australia - criminal proceedings pending - whether decision a proper exercise of power conferred under Australian Federal Police Act 1979 - whether breach of natural justice - whether grounds for relief established - discretion - need for property to be retained as an exhibit in forthcoming criminal proceedings.

Australian Federal Police Act 1979

Administrative Decisions (Judicial Review) Act 1977, paras. 5(1)(b),(c), 5(2)(b),(f),(g), sub-s. 3(1)

Banking (Foreign Exchange) Regulations, regs. 6(1), 42(2)

HEARING

SYDNEY

#DATE 3:8:1984

ORDER

1. The application be dismissed.

2. The applicant pay to the respondents their costs of the application.

JUDGE1

This is an application for an order of review of a decision said to have been made by senior officers of the Australian Federal Police not to return to Constantinos Plegas ("the applicant") $75,980 in Australian currency seized from the applicant at Sydney International Airport on 5 May 1984 when he was about to board an aircraft bound for Greece.

1. The applicant was born in Greece in 1935. He emigrated to Australia in 1962. He worked with the New South Wales Department of Railways and taught himself to speak what he describes as "imperfect English". He married here. There are two children of the marriage. 1973 the applicant and his wife bought a mixed business at 147 Blue's Point Road, North Sydney which they later sold. In May 1980, the applicant and his wife bought a mixed business in Brighton-le-Sands which they sold in December 1980. In May 1981, the applicant and his wife again purchased the mixed business at 147 Blue's Point Road, North Sydney which they have since conducted together.

2. The applicant has returned to Greece on several occasions. He made arrangements to travel by Qantas from Sydney to Athens on 5 May 1984. On that day he travelled to the Sydney International Terminal and met some friends. He took with him a large suit case and two pieces of hand luggage, what he describes as a small valise and a bag. The suitcase was checked in and he proceeded through the migration barriers with the two pieces of hand luggage. A security x-ray machine was operating on the departure level and the applicant placed his hand luggage on the machine. I need not relate in detail the events that then ensued.

3. In the result, officers of the Australian Federal Police seized from the applicant and his hand luggage $75,980 in Australian currency, wrapped in shirts and a tablecloth and enclosed in an envelope. The money was in denominations of$100 and $50 notes. The applicant also had with him $10,000 in travellers cheques. The applicant's passport, airline ticket and $250 in cash were returned to him. He did not leave Australia.

4. On 9 May 1984, a solicitor retained by the applicant wrote to the officer in charge of the Australian Federal Police at Sydney, seeking the return of the $75,980 and the other property seized from the applicant. No charges had at that stage been brought against the applicant. The applicant changed his solicitor and on 15 May 1984 his new solicitors, who are his present solicitors, sent a lengthy telex to the Federal Treasurer, requesting the return of the money and other property. The telex related the facts surrounding the seizure of the money and other property of 5 May, as recounted by the applicant to his solicitors. It asserted that on counsel's advice, there were two grounds only which could support the retention of the property; first, the necessity of preserving evidence to support charges against an accused person and, second, as security to ensure the attendance of an accused at court to answer charges against him. The solicitors proposed to the Treasurer that, with the consent of the applicant, the serial numbers of each of the notes seized from the applicant should be recorded, together with other particulars of the notes; and that the notes be released into the custody of the applicant's solicitors for deposit by them in an interest bearing deposit account. On 30 May 1984, a further telex was sent by the applicant's solicitors to the Treasurer referring to the previous telex and seeking a reply thereto. The Treasurer replied to the two telexes by letter dated 8 June 1984 addressed to the applicant's solicitors. That letter is annexure "D" to the affidavit and relevantly reads as follows:-
   
   

"I refer to your representations of 15 and 30 May 1984 on behalf of your client, Mr. Constantinos Plegas, seeking the return of all or part of the currency and other property seized from Mr. Plegas in relation to his alleged attempt to take $75,980 excess Australian currency out of Australia on 5 May 1984 without the authority of the Reserve Bank.

I am advised that, pending further action regarding the alleged offence, the retention by the Australian Federal Police of the currency seized from Mr. Plegas together with the material in which this currency was allegedly wrapped and sewn is in accordance with the usual practice in relation to such matters. In the circumstances I do not believe that there are any grounds that would justify a departure from this practice. I would also note that it may be necessary for the court to consider whether it should order forfeiture to the Crown of all or any of the articles in question if Mr. Plegas were to be convicted for the alleged offence. In that respect I note that I have given my consent to the institution of indictment proceedings against Mr. Plegas in relation to the alleged offence."

1. The solicitors for the applicant then wrote a letter on 12 June 1984 to Mr. R. McCabe, Assistant Commissioner, Australian Federal Police who is one of the first respondents, requesting the return of the money and articles seized from the applicant and, in substance, relating the matters set out in the telex of 15 May 1984. Proceedings for the return of the money and articles were foreshadowed in the letter. A further letter was sent to Mr. McCabe on 21 June 1984 by the applicant's solicitors requesting, among other things, an early reply to the letter of 12 June.

2. Chief Inspector J.W. Burrows, Chief Inspector of General Policing of the Australian Federal Police, who is the other first respondent, wrote to the applicant's solicitors on 20 June 1984 in these terms:
   
   

"I am in receipt of your letter dated 12 June, 1984.

I understand that the Department of Treasury have communicated with you and I have nothing further to add."

On 4 July 1984 an information was laid before a Justice of the Peace in the State of New South Wales alleging that on 5 May 1984 the applicant, without the authority of the Reserve Bank of Australia, attempted to take out of Australia $75,980 in Australian currency. The information purported to be laid pursuant to regulations 6(1) and 42 of the Banking (Foreign Exchange) Regulations which provide, so far as relevant:

"6(1) a person shall not, except with the authority of the Bank, take or send out of Australia any Australian currency or foreign currency, other than foreign currency obtained under the first preceding regulation."

"The Bank" is defined by regulation 4(1) as meaning the Reserve Bank of Australia. Regulation 42(1) reads:

"42(1) A person shall not contravene or attempt to contravene, or fail to comply with, any of the provisions of these Regulations.

Penalty -

(a) If the offence is prosecuted summarily - a fine not exceeding One thousand dollars or imprisonment for a term not exceeding six months; or

(b) If the offence is prosecuted upon indictment - a fine not exceeding One hundred thousand dollars or imprisonment for a period not exceeding five years.

(2) Subject to sub-regulations (3) and (4) where a person has been convicted by a court of an offence against these Regulations, the court may, if it thinks fit, order the forfeiture of all or any of the articles in respect of which the offence was committed.

...

(6) In this regulation "the articles in respect of which the offence was committed" means the goods, Australian currency, foreign currency or securities in respect of which the offence was committed."

1. A summons was served on the applicant on 5 July 1984 requiring his attendance at the Court ofPetty Sessions, 111 Elizabeth Street, Sydney on 23 July 1984 to answer the information. On that day the applicant appeared in response to the summons and, by his counsel, stated that the charges would be defended. The matter was listed for hearing by way of committal on 7 November 1984. The offence is being prosecuted upon indictment.

2. On 29 June 1984 the applicant filed in this Court an application for an order of review of certain decisions pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). The respondents are Mr. McCabe and Mr. Burrows, described as the first respondents, and Mr. Ray Neal, described in the application as Deputy Crown Solicitor, Commonwealth Attorney-General's office, 111 Elizabeth Street, Sydney, the second respondent.

3. An amended application was later filed pursuant to leave of the Court which describes the decisions under challenge in these terms:
   
   

1(a) Application to review the decision in writing made by Mr. John Burrows, Chief Inspector of General Policing, on 20 June, 1984 and duly authorized by the Assistant Commissioner in respondent to a communication dated 12 June, 1984 addressed to the said Assistant Commissioner requesting the return of $75,980.00 by the applicant's solicitor, and confirming the written statement made on 8 June by the Honourable P.J. Keating, M.P., to retain Australian Bank currency in the sum of $75,980.00 seized from the applicant by Constables Schagen and Davis on 5 May, 1984 at Kingsford Smith Airport prior to the applicantdeparting to Greece for the reasons of "usual practice in relation to such matters".

(b) The failure of the Deputy Crown Solicitor to make a decision to charge the applicant with an alleged breach of Commonwealth Law and institute proceedings for the prosecution thereof."

1. I must say at once that there is no evidence supporting the allegation that Mr. Neal, the second respondent, had any duty to charge the applicant with a breach of Commonwealth law or to institute proceedings for the prosecution thereof; nor is there any evidence that, if there were such a duty, he failed to discharge it. The case against the second respondent is without foundation in law and in fact. It is fundamentally misconceived.

2. As I understand the applicant's case against the first respondents, Mr. McCabe and Mr. Burrows, the decisions impugned by him are those said to have been made by Mr. McCabe and Mr. Burrows in effect declining to return the money and other property seized from the applicant on 5 May 1984.

3. The applicant asserts that the decisions of the first respondents were an improper exercise of the power conferred by the Australian Federal Police Act 1979 pursuant to which they were, so it is alleged, purported to be made. The applicant relies on various matters in support of this assertion.

4. He submitted first, that the first respondents failed to adequately consider relevant matters in the exercise of the power; second, that the first respondents exercised the power without regard to the merits of his case; third, that the exercise of the power was so unreasonable that no reasonable person could have so exercised the power; fourth, that a breach of the rules of natural justice occurred in connection with the making of the decisions in that the applicant had been denied "obtaining the precise policy rules which constitute usual practice in order that he may submit relevant considerations for determination"; fifth, "that the procedures that were required by law to be observed in connection with the making of the decisions were not observed since it is an unreasonable interval of time between the alienation of property and the failure to charge the applicant with an alleged offence or offences of Commonwealth law".

5. The applicant thus invokes principally paras. 5(1)(b) and (e), and 5(2)(b), (f) and (g) of the Judicial Review Act.

6. The respondents submitted that the decisions under attack were not made "under an enactment" within the meaning of that expression in sub-s.3(1) of the Judicial Review Act; but were made pursuant to a common law power vested in the relevant police officers in their capacity as police officers. The respondents submitted secondly, that, if the relevant decisions were made under an enactment, no ground for relief under the Judicial Review Act had been established and thirdly, that, if grounds for relief have been established, the Court in the exercise of its discretion should refuse relief.

7. Whether the impugned decisions were made "under an enactment" within the meaning of that expression in the Judicial Review Act is an interesting question and not without difficulty, but I do not find it necessary to decide the question in view of the conclusions I have reached on the other questions in the case. I regard that first question as entirely open.

8. I propose to assume, however, for the purposes of this case that the decisions were made under the Australian Federal Police Act which is the only statute upon which the applicant relied. The applicant's money and other property have remained in the custody of the Australian Federal Police since it was seized on 5 May 1984. The applicant, by his solicitors, requested the return of that property. Full submissions were put to the Treasurer and the police by telex and letter in support of the request. There is nothing to suggest that imperfect or inadequate consideration was given by the relevant authorities to that request. Indeed, the evidence points to the contrary conclusion. For example, it is plain from the Treasurer's letter of 8 June that the applicant's submissions were considered before it was decided not to return the property to him.

9. The assertion that the retention of the property is unreasonable in view of the applicant's suggestion that the money be returned and invested on interest bearing deposit is untenable. The applicant has been charged with an indictable offence, namely, attempting to take out of Australia Australian currency in the sum of $75,980 without the authority of the Reserve Bank of Australia. If convicted, the applicant faces a fine or imprisonment and the court sentencing the applicant may, if it thinks fit, order the forfeiture of all or any of the Australian currency in respect of which the offence was committed.

10. The Treasurer and the police have expressed the view that the power of forfeiture can only be exercised in respect of the particular bank notes seized from the applicant - see regulations 6(1) and 42(2) of the Banking (Foreign Exchange) Regulations; and that, if those notes are surrendered by the police to the applicant or his solicitor for the purposes of investment, they will lose their identity as the property in respect of which the offence was committed, thereby rendering nugatory the power of forfeiture. There is considerable force in this view. I do not have to decide whether it is correct or not because it is plain to me that it is strongly arguable and could not be said on any view of the matter to be an unreasonable view. The view of the Treasurer and the police that the property be retained so that it may be tendered as an exhibit in the forthcoming criminal proceedings is not unreasonable. Indeed, counsel for the respondents presented a powerful argument that the arrangement suggested by the applicant's solicitors, involving the return of the Australian currency to them and its investment in interest bearing deposit, could not bind the applicant in criminal proceedings against him.

11. There is also much force in the argument of counsel for the respondents that for the police to release the property sought by the applicant's solicitors would constitute a dereliction of their duty. Again, it is unnecessary for this Court to decide these questions because none of the conduct of the respondents impugned by the applicant is unreasonable.

12. I am satisfied that the decisions under attack were made with regard to the particular case of the applicant and that the respondents did not fail to adequately address themselves to relevant considerations in making the decisions. There is no substance in any of the grounds of attack made upon the relevant decisions.

13. The applicant has, therefore, failed to establish any of the grounds for an order of review. The application is dismissed and the applicant is to pay the costs of the respondents. The exhibits may be handed out at the expiration of 21 days from today unless an appeal from the Court's judgment is lodged in the meantime.