Re Falconer - [1999] WASC 104

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE FALCONER; EX PARTE TREBY [1999] WASC 104

CORAM: WHITE J

HEARD: 13 JULY 1999

DELIVERED : 27 JULY 1999

FILE NO/S: CIV 1595 of 1999

MATTER :Application for a Writ of Mandamus against Mr Robert Falconer APM, Commissioner for Police, Peter Roland Coombs and Michael Francis Bourke

EX PARTE
LINDSAY EDWARD TREBY
Applicant

Catchwords:

Prerogative writ of mandamus - Applicant giving money to a police informer for the purpose of arranging bail for the applicant's friend whom he believed to have been arrested in Thailand - Informer not arranging bail but moneys paid to the police instead - Applicant seeking order nisi calling on police to show cause why they should not be directed to pay the moneys to the applicant - Alternative remedies available to applicant

Misuse of Drugs Act 1981 - Whether policy should apply to a Justice of the Peace for an order pursuant to s 28 as to the disposition of the moneys detained pursuant to a holding order granted by a Justice of the Peace in accordance with that section

Whether appropriate to issue order nisi for the relief presently sought

Turns on own facts

Legislation:

Misuse of Drugs Act 1981

Result:

Application dismissed

Representation:

Counsel:

Applicant: Mr A A Jenshel
Respondent: Ms L G Jenkins

Solicitors:

Applicant: Pryles & Defteros
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Della‑Vedova v State Energy Commission of Western Australia (1990) 2 WAR 561
Ex Parte McKenna (1989) 2 WAR 401
Ghani v Jones [1970] 1 QB 693
Gollan v Nugent (1988) 82 ALR 193
Inland Revenue Commissioners v Rossminster [1980] AC 952
Island Way Pty Ltd v Redmond [1990] 1 Qd R 431
Johnston v Hogg (1883) 10 QBD 432
King-Brooks v Roberts (1991) 5 WAR 500
Ozzie Discount Software (Aust) Pty Ltd v Muling (1996) 86 A Crim R 387
Re Capobianco; Ex parte Castelli, unreported; SCt of WA; Library No 980567; 25 September 1998
Scott v Gere [1988] WAR 377
Talbot v Lane (1994) 14 WAR 120

Case(s) also cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Dickinson v Perrington [1973] 1 NSWLR 72
Drummoyne Municipal Council v Marshall (1989) 68 LGRA 258
Ex parte Wright; Re Concord Municipality (1925) 7 LGR (NSW) 79
London Passenger Transport Board v Moscorp [1942] AC 332
Metzger v DHSS [1977] 3 All ER 444
R v Kent Police; Ex parte Godden [1971] 2 QB 662
Rediffusion (Hong Kong) Ltd v A-G of Hong Kong [1970] AC 1136

WHITE J: The applicant seeks an order nisi for the issue of a writ of mandamus. His affidavit in support of the application shows he is a prisoner whose address is C/- Karnet Prison Farm, Kinsbury Drive, Serpentine.
The applicant says in his affidavit that in or about May 1990 he became aware that a Mr John Ryan had been arrested for importing heroin into Australia.
He says that one Kim Philip Bishop approached him at about that time and informed him that Ryan had been caught in Thailand and that, if the applicant gave him, Bishop, some money, he would go to Thailand and would arrange bail for Ryan. The applicant said in his affidavit:
"5. In or about May 1990, I gave $10,000.00 in cash to a Mr Lawrence Gerard Billick with instructions to provide the money to Bishop so as to obtain bail for Mr Ryan's (sic). A few days later, I gave a further $10,000.00 directly to Bishop for the same purpose."
Later, the applicant learned that Ryan was in prison in Perth, not in Thailand. The $20,000 had not been used to obtain bail for Ryan and it has not been returned to him.
During May 1997, the applicant was charged with three counts of importation of heroin, two counts of possession of imported heroin and conspiring to import heroin, which charges related to the applicant's relationship and dealings with Bishop and Ryan during 1989 and 1990. In October 1987, the applicant was discharged at the committal hearing in relation to those offences as the Director of Public Prosecutions tendered no evidence in support of the charges. Following that discharge, the applicant's solicitor applied to the presiding Magistrate for an order that the $20,000 paid by him to Bishop be returned to the applicant and was told by the learned Magistrate that any application for the forfeiture of the money should be made within three weeks.
In a letter to the applicant's then solicitors dated 19 May, 1996, Detective Inspector Lavender of the Drug & Organised Crime Division said, inter alia:
"As you are aware, Lindsay Edward TREBY, 47 years of Waterford was arrested and charged on May 15, 1997 with several drug related offences.
Included in these offences are three counts of charges purporting the import of heroin, two counts of possession of imported heroin and a conspiracy to import heroin.
It will be alleged that the seizure of the $19,800 by Detectives COOMBS and BOURKE in 1991 were funds in the possession of another person who had been instructed to purchase heroin on behalf of your client Lindsay E TREBY.
In the circumstances, the issue of ownership of the monies will be determined by a court in due course."
On 16 September 1991, a Justice of the Peace granted a holding order in the following terms:
"I, JOHN JOSEPH MALEY of PERTH being a Justice of the Peace and being satisfied on the application of the following Police Officer SENIOR DETECTIVE PETER ROWLAND COOMBS that there are reasonable grounds to suspect that the following thing (not being a prohibited drug or prohibited plant) NINETEEN THOUSAND EIGHT HUNDRED DOLLARS ($19,800-00) seized or acquired and detained under Section 26 of the Misuse of Drugs Act 1981 is a thing referred to in paragraph (a) (b) or (c) of Section 23 (1) of that Act, hereby grant to that Police Officer/Approved person a Holding Order authorizing the continued detention of that thing for the period specified in Section 28(1) of that Act."
On 20 November 1997, the applicant's solicitors wrote to the Director of Public Prosecutions pointing out that any application for forfeiture should be made within three weeks of the preliminary hearing, that is, no later than 8 December 1997. The Crown Prosecutor replied on behalf of the Director of Public Prosecutions by letter dated 27 November 1997, saying, in part:
"This office has now considered this matter and is of the view that the holding order obtained by Detective Coombs, in the circumstances of the case, was neither appropriate nor necessary. Accordingly, I have advised Detective Swanell of the Organised Crime Squad, who has continuing carriage of this matter, that no application pursuant to section 28(3) of the Misuse of Drugs Act 1981 can or should be lodged in respect of the money the subject of the holding order.
I have further advised Detective Swanell that, in the view of this office, the $19,800 was lawfully received by police and there is no basis upon which it should be returned to Mr Treby."
The respondent contended that the property in the moneys passed to Bishop upon the applicant handing them to him and to the State upon Bishop delivering the moneys to the police officers. An alternative possibility is that the funds were handed to Bishop as trustee for the applicant, with the applicant retaining the beneficial interest therein.
Counsel for the applicant suggested that it was possible that the applicant has a claim against the police either as constructive trustees on the basis that they received the moneys from Bishop with knowledge that they were impressed with a trust in favour of the applicant or that the police had obtained the moneys by fraud or by deceit - on the basis that Bishop may have been an agent of the police. All of that is speculative and not based upon express evidence.
In May 1997, the applicant was charged with a number of drug‑related offences said to be connected with the applicant's relationships and dealings with Bishop and Ryan. In October 1997, the Director of Public Prosecutions tendered no evidence against the applicant and the charges were discharged.
There has been substantial subsequent correspondence between the applicant's solicitors and the police and the State Ombudsman in connection with the applicant's unsuccessful attempts to obtain repayment of the $20,000 (or $19,800).
The applicant now applies for an order nisi requiring the Commissioner of Police and two named detectives to show cause before the Full Court why a writ of mandamus should not be issued requiring them to return to the applicant the sum of $19,800, alternatively for a declaration that that sum should be delivered up to the applicant or alternatively a declaration that that sum is held upon a constructive trust for the benefit of the applicant.
An order nisi for a writ of mandamus should be granted only if on a perusal of the material then available the application discloses an arguable case for the relief claimed: Talbot v Lane (1994) 14 WAR 120 at 152. The court will not go into the matter in depth but will grant the order nisi if, on a quick perusal of the material then available, it thinks that it discloses what might on further consideration turn out to be an arguable case: Re Capobianco; Ex parte Castelli, unreported; SCt of WA; Library No 980567; 25 September 1998 per Parker J. In King-Brooks v Roberts (1991) 5 WAR 500 at 515, Malcolm CJ said, at 515:
"It is of the essence of the writ or order of mandamus that it will issue to command the performance of a public duty: see Ex parte Wallace & Co (1892) 13 LR(NSW) 1 at 9."
The applicant contends that the circumstances of the receipt by the police of the $19,800 gave rise to a duty to return it to its owner. The money was given to the police by Bishop - so much is common cause. There is a factual dispute as to the circumstances and purpose for which the money was given to Bishop. The applicant submits that the "police did not have the power to seize the sum either at common law or pursuant to statute". He goes on to submit that "if police receipt of it was not in fact a 'seizure', they did not have the power to retain it beyond the applicant's request that it be returned and after there ceased to be any prosecution connected with the sum".
It has been contended by the respondent that there was no seizure of the moneys in question by the police. Accordingly, it is submitted, there was no forcible taking of possession necessary for a "seizure": see Johnston v Hogg (1883) 10 QBD 432 at 434, and Scott v Gere [1988] WAR 377, at 386.
Reference has been made by the applicant to a number of authorities, said to support the applicant's claim by analogy. Those authorities are: Ghani v Jones [1970] 1 QB 693, Inland Revenue Commissioners v Rossminster [1980] AC 952; Gollan v Nugent (1988) 82 ALR 193; Island Way Pty Ltd v Redmond [1990] 1 Qd R 431 and Ozzie Discount Software (Aust) Pty Ltd v Muling (1996) 86 A Crim R 387. None of those cases involved a question of mandamus and none required a determination by the Court as to whether the facts gave rise to a public duty that would be enforceable by a writ of mandamus.
Mandamus lies for breach of a public duty and does not lie in regard to the exercise of private duties (Seaman: Civil Procedure in Western Australia, par 56.0.2, citing Della‑Vedovav State Energy Commission of Western Australia (1990) 2 WAR 561 at 568).
Unless, therefore, the applicant can point to a public duty which the police are said to have breached, the application for the issue of an order nisi must, in my judgment, fail.
This requires a consideration of the effect of the Misuse of Drugs Act 1981 ("the Act").
Notwithstanding the opinion expressed by the Crown Prosecutor in the letter dated 17 July 1998 which I have quoted above, it is the fact that a Justice of the Peace, being satisfied on the application of Senior Detective Coombs that there were reasonable grounds to suspect that the $19,800.00 "seized or acquired and detained under section 26 of the Act," granted a holding order authorising the detention of the moneys in question for the period mentioned in s 28(1) of the Act. That holding order has not been revoked or set aside nor has it been declared invalid.
The following sections of the Act appear relevant:
"23. Powers of police officers when things suspected of being used in commission of offences
(1) Subject to this section, if there are reasonable grounds to suspect that any thing whatsoever ¾
(a) with respect to which an offence has been, or is suspected to have been, or may be committed;
(b) which has been, or is suspected to have been, or may be used for the purpose of committing an offence; or
(c) which may provide evidence in respect of an offence,
is in the possession of a person, a police officer may, using such force as is reasonably necessary and with such assistance as he considers necessary, stop and detain the person and search him together with any baggage, package, vehicle or other thing of any kind whatsoever found in his possession, and for that purpose may stop and detain any vehicle."
"28. Disposal of things other than prohibited drugs and prohibited plants
(1) If, in the case of a thing (other than a prohibited drug, prohibited plant or dangerous substance) which is seized or acquired and detained under section 26 a justice of the peace is satisfied, on the application of a police officer or approved person, that there are reasonable grounds to suspect that that thing is a thing referred to in section 23 (1) (a), (b) or (c) grant to the police officer or approved person a holding order authorizing the continued detention of that thing until, the investigation of the case concerned having been completed, that thing is dealt with under subsection (3).
(2)A police officer or approve person to whom a holding order has been granted shall, if it is practicable to do so, forthwith serve or cause to be served a copy of the holding order, together with a notice setting out the substance of subsection (3), on any person claiming to have a financial or other interest in the thing to which the holding order relates (in this section called 'the claimant').
(3) If, in the case of a thing to which a holding order relates ¾
(a) no person is tried with the commission of an offence in relation thereto, a police officer shall apply to a justice of the peace for an order in respect of that thing and the justice of the peace; or
(b) a person is tried with the commission of an offence in relation thereto, the court which so tries the person,
may, after having given the claimant an opportunity to show cause why that thing should be released to him, order that that thing ¾
(c) be released to the claimant;
(d) be destroyed; or
(e) be forfeited to the Crown,
or make such other order as the justice of the case requires."
In my opinion, in the circumstances, a public duty is imposed by s 28 of the Act upon Senior Detective Coombs to apply to a Justice of the Peace for an order in respect of the $19,800. Mandamus might well lie to compel the performance of that duty. However, that is not the order sought by the applicant nor has this been the subject of argument before me.
An application for a prerogative writ should not be resorted to when critical findings of fact, which cannot be made on affidavit evidence are required to be made and when an alternative remedy is clearly available (see, for example, Ex Parte McKenna (1989) 2 WAR 401 at 414). In this case, the applicant does seek in the alternative declaratory relief. The affidavit evidence is not such as to warrant the grant of such relief as matters presently stand.
This is not a case in which it would be appropriate to issue a rule nisi as requested.
In the result, the application is dismissed.