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Russell v Wilson

Russell v Wilson

Case [1923] HCA 60 13 December 1923

Appeal

Limitation Periods

Statutory Construction

Remedies

Negligence & Tort

Statutory Interpretation

Commercial Law

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33 CLR 538

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Gaming and Betting-Seizure of money in gaming house-Conviction of person keeping

house--Appeal to Court of Quarter Sessions from conviction dismissed-Right of police to keep money-Recovery of money seized - Action of detinue- Limitation of action-Evidence of Possession-Gaming and Betting Act SYDNEY,

1912 (N.S.W.) (No. 25 of 1912), secs. 40, 42, 44, 45, 48, 58.* Nov. 27, 28;

The appellant, a police officer, purporting to act under authority conferred on him by a search warrant issued under sec. 40 of the Gaming and Betting Act 1912 (N.S.W.), entered the premises of the respondent and seized certain money and valuable securities which had been received by the respondent in con- nection with a business of promoting sweeps on horse-racing carried on by him upon those premises. The respondent was subsequently prosecuted and convicted, on a charge under sec. 42 of the Act, of using his premises for the * Sec. 40 of the Gaming and Betting

racing or betting found in such house, Act 1912 (N.S.W.) provides that " (1)

room, office, or place. Any justice upon complaint made

Every special warrant shall be in the on oath that there is reason to suspect

form contained in the Second Schedule any house, office, room, or place to be

hereto, or to the like effect." Sec. 42 kept or used as a betting-house or office

(2) provides that "No house, office, contrary to this Part of this Act may,

room, or other place shall be opened, by special warrant under his hand,

kept, or used at any time for the purpose authorize any constable to enter into

of any money or valuable thing being such house, office, room, or place and

received by or on behalf of the owner, arrest, search, and bring before any two

occupier, or keeper, or any other person justices all persons found therein, and

whatsoever, as or for the consideration seize all moneys, coin, notes, cheques,

for (a) any assurance, undertaking, IOU's, or other writings for securing

promise, or agreement, express or im- the payment of money, and all lists,

plied, to pay or give thereafter any cards, or other documents relating to

money or valuable thing on any event

33 CLR 539

purpose of money or valuable thing being received by him as a consideration for a promise to pay or give money or valuable thing on an event or contin- gency of or relating to a horse-race. An appeal to the Court of Quarter Sessions by the respondent against that conviction was dismissed. No order for forfeiture of the money or valuable securities was made under sec. 44 of the Act. After the dismissal of the appeal a demand was made by the respon- dent for the return of the money and valuable securities, but was refused. In an action by the respondent against the appellant for detinue,

Held, that assuming the seizure to have been lawful, the respondent was entitled to recover…

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.

Continue reading Russell v Wilson

Details

AGLC: Russell v Wilson [1923] HCA 60
Case: [1923] HCA 60
Decision Date: 13 December 1923

CaseChat Overview and Summary

The case of *Russell v Wilson* concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute arose when a police officer, the appellant, seized money and valuable securities from the respondent's premises under a warrant issued pursuant to the *Gaming and Betting Act 1912* (N.S.W.). The respondent had been convicted of using his premises for promoting horse-racing sweeps, and his subsequent appeal against this conviction was dismissed. No order for forfeiture of the seized items was made. The respondent then demanded the return of the money and securities, which was refused, leading to an action in detinue by the respondent against the police officer.

The legal issues before the court were whether the respondent, despite his conviction for an unlawful activity, was entitled to recover the seized money and securities, and whether his action for detinue was commenced within the time prescribed by the Act. Specifically, the court had to consider the effect of the respondent's conviction and the provisions of the *Gaming and Betting Act* on his claim to ownership of the seized property, and whether the police officer's refusal to return the items constituted a sufficient basis for the detinue action within the statutory limitation period.

The court reasoned that even if the seizure of the property was lawful, the respondent was entitled to its return. The court found that the *Gaming and Betting Act* did not prevent the property from passing to the respondent, and in fact, section 48 of the Act seemed to assume that property would pass to the recipient. Furthermore, the court held that the action was brought within the three-month time limit stipulated by section 58 of the Act, as the cause of action accrued upon the refusal to return the property after the dismissal of the respondent's appeal. The court affirmed the principle that possession confers title which yields only to a superior title, and in this instance, no superior title had been established by the appellant.

The High Court dismissed the appeal, affirming the decision of the Supreme Court of New South Wales. The respondent was therefore entitled to recover the money and valuable securities that had been seized from his premises.

Orders