Stephens v Williams[2008] QDC 320

DISTRICT COURT OF QUEENSLAND

1. [1]
   This appeal concerns an order made by her Honour Magistrate Fingleton in the Caloundra Magistrates Court on 21.5.2008 that a Toyota Landcruiser then in the possession of the Queensland Police Service and under the control of Senior Constable Mark Williams be delivered to Caloundra Wreckers and in particular its manager Mr. Reid.

2. [2]
   Her Honour’s order came after a hearing on that day on an application by S.C. Williams pursuant to s. 694 of the Police Powers and Responsibilities Act 2000 which is (relevantly) in these terms:

3. [3]
   Senior Constable Williams had given notice pursuant to sub-section 3 to Barry John Ensell Stephens and Caloundra Wreckers both of whom appeared before her Honour to claim ownership of the vehicle.

4. [4]
   Mr. Stephens has appealed to this Court against her Honour’s decision and appeared in person to represent himself, and both Mr. Reid (junior) and his father appeared on behalf of Caloundra Wreckers. Mr. Stephens has been assisted by lawyers from QPILCH Self-Representation Civil Law Service in preparing his Notice of Appeal.

5. [5]
   The grounds set out in his appeal notice filed 18.6.08 are as follows:

6. [6]
   He advanced a further ground at the hearing of the appeal which in effect amounts to an allegation that her Honour did not afford him procedural fairness at the hearing in that he was not given copies of any of the affidavits and/or statutory declarations filed in support of the application and relied upon by her Honour in reaching her conclusion.

7. [7]
   The originating application made by Senior Constable Williams was filed in the Caloundra Magistrates Court on 26.2.08 together with Affidavits by the applicant, Heather Blong, a Senior Constable of Police based at Nambour, and Statutory Declarations of Mr. Reid of Caloundra Wreckers and Peter Mann (Team leader, presumably from Maroochy Shire Council).

8. [8]
   The application refers only to the affidavit of the Police Officers and states that it is to be served on Mr. Stephens and Caloundra Wreckers.

9. [9]
   As far as I can ascertain no affidavits of service were filed however Mr. Reid and Mr. Stephens both appeared and represented themselves before her Honour and participated in the proceedings.

10. [10]
    On the 12^th March 2008, Mr. Stephens filed a written outline of submissions together with a 20 page affidavit of himself sworn on the 11^th March 2008. There is no doubt that her Honour had read and considered that affidavit at the time of the hearing. Mr. Stephens told me that he did not have any of the affidavits or statutory declarations at the time of the hearing and that he had been advised that this rendered her Honour’s decision “illegal”.

11. [11]
    Before dealing with this additional ground, I will set out a brief history based on what appears to be uncontentious facts.

The history of the vehicle

12. [12]
    In 2002, Mr. Stephens purchased a White Toyota Landcruiser Registration Number 152 GNW from a car yard in a false name. The vehicle was registered in Queensland on 15.4.2002 in his correct name at his address of 16 Jethro Street, Aspley which has remained his address at all material times.
13. [13]
    The vehicle was reported stolen on or about 24.5.2002 and the vehicle’s registration expired on 14.10.2002.

14. [14]
    On 10 November 2005 in the District Court of Queensland, Mr. Stephens pleaded guilty to one count of attempted fraud in that “on 25 May 2002 at Brisbane he attempted to obtain dishonestly a sum of money from NRMA Insurance Ltd, and that the intended yield to him from the dishonesty was $23,000.”

15. [15]
    The circumstances of the attempted fraud are set out in the judgment of Jerrard JA [at para 3] in R v Stephens  [2006] QCA 123 in which Mr. Stephens successfully appealed against the sentence imposed on him in the District Court:

“He had been self-employed in the motor vehicle retailing industry throughout nearly all of his working life, apart from a three year period where he ran a small cut price store. The circumstances of his offence were that he had arranged in March 2002 to insure a vehicle with the NRMA, which he purchased under a false name on 26 March 2002 for $12,000. A month later he amended the policy to add that vehicle to it, attempting to insure it for $35,000. Eventually he and the NRMA agreed on a value of $28,000. On 24 May 2002, a month later, he reported the vehicle as stolen.

The NRMA did not pay out on the claim, and in March 2003 the registration label of the vehicle was found in his office. The Crown submitted on the sentence that the vehicle had never in fact been stolen at all, and that was not contradicted by any submissions made by counsel on behalf of Mr Stephens to the learned sentencing judge.”

16. [16]
    Mr. Stephens does now complain about the circumstances which lead to his late plea of guilty as he did before the Court of Appeal but he is bound, as am I, by his conviction.

17. [17]
    It is common ground that the White Toyota was the vehicle insured with NRMA by Mr. Stephens.

18. [18]
    In July 2006, the vehicle was parked outside the Commonwealth Bank for 2 weeks and appeared to be abandoned. It still had the original registration plates attached.

19. [19]
    Senior Constable Blong made enquiries on 26^th July and ascertained that Mr. Stephens was the registered owner. She gave oral evidence at the hearing that on 20.7.06 she also obtained details of Mr. Stephens’ Aspley address and both his mobile and landline telephone numbers. She says that she was unable to contact Mr. Stephens on either of his telephones and she didn’t think to write to him at his address. Her checks did not show that the vehicle was stolen. She seized the plates having ascertained that the registration had expired.

20. [20]
    As is the procedure in relation to abandoned vehicles she caused the Maroochy Shire Council to be given notice. Mr. Mann, in his statutory declaration, sets out the process whereby the vehicle was then impounded by Clayton’s Towing on Council’s behalf. The local authority is empowered by s 100 of the Transport Operations (Road Use Management) Act 1995 to remove certain vehicles from the road and detain them in a place for safe keeping. The section further empowers the local authority to sell the vehicle by public auction after carrying out various checks and advertising and the vehicle was subsequently sold to Caloundra Wreckers for the sum of $8400 on 4.2.2007.

21. [21]
    Caloundra wreckers then repaired the vehicle to a roadworthy condition with a view to having it re-registered and sold. It expended $4,101 on parts and labour.

22. [22]
    Caloundra Wreckers then sold the vehicle for $15,000 subject to it being re-registered. When Caloundra Wreckers attempted to register the vehicle with Queensland Transport it was informed that according to their records it was reported as a stolen vehicle.

23. [23]
    It appears that a simple Queensland Transport search known as VCheck  clearly showed that the vehicle was reported stolen. VCheck was launched in September 2005 i.e. well prior to the vehicle being located in Nambour. As at May 2007, when Caloundra Wreckers attempted to register the vehicle, not only had the police failed dismally to make proper searches, or to contact Mr. Stephens whose address was readily obtainable; so had the Council although it relied in turn on the police who told it that the vehicle was not reported stolen.

24. [24]
    In what can be described as an almost “Keystone Cops” conclusion, Queensland Transport then notified police of the results of its search and Senior Constable Williams was detailed on 24.5.2007 to attend Caloundra Wreckers and take possession of the vehicle which he did! Caloundra Wreckers was a completely innocent third party bona fide purchaser for value who had, in good faith, improved the vehicle and were now out of pocket by $12,400.

25. [25]
    Senior Constable Williams did not make the application pursuant to s. 694(2) until the 26.2.2008. The vehicle has deteriorated to a point where its value is probably below the purchase price paid by Caloundra Wreckers.

26. [26]
    Her Honour made some understandable criticisms of the police and local authority however she was not diverted by this from considering the application on its merits.

Discussion

27. [27]
    Her Honour’s task was to determine “who is the owner” of the vehicle.

28. [28]
    S. 694 replaced and widened the procedure governed by the now repealed s. 39 of the Justices Act 1886 (Qld) which required the Magistrate to order the delivery of the property “to the person who appears to be its owner”.

29. [29]
    There is no developed jurisprudence in relation to s. 694, however s. 39 has been judicially considered on many occasions.

30. [30]
    In Otto (1996) 90 A Crim R 492 three members of the Court of Appeal considered the meaning of “owner” in s. 39.  As Thomas J (as his Honour then was) observed, the use of words “appears to be owner” suggest only a low standard of proof and persuasion is required. All members of the Court held that the word “owner” in s. 39(1) refers to “the true owner of the particular property” according to its “ordinary popular meaning” of the word: Raymond Lyons & Co v Metropolitan Police Commissioner [1975] QB 311. Depending on the circumstances of the case this could include possessory title through to the absolute owner. The Chief Justice [at 496} observed:

“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 the 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 of deriving title from the owner, tajes it out of his possession without his authority. As Isaacs and Rich JJ said in Russell v Wilson (at 546-547): “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.”

31. [31]
    The same approach should apply to the meaning of “owner” in s. 694(2).

32. [32]
    I will deal firstly with the proposed new ground that her Honour denied Mr. Stephens procedural fairness.

33. [33]
    Proceedings under s 694 are unlike the ordinary adversarial proceedings undertaken in Courts to resolve disputes.

34. [34]
    Mr. Stephens says that he did not have copies of the affidavits and statutory declarations filed in support of the application. s 694(3) requires that the police officer “give…a copy of the application” and notice of the time and date of hearing to anyone he “reasonably believes” has an interest in the property.

35. [35]
    The two police officers were called to give evidence and Senior Constable Williams read his affidavit into the record and Mr. Stephens was given the opportunity to cross-examine him. Her Honour did not give Mr. Stephens the opportunity to cross-examine Senior Constable Blong however her Honour did so adequately in my view so as to bring out matters in Mr. Stephens favour.

36. [36]
    Even accepting that Mr. Stephens was not provided with copies of the actual sworn statements of witnesses, he appeared nevertheless to have a clear understanding of what happened to the vehicle after it was reported stolen when he swore his affidavit on 11.3.08 which her Honour clearly took into account.

37. [37]
    Mr. Stephens also elected to give evidence and he was given the right to make submissions.

38. [38]
    In my view he was treated fairly by her Honour and given a proper opportunity to present his case. He is obviously an intelligent man with a rather cavalier attitude to Courts, and there is no suggestion (as he implied) that he was overborne by her Honour or treated unfairly by her. There is no merit in this ground.

39. [39]
    Mr. Stephens’ complaints focus on the failure by the police and local authority to make adequate searches after the vehicle was impounded and prior to its sale.

40. [40]
    In my opinion these factors do not assist in deciding (as at the 21.5.08) “who is the owner” of the vehicle. If anyone should be aggrieved by these apparent failures it is Caloundra Wreckers.

41. [41]
    By the 21.5.08, there were two competing claims, and her Honour preferred that of Caloundra Wreckers. Her Honour was concerned about Mr. Stephens claim to ownership in light of his conviction for attempted fraud, and she was right to be concerned.

42. [42]
    There are many features about Mr. Stephens claims which are concerning, and more now as a result of his affidavit and sworn evidence before her Honour. He claims that the vehicle was stolen. He pleaded guilty to attempted fraud and the gravamen of the offence was that the vehicle had never in fact been stolen which he did not dispute through his Counsel at the sentencing hearing.

43. [43]
    There is nothing in her Honour’s reasons to suggest that she erred in her approach to the competing claims to ownership. On the one hand, she had Caloundra Wreckers who were bona fide purchasers for value without notice who had improved the vehicle in good faith. On the other she had Mr. Stephens who was the person who had registered the vehicle in 2002, whose conduct in relation to it was shrouded in dishonesty and deceit and whose evidence appeared to contradict the circumstances of his offending set out in the Court of Appeal judgment.

44. [44]
    Her Honour was right to favour Caloundra Wreckers on the balance of probabilities.

45. [45]
    The appeal is dismissed.