Fantakis v Commissioner of Police

Supreme Court of NSW|2013-05-30|Before: Adamson J

Introduction 1The plaintiff challenges the decision of McGlynn LCM made on 10 December 2012 to refuse his application under s 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (the Act) for return of goods seized by police on 13 and 14 August 2011. 2He appeals to this Court pursuant to s 52 of the Crimes (Appeal and Review) Act 2001, which is made applicable by reason of s 70 of the Local Court Act 2007. He also seeks relief pursuant to s 69 of the Supreme Court Act 1970.

The Facts 3On 11 August 2011 Sam Karmas was reported missing from Punchbowl in suspicious circumstances that led police to believe that he may have been murdered. No body has yet been located. Police commenced a homicide investigation and have identified the plaintiff as a person of interest. 4On 13 August 2011 the police stopped the plaintiff, who was driving a Ford transit van of which he was the registered owner. Police seized the van for forensic testing purposes. 5On 14 August 2011 police executed warrants, one of which was a crime scene warrant at the plaintiff's home in Punchbowl. Police seized 2486.4 g of cannabis and $5000 cash. They also seized various tools and a White Subaru Forester. The items found inside the Subaru included a balaclava, a torch, a rope, a bottle of magic cleaner, black and white gloves, a wooden pole and the blade of a machete. The Subaru was not, at the time of its seizure, registered in the plaintiff's name but it was subsequently transferred to the plaintiff prior to the hearing in the Local Court. 6By application filed in the Local Court at Burwood on 6 November 2012, the plaintiff sought return of the following property: (1)1997 Blue Ford Transit Van; (2)White Subaru 4x4 Forester; (3)Tools of trade contained in the two vehicles and at the plaintiff's home; and (4)$5000 in cash, said to be monies acquired from the sale of a home. 7The plaintiff identified the grounds in the application filed: Applicant has not been charged for any of the allegations for which these items were seized. Investigation began August 2011 i.e. 14 months. Vehicles and tools are vital resource of applicant's business, which has suffered financially due to duration of resources having been in custody. The $5,000 was proceeds from the sale of applicant's home. The financial bank statement verifies withdrawal from NAB. Funds not associated with any proceeds of crime. 8The matter was mentioned on 13 November 2012 and listed for hearing on 10 December 2012. 9The prosecutor informed the Magistrate that the cash, item (4) above, was not linked to the homicide investigation but related to the charges that were subject to Court Attendance Notices (CANs) that had been served on the plaintiff that day. These charges were: (1)Supply indictable quantity cannabis (2486.4 g), contrary to s 25(1) of the Drug Misuse and Trafficking Act; and (2)Possess prohibited weapon (extendable baton) contrary to s 7(1) of the Weapons Prohibition Act. 10The prosecutor informed the Magistrate that items (1)-(3) related to the continuing investigation into the homicide but that no charges had yet been laid. The prosecutor told the Magistrate of his instructions from the officer in charge of the investigation, who was in Court, that there was a prospect that the items would be subjected to further testing overseas and that whether this was to occur would be considered at a meeting on 18 December 2012. The prosecutor also told the Magistrate that forensic evidence found in the Ford van supported the prosecution case. The prosecutor also submitted that because the suspected offence, murder, was a very serious one and no body had been recovered, the length of the investigation did not lead to any inference that it was being unduly prolonged, or ought to have been concluded. 11The plaintiff submitted that he did not have a criminal record and that he was looking after property for his father and his brother who had a history of drug cultivation. He had himself received death threats from the Sam Karmas' two brothers. He said that Sam Karmas had been in both the Ford van and the Subaru in the past which explained the presence of his DNA in the vehicles. He contended that if there were grounds to charge him, he would already have been charged. He complained about being served with CANs relating to possession of drugs on the day of his s 219 application. He also submitted that the police did not have any grounds to commence the homicide investigation into the death of Sam Karmas, whom he referred to as the deceased. He also submitted that the items, including the vehicles, were required by him for his work.

Exhibit A: document relied upon by the plaintiff in the Local Court in support of his application 12The plaintiff tendered, in support of his application in the Local Court, a document entitled "Short Minutes of Order" which included various allegations, including that Mr Karmas' brother had falsely stated that the plaintiff had made death threats to Mr Karmas and that Detective Stamoulis had conspired to pervert the course of justice in a way that was manifestly unjust and oppressive to the plaintiff. The document and its attachments were marked Exhibit A. 13A statement made by the plaintiff's mother, Antonia Fantakis, taken by police on 6 September 2011 in connection with the investigation into "Missing Person- Sam Karmas", was attachment A to the Short Minutes. Amongst other matters, she deposed to the fact that the plaintiff, to whom she referred as "Terry", and Mr Karmas were working together on the day on which he disappeared. She also deposed to the death of her son, Nicholas, the plaintiff's twin brother, on 27 May 2011 and that Mrs Maria Angeles and the late Nicholas Fantakis were in a relationship for about two years before his death. Her statement also contained evidence that tended to suggest that the last person to whom Sam Karmas spoke on the phone before he died was Mrs Angeles. Mrs Fantakis also deposed to threats that were made to her and the plaintiff on the telephone by one of Sam Karmas' brothers not long after his disappearance in the following terms: "You bloody slut, you [sic] son made my brother disappear, I'm going to kill you, I'm going to cut both of your heads." 14Attachment B to the Short Minutes is a memorandum from the plaintiff to the Police Integrity Commission containing unsubstantiated allegations against Detective Stamoulis, the officer involved in the investigation into the disappearance of Sam Karmas, including the following in [15]: "The case was commenced without the factual evidence to support a murder and a falsified statement by Mr George Karmas, upon examination this hearsay evidence was proven not to be valid and yet Det. Stamoulis continued with an investigation giving evidence of his abuse of power and personal incentives, regardless of the fact that he is perverting the course of justice." 15Attachment C to the Short Minutes is a bank statement showing that the sum of $5000 was withdrawn on 7 June 2011 from the joint account of the plaintiff and his late brother, Nicholas. 16Also included in the material before the Local Court are documents in which the allegation is made that Mrs Maria Angeles has falsely claimed to hold the last will and testament of the late Nicholas Fantakis. There is a bank statement that shows an electronic transfer of $50,222.72 to an account said to be in the name of Mrs Maria Angeles. 17The plaintiff submitted to the Magistrate that his application ought be granted for the following reasons: (1)He gave a statement to police following Sam Karmas' disappearance in which he said that the allegations made by Sam's brother were false. (2)He was pulled over the following evening in his van, and was forced to leave behind $5000. (3)Upon being released by Bankstown detectives, he discovered that his home was being searched by police. (4)He was not served with a list of items that had been seized. (5)The deceased Sam Karmas had been in both the Ford van and the Subaru and his DNA would be in both vehicles. (6)It was unfair that the CANs relating to the drug charges should be laid at the same time as his application for an order under s 219 of the Act. (7)The van did not commit a crime and therefore should not be retained. (8)The police had no grounds to commence an investigation. (9)He did not have a criminal record. 18The Magistrate adjourned for lunch on 10 December 2012 in order to read the Short Minutes and annexed statement. When her Honour returned to the bench after the adjournment she asked if there were any further submissions either party wished to make. Both the plaintiff and the prosecutor made further short submissions. 19Her Honour then delivered an ex tempore judgment in which she recounted the facts, the submissions made by both parties and referred to the relevant provisions and authorities. The Magistrate accepted the prosecutor's instructions that there was a current investigation into the possible commission of a criminal offence associated with the disappearance of Sam Karmas and that police considered that items (1), (2) and (3) may have evidentiary significance in the event of a prosecution. 20Her Honour's reasons for decision are summarised in the concluding passage: "In the circumstances of this case it is clearly the prosecution position that the retention of these items are not only required but that to hand them over to the applicant would frustrate their ongoing investigation. Indeed, in respect of the money, the Court Attendance Notices both filed late, and I understand the frustration that has been expressed by the applicant. It now means that that particular item is now the subject of current criminal proceedings. IN THOSE CIRCUMSTANCES I AM NOT SATISFIED THAT THE APPLICANT HAS SATISFIED THE COURT THAT ON THE BALANCE OF PROBABILITIES HIS APPLICATION SHOULD BE GRANTED AND I REFUSE THE APPLICATION." 21In the Local Court, the plaintiff did not challenge the legality or validity of the search warrant pursuant to which the items were seized, except in so far as he alleged that he had not been given a "seizure notice" listing what goods were taken. He made the following submission to the Magistrate: "I still haven't been served with a seizure notice your Honour, for anything they took, not even my van or car or tools or anything." 22Whether a seizure notice was served following execution of the warrant is in issue. However, it was immaterial to the Magistrate's decision since the items, the return of which the plaintiff claimed, were identified in the application. Furthermore, the plaintiff has not articulated any basis for his submission that non-service of a notice after a seizure pursuant to a lawful search warrant affects the legality of the execution of the search warrant. 23In my view, there was material in the prosecutor's submissions, which were made on instructions from the officer in charge, on the basis of which it was open for the Magistrate to find that the the goods seized were: (1)in the case of the cash, proceeds of crime, (2)in the case of the extendable baton, the subject of an extant charge; and (3)in the case of the balance, being the vehicles and their contents, the subject of continuing investigation and also reasonably required to be preserved for evidence.

Relevant statutory provisions and legal principles 24Section 218 of the Act provides for return of seized property as follows: (1) A police officer who, in exercising a function conferred by or under this Act, seizes a thing or has custody of other property to which this Division applies must return the thing to the owner or person who had lawful possession of the thing before it was seized or came into custody if the officer is satisfied that: (a) its retention as evidence is not required, and (b) it is lawful for the person to have possession of the thing. (2) This section is subject to any order made under section 219. 25Section 219 of the Act relevantly provides for disposal of property on application to a court as follows: (1) A court may, on application by any person, make an order that property to which this Division applies: (a) be delivered to the person who appears to be lawfully entitled to the property, or . . (2) In determining an application the court may do any one or more of the following things: . . . (b) make a finding or order as to the ownership and delivery of property, (c) make a finding or order as to the liability for and payment of expenses incurred in keeping property in police custody, . . . (e) make any necessary incidental or ancillary orders. 26The value of the property determines in which court an application for return of property under s 219 of the Act is made. Where the value of the property is estimated to be less than $40,000, an application may be made, as in the instant case, to the Local Court. 27The wording of s 218 provides context to the Court's power under s 219 to make orders regarding property in the custody of police. Whether seized property is required for investigation of a specific crime or is potentially required as evidence is a relevant factor in deciding if property, whether lawfully seized or otherwise, ought be returned to its owner: see the summary of authorities in Tye v Commissioner of Police (1995) 84 A Crim R 147 per Studdert J (Tye). 28In Malone v Metropolitan Police Commissioner [1980] QB 49, cited with approval in Tye, a claim for the recovery of chattels was defeated by the need to preserve evidence for pending criminal proceedings. The plaintiff, who had been committed for trial on charges of conspiracy and of handling stolen property, began proceedings in detinue and sought a mandatory injunction for the return of certain banknotes that had been seized by police pursuant to a search warrant and which were not the subject of any charge. 29Roskill LJ outlined the relevant principles that apply where goods seized are required either for a continuing investigation or for a trial: "This appeal raises an important point of principle in relation to police powers. It is the duty of the courts to protect the freedom and property of the individual against arbitrary action by the executive, whatever the form which the particular action may take. But the courts, when performing that duty, must always have in mind that the administration of justice must not be hampered and that from time to time the rights of individuals have to yield to a wider public interest which requires the abridgment of individual rights. The appellant, the defendant in this action, the Commissioner of the Metropolitan Police, claims that the present is a case in which that wider interest must prevail over the private interest of the plaintiff, which is immediately to receive back a substantial sum which by concession is his but of the possession of which he was lawfully deprived at the time of his arrest in March 1977. . . " (page 64) "It is not difficult to envisage circumstances in which it might become highly material for that money to be produced, either on behalf of the prosecution or of the defence, even though the prosecution do not seek to say that the money itself was stolen and have not so far exhibited it as part of the police officer's evidence. I think, therefore, on this narrow ground the defendant is entitled to retain this money until the conclusion of the criminal proceedings against the plaintiff . . ." (page 72) 30Where property is seized in the course of execution of a search warrant the police are not entitled to retain it for longer than is reasonably necessary in order to complete investigations or to preserve it for evidence: Gollan v Nugent [1988] HCA 59; 166 CLR 18 at 29; see also R v Elomar and Ors [No 11] [2009] NSWSC 385 at [54]-[55] per Whealy J and Ghani v Jones [1970] 1 QB 693 at 706 at 708-709 per Denning LJ. 31Consistently with these principles, Adams J in McQueen v Hawi [2008] NSWSC 136 (Hawi) ordered a pair of blood-stained shoes to be returned, there being no identifiable charge or investigation to which they were relevant. His Honour said at [19]: "[I]t seems to me that a general wish to hold property belonging to someone else for the reason that it might turn out at some time or other to be material to some criminal activity about which we presently have no information is not a retention for the purposes of investigation within the terms of s 218 and it is not a basis for properly refusing an application for return of goods under s 219. The protection of the right of the citizen to his or her property is an important legal principle."

The grounds of appeal 32The plaintiff appeals on the following grounds listed in his amended summons filed on 13 February 2013: "1. Error in law by Local Court Burwood 2. Abuse of Court process by prosecutor/ OIC [officer in charge] 3. Local Court of Burwood permitted the applicant procedural fairness to be deprived, by not allowing time to prepare defence to newly induced evidence and facts by prosecutor/ OIC 4. Unauthorised altering of court room recordings property of the Crown." 33The plaintiff seeks an order from this Court that the funds and goods be returned, and that he be awarded damages in the amount of $19,600. He also seeks an order for costs.

Evidence adduced in the proceedings in this Court 34The determination of the plaintiff's appeal raises two questions: whether the Magistrate's decision gives rise to a question of law and, if so, whether it ought be set aside. 35The defendants, as part of their obligations as model litigants to put relevant material before the Court, relied on an affidavit of Brett Thomson sworn 15 April 2013 to which were exhibited the transcript in the Local Court and a copy of the court file, including the material tendered by the plaintiff in the hearing in the Local Court. 36The defendants also read an affidavit of Roxane McGee, detective, sworn 15 February 2013 in which matters concerning the investigation are set out, as well as other allegations made by the plaintiff elsewhere. The coronial inquest into the plaintiff's late brother Nicholas' death in May 2011 is also referred to. I permitted the affidavit to be read subject to relevance against the possibility that matters would arise during the hearing that required verified explanation. 37The plaintiff relied on parts of his affidavit sworn 21 January 2013, together with another bundle of documents which I marked as an exhibit. I read the affidavit and document subject to relevance, since they raise matters that do not arise on this appeal and were not raised before the Magistrate.

The relevant jurisdiction 38There are two jurisdictional bases for the plaintiff's claims for relief: first, the jurisdiction conferred by s 52 of the Crimes (Appeal and Review) Act to appeal on a question of law alone, or, with leave, on a mixed question of law and fact; and secondly, the claim for relief in the nature of certiorari under s 69 of the Supreme Court Act based on an error of law, including a jurisdictional error, such as failure to accord procedural fairness or error on the face of the record: Craig v South Australia [1995] HCA 58; 184 CLR 163 at 175-176. 39The first ground of appeal, that the Magistrate made an error of law, is a conclusion and cannot be separately considered without identification of the particular error alleged. 40The second ground of appeal, that the officer in charge abused the process of the Court, raises a question of fact and accordingly cannot be determined in proceedings such as these. As I understood the plaintiff's submissions, the second ground was connected with the third ground, which is dealt with below. 41The fourth ground of appeal is that there was an altering of court records. The plaintiff made submissions to the effect that the transcript of the Local Court hearing did not properly record what occurred at the hearing. He purported to give evidence from the bar table that the tape had been remastered. Not only is there no evidence as to this matter, let alone expert evidence, but also it cannot be considered on the present application because it raises a question of fact. 42The third ground of appeal, that there has been a denial of procedural fairness, raises a question of law.

Alleged denial of procedural fairness: the third ground of appeal 43As I understand the plaintiff's submissions, he contended that the submissions made by the prosecutor as to the stage which the investigation had reached and the possible need to test the items using techniques that would need to be undertaken overseas, took him by surprise and that he did not have time to counter them in the course of the hearing. He alleged that he did not have enough time to prepare a "defence" to facts that had been recently introduced by the prosecutor. 44The first answer to this contention is that the plaintiff himself was the applicant for an order under s 219 of the Act. He did not have to "defend" himself against anything in the course of the hearing. The nature of such an application was described by McInerney J in Commissioner of Police & anor v Bennett (1991) 9 Petty SR 4311 at 4314: "[t]he application . . . is not the normal adversary litigation inter parties, not is it criminal in its nature and I am of the opinion that the first defendant, in these circumstances, could not be said to have been a prosecutor in the proceedings in the Local Court." 45The plaintiff was given the opportunity to make submissions to the Magistrate in support of his application. He principally directed his submissions to the proposition that he was not implicated in the death of Sam Karmas and that, accordingly, he should not have been regarded a person of interest in the investigation. 46Whether charges will in due course be laid against the plaintiff in relation to the death of Sam Karmas is not known. However, there was, in my view, sufficient basis in the evidence before the Magistrate for her Honour to consider that the items needed to be retained so that they could be tested. In addition, even aside from the further testing, there was a basis on which the Magistrate could find that the items ought to be preserved to be used as evidence in any eventual prosecution in relation to the death of Sam Karmas. It was common ground that the deceased's DNA was found on both vehicles, no body has yet been recovered and the plaintiff admitted that he was in the company of the deceased on the day of his disappearance. 47In these circumstances the submissions made by the plaintiff as to the ultimate issue in any eventual prosecution were not to the point. 48The plaintiff was, in any event, in no position to contradict the instructions given to the prosecutor that the investigation was continuing or that consideration was being given to the further testing of the items. There was no need for the instructions given to the police prosecutor to be given on oath: Hawi at [11]. 49The officer in charge could not have been cross-examined about the investigation in any event. The plaintiff was not entitled inquire into the details or progress of the investigation. Such matters plainly would have been the subject of public interest immunity: s 130 of the Evidence Act 1995 generally and, in particular, s 130(4)(c). Such immunity would not have been waived by the submission to the Magistrate that the investigation was continuing. 50Accordingly, further time would not have assisted the plaintiff. Nor was he entitled to prior notice of the continuing investigation, having regard to the nature of his application and his standing as the applicant. 51In so far as the plaintiff was taken by surprise when the CANs were served on him on the day of the hearing of his application, these affected only the $5000 and the extendable baton. Once the CANs were served, the Magistrate was not only entitled but also obliged to have regard to them, notwithstanding the time of their service. 52In any event the plaintiff did not seek to have his application adjourned in order that he could consider whether he needed more time to decide how to put it, or indeed to amend it, in light of the prosecutor's submissions as to the further testing or the service of the CANs. 53I do not consider the plaintiff has identified any denial of procedural fairness in either the hearing or the determination of his application in the Local Court. Accordingly, this ground must fail.

Further matters raised by the plaintiff 54The plaintiff raised the following further matters at the hearing of the appeal, which did not appear to relate to any ground of appeal. 55The plaintiff submitted that the search warrant had been improperly executed because excessive force had been used to enter his property and also because the whole of the execution had not been videoed. He also took exception to that fact that he was at the police station being interviewed at the time the search warrants were executed. He was unable to point to any authority to the effect that any of these matters affected the legality of the search warrant, its execution or the retention of goods seized in the course of its execution. Furthermore, none of these matters was raised in the Local Court. 56The plaintiff also submitted that the Magistrate had, at the conclusion of the hearing of the matter, directed the police prosecutor and the officer in charge to attend her chambers. There is no evidence of this on the transcript, the reliability of which has not been impugned by any admissible evidence. Furthermore the plaintiff has not identified how this allegation, even if established, would assist him in overturning the Magistrate's refusal to order return of his goods. 57I do not consider any of these further matters to be capable of impugning the Magistrate's refusal of the plaintiff's application.

Order 58For the foregoing reasons, I make the following orders: (1)Dismiss the amended summons. (2)Order the plaintiff to pay the defendants' costs of the proceedings. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2013

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