QPP CATCHWORDS ADMINISTRATIVE LAW - application for judicial review - decision bv Australian Federal Police not to return Australian currency and other property seized at airport - no authoritv from Reserve Bank to take currency out of Austral1a - criminal proceedings pending - whether decision a proper exercise of power conferred under Australian Federal Police Act 1979 - whether breach of natural tustice - whether arounds for relief established - discretion - need for propertv to be retained as an exhibit in forthcoming criminal proceedinas. Australian Federal Police Act 1979 Administrative Decisions (Judictal Review) Act 1977, paras. Stloebir.t(ey, St2)(br.1f),¢a), sub-s. 3(1) Pankina (Foreian Exchange! Regulations, reas. 6(1), 42°2) CONSTANTINOS PLEGAS v. R. McCABE, JOHN BIPRROWS and RAY NEAL Wo. " of 1984 Lockhart J. 3 Auaqust 1984 Svdnev IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G210 of 1984 --y~ryrvrw GENERAL DIVISTON BETWEEN : CONSTANTINOS PLEGAS Applicant AND: Kk. McCABE and JOHN BURROWS First Respondents AND: RAY NEAL Second Pespondent JUDGE MAKING ORDER: LOCKHART J. DATE OF ORDER: 3 AUGUST 1984 WHERE MADE: SYDNEY ORDER The Court orders that:- 1. The application be dismissed. ae The applicant pav to the respendents their costs; or application. the IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALFS DISTRICT REGISTRY ) No. G210 of 1984 ) GENERAL DIVISION ) BETWEEN : CONSTANTINOS PLEGAS Applicant AND: R. McCABE and JOHN BURROWS First Respondents AND: RAY NEAL Second Respondent Coram: Lockhart J. 3 Auqust 1984 REASONS FOR JUDGMENT LOCKHART J. 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 Pleqas ("the applicant") $75,980 in Australian currency seized from the applicant at Svdnev International Airport on 5 Mav 1984 when he was about to board an aircraft bound for Greece. The applicant was born in Greece in 1935. He emiarated to Australia in 1962. He worked with the New South Wales Department of Railways and tauqht himself to speak what he describes as "imperfect Enalish". He married here. There are two children of the marriage. In 1973 the applicant and his wife bouqht 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 thev sold in December 1980. In May 1981, the applicant and his wife aqain purchased the mixed business at 147 Blue's Point Road, North Sydney which they have since conducted together. The applicant has returned to Greece on several occasions. He made arrangements to travel by Qantas from Svdney to Athens on 5 May 1984. On that dav he travelled to the Svdney International Terminal and met some friends. He took with him a large suit case and two pieces of hand luqgage, what he describes as a small valise and a bad. The suitcase was checked in and he _ proceeded through the migration barriers with the two pieces of hand luqagaqde. A security x-rav machine was operating on the departure level and the applicant placed his hand luqgaqe on the machine. T need not vselate in detail the events that then ensued. In the result. officers of the Australian Federal Police seized from the applicant and his hand luaqaqe $75,980 in Australian currency, wranred in shirts and a tablecloth and enclosed in an envelope. The money was in denominations of3100 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. 3. 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 ot the Reserve Bank. I am advised that. pending further action reqardind the alleqed offence, the retention by the Australian Federal Police of the currency seized from Mr. Pleqas together with the material in which this currency was alleqedly 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 anv aqrounds that would qustifv 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 anv of the articles in question if Mr. Pleaas were to be convicted for the alleged offence. In that respect I note that I have qiven my consent to the institution of indictment proceedings against Mr. Pleqas in relation to the alleqed offence." The solicitors far 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. -Zroceedings 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, amona other things, an early ceply to the letter of 12 June. Chief Inspector J.W. Burrows, Chief Inspector of General Folicina of the Australian Federal Police. who is the other first respondent. wrote to the applicant's solicitors on 20 June 1984 in these terms: "T am in receipt of your letter dated 12 June, 1984. I understand that the Department of Treasury have communicated with vou and I have nothing further to add." On 4 Julv 1984 an information was laid before a Justice of the Peace in the State of New South Wales alleging that on 5 Mav 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 requlations 6(1) and 42 of the Banking -Foreiagn Fxchange) Reaqulations which provide. so far as relevant: "o(1) a person shall not, except with the authority of the Bank. take or send out of Australia anv Australian currency or foreian currency, other than foreian currency obtained under the first preceding requlation." "The Bank" is defined by requlation 4/1) as meaning the Reserve Bank of Australia. Requlation 42(1) reads: "42(1) A person shall not contravene or attempt to contravene. or fa1l to comply with. anv of the provisions of these Requlations. 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 vears. (2) Subject to sub-requlations (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 requlation "the articles in respect of which the offence was committed" means the goods, Australian currencv, foreign currency or securities in respect of which the offence was committed." A summons was served on the applicant on 5 July 1984 requiring his attendance at the Court ofPetty Sessions. 111 Elizabeth Street, Svdney 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 otfence 1s being prosecuted upon indictment. On 29 June 1984 the applicant filed in this Cao'rt 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 Attornev-General's office. lll Elizabeth Street. Svdnev, the second respondent. An amended application was later tiled pursuant to leave of the Court which describes the decisions under challenge in these terms: lia) 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 3 June by the Honourable P.J7. Keating, M.P.. to retain Australian Bank currency in the sum of $75,980.00 seized from the applicant bv Constables Schaqen and Davis on 5 May, 1984 at Kinastord Smith Airport prior to the applicantdeparting to Greece tor the reasons of "usual practice in relation to such matters". (b) The failure of the Deputy Crown Solicitor to make a decision to charae the applicant with an alleaed breach of Commonwealth Law and institute proceedings tor the prosecution thereof." I must sav at once that there 1s no evidence supporting the alleqation that Mr. Neal. the second respondent, had anv duty to charge the applicant with a breach of Commonwealth law or to institute proceedinas for the prosecution thereot: nor is there anv evidence that. if there were such a dutv. he failed to discharge it. The case against the second respondent is without foundation in law and in fact. It is fundamentally misconceived. As I understand the applicant's case aqainst the first respondents. Mr. McCabe and Mr. Burrows, the decisions impuaned 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. The applicant asserts that the decisions of the first respondents were an improper exercise of the power conferred bv the Australian Federal Police Act 1979 pursuant to which thev were. 30 it 1s alleqed, purported to be made. The applicant relies on various matters in support of this assertion. He submitted first. that the first respondents failed to adequatelv consider relevant matters in the exercise sf the power: second. that the first respondents exercised the power without reaard to the merits of his case: third, that the exercise of the rower was so unreasonable that no reasonable person could have so exercised the power: fourth. that a breach of the rules of natural i1ustice occurred in connection with the makina of the decisions in that the applicant had been denied "obtaining the precise policv rules which constitute usual practice 1n order that he mav submit relevant considerations for determination"; fifth. "that the procedures that were required bv law to be observed in connection with the makina of the decisions were not observed since it is an unreasonable interval of time between the alienation of propertv and the failure to charge the applicant with an Alleded offence or offences of Commonwealth Law". The applicant thus tunvokes principally paras. S(1)(b) and te), and 5:2)'b). (£) and (a) of the Judicial Review Act. 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 9. 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 aqrounds for relief have been established. the Court in the exercise of its discretion should refuse relief. Whether the impuaqned decisions were made "under an enactment" within the meanina of that expression in the Judicial Review Act 15 an interesting question and not without difficultv, 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 reaqard that first question as entirely open. 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 bv telex and letter in support of the request. There 1s nothina to suggest that imperfect or inadequate consideration was qiven bv the relevant authorities to that request. Indeed. the -vidence 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. ' . 10. The assertion that the retention of the property 15 unreasonable in view of the applicant's suqgestion that the monev be returned and invested on interest bearing deposit is umtenable. The applicant has been charaed 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 ot allor anv of the Australian currencv in respect of which the offence was committed. 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 requlations 6(1) and 42(2) of the Banking (Foreign Exchange) Requlations; 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 nuqatory the power of forfeiture. There is considerable force in this view. I do not have to decide whether it 1s correct or not because it is plain to me that it is stronaly arquable and could not be said on anv view of the matter to be an unreasonable view. The view ot the Treasurer and the police that the property be retained so that it mav be tendered as an exhibit in the forthcoming criminal proceedings is not umreasonable. Indeed. counsel tor the respondents presented a powerful arqument that the arranaement suaqested by the . ll. 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. 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. Aqain, 1t 18 unnecessarv tor this Court to decide these questions because mone of the conduct of the respondents tumpugned by the applicant 1s 'mreasonable. T am satisfied that the decisions under attack were made with reqard 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. The applicant has, theretore. tailed to establish anv of the qarounds tor an order of review. The application is dismissed and the applicant 1s to pav the costs ot the respondents. The exhibits mav be handed out at the expiration of 21 davs from todav unless an appeal from the Court's ludament 1s lodged in the meantime. | certy that this and the 7EX (a) preced ry pages arc a true copy cf the Reas2ns for Jadgmert Fere.n of tis Honour ht- Justice Lockhart A-sor ate 3/5/84 ko. Ca