Claim for money fails

Press, 22 September 1977, Page 13

Claim for money fails

A' convicted bank robber has failed in his action to get possession of $15,880 seized by a police drug squad, and to obtain damages from the police for unlawfully detaining the money, according to a reserved decision given by Mr Justice Somers in the Supreme Court yesterday. Michael Alexander Kelly, who described himself as a company director, sued the Attorney-General, on behalf of the Police Department.

The action was heard on July 26. Messrs C. B. Atkinson and C. A. McVeigh appeared for Mr Kelly, and Mr N. W. Williamson for the Attorney-General.

His Honour said that the action failed, so it was not necessary for him to consider the claim for exemplary damages. However, he deferred entering judgment to enable counsel to make submissions. He said that Mr Kelly alleged that he was the owner of $15,880, which the police seized at a house in Grosvenor Street, Christchurch on May 7, and that the police had unlawfully taken it and refused to return it to him on request.

He sought an order returning the money to him and exemplary damages of $lOOO.

The Police Department, in its statement of defence admitted that the money was found at the house. The occupier denied all knowledge of it, and consented to the police’s taking it. After Mr Kelly demanded the return of the money the police said that it was being treated as “found money,” and asked him to provide evidence of ownership. That had not been done. His Honour said that in

August, 1972, Mr Kelly was convicted of robbery of a bank, and was released from prison in November, 1976. The bank had sued him for $12,823, the balance of robbery. The writ was issued after Mr Kelly brought the action against the police. In evidence, Mr Kelly denied again that he was guilty of the robbery. He said that about February, 1977, he had “come into possession” of about $18,500.

Asked where he got the money, Mr Kelly at first objected to answering on the ground that the answer might incriminate him, but then said that most of it came from the sale of the horse, Good Intent, which he and his brother owned.

“Neither the explanation, nor the manner in which it was given, brought any conviction or persuasion whatever to my mind,” his Honour said.

Wherever the money came from, it was not the specific proceeds of the bank robbery because the numerals on the notes showed they were almost all issued after the robbery.

Early in May, 1977, Mr Kelly said he was going to Wellington so he gave the money to John Donald McNeil, a friend, to mind for him. McNeil told him that he would hide it at his sister’s place in Grosvenor Street.

On May 5, the police, armed with a search warrant issued under the Narcotics Act, went to the house in Grosvenor Street and during the search the money was found in a chest of clothes in a room occupied by McNeil’s girlfriend. Both she and the occupier of the house denied ail knowledge of the money. The police took the money, to find out

to whom it belonged. On his return from Wellington, Mr Kelly learned that the money had been seized, and responded immediately and vigorously. The next morning he telephoned Detective Sergeant J. J. Chadderton and told him that the money was his, and that he wanted it back. The detective invited Mr Kelly to come to the police station to discuss his claim. Mr Kelly said that he would go nowhere near the station, and that he would get someone to call for the money. He was told that that was not satisfactory and that he would have to come in personally and present evidence of ownership. Mr Kelly never went to the station but saw his solicitor, Mr L. M. O’Reilly, who told a detective that the money belonged to Mr Kelly, and that the police were required to return it forthwith. After the discussion with Mr O’Reilly, the detective made inquiries to see whether Mr Kelly was the owner of the money. He was left with only Mr Kelly’s word that the money was his. Neither the occupier of the house or room where the money was found knew Mr Kelly, McNeil could not be found by the police.

His Honour said that as far as the police were concerned Mr Kelly had estab- i lished that he was entitled to receive the money from them. But the question he had to determine was whether the police’s taking the money was a conversion, and whether their retention of it was in a civil sense wrongful.

It was clear that there was nothing in the search

warrant which authorised the removal of money. The police evidence was that the money was taken with the intention of finding its true owner. He did not consider that a conversion. He did not think there was any obligation on the police to hand over the money to Mr Kelly immediately the demand was made. The refusal of the police had not been unconditional; they were entitled to satisfy themselves about Mr Kelly’s ownership.

It was not immaterial that Mr Kelly did not offer any proof in support of his bare assertion that the money was his. He had not established his case, his Honour said.