Gollan v Nugent [1988] HCA 59; (1988) 166 CLR 18 (17 November 1988)

HIGH COURT OF AUSTRALIA

GOLLAN v. NUGENT and OTHERS [1988] HCA 59; (1988) 166 CLR 18
F.C. 88/054

Trespass - Trover and Detinue - Criminal Law

High Court of Australia
Brennan(1), Deane(2), Dawson(2), Toohey(2) and Gaudron(2) JJ.

CATCHWORDS

Trespass - Trespass to Goods - Goods likely to be used in commission of crime if returned to owner - Whether arguable defence - No plea that goods of character that relief should be refused.

Trover and Detinue - Conversion - Goods likely to be used in commission of crime if returned to owner - Culpable intention by owner not displacing right to possession.

Criminal Law - Sexual offences - Indecency - Offences relating to children - Ownership of allegedly obscene and indecent articles - Seizure of by police under warrant - Validity of warrant and seizure - Allegation of owners' intention to apply articles to criminal purposes if returned -
Whether case for forfeiture - Indecent Articles and Classified Publications Act 1975 (NSW), ss. 6-8.

HEARING

1988, February 18; November 17. 17:11:1988
APPEAL from the Supreme Court of New South Wales.

DECISION

BRENNAN J. This appeal is brought to canvass a proposition which was raised, or which the Court of Appeal understood to have been raised, by a defendant's plea in an action for trespass to goods, detinue and conversion brought in the Supreme Court of New South Wales. The plaintiffs (the respondents), by their amended statement of claim, allege that the first two defendants, purporting to act under the authority of a search warrant issued by the third defendant, entered upon premises at Glebe and there seized certain goods. The first two defendants are officers of police, one being a member of the Police Force of Victoria, the other (the appellant) being a member of the Police Force of New South Wales. The third defendant is a justice of the peace. The search warrant purported to authorize the seizure of things which were believed to be "on the premises relating to the 'Australian Pedophile Support Group' in respect of which an indictable offence had been or was suspected to have been committed, namely, 'conspiracy to corrupt public morals (Common law)'". The goods are described in the statement of claim as "documents, books, posters, taperecordings, photographs, puppets and other things". Paragraph 18 of the statement of claim alleges that "the plaintiffs were at all material times the owners" of the goods seized. The plaintiffs allege that the warrant and the seizure were invalid. They allege that a demand was made for the return of the goods but the goods were not returned, that the two police officers have wrongfully detained the goods and that each of them has converted the goods to his own use. The plaintiffs claim damages for trespass, detention and conversion and, in addition, "delivery up of the said documents, books, posters, taperecordings, photographs, puppets and other things". A more particular list of these goods is annexed by the appellant (to whom I shall refer as the defendant) to an affidavit verifying his defence.

2. The defendant's amended defence does not admit the plaintiffs' ownership of the goods, nor their right or title "relevant to the allegations in paragraph 18 of the Statement of Claim". Whatever justification the defendants may have had to detain the goods while a prosecution was in contemplation or pending, they do not plead that the continued detention of the goods is for the purpose of producing them as evidence in a prosecution: cf. Ghani v. Jones (1970) 1 QB 693, at p 706. Indeed, we were informed that in May 1984 the first respondent was discharged on committal proceedings taken in Victoria on a charge of conspiracy to corrupt public morals and that no ex officio proceedings on that charge are in contemplation. Prima facie, it is the duty of the police when a prosecution is complete or when no further prosecution is in reasonable contemplation to return goods seized for the purpose of being produced in evidence to the person entitled to possession of them - usually the owner: Malone v. Metropolitan Police Commissioner (1980) QB 49, at p 70. However, par.27 of the defendant's original defence pleaded that "the possession and/or ownership or other title or interest claimed by the various plaintiffs is illegal and void and of no effect", and certain grounds for that plea were set out.
The chequered history of par.27

3. The plaintiffs applied pursuant to Pt 15 r.26 of the Rules of the Supreme Court to strike out par.27 as disclosing no reasonable cause of defence. The plaintiffs' application was dismissed by Master Sharpe but an appeal to Cantor J. was allowed. The question of law by reference to which the defendant invited his Honour to determine the application was whether public policy precludes the Court from giving assistance to recover goods from a person who has no right to their possession because the goods are by nature "immoral goods". His Honour determined that question against the defendant. The defendant sought leave to appeal to the Court of Appeal against his Honour's order. Leave was granted "conditional upon the (defendant) amending par.27 to state precisely what are the facts relied on to support the grounds and their application to the goods sought to be recovered". To satisfy that condition, the defendant formulated a new par.27 together with particulars for insertion in the defence, reading as follows:
"27. In answer to the whole of the Statement of
Claim and in relation to the articles alleged to
have been taken and each of them as more
particularised in the particulars herewith the
Second Defendant says
(a) the possession and/or ownership or other
title or interest claimed by the various
plaintiffs was and/or is illegal and void
and unenforceable and of no effect on the
following grounds -
(i) the said possession, ownership title or
other interest were contrary to the
provisions of sections 6 and 10 of the
Indecent Articles and Classified
Publications Act;
(ii) the said possession, ownership title or
other interest was for the purpose of or
were part of the perpetration of the said
breaches of the said sections;
(iii) the plaintiffs acquired and/or were in
possession of the said articles in the
course of and/or in furtherance of a
conspiracy namely a conspiracy to corrupt
public morals which took place both in
the State of New South Wales and Victoria
and which said conspiracy is being or may
be prosecuted in the State of Victoria;
(iv) the plaintiffs acquired and/or were in
possession of the said articles for an
immoral purpose or in furtherance of an
immoral purpose namely the propagation of
unnatural sexual practices by or on
children or between children or between
children and adults;
(v) the said articles were by their nature
and/or quality indecent, obscene,
immoral and/or illegal;
(vi) the said possession and/or ownership
and/or other title claimed by the various
plaintiffs was against public policy;
(b) the nature and/or quality of the said
articles was such that the said articles
should not be returned to the plaintiffs
and/or the court should not order such
return relief or damages on the grounds set
out in (a)(i) to (vi) above;
(c) the purposes for which the said articles
were to be used or were intended to be used
or might be used by the plaintiffs were such
that the said articles should not be
returned to the plaintiffs and/or the court
should not order such return, relief or
damages on the grounds set out in (a)(i) to
(vi) above;
(d) the said articles were for use directly or
indirectly in whole or in part in
furtherance of a criminal offence namely a
conspiracy to corrupt public morals."
appeal to the Court of Appeal proceeded on a notice which set out a single ground of appeal, namely-

"That His Honour was in error in answering as a
matter of law in the negative the following
question:
'Is a plaintiff who is otherwise entitled to the
possession of goods which are by their nature
"immoral goods" unable to have the Court's
assistance in recovering them from a person who
has no right to possession because of
considerations of public policy?'"

The notice of appeal sought an order granting leave to add the new par.27. The Court of Appeal by a majority (Hope and McHugh JJ.A., Glass J.A. dissenting) dismissed the appeal, without making an order granting leave to substitute a new par.27. It seems that the Court, holding the new par.27 not to raise a good defence, simply affirmed the order of Cantor J.

4. The questions which were addressed by the Court of Appeal did not correspond with the ground of appeal set out in the notice. Their Honours understood that the question for decision was whether the new par.27 raised a good defence by pleading that the plaintiffs have used the goods to commit offences or, if the goods are returned, the plaintiffs will use them either to commit offences or in furtherance of the criminal conspiracy alleged in the new par.27(a)(iii). Special leave to appeal to this Court was granted in order that the defendant might challenge the negative answer given by the majority of the Court of Appeal to that question. When the appeal was opened in this Court, counsel for the plaintiffs submitted that the new par.27 does not raise that question. A distinction was drawn between a plea that the plaintiffs intend to use goods to commit offences and a plea that the plaintiffs will so use the goods. However, if the question which the Court of Appeal understood the new par.27 to raise had been answered in favour of the defendant, no doubt the Court of Appeal would have granted leave to amend the new par.27, if such leave was needed, to raise in explicit terms the proposition which that Court had considered. We therefore invited the defendant to formulate an amendment to the new par.27 which would raise the proposition. In response to that invitation, the defendant formulated sub-par.(e) to be added to the new par.27 as follows:

"If the said articles were returned to the
plaintiffs it is intended that the same would be
used to commit offences under the Indecent
Articles and Classified Publications Act 1975 or
in furtherance of the said criminal conspiracy."

The proposed sub-par.(e) does not go beyond pleading the plaintiffs' intention. In these circumstances, this Court must ultimately address the question posed by Pt 15 r.26: does the new par.27, with the addition of the proposed sub-par.(e), disclose a reasonable defence? In answering that question, we shall be assisted but not bound by the consideration given to the question formulated in the Court of Appeal.
Is par.27 a good plea to an allegation of possession?

5. If the proposed plea (as I shall call the new par.27 with the addition of the proposed sub-par.(e)) discloses a reasonable defence, the appeal should be allowed and leave to amend the defence by substituting the proposed plea (or so much of it as discloses a reasonable defence) should be ordered; if no reasonable defence is disclosed, the appeal should be dismissed and the amended defence will stand shorn of par.27 in any of the forms in which it has been advanced. To determine whether the proposed plea discloses a reasonable defence, it is necessary to analyse the statement of claim and to identify the allegation to which the plea might be material. If the proposed plea traverses that allegation or confesses and avoids it or if the plea otherwise raises a ground for refusing the relief claimed, the plea discloses a reasonable defence.

6. Paragraph 18 of the statement of claim alleges that the plaintiffs are the owners of the goods. But the plaintiffs sue in trespass, detinue, and conversion (trover), and a bare allegation of ownership of the goods is insufficient to found a claim on these causes of action. An interference with possession must be shown by a plaintiff who sues in trespass de bonis asportatis: Penfolds Wines Pty. Ltd. v. Elliott [1946] HCA 46; (1946) 74 CLR 204, at pp 216,225-227, 242; Pollock and Wright, Possession in the Common Law, (1888), p 121. A plaintiff claiming in trover must show an immediate right to possession, for the essence of conversion is a dealing with a chattel in a manner repugnant to that right: Penfolds Wines, at pp 227,229 and cf. Bute (Marquess) v. Barclays Bank Ld. (1955) 1 QB 202, at p 211. And in detinue a plaintiff must show that, when the demand was made and for so long as the wrongful detention continued, the plaintiff was entitled to possession: General and Finance Facilities Ltd. v. Cooks Cars (Romford) Ltd. (1963) 1 WLR 644, at p 649; (1963) 2 All ER 314, at p 317. Moreover, the plaintiffs seek an order for specific restitution of the goods. This is now a statutory remedy, available in New South Wales by force of s.93 of the Supreme Court Act 1970. That section provides:

" (1) In proceedings for the detention of goods
judgment may be given for delivery of the goods,
without giving the defendant the option of
retaining the goods upon paying the value
assessed, if any.
(2) In proceedings for the detention of goods,
where judgment has been given for delivery of
goods or payment of the value assessed, the Court
may make an order for delivery of the goods,
without giving the defendant the option of
retaining the goods upon paying the value
assessed.
(3) Subsections (1) and (2) apply whether or
not the value of the goods has been assessed."

This provision can be traced back to the Common Law Procedure Act 1854 (U.K.) (17 & 18 Vict. c.125, s.78) which reformed the practice when a verdict for the plaintiff in detinue was returned. The effect of the 1854 Act was stated by Lord Macnaghten in the first appeal in Peruvian Guano Co. v. Dreyfus Brothers & Co. (1892) AC 166, at p 176. His Lordship pointed out that, under the old practice, a writ of execution gave a defendant the choice to give up the goods or pay their assessed value and that a plaintiff could obtain an order for specific restitution only by going to equity and showing the goods to be of special value. His Lordship said:

"The Common Law Procedure Act 1854 enabled courts
of common law to make an order for the return of
the goods, if they saw fit to do so. The effect
of that provision, as pointed out by Maule, J.,
in Chilton v. Carrington, [1855] EngR 137; 15 CB 730, is not to
take away the option in all cases, but it enables
'the Court or Judge to make an order for
delivery, where it would be unjust to allow the
defendant to have the option, and where he can,
and in the opinion of the Court or Judge ought
to, restore the chattel in specie.'"

If authority be needed to manifest what is clear enough in the words of the statute, Lord Macnaghten's speech is authority for two propositions: first, that an order for specific restitution can be made only if the plaintiff is entitled to a verdict in detinue (and is therefore a person entitled to possession of the goods) and, secondly, that the making of an order for specific restitution is discretionary. True it is that the equitable discretion fell to be exercised by reference to the special value of the goods and the plaintiff's willingness to do equity (as, for example, by making an allowance for money or labour expended on the improvement of the goods). But if the equitable discretion excluded considerations other than matters of value or financial adjustment, the statutory discretion does not - though it must, of course, be judicially exercised.

7. In the opening words of sub-par.(a) of the proposed par.27 of the defence, the pleader presumes that par.18 of the statement of claim alleges more than bare ownership. And, as no point has been taken on the sufficiency of par.18 of the statement of claim, we may take it to allege the possession and the entitlement to possession which the plaintiffs must show to found their claims in trespass, trover and detinue and to support a claim for specific restitution of the goods. Sub-paragraph (a) of the proposed plea does not deny the plaintiffs' actual possession of the goods at the time when they were taken or their prima facie entitlement to possession thereafter. But the proposed plea alleges that the plaintiffs' possession was and the plaintiffs' entitlement to possession was and is "illegal and void and unenforceable and of no effect": see sub-par.(a). The question which sub-par.(a) raises is whether a plaintiff can recover in trespass, conversion or detinue if the possession or right to possession on which he relies is "illegal" in a material sense. If the answer is "yes", do the facts alleged in sub-pars.(ii) to (vi) establish illegality in the material sense? These questions are not precisely those formulated in the Court of Appeal but they coincide in part. It is convenient to address first a question which arises from some of the grounds set out in the proposed sub-par.(a) and which was addressed by the Court of Appeal, namely, whether illegal use of the goods before the goods were taken or kept by the defendants precludes the plaintiffs from obtaining the judgment and order which they claim.
Prior illegal use

8. Statute apart, possession of goods which have been used in the commission of an offence is neither more nor less unlawful than possession of goods which have not been so used. As McHugh J.A. pointed out, deodands were abolished in New South Wales by s.1 of the Deodands Abolition Act 1849 and escheats and forfeitures on conviction for felony were abolished by s.416 of the Criminal Law Amendment Act 1883. In Gordon v. Chief Commissioner of Metropolitan Police (1910) 2 KB 1080, where a police officer sought permanently to retain money taken from the plaintiff on the ground that it had been illegally obtained in street betting operations, Fletcher Moulton L.J. said (at pp 1096-1097):

" The law does not avail itself of such lawless
methods as the defendant suggests in order to
enforce respect for the law. If it intends
moneys to be forfeited which are acquired by acts
which are prohibited by statute, it provides that
they shall be so forfeited and to whom they shall
go. But I know of no principle of law, or
decision, or even dictum, which renders money
which has become the property of an individual
liable to be taken and kept with impunity by any
person who chances to get hold of it, merely
because it has been acquired by some wrongful or
prohibited act".

Possession of goods is not illegal in any material sense merely because the manner in which possession was obtained was illegal or because of some illegality in a plaintiff's previous dealing with the goods. This proposition is challenged by the defendant (if I understand the submission correctly) because, it is said, the court may refuse relief whenever the evidence establishes illegality "collateral to the plaintiff's cause of action". That submission must find support, if it can, in the general principle that "No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act": Palaniappa Chettiar v. Arunasalam Chettiar [1962] UKPC 1; (1962) AC 294, at p 303; Ison v. Australian Wheat Board (1967) 68 SR (NSW) 102, at p 113. That principle is, as we shall see, of general application and I shall refer to it as "the general principle". In its application to particular areas of the law, it finds expression in specific rules which are adapted to the subject matter. In contract, one of the expressions of the general principle is the maxim ex turpi causa non oritur actio. I suspect that the plaintiffs' reference to "collateral" illegality assumes that the application of the general principle to the law of trespass, detinue and conversion ("the possessory torts") may be ascertained by reference to the law which has developed around the maxim in the law of contract.

9. In its application to the law of contract, the general principle fastens on the contract itself as the foundation of the cause of action and admits collateral illegality in proof of the illegality of the contract. The effect of the maxim ex turpi causa was stated by Lindley L.J. in Scott v. Brown, Doering, McNab & Co. (1892) 2 QB 724, at p 728:

"No Court ought to enforce an illegal contract or
allow itself to be made the instrument of
enforcing obligations alleged to arise out of a
contract or transaction which is illegal, if the
illegality is duly brought to the notice of the
Court, and if the person invoking the aid of the
Court is himself implicated in the illegality."

However, in reference to this passage, Windeyer J. in Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397 observed (at p 412):

"His Lordship was speaking there of an action
based upon an illegal contract. His phrase
'obligations alleged to arise out of a contract
or transaction which is illegal' obviously refers
to contracts or other transactions between
parties. It does not refer to an action arising
simply ex delicto."

Collateral illegality affects the legality of a contract and hence a right of recovery founded on the contract; but there is clear authority that a right of recovery founded on possession is not affected by illegality in the manner in which the plaintiff acquired possession. In Bowmakers, Ld. v. Barnet Instruments, Ld. (1945) KB 65, du Parcq L.J. speaking for the Court said (at p 71):

" In our opinion, a man's right to possess his
own chattels will as a general rule be enforced
against one who, without any claim of right, is
detaining them, or has converted them to his own
use, even though it may appear either from the
pleadings, or in the course of the trial, that
the chattels in question came into the
defendant's possession by reason of an illegal
contract between himself and the plaintiff,
provided that the plaintiff does not seek, and is
not forced, either to found his claim on the
illegal contract or to plead its illegality in
order to support his claim."

This Court accepted that enunciation of the principle as correct in Thomas Brown and Sons Ltd. v. Fazal Deen (1962) 108 CLR 391, at p 411. And in Gordon v. Chief Commissioner of Metropolitan Police, after the plaintiff demanded that the police officer return the money which he had seized, the plaintiff was held entitled to recover it in detinue though it had been obtained in illegal betting transactions. Buckley L.J. stated the approach of the majority in this way (at p 1099):

"The plaintiff here is not enforcing any rights
directly resulting to him from his carrying on
business as a bookmaker; he is not recovering
bets; he is seeking to recover from the
defendant, who has seized it, money which was his
and none the less his because it became his by
virtue of a gambling transaction."

Nor does past illegality in dealing with goods in the plaintiff's possession affect his right to recover them from one who has no better title. In Russell v. Wilson [1923] HCA 60; (1923) 33 CLR 538, a police officer took possession of money and valuable securities in the course of executing a warrant issued under the gaming laws. The warrant authorized the seizure of such items found in premises used for illegal betting. Although the items were lawfully seized and the plaintiff was convicted of a gaming offence involving the use of the items, the police officer was held liable in detinue when he refused to return the items after a demand, authority for further retention having ceased.

10. A similar view was taken in an action in ejectment. In Feret v. Hill [1854] EngR 540; (1854) 15 CB 207 (139 ER 400) a lessee had entered into an agreement to lease premises for a term, intending to use them as a brothel. He concealed his immoral purpose from the lessor when the agreement was made. The lessor put him into possession but, discovering the use being made of the premises, the lessor forcibly expelled him. The lessee brought an action of ejectment to recover possession and succeeded. Buckley L.J. in Gordon's Case explained why (at p 1099):

"The plaintiff there acquired the premises and
used the premises for immoral purposes, but he
succeeded in ejectment in maintaining his title
to the premises because the property was in him,
inasmuch as the estate had passed by the
lease. The purposes for which he had acquired
the property were not a matter which he had to
prove to establish his cause of action."

In Feret v. Hill the foundation of the plaintiff's cause of action was his possession of the premises, not the agreement under which he had been put into possession.

11. The cases founded on possession may be contrasted with cases where, although possession of something is sought, the plaintiff must rely on an illegal bailment to make out his entitlement to possession. Thus in Taylor v. Chester (1869) LR 4 QB 309, a plaintiff sought to recover half of a 50 bank note which he had deposited with the defendant as security for money. The deposit was made for the purpose of securing money spent on debauchery and immoral conduct in a brothel. The plaintiff had to show the terms of the deposit in order to establish his entitlement to possession. The deposit was the foundation of his cause of action and the deposit had been made for an immoral purpose. The plaintiff failed. Similarly in Thomas Brown & Sons Ltd. v. Fazal Deen the plaintiff failed because, in order to show his entitlement to the return of gold deposited with the defendant, he had to show a bailment of the gold in breach of the National Security (Exchange Control) Regulations.

12. In this case, the plaintiffs' action is not founded on contract; it is an action in tort founded on possession. Prior illegal use by the plaintiff of goods in his possession is no defence to a right to recover them in an action in tort.
Can possession itself be unlawful?

13. If possession is always lawful, possession confers a "possessory title" which is good against everyone except the owner (Russell v. Wilson, at p 546) and a plaintiff in possession or entitled to possession has a right to recover in tort for disturbance or withholding of possession. In the case of the possessory torts, the principle that "No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act" can have no application unless the plaintiff's possession or the possession to which he claims to be entitled is unlawful. It is only if the possession which the alleged tortfeasor has disturbed or withheld is unlawful possession that there is occasion to invoke the general principle.

14. In Doodeward v. Spence [1908] HCA 45; (1908) 6 CLR 406 the plaintiff, who had had possession of the preserved corpse of a still-born child with two heads, sued in detinue to recover it from a police officer who took it from him. Griffith C.J. said, at p 412:

" The foundation of the argument for the
respondent must be that the continued possession
of an unburied human body after death by any one
except for the purpose of burial is necessarily
unlawful. If it is, it follows that no action
can be founded upon a disturbance of that
possession.
But, if it is not necessarily unlawful, then
in my opinion it equally follows that, in any
case in which the possession is lawful, the law
will by appropriate remedies redress any such
disturbance. The very term 'lawful possession'
connotes a right to invoke the law for its
protection. A lawful possession which does not
involve any right cognizable by law is a
contradiction in terms. Otherwise there would be
a field of English law where still prevails
'The good old rule, the simple plan,
That he should take who has the power
And he should keep who can.' "

15. Possession which is lawful founds a right to a remedy; possession which is unlawful does not. "Unlawful" in this context does not necessarily mean criminal or tortious. It may describe an act or transaction which, on grounds of public policy, the law simply does not recognize as founding a legal right. Bramwell B., in the course of argument in Cowan v. Milbourn [1848] EngR 492; (1867) LR 2 Exch 230, said (at p 233):

"an act may be illegal in the sense that it will
not be recognised by the law as capable of being
the foundation of any legal right, or that it may
even deprive what it accompanies of that
capacity, although it is followed by no penalty."

In Bowman v. Secular Society, Limited (1917) AC 406, Lord Finlay L.C. cited this observation and commented (at p 423) that "(t)he principle is very familiar, and has been applied in innumerable cases". In his judgment in Cowan v. Milbourn Bramwell B. observed, at p 236:

"It is strange there should be so much difficulty
in making it understood that a thing may be
unlawful, in the sense that the law will not aid
it, and yet that the law will not immediately
punish it."

Commenting on this case in Bowman v. Secular Society, Limited, Lord Sumner said (at p 463):

"The distinction is well settled between things
which are illegal and punishable and things
which, though not punishable, are illegal so as
not to support a contract for good consideration.
Prostitution is one of the common examples.
Bramwell B. evidently thought that Secularism
was another."

The rule stated by Bramwell B. is of general application. In Reg. v. Home Secretary; Ex parte Puttick (1981) QB 767 it was applied to qualify a statutory right. And, significantly for present purposes, the general principle is evidenced by a dictum in Bowmakers, Ld. v. Barnet Instruments, Ld., a case of detinue. There the Court of Appeal upheld a plaintiff's claim founded on possession of goods acquired under an illegal contract. Although du Parcq L.J. stated "as a general rule" that a right to possess one's own chattels would be enforced against a person who, without any claim of right, detained or converted them, he added (at p 72):

" It must not be supposed that the general rule
which we have stated is subject to no exception.
Indeed, there is one obvious exception, namely,
that class of cases in which the goods claimed
are of such a kind that it is unlawful to deal in
them at all, as for example, obscene books."

A more ancient and unhappy example of the applicability of the general principle to a possessory tort may be found in Buron v. Denman (1848) 2 Exch 167 (154 ER 450). A plaintiff sued the defendant, a naval commander, in trespass for carrying away slaves in the plaintiff's possession at Gallinas to Sierra Leone where they were freed. The defendant pleaded, inter alia, that the plaintiff was not lawfully possessed of the slaves. Though 76 years had passed since Lord Mansfield had discharged the slave in Somerset v. Stewart [1772] EngR 57; (1772) Lofft 1 (98 ER 499) Parke B., in summing up, directed the jury (at p 187 (p 459)):

"It is not necessary to decide whether, if he had
been simply in the actual possession of slaves,
using them as slaves, he could have recovered
against any person who took them away: on that
point it is not necessary to give an opinion,
because, according to the evidence on both sides,
he was living at Gallinas, where it was lawful to
possess slaves."

There are, of course, many instances where possession of a thing is unlawful in the sense that it breaches the criminal law and such possession cannot found a cause of action. A plaintiff drug pedlar cannot come to the court to seek damages for the taking of his illegally possessed drugs. Much less will the court order specific restitution of the drugs. But possession may be unlawful in the relevant sense for a number of other reasons, and one cannot say that the conduct or intention of the person in possession is always immaterial to the lawfulness of possession.

16. There are some situations where possession is unlawful because of the possessor's intention and where force may be used to deprive him temporarily of the thing possessed. A knife may be taken by force from the grasp of an intending murderer, though it is the knife he uses lawfully to carve the family dinner. But he must have it back once the murderous intention passes or is impossible to effect. Force may be used in such a case because there is a common law authority in any person to take reasonable steps to restrain a breach of the peace which he reasonably apprehends is about to be committed in his presence (Albert v. Lavin (1982) AC 546, at p 565), and the person who exercises that authority is not exposed to a civil liability in trespass or detinue because he takes possession of the weapon being used in breaching the peace. There are other instances where an intention to use a thing in the commission of crime may affect the extent of the liability of one who takes or keeps the thing. Thus, if one person who is drunk goes to drive his car and a second person takes the key out of the ignition, the second person incurs no liability in trespass for damages for depriving the driver temporarily of the key. Nor is he liable in detinue for damages for refusing the driver's immediate demand to return the key, but he would be liable in detinue if he did not return the key when the driver had sobered up or directed delivery of the key to a third person. These are cases where the act on which the plaintiff founds his claim for relief is an offence or an intended offence and the general principle precludes the grant of relief in respect of the criminal use or proposed use of the thing possessed. In Garrett v. Arthur Churchill Ltd. (1970) 1 QB 92, to which Hope J.A. referred, a bailee of a goblet delivered it at the direction of the bailor to a third party for export. An export permit was required, and the bailee was charged with an offence of being knowingly concerned in the exportation of goods with intent to evade a prohibition on their export. He was acquitted by the justices who considered it his legal duty to act in accordance with the owners' instruction "even though he knew that doing so might result in an illegal exportation" (at p 95). The Divisional Court sent the matter back for further consideration. Lord Parker C.J. held the justices' decision to be incorrect in law for this reason (at p 99):

"that albeit there was a legal duty in ordinary
circumstances to hand over the goblet to the
owners once the agency was determined, I do not
think that an action would lie for breach of that
duty if the handing over would constitute the
offence of being knowingly concerned in its
exportation."

Public policy as a ground for denying relief

Criminal liability for possessing goods or for returning goods held on another's behalf or for intending imminently to use them to commit a breach of the peace are not the only cases where possession is "unlawful" in the sense of not founding a cause of action. Possession may be unlawful in the relevant sense when it is otherwise injurious to the public, as Griffith C.J. pointed out in Doodeward v. Spence (at p 413):

" The question to be determined, then, is
whether the continued possession of a human
corpse unburied is in re ipsa unlawful. If it
is, the reason must be that such possession is
injurious to the public welfare, and the notion
that it is so injurious must be founded upon
considerations of religion or public health or
public decency. The question whether a
particular act is injurious to the public on any
such grounds is a mixed question of law and fact,
so that what may be injurious at one time or
under one set of circumstances may not be so at
another time and under different circumstances."

To say that possession is unlawful when it is injurious to the public is to say that the public policy of the law prevails over private rights otherwise enforceable by law. That is a basic policy of the law, though the examples of its application are to be found chiefly in the law of contract. In T.A. Street's The Foundations of Legal Liability, (1906), vol.2 (reprinted in Historical Writings in Law and Jurisprudence, (1980), vol.6, p 162), the learned author stated the underlying policy:

" It is self-evident that such sanction (the
sanction of the law to the parties' engagement)
cannot be given where the engagement in question
is subversive of the law itself or tends to
weaken the foundations of human society. The law
will not permit any of its creatures to be used
for its own destruction. The machinery for the
administration of justice cannot be used to
promote an iniquitous or unlawful purpose."

For this reason a court, on the ground of public policy, will refuse a remedy to enforce a contract which is neither void nor, except for considerations of public policy, unenforceable: cf. per Mason J. in A. v. Hayden [1984] HCA 67; (1984) 156 CLR 532, at p 557. His Honour noted (at p 559) that "(t)he refusal of the courts to enforce contracts on grounds of public policy is a striking illustration of the subordination of private right to public interest". In that case, at p 544, Gibbs C.J. said:

"Where a contract is not unlawful on its face and
is capable of performance without any violation
of the law, it will be enforceable unless it is
proved that one or both of the parties intended
to perform it in an illegal manner or to effect
an illegal purpose: Waugh v. Morris ((1873) LR
8 QB 202); Hutchinson v. Scott ((1905) [1905] HCA 59; 3 CLR
359; Patterson v. Lowe (1955) StRQd 437, at
p 444."

(And see per Mason J. in Yango Pastoral Company Pty.Ltd. v. First Chicago Australia Ltd. [1978] HCA 42; (1978) 139 CLR 410, at p 429.) The broad policy basis for the court's refusal to enforce a contract to effect an immoral or illegal purpose was stated by Diplock L.J. in Hardy v. Motor Insurers' Bureau (1964) 2 QB 745 (at p 767):

"The rule of law on which the major premise is
based - ex turpi causa non oritur actio - is
concerned not specifically with the lawfulness of
contracts but generally with the enforcement of
rights by the courts, whether or not such rights
arise under contract. All that the rule means is
that the courts will not enforce a right which
would otherwise be enforceable if the right
arises out of an act committed by the person
asserting the right (or by someone who is
regarded in law as his successor) which is
regarded by the court as sufficiently anti-social
to justify the court's refusing to enforce that
right." (Emphasis added.)

17. The broad policy that private rights are not enforceable when their enforcement is injurious to the public is not a charter for judicial idiosyncracy in refusing to enforce private rights. The policy corresponds with the general principle stated in Chettiar v. Chettiar: just as the court refuses to lend its aid to one who founds his cause of action upon an immoral or an illegal act, so the court will not lend its aid to one who seeks it in order to effect an immoral or illegal purpose. That principle was considered in Bowman v. Secular Society, Limited. The Secular Society Limited was a corporation which sued to recover a pecuniary legacy. It was objected that the objects of the corporation were anti-Christian and on that account contrary to law, and that the legacy would be expended on unlawful objects. The objection was not sustained by the majority (Lord Finlay L.C. dissenting) but the principle was accepted. Lord Sumner said (at p 454):

"If Christianity is of the substance of our law,
and if a Court of law must, nevertheless, adjudge
possession of its property to a company whose
every action seeks to subvert Christianity and
bring that law to naught, then by such judgment
it stultifies the law. So it was argued, and if
the premise is right, I think the conclusion
follows."

The reasons why the conclusion did not follow are instructive. In Lord Dunedin's view, it could not be said that the court's assistance was sought to carry out the Society's objects. He said (at pp 435-436):

"(The company) is seeking (the court's) assistance
only to compel the executor to do his duty, so
that it may receive what is legally due to it.
... For after all - and treating the memorandum,
in spite of the opinion I have expressed already,
as indicating purposes entirely illegal such as
in contract would not serve as foundation for an
action - there is no reason why the society
should not employ the money in paying its office
rent."

It follows that relief is not refused to a plaintiff who seeks enforcement of a right which he may or may not utilize to effect an immoral or illegal purpose. A right which is otherwise enforceable does not cease to be enforceable because it may be enjoyed illegally in the future. Nor does such a right become entirely unenforceable because it is intended that its future uses will include some uses which are lawful and some which are not. Cowan v. Milbourn is an example. There, the defendant had undertaken to let rooms to the plaintiff, but the defendant subsequently refused to let the plaintiff have them because he apprehended that the plaintiff intended to use them for the delivery of blasphemous lectures. That was regarded as an illegal purpose (a view which was criticized in Bowman v. Secular Society, Limited). The plaintiff sued for damages. As the report in 16 LT 290 shows, the rooms were engaged for two purposes. One purpose was for a tea party and ball, the other for the delivery of lectures on a different occasion. The jury assessed nominal damages for the loss of the use for the former purpose, but no relief could be granted for loss of use for the latter purpose. The Court of Exchequer held that, as the plaintiff was going to use the rooms for an unlawful purpose, he could not enforce the contract for that purpose. In Bowman v. Secular Society, Limited Lord Sumner said that Cowan v. Milbourn was wrongly decided. He thought that it was wrong to hold that the lectures "could not but be unlawful" but, if the lectures were necessarily of that kind, his Lordship agreed that the hiring would have been "for an unlawful purpose and void" (at p 463).

18. The principle that a court will not lend its aid in order to effect an immoral or illegal purpose explains the dictum of Maule J. in Feret v. Hill. Although Maule J. held that the plaintiff's possession of the premises was lawful and that he was entitled to recover possession, an intention to continue to use the premises for immoral purposes would have raised different considerations. His Lordship said (at p 226; p 408):

"As to the plaintiff's intention at the time of
the contract, - I think neither that nor the use
he made of the premises subsequently will avoid
the lease. The plaintiff was to have some locus
poenitentiae: it is not to be presumed that he
will continue to do that which is unlawful."
(Emphasis added.)

19. The lawfulness of possession or of entitlement to possession on the one hand and the availability of a remedy to protect that possession or to vindicate that entitlement on the other are reciprocal: lawfulness implies the availability of a remedy; conversely unavailability of a remedy implies unlawfulness. This reciprocity reflects the way in which the court reconciles two duties which would otherwise be in conflict: the first, the duty of the court to grant relief in accordance with the legal, equitable or statutory right which the plaintiff seeks to enforce; and the second, the duty of the court not to assist in the fulfilment of an immoral or illegal purpose. The first of these duties is qualified by the second. And thus a person in possession or entitled to possession of goods is held not to be in or entitled to lawful possession if possession is held or sought in order to effect an immoral or unlawful purpose. Although a court does not refuse relief merely because there is a possibility that the plaintiff may put a thing to an immoral or illegal use, an intention on the part of the person in possession or of the person entitled to possession to use the thing to effect an immoral or illegal purpose may suffice (as in Cowan v. Milbourn) to establish that the possession is unlawful or (where the thing is susceptible of a lawful use) to establish that no relief can be given in respect of the intended unlawful use.

20. The courts avoid the absurdity of awarding damages in the possessory torts for lost opportunities to engage in immoral or illegal conduct. In trespass no damages are awarded in respect of any immoral or illegal activity which is prevented or interrupted by the asportation. In detinue no damages are awarded in respect of any immoral or illegal activity in which the plaintiff would have engaged had he had possession of the thing. And in conversion no damages can be awarded in respect of any value of the thing attributable to its utility for immoral or illegal purposes. But a mere possibility that the thing will be used to effect an immoral or illegal purpose does not preclude enforcement of a right to possession or the assessment of damages for its detention or conversion. These propositions are qualified where the defendant is empowered, either by statute or by the common law, to take or keep the thing possessed as, for example, where the defendant executes a search warrant, takes possession of evidence to be produced in a prosecution or prevents a breach of the peace. In such cases no action lies in respect of anything done by the defendant within power.
Conclusion

21. The sufficiency of the proposed plea may now be examined, bearing in mind that the statement of claim is to be taken to allege that the plaintiffs' possession was lawful when the goods were taken and, if the goods had been returned at any time, their possession would have been lawful and, if the goods are returned, their possession will be lawful. In general the proposed plea alleges that the plaintiffs' possession was, is or will be such that no action lies or no damages would be awarded in respect of a use or intended use of the goods. A reasonable defence appears. Unlawfulness in the relevant sense is pleaded in grounds (ii), (iii) and (iv) of sub-par.(a) except in the words "acquired and/or" in ground (iv) - a plea which erroneously characterizes possession according to the unlawfulness of the manner in which it was obtained. Ground (v) may be supported so far as it alleges that the goods are obscene: in the first place, the defendant is entitled to plead that clause in reliance on the observation of du Parcq L.J. in Bowmakers, Ld. v. Barnet Instruments, Ld. as to obscene books; secondly, there are some objects of such a degree of obscenity that their possession might properly be described as "injurious to the public welfare" and it may be that some of the goods seized are of that character, and thirdly, because the obscene character of the goods is material to the exercise of a discretion to order specific restitution. Ground (vi) is pleaded in general terms and its want of particularity precludes any decision as to the sufficiency of the facts relied on to establish that the plaintiffs' possession of the goods was or would be unlawful. Although the allegation in ground (vi) that the plaintiffs' possession was "against public policy" can bear no different meaning from the phrase "injurious to the public welfare" used by Griffith C.J. in Doodeward v. Spence, it is impossible now to determine whether the facts on which the defendant would seek to rely are capable of supporting this part of the plea. The better course is to let it stand with liberty to the plaintiffs to apply to strike it out if particulars fail to show that possession was or would be injurious to the public welfare.

22. Sub-paragraphs (c), (d) and (e) when coupled with such particulars as appear in the appeal book - particulars which in turn refer to documents associated with a prosecution in Victoria in May 1984 - generally appear to be different ways of pleading the plaintiffs' intention to give effect to an immoral or illegal purpose by the use of the goods. However, the phrase "or might be used" in sub-par.(c) is insupportable. The fact that goods "might be used" for an immoral or illegal purpose cannot justify or excuse a taking or detention of them and cannot establish that their possession is or would be unlawful. That phrase should be struck out.

23. Sub-paragraph (b) pleads the reasons which the defendant relies on to secure a discretionary order refusing specific restitution of the goods. By pleading that the goods are obscene, that a purpose for which possession is sought by the plaintiffs is to use them to propagate "unnatural sexual practices by or on children or between children or between children and adults" and that the plaintiffs intend to use the goods to commit offences, the defendant pleads grounds of great cogency for refusing specific restitution.

24. Subject to what I have said, the proposed plea is a tenable defence. The appeal should be allowed, the judgment of the Court of Appeal set aside and in lieu thereof the defendants should have leave to amend their defence by substituting for the original par.27 the proposed par.27 (including the proposed sub-par.(e)), deleting therefrom the words "acquired and/or" in sub-par.(a)(iii) and the words "or might be used" from sub-par.(c).

DEANE, DAWSON, TOOHEY AND GAUDRON JJ. We are not at all sure that the course of proceedings in this case throws up in any satisfactory way the question which the Court is asked to determine. Nor, for our part, do we think that the question emerges with any clarity. The point which was taken is a pleading point but it seems to have been decided in the courts below upon a basis which is not to be found in the pleadings in the form in which they were or, possibly, in the form in which they now are. It is necessary, therefore, to recount as shortly as possible the history of the matter.

2. The plaintiffs (we shall continue to call them that) commenced an action in the Supreme Court of New South Wales against the defendants who are respectively a Victorian policeman, a New South Wales policeman and a New South Wales justice of the peace. The plaintiffs allege in their statement of claim that the two policemen unlawfully seized from certain premises a quantity of documents, books, posters, tape-recordings, photographs, puppets and other things and that they purported to do so pursuant to a warrant issued by the justice of the peace. The plaintiffs claim that they are entitled to the articles seized and allege that the warrant under which the seizure was made is bad. They claim relief for trespass to goods, detinue and conversion.

3. It is alleged that the warrant was procured under s.354 of the Crimes Act 1900 (N.S.W.) "to enter and search premises at 7 Leichhardt Street, Glebe, and to seize ... such things as the second defendant complained that he had reasonable ground to believe were on the premises relating to the 'Australian Pedophile Support Group' in respect of which an indictable offence had been or was suspected to have been committed, namely, 'conspiracy to corrupt public morals (Common law)'".

4. Various defences are raised in the defence of the second defendant (the present appellant) but for the purposes of these proceedings it is par.27 which is relevant. In its original form it read as follows:

"In answer to the whole of the Statement of
Claim the said defendant says that the possession
and/or ownership or other title or interest claimed
by the various plaintiffs is illegal and void and
of no effect on the grounds that
(a) the said possession of the goods or some of
them were for the purpose of or were part of
the perpetration of offences under Sections 6
and 10 of the Indecent Articles and Classified
Publications Act;
(b) the said possession of the goods or some of
them were for the purpose of committing an
indictable offence namely a conspiracy to
corrupt public morals which said conspiracy
took place both in the State of New South
Wales and in Victoria and which said
conspiracy is presently being prosecuted in
the State of Victoria;
(c) the said possession of the goods or some of
them was for an immoral purpose namely the
propagation of sexual practices with children
among the public."

5. The plaintiffs sought an order from a master that par.27 be struck out as disclosing no reasonable defence and, in the alternative, as prejudicing and embarrassing the plaintiffs in their conduct of the proceedings. The master took the view that the defence raised by the pleading was arguable and refused the application. The plaintiffs appealed to Cantor J., who took the view that the issue which par.27 sought to raise was:

"Is a plaintiff, who is otherwise entitled to the
possession of goods which are by their nature
'immoral goods' unable to have the Court's
assistance in recovering them from a person who has
no right to their possession, because of
considerations of public policy."

Apparently Cantor J. thought (and it seems to us to be clear) that par.27 as it then was did not raise any such issue. However, he heard the appeal upon the basis that the second defendant would apply "to amend paragraph 27 of his defence so as fully and squarely to raise this issue in his defence". In the end, he concluded that even if par.27 were amended as foreshadowed it would not raise an arguable defence. Accordingly, he ordered that par.27 in its then form be struck out.

6. The second defendant sought leave to appeal to the Court of Appeal which granted leave "conditional upon the appellant amending par.27 to state precisely what are the facts relied on to support the grounds and their application to the goods sought to be recovered". The second defendant purported to comply with the condition imposed, but the plaintiffs were dissatisfied and sought by notice of motion to compel the second defendant to comply with it. That notice of motion was referred by the Court of Appeal to Foster J., who ordered that the second defendant place on affidavit all matters relating to the particulars upon which he sought to rely. The second defendant purported to comply with this order and the matter came on again before Roden J. who, amongst other things, ordered that the second defendant file and serve an amended statement of defence incorporating a new par.27 in accordance with certain directions which he gave.

7. The second defendant complied with the order made by Roden J. and the new par.27, of which sub-par.(a)(i) was later deleted, reads as follows:

"In answer to the whole of the Statement of
Claim and in relation to the articles alleged to
have been taken and each of them as more
particularised in the particulars herewith the
second defendant says
(a) the possession and/or ownership or other title
or interest claimed by the various plaintiffs
was and/or is illegal and void and
unenforceable and of no effect on the
following grounds
(ii) the said possession, ownership title or
other interest was for the purpose of
or were part of the perpetration of the
said breaches of the said sections;
(iii) the plaintiffs acquired and/or were in
possession of the said articles in the
course of and/or in furtherance of a
conspiracy namely a conspiracy to
corrupt public morals which took place
both in the State of New South Wales
and Victoria and which said conspiracy
is being or may be prosecuted in the
State of Victoria;
(iv) the plaintiffs acquired and/or were in
possession of the said articles for an
immoral purpose or in furtherance of an
immoral purpose namely the propagation
of unnatural sexual practices by or on
children or between children or between
children and adults;
(v) the said articles were by their nature
and/or quality indecent, obscene,
immoral and/or illegal;
(vi) the said possession and/or ownership
and/or other title claimed by the
various plaintiffs was against public
policy;
(b) the nature and/or quality of the said articles
was such that the said articles should not be
returned to the plaintiffs and/or the court
should not order such relief or damages on the
grounds set out in (a)(ii) to (vi) above;
(c) the purposes for which the said articles were
to be used or were intended to be used or
might be used by the plaintiffs were such that
the said articles should not be returned to
the plaintiffs and/or the court should not
order such return, relief or damages on the
grounds set out in (a)(ii) to (vi) above;
(d) the said articles were for use directly or
indirectly in whole or in part in furtherance
of a criminal offence namely a conspiracy to
corrupt public morals."

8. The matter was then heard by the Court of Appeal as an appeal from the order of Cantor J., although the defence, and in particular par.27, was now in an amended form and not in the form in which it was before Cantor J. The Court of Appeal apparently dealt with the matter upon a basis identified in the judgment of Glass J.A. as follows:

"During the course of argument the legal
question raised by the defence, the arguability of
which had to be decided under this test, came to be
refined in the following manner. The pleadings
alleged or could be construed as alleging that the
articles had been used, were being used and, if
returned, would be used for the commission of
offences under ss.6 and 10 of the Indecent Articles
and Classified Publications Act, 1975 (paragraph
27(a)(ii)) and in furtherance of the indictable
conspiracy to corrupt public morals (paragraph
27(d)). Counsel for the defendants did not resile
from a contention that past and present use for
these purposes would ground a defence of
illegality. He was encouraged by the Court,
however, to put his case at its highest reach in
order to give focus to the consideration of what is
in effect an application to determine the legal
effect of findings of fact when no findings have
yet been made. The Court was thus enabled to
narrow the argument to the point whether in answer
to a claim for the return of the articles it raised
an arguable defence in law to allege and prove that
if delivered to the plaintiffs by order of the
Court, the articles would thereafter be used to
commit offences under the said Act or in
furtherance of the said criminal conspiracy."

The Court of Appeal by a majority (Hope and McHugh JJ.A.; Glass J.A. dissenting) dismissed the appeal against the order of Cantor J. striking out par.27.

9. At this point it should be recalled that par.27 in the form in which it was before Cantor J. did not raise the issue on which he decided the matter. It did not raise the question whether the intrinsic quality of the articles seized, be it indecency, obscenity or immorality, was of itself sufficient to deny to the plaintiffs the relief which they claim. Paragraph 27 in its amended form does raise that question. Sub-paragraph (a)(v) alleges that "the possession and/or ownership or other title or interest claimed by the various plaintiffs was and/or is illegal and void and unenforceable and of no effect" on the ground that "the said articles were by their nature and/or quality indecent, obscene, immoral and/or illegal". Sub-paragraph (b) may raise the same point in a more general way. The amended par.27 was before the Court of Appeal, but they did not determine the appeal before them upon that point. They decided that it was no defence to plead that the use to which the plaintiffs intended to put the articles if returned was to commit offences under the Indecent Articles and Classified Publications Act 1975 (N.S.W.) or in furtherance of a criminal conspiracy. Nevertheless, the order of the Court of Appeal dismissing the appeal has, presumably, the effect of striking out the whole of the amended par.27.

10. This Court granted special leave to appeal against the order of the Court of Appeal, but on the hearing of the appeal the question arose whether par.27, even in its amended form, raised the issue upon which the Court of Appeal decided the matter. Application was accordingly made on behalf of the second defendant to amend par.27 further by adding the following sub-paragraph:

"(e)If the said articles were returned to the
plaintiffs it is intended that the same would
be used to commit offences under the Indecent
Articles and Classified Publications Act 1975
or in furtherance of the said criminal
conspiracy."

The application was opposed and the Court directed that argument proceed on the footing that it would, in due course, either make an order granting leave to amend or construe the existing par.27 so as to raise the issues expressed in the proposed sub-par.(e).

11. The position as it now stands is, as we understand it, as follows. The issue before the Court of Appeal and now before us is whether a pleading to the effect of the proposed sub-par.27(e) constitutes an arguable defence. That is to say, the issue is whether it is an arguable defence to say that if the articles in question are returned to the plaintiffs, they intend to use them to commit offences under the Indecent Articles and Classified Publications Act or in furtherance of a conspiracy to corrupt public morals. For this purpose, it is assumed on both sides that there is, or at least that it is arguable that there is, an offence of conspiracy to corrupt public morals.

12. We do not understand any other question to have been argued before the Court of Appeal or before us. We do not think that in the circumstances this Court can, or at all events should, deal with the matter upon any other basis than that adopted by the Court of Appeal. We shall return to this aspect of the matter later.

13. Turning to the defence raised in the form of the proposed new sub-par.27(e), we should observe at the outset that the second defendant does not assert any title to the articles in question. It would seem that any present intention to prosecute the plaintiffs for conspiracy to corrupt public morals or for any offence under the provisions of the Indecent Articles and Classified Publications Act has been abandoned. At all events it is not alleged that the plaintiffs are to be prosecuted for any offence. Thus, no issue is raised that the articles are required as evidence in any prospective trial, in which event there would be a legitimate ground for retention of them by the police: Malone v. Metropolitan Police Commissioner (1980) QB 49. These observations are no more than by way of background because, as we have said, the question before this Court ought to be restricted to the issue raised by the proposed new sub-par.(e). That issue is whether the plaintiffs' intention to use the articles to commit offences with them if they are returned is sufficient to justify the second defendant's refusal to return them. The allegation that the plaintiffs intend to commit offences with the articles if they are returned must, of course, in the context of an application to strike out the pleading, be assumed to be true.

14. One principle which is axiomatic is that the law will not lend its processes for criminal, illegal or immoral purposes: see, e.g., Collins v. Blantern [1799] EngR 101; (1767) 2 Wils KB 347, at pp 349-350 [1799] EngR 101; (95 ER 850, at p 852). Just how far a court will regard itself as being used for any of these purposes is something to which it will be necessary to turn. For the moment it may be taken as beyond question that the law will not compel an individual to do something which, if done on his own, would constitute him a participant in an offence. The law would not, for example, compel the second defendant in this case to return the articles in question, or penalize him for failing to do so, if the return of the articles would otherwise render him guilty of aiding and abetting or counselling or procuring the commission of any offence.

15. But it does not seem to us that, if the second defendant were to return the articles in question to the plaintiffs, he would be participating in any offences subsequently committed by them with the articles. The observations of Devlin J. in National Coal Board v. Gamble (1959) 1 QB 11, at p 20, are pertinent:

"A person who supplies the instrument for a
crime or anything essential to its commission aids
in the commission of it; and if he does so
knowingly and with intent to aid, he abets it as
well and is therefore guilty of aiding and
abetting. I use the word 'supplies' to comprehend
giving, lending, selling or any other transfer of
the right of property. In a sense a man who gives
up to a criminal a weapon which the latter has a
right to demand from him aids in the commission of
the crime as much as if he sold or lent the
article. But this has never been held to be aiding
in law: see Rex v. Lomas (9 CrAppR 220) and
Reg. v. Bullock ((1955) 1 WLR 1). The reason, I
think, is that in the former case there is in law
a positive act and in the latter only a negative
one. In the transfer of property there must be
either a physical delivery or a positive act of
assent to a taking. But a man who hands over to
another his own property on demand, although he may
physically be performing a positive act, in law is
only refraining from detinue. Thus in law the
former act is one of assistance voluntarily given
and the latter is only a failure to prevent the
commission of the crime by means of a forcible
detention, which would not even be justified except
in the case of felony. Another way of putting the
point is to say that aiding and abetting is a crime
that requires proof of mens rea, that is to say, of
intention to aid as well as of knowledge of the
circumstances, and that proof of the intent
involves proof of a positive act of assistance
voluntarily done."

The words "which would not even be justified except in the case of felony" in the above passage clearly contain a misprint. The meaning intended was plainly enough "which would not even be justified in the case of felony". As Hope J.A. pointed out in the court below, Devlin J. referred in that passage to Rex v. Lomas which concerned a felony, namely, burglary.

16. In this case the plaintiffs allege in their statement of claim that they are the owners of the articles in question. This allegation is not denied by the second defendant in his defence. Upon the basis that the plaintiffs are entitled as owners to demand that the second defendant deliver up possession of the articles to them, the mere fact that the second defendant believed that they intended to use the articles to commit an offence or offences would not be sufficient to justify his withholding possession. Handing back the articles in those circumstances would not amount to participation on the part of the second defendant in any subsequent offences. No doubt if he were to do more than to hand back the articles and were to engage in other conduct amounting to aiding and abetting or counselling or procuring he would be guilty of participation. See Garrett v. Arthur Churchill Ltd. (1970) 1 QB 92. But merely to yield to the plaintiffs the possession to which they were entitled would not amount to criminal conduct. This is not to deny those powers which a citizen has, be he a policeman or not, to prevent the commission of a crime or a breach of the peace. Rights arising from ownership would not prevail against those powers but they only come into being when there is an immediate threat of a physical kind which is lacking in this case. See Albert v. Lavin (1982) AC 546; Reg. v. McKay (1957) VR 560; Reg. v. Turner (1962) VR 30. Here the relevant allegation is confined to an assertion of the existence of an intention on the part of the plaintiffs to use the articles in question to commit offences. Mere intention to engage in criminal conduct is not sufficient of itself to deny to the plaintiffs their right to possession.

17. That, however, does not dispose of the matter, for the principle that the court will not assist illegal or immoral conduct is of wider ambit. Nevertheless there are limits. As a general proposition, a plaintiff will not be denied relief unless he has to rely upon an unlawful or immoral transaction to establish his cause of action. This is expressed by the maxim ex turpi causa non oritur actio, which, however, is confined to the law of contract, as was explained by Windeyer J. in Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397. The fundamental principle is more broadly based. As Windeyer J. observed at p 414:

"If a plaintiff has to rely upon an unlawful
transaction to establish his cause of action, the
court will dismiss his case: see the passage in
the judgment of Denning L.J., as his Lordship then
was, in Marles v. Philip Trant & Sons Ltd.;
Mackinnon, Third Party ((1954) 1 QB 29, at p 38).
But that is as far as that rule goes: Gordon v.
Chief Commissioner of Metropolitan Police ((19100 2
KB 1080); Bowmakers Ltd. v. Barnet Instruments
Ltd. ((1945) 1 KB 65). Those who like to
interlard English law with Latin may be pleased to
remember at this point two further maxims, one from
Coke (4 Inst. 279), the other from Hale (2 Pleas
of the Crown 386): 'Nemo allegans turpitudinem
suam est audiendus'; and 'Frustra legis auxilium
quaerit qui in legem committit'."

18. In Feret v. Hill [1854] EngR 540; (1854) 15 CB 207 (139 ER 400), the plaintiff was granted a lease of premises which he intended to use and did subsequently use as a brothel. At the time the lease was granted the plaintiff fraudulently represented that he intended to use the premises to carry on a perfumery business. The defendant, the lessor, gave the plaintiff notice to quit and expelled him. The plaintiff successfully maintained an action of ejectment. An interest under the lease had passed to him and that was a sufficient basis for his action. The plaintiff's illegal conduct was merely collateral. Of the plaintiff's intention to use the premises as a brothel Maule J. at p 226 (ER at p 408) said:

"As to the plaintiff's intention at the time of the
contract, - I think neither that nor the use he made
of the premises subsequently will avoid the lease.
The plaintiff was to have some locus poenitentiae:
it is not to be presumed that he will continue to
do that which is unlawful."

19. In Gordon v. Chief Commissioner of Metropolitan Police (1910) 2 KB 1080 the plaintiff successfully recovered money which was the proceeds of street betting illegally carried on by him. The money was seized from the plaintiff's house under a search warrant along with a number of betting slips. The plaintiff was subsequently acquitted of a charge of using the house as a gaming house. The police declined to return the money, relying upon the illegal circumstances of its acquisition. The plaintiff succeeded upon the basis that, although the money had been acquired by him in unlawful circumstances, he had no need to place any reliance upon the street betting in his action against the Chief Commissioner of Police. As Fletcher Moulton L.J. said at p 1095:

"There being no forfeiture of the money under the
Street Betting Act, 1906, and the property in the
coins having passed out of the payer by his own
voluntary act of payment, that property must be in
the receiver, and whatever punishments and
liabilities he may incur through his wrongful
action in frequenting the streets for the purpose
of betting, there is nothing that affects his
property in the money received by him. It stands
exactly in the same position as any other money
that belongs to him, and his paying it into his
account at his bank or his changing it for other
moneys of an equal amount would be absolutely
without effect on his legal position with regard to
it."

20. A similar case is Russell v. Wilson [1923] HCA 60; (1923) 33 CLR 538 in which this Court held that the plaintiff, who conducted sweeps on horse races, was entitled to recover moneys seized by the police which had been received by him, the plaintiff, in connexion with his business. The plaintiff was convicted of an offence under the Gaming and Betting Act 1912 (N.S.W.) but, although that Act provided for forfeiture, no order for forfeiture of the money was made. The possessory title of the plaintiff to the money was held to be good against all but a superior title such as that of the true owners. Once the proceedings against the plaintiff had terminated, no order for forfeiture having been made, the power of seizure and retention by the police was exhausted. No purpose is to be served by the elaboration of authority to the same effect. It is sufficient to refer to Thomas Brown and Sons Ltd. v. Fazal Deen [1962] HCA 59; (1962) 108 CLR 391; Ison v. Australian Wheat Board (1967) 68 SR(NSW) 102; Palaniappa Chettiar v. Arunasalam Chettiar [1962] UKPC 1; (1962) AC 294, at p 303; Euro-Diam Ltd. v. Bathurst (1988) 2 WLR 517. It will, however, be necessary to refer later to Bowmakers Ltd. v. Barnet Instruments Ltd. (1945) 1 KB 65.

21. The Indecent Articles and Classified Publications Act provides for the forfeiture of indecent articles of the kind alleged in this case which have been seized under a special warrant. However, under the Act in its present form a special warrant may only be issued where a member of the police force has reasonable grounds for believing that the articles in question are kept upon any premises for the purpose of being published or that such an article has been published in, on or from any premises. The only articles which may be seized under a special warrant are those which are kept for the purpose of being published: s.7. Where an article is seized under a special warrant it is to be returned unless, within one month after seizure, an information is laid for a contravention of s.6 with respect to the article or a summons to show cause is issued: s.8. Section 6 makes it an offence to publish an indecent article. "Publish" is defined to include having in possession or custody, or under control, for the purpose of distribution, dissemination, circulation, delivery, sending, display, exhibition, lending for gain, exchange, barter, sale, offering for sale, letting on hire and offering to let on hire. If a summons to show cause is issued, a court may upon its return order the article to be forfeited where it is not claimed or where it is found to be indecent.

22. It would appear in this case that there is no question of forfeiture. There has been no prosecution under the Act nor is it alleged that the conditions for forfeiture laid down by the Act in its present or previous form have been satisfied. Nor is it suggested that the plaintiffs lacked title to the articles in question at the time they were seized. If the police had any right to retain the articles seized pending the institution and determination of any proceedings against the plaintiffs, that right has since ceased and there is no allegation to the contrary.

23. What is alleged is an existing intention on the part of the plaintiffs to use the articles, if returned, to commit offences. It is said that such an allegation, if established, would constitute a defence to the plaintiffs' claim. We are unable to see that it does. The law does not penalize intention. On the contrary, it recognizes a locus poenitentiae and assumes that the opportunity for repentance may be exercised. The extent to which the law will refuse its remedies upon the basis of illegality or immorality is confined even where the illegality or immorality exists in fact, let alone where it exists only in the mind.

24. We have indicated that it is necessary to deal separately with Bowmakers Ltd. v. Barnet Instruments Ltd. In that case the judgment in the Court of Appeal, at p 71, emphasizes the principle which is clearly expounded in the other cases:

"In our opinion, a man's right to possess his
own chattels will as a general rule be enforced
against one who, without any claim of right, is
detaining them, or has converted them to his own
use, even though it may appear either from the
pleadings, or in the course of the trial, that the
chattels in question came into the defendant's
possession by reason of an illegal contract between
himself and the plaintiff, provided that the
plaintiff does not seek, and is not forced, either
to found his claim on the illegal contract or to
plead its illegality in order to support his
claim."

It is not, however, that passage which makes it necessary to refer to the case separately. It is because of the proviso which is expressed at the end of the judgment, at p 72, in these words:

"It must not be supposed that the general rule
which we have stated is subject to no exception.
Indeed, there is one obvious exception, namely,
that class of cases in which the goods claimed are
of such a kind that it is unlawful to deal in them
at all, as for example, obscene books. No doubt,
there are others, but it is unnecessary, and would
we think be unwise, to seek to name them all or to
forecast the decisions which would be given in a
variety of circumstances which may hereafter
arise."

25. Whether or not these words have application in the present case is something which it is unnecessary to decide. Even if the articles which were seized are obscene, there is no allegation of any dealing in them. Whether the possession of the articles without more is something which the law would regard as illegal or immoral is a matter which, in the light of the provisions of the Indecent Articles and Classified Publications Act, may be regarded as debatable. The questions which arise are very much questions of public policy upon which the expression of legislative intent must have a powerful influence. It is, however, unnecessary to answer those questions in these proceedings.

26. As we have said, the decision of the Court of Appeal and the argument of the second defendant in this Court in attacking that decision were confined to an allegation that if the articles are returned to the plaintiffs they intend to use them to commit offences under the Indecent Articles and Classified Publications Act or in furtherance of a conspiracy to corrupt public morals. That allegation, in our view, for the reasons which we have given, discloses no reasonable defence. The plaintiffs have therefore made out a case for striking out that clause of par.27 of the defence which is said to raise that issue, namely sub-par.(d). We would for this purpose construe sub-par.(d) as covering the same ground as the proposed sub-par.(e), thus avoiding any need to accede to the application to amend. It would be possible to stop there, but because it was not contended that the second defendant had any right on account of the past behaviour of the plaintiffs to deprive them of the articles in question and because the allegations in relation to past behaviour and the intrinsic quality of the articles seem somewhat interwoven, we would give the second defendant leave to re-plead in accordance with these reasons. In other words, the appeal should be allowed to the extent necessary to give leave to the second defendant to plead as he sees fit that the articles in question are indecent, obscene, immoral or otherwise of such a nature that relief should be refused. Upon that issue it is inappropriate to express any concluded view. It is sufficient to say that as a defence it is arguable.

ORDER

Appeal allowed in part. Order of the Court of Appeal varied by adding thereto an order that the appellant be at liberty to re-plead within twenty-eight days that the articles in question are indecent, obscene, immoral or otherwise of such a nature that relief should be refused. Otherwise appeal dismissed with costs.