The victim of a theft whose goods are recovered often waits longer for them than the thief waits for sentence. The property is an exhibit, the police are not owners, and someone has to make an order.
The District Courts Act power
(1) Where property alleged to have been stolen or fraudulently obtained is in the custody of a member of the Police Force, in the course of the prosecution of a person for an indictable offence in regard to the stealing or obtaining of the property, and the prosecution has terminated or the defendant cannot be found, a Magistrate may make an order for the delivery of the property to the person who appears to be the rightful owner of it.
(2) An order under Subsection (1) is not a bar to the right of a person to recover the property by action from the person to whom it is delivered, if the action is brought within six months after the order is made.
Three conditions. The property must be in police custody. The prosecution must have been for an indictable offence of stealing or fraudulently obtaining the property, and must have ended, by committal and trial, by discharge, by withdrawal, or because the suspect has disappeared. And the applicant must appear to be the rightful owner: the magistrate does not decide title, only who has the better apparent claim. The order is administrative rather than a judgment, which is why subsection (2) preserves a true owner’s right to sue the recipient within six months.
The Criminal Code powers
| Provision | When | Effect |
|---|---|---|
| Criminal Code s 421(2) | On a summary conviction for an indictable offence tried under s 420 in the District Court | The Court may order the defendant to make restitution of the property to its owner, and if it is not at once restored, to pay its assessed value in one sum or by instalments; default enforced under s 421(3) |
| Criminal Code s 623A | On conviction on indictment in the National Court, on the owner’s complaint | The court may order the property restored to the owner; the order binds the offender as to ownership but as against others changes possession only; property derived from the theft may be delivered to the person entitled; valuable securities paid in good faith excepted |
| District Courts Act s 276 | After an indictable prosecution has terminated, or the defendant cannot be found | Delivery to the apparent owner; six months for a rival to sue |
Section 421(2) is the one the District Court uses most, because most stealing charges against identifiable thieves are dealt with summarily under section 420. The restitution order forms part of the conviction and is enforced like a money order if the property is not returned. Where the offence is a simple offence under the Summary Offences Act, the general power to order compensation under section 131 of the District Courts Act and the Criminal Law (Compensation) Act 1991 fills the gap. See compensation orders.
While the case is running
Property seized as evidence stays with the police until the prosecution no longer needs it. A magistrate can release an exhibit earlier where the prosecution consents or where photographs and a statement will serve, and an owner who needs a vehicle or tools back should ask the prosecutor to agree to early release on an undertaking to produce it. Where the police hold property but lay no charge, section 276 does not apply because there is no prosecution that has terminated; the owner’s remedies are a demand, a complaint for detinue or conversion in the District Court within its K10,000 limit, or an application under Constitution section 57 for enforcement of the section 53 protection from unjust deprivation of property.
Competing claims
Where two people claim the same recovered property, the magistrate under section 276 delivers it to the one who appears to be the owner, typically on the strength of receipts, serial numbers, registration or witness evidence, and the loser has six months to sue for it. A purchaser in good faith from the thief has no title, because a thief cannot pass title, and will usually lose to the original owner; the purchaser’s claim is against the thief. Section 623A(4) protects only a person who paid or took a valuable security in good faith. Money is different: cash mixed with other cash cannot be identified, and the remedy is a compensation or restitution order for the amount.
Property that is not returned
Some property is forfeited rather than returned: weapons and ammunition under the Firearms Act, drugs, and things whose possession is itself an offence. Property of an offender used in an offence may be forfeited under the statute creating the offence. Unclaimed property in police custody is dealt with under police standing orders and eventually disposed of; an owner who learns late that property was recovered should apply promptly, because section 276 has no time limit but the police do.
How to apply
Apply to the District Court where the prosecution was heard, by complaint or written application under section 22, naming the police station holding the property and annexing proof of ownership and evidence that the prosecution has ended or the defendant cannot be found. The police should be served and given the chance to be heard. The order directs the officer in charge to deliver the property, and is enforceable like any other order of the Court. See the Court’s ancillary powers.
The District Courts Act is not on PacLII; it is available on vLex. The Criminal Law (Compensation) Act is on PacLII as a PDF only.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.