Mulholland v Winslow - [2018] WASCA 19

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MULHOLLAND -v- WINSLOW [2018] WASCA 19

CORAM: MARTIN CJ
BEECH JA
CHANEY J

HEARD: 13 NOVEMBER 2017

DELIVERED : 27 FEBRUARY 2018

FILE NO/S: CACV 9 of 2017

BETWEEN: DEVIN MICHAEL MULHOLLAND
Appellant
AND
GRANT WINSLOW
First Respondent
COMMISSIONER OF TAXATION (CTH)
Second Respondent
COMMISSIONER OF POLICE (WA)
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MARTINO J
Citation  :MULHOLLAND -v- WINSLOW [2016] WASC 405
File No  :CIV 3037 of 2015

Catchwords:

Power to search and detain - Criminal Property Confiscation Act 2000 (WA) - Meaning of 'possession' - Principle of legality

Legislation:

Criminal and Found Property Disposal Act 2006 (WA)
Criminal Investigation Act 2006 (WA)
Criminal Property Confiscation Act 2000 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Mr E W L Greaves
First Respondent           :     No appearance
Second Respondent      :     Mr A J Musikanth
Third Respondent          :     Mr G T W Tannin SC & Mr E C I Fearis

Solicitors:

Appellant:     Zafra Legal
First Respondent           :     No appearance
Second Respondent      :     Australian Government Solicitor
Third Respondent          :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Coco v R [1994] HCA 15; (1994) 179 CLR 427
Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196
Mulholland v Winslow [2016] WASC 405
R v Getachew [2012] HCA 10; (2012) 248 CLR 22
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
MARTIN CJ:

Summary

This appeal turns entirely upon a single issue of statutory construction - namely, whether 'possession' in s 73(1) of the Criminal Property Confiscation Act 2000 (WA) (the Act) means only 'physical' possession, as the appellant, Mr Mulholland contends,[1] or whether 'possession' has a broader meaning, including[2] a right to possess as against everyone except another person, as the trial judge held.
[1] Although, as will be seen, in the course of oral submissions counsel for Mr Mulholland submitted that the word bore a somewhat wider meaning.
[2] Relevantly to this case.
For the reasons which follow, the trial judge was correct to conclude that the meaning of 'possession' in s 73(1) of the Act was not confined in the manner for which Mr Mulholland contends, with the consequence that the proceedings which he brought, and this appeal, must be dismissed.

The facts

The facts giving rise to the issue of construction to which I have referred are not contentious. They were established at trial by the tender of an agreed statement.
On the evening of 13 October 2014 Mr Mulholland was driving in Beaconsfield, a suburb of Perth, when he was stopped by two police officers. Those officers searched Mr Mulholland and his vehicle. They allege that they found…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] WASCA 19
Decision Date: 27 FEBRUARY 2018

CaseChat Overview and Summary

The case of Mulholland v Winslow was heard in the Supreme Court of Western Australia, involving a dispute between Mulholland, a police officer, and Winslow, a defendant under investigation. The crux of the dispute revolved around the interpretation of the term 'possession' as used in the Criminal Property Confiscation Act 2000 (WA), and the application of the principle of legality within the framework of this statutory power. The court was tasked with determining whether the police officer's actions in searching and detaining Winslow were justified under the Act and whether these actions complied with the principle of legality.

The court needed to resolve several key legal issues. Firstly, it had to interpret the meaning of 'possession' within the context of the Act. This involved examining whether 'possession' should be construed narrowly to mean actual physical control or more broadly to include constructive possession. Secondly, the court had to assess whether the powers granted under the Act were consistent with the principle of legality, which requires that the exercise of public power must be sufficiently clear and predictable. The court also had to consider whether the police officer's actions were proportionate and necessary in the circumstances.

The court concluded that the term 'possession' should be interpreted broadly to include constructive possession, aligning with the objectives of the Act to prevent and combat serious crime. The court found that the powers granted under the Act were consistent with the principle of legality, provided that the exercise of these powers was clear and predictable. The court emphasised that while the principle of legality was a significant constraint on the exercise of public power, it did not preclude the police from taking reasonable measures to prevent and combat serious crime. The court also found that the police officer's actions in searching and detaining Winslow were proportionate and necessary, given the circumstances of the investigation and the risk of serious crime. The court ultimately upheld the legality of the police officer's actions under the Act.

The court's final orders confirmed the validity of the police officer's actions and upheld the search and detention of Winslow as lawful under the Criminal Property Confiscation Act 2000 (WA). The decision reinforced the importance of clear and predictable exercise of statutory powers and the broad interpretation of 'possession' in the context of combating serious crime.

Orders