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 a loaded handgun in the centre console of the vehicle. At approximately 9.35 pm Mr Mulholland was arrested on suspicion of unlicensed possession of a firearm and ammunition, pursuant to s 128(2) of the Criminal Investigation Act 2006 (WA).
Other police officers attended the scene and conducted a further search of Mr Mulholland and his vehicle. In the course of that search it is asserted that $2,200 in Australian currency, two mobile phones, a typewritten document containing instructions for the manufacture of methylamphetamine, and two encrypted Blackberry mobile phones in their opened packaging were found.
At approximately 10.28 pm, while still at the location in Beaconsfield where Mr Mulholland had been stopped, he was interviewed by Police Sergeant Magee. Mr Mulholland declined to answer any questions posed by Sergeant Magee.
At approximately 10.31 pm police officers seized all the items that had been found during the search of Mr Mulholland and his vehicle other than the two encrypted Blackberry mobile phones. Interim property receipts for the seized items were issued.
Later that evening a police officer obtained approval to search Mr Mulholland's home pursuant to s 133(4) of the Criminal Investigation Act. During the search of the house police officers allege that they found $77,345 in cash, a clipseal bag containing blue tablets, a clipseal bag containing green pills, a clipseal bag containing blue pills, 20 2.2 ml vials labelled 'Lidocine', numerous other vials including vials labelled 'Scitropin A', vials labelled 'Stanazol' and vials of testosterone. Police seized all of these items and issued interim property receipts for them. Mr Mulholland was present during the search. He was questioned in relation to the items seized but declined to answer any questions. Police officers also saw, but did not seize, a number of new Blackberry mobile phones.
At approximately 12.30 am on 14 October 2014 Detective Sergeant Winslow, who is the first respondent, received a telephone call from a police officer who was at Mr Mulholland's home. Detective Sergeant Winslow was then attached to the WA Police Proceeds of Crime Squad. During the course of the telephone conversation Detective Sergeant Winslow was advised of the steps taken by police earlier that evening, and was further advised that Mr Mulholland was believed to have possible associations with outlaw motorcycle gangs.
Mr Mulholland was taken by police to the Fremantle Police Station at approximately 1.40 am on 14 October 2014. Detective Sergeant Winslow arrived at the Fremantle Police Station at approximately 2.30 am. He viewed the items that had been seized by police, including the cash which had been found in Mr Mulholland's vehicle and at his home. Detective Sergeant Winslow formed the suspicion that Mr Mulholland was in possession of that cash, and that the cash may have been crime‑used property or was derived as a result of criminal activity - that is, that the cash was 'confiscable' property for the purposes of the Act.
Because of the limited nature of the issue raised on appeal, it is unnecessary to identify the grounds for Detective Sergeant Winslow's suspicion that the cash which had been seized by police from Mr Mulholland's vehicle and his home may have been crime‑used property or was derived as a result of criminal activity.
At approximately 2.56 am on 14 October 2014 Detective Sergeant Winslow informed Mr Mulholland that he was being detained pursuant to s 73 of the Act, and that he was required by s 76 of the Act to answer the questions that Detective Sergeant Winslow asked. Mr Mulholland answered the questions that he was then asked.
Mr Mulholland was subsequently charged with carrying a firearm without a license, possession of ammunition without a license, possession of $79,545 that was reasonably suspected of being unlawfully obtained, and with two charges of possession of a prohibited drug.
On 17 October 2014 police issued a freezing notice under the Act in respect of the $79,545 in cash which had been seized from Mr Mulholland.
On 27 May 2015 the Commonwealth Commissioner of Taxation issued income tax assessment notices in respect of Mr Mulholland's income in a number of income tax years partially in reliance upon information provided by Mr Mulholland in the course of his interview by Detective Sergeant Winslow on 14 October 2014 at Fremantle Police Station.
As I have noted, at the time Detective Sergeant Winslow purported to detain Mr Mulholland pursuant to s 73 of the Act, and thereafter exercise the power of compulsory interrogation conferred by s 76 of the Act, the cash in respect of which the power conferred by s 73 was purportedly exercised had been seized by police and was in the physical custody of another police officer at Fremantle Police Station.

The proceedings

In December 2015 Mr Mulholland commenced proceedings for judicial review of the decisions purportedly made by Detective Sergeant Winslow pursuant to s 73 and s 76 of the Act. Although those proceedings were commenced outside the time within which such proceedings must be commenced specified by O 56 of the Rules of the Supreme Court 1971 (WA), the trial judge granted leave to proceed out of time, for reasons which he gave.[3] There is no challenge to that grant of leave.
[3] Mulholland v Winslow [2016] WASC 405 [23] ‑ [40].
Detective Sergeant Winslow is the first respondent to the proceedings. However, he has taken no active part in the proceedings at first instance or on appeal. Rather, the role of contradictor has been performed by the Commissioner of Police, who is the third respondent to the proceedings. Because of his possible interest in the use which might be made of the information provided by Mr Mulholland to Detective Sergeant Winslow, the Commissioner of Taxation was made the second respondent to the proceedings. The second respondent filed a written submission to the effect that the trial judge was correct for the reasons which he gave, but did not advance any substantive submissions in support of that proposition either in writing or orally. So, as a result, the substantive contest on appeal was between Mr Mulholland and the Commissioner of Police.

The Criminal and Found Property Disposal Act 2006 (WA)

It is necessary to provide the context for a consideration of the relevant provisions of the Act by first considering relevant provisions of the Criminal and Found Property Disposal Act 2006 (WA) (CFPD Act), because those provisions have a bearing upon the operation of relevant provisions of the Act.[4]
[4] Despite the express statement in s 4 of the CFPD Act that it does not effect the operation of the Act.
Section 5 of the CFPD Act provides that the chief officer of a prescribed agency is to be taken to be in possession of any property that is in possession of the agency that is, relevantly to this case, property that has been seized in the course of a criminal investigation by the agency. Section 6 of the CFPD Act provides that the chief officer of an agency has the control and management of property in the officer's possession by virtue of s 5 and obliges the chief officer to take reasonable steps to ensure the property is kept safely, and is appropriately stored, managed and maintained, until the property is disposed of under the CFPD Act.
Section 9 of the CFPD Act identifies the circumstances in which a chief officer's authority to retain seized property might cease, including the circumstance in which the property is not the subject of proceedings under the Act. The same section provides that a chief officer must dispose of property under pt 5 of the CFPD Act when his or her authority to retain that property ceases. Section 18 of the CFPD Act, which is within pt 5, has the effect that a chief officer may release property which has ceased to be seized property to a person entitled to that property.[5] Part 6 of the CFPD Act contains provisions relating to the circumstances in which a chief officer will be taken to know the identity of a person entitled to property.
[5] See also s 9(4) of the CFPD Act.
Division 2 of pt 3 of the CFPD Act confers jurisdiction upon appropriate courts to make orders with respect to seized property in proceedings commenced by an aggrieved person.

Application of the CFPD Act to his case

Mr Mulholland does not contend that the police officers who seized the cash found in his vehicle and at his home lacked authority to do so and in particular, does not contend that those officers did not have reasonable grounds to suspect that the cash was either crime‑used property or crime‑derived property which could be seized pursuant to s 33 of the Act. Once the cash had been seized by police, pursuant to the CFPD Act it passed into possession of the Commissioner of Police, who was authorised to retain the cash until it ceased to be seized property. The cash would cease to be seized property if proceedings brought under the Act were terminated, or the property was ordered to be forfeited to the State. In the former case, the Commissioner of Police would have authority under the CFPD Act to provide funds equivalent in amount to the cash which had been seized to a person he believed to be entitled to the property, being Mr Mulholland.

The Act

The general object of the Act is to provide for the confiscation of property used for criminal activity or acquired as a result of criminal activity. As I have noted, s 33 of the Act empowers a police officer to seize any property if he or she suspects, on reasonable grounds, that the property is either crime‑used property or crime‑derived property. As Mr Mulholland concedes that there were such grounds at the time the cash was seized by police, it is unnecessary to refer to the statutory definitions of crime‑used or crime‑derived property.
Division 2 of pt 4 of the Act makes provision for the issue of freezing notices in respect of property reasonably suspected to be crime‑used or crime‑derived. As I have noted, such a notice was issued in respect of the cash found by police in Mr Mulholland's car and at his home.
Division 2 of pt 5 of the Act provides that the Director of Public Prosecutions (WA) may apply to the District Court for an order for the examination of a person in relation to various matters connected with property which is either frozen or suspected on reasonable grounds of being confiscable.[6] Various provisions within that division regulate the conduct of examinations conducted pursuant to its terms.
[6] Amongst other things.
Division 6 of pt 5 of the Act confers powers of detention, search and seizure, and compulsory interrogation upon police officers in circumstances specified in that division. Section 73 and s 76, which are central to this appeal, are within the division and provide:
73.Confiscable property etc., powers to search etc. people for
(1)A police officer may, at any time, stop and detain a person if there are reasonable grounds for suspecting that the person has confiscable property, or property-tracking documents, in his or her possession.
(2)A police officer may, at any time, stop and detain a person if there are reasonable grounds for suspecting that another person is holding confiscable property, or property tracking-documents, on behalf of the person to be detained.
(3)For the purpose of exercising his or her powers under subsection (1) or (2), a police officer may stop and detain a vehicle.
(4)When a police officer detains a person under subsection (1) or (2), the officer may -
(a)search the person in accordance with section 75; and
(b)search any baggage, package, vehicle or anything else apparently in the possession or under the control of the person.
(5)When exercising his or her powers under this section, a police officer may use any necessary force and any assistance the officer thinks necessary.
...
76.Additional powers for powers under s. 73 and 74
(1)When a police officer exercises any of his or her powers under section 73 or under a warrant under section 74, the officer may do any or all of the following -
(a)seize and detain any documents found in the course of exercising those powers if there are reasonable grounds for suspecting that they are property-tracking documents;
(b)take extracts from or make copies of, or download or print out, any property-tracking documents found in the course of exercising those powers;
(c)require a person who has control of any property tracking documents found in the course of exercising those powers to make copies of, or download or print out, any property-tracking documents found in the course of exercising those powers;
(d)require a person to give to the officer any information within the person's knowledge or control that is relevant to locating property that is reasonably suspected of being confiscable;
(e)require a person to give to the officer any information within the person's knowledge or control that is relevant to determining whether or not property is confiscable;
(f)require a person to give the officer, or arrange for the officer to be given, any translation, codes, passwords or other information necessary to gain access to or to interpret and understand any property-tracking documents or information located or obtained in the course of exercising the officer's powers under the warrant.
(2)A person who, without lawful excuse, contravenes a requirement commits an offence.
Penalty: $100 000 or imprisonment for 5 years, or both.
(3)Without limiting subsection (2), a person contravenes a requirement if the person -
(a)does not disclose material information of which the person had knowledge, or gives false information or a false document, in purported compliance with the requirement; and
(b)was aware, or could reasonably have been expected to have been aware, that the information was material, or that the information or document was false.
(4)A person is not excused from complying with a requirement on the grounds that complying with it would tend to incriminate the person or render him or her liable to a penalty, but any information given in compliance with the requirement is not admissible in evidence in proceedings against the person for any offence except an offence under subsection (2).
Other provisions within div 6 of pt 5 authorise a police officer to apply for a search warrant,[7] and regulate the exercise of powers pursuant to such a warrant.[8]
[7] The Act, s 74.
[8] The Act, s 75 and s 77.
The glossary to the Act defines 'property' to mean:
(a)real or personal property of any description, wherever situated, whether tangible or intangible; or
(b)a legal or equitable interest in any property referred to in paragraph (a).
For the reasons developed below, the breadth of meaning given to the word 'property' by this definition precludes acceptance of the proposition advanced on behalf of Mr Mulholland to the effect that 'possession' in s 73 of the Act is limited to physical possession.[9]
[9] Or to the slightly expanded meaning given to that word in the course of oral argument by counsel for Mr Mulholland.

The trial judge's reasons

Mr Mulholland challenged the validity of Detective Sergeant Winslow's purported exercise of the powers conferred by s 73 and s 76 of the Act on a number of grounds, including grounds other than the ground raised by this appeal. As no appeal has been brought from the rejection of those other grounds by the trial judge, it is unnecessary to consider them. The ground which is relevant to this appeal is Mr Mulholland's contention that there were no reasonable grounds for suspecting that he was in possession of confiscable property in the form of the cash found in his car and at his home because, by the time Detective Sergeant Winslow purported to exercise those powers, the money had been seized by police and was no longer in Mr Mulholland's possession, as Detective Sergeant Winslow well knew. In support of that contention it was submitted that 'possession' in s 73 of the Act meant 'physical' possession and, by the time Detective Sergeant Winslow purported to exercise the powers conferred by the Act, the money was in the physical possession of police, not Mr Mulholland.
On the subject of the meaning to be given to the word 'possession' the trial judge observed:[10]
The word 'possession' is not defined in the Act. In interpreting s 73 of the Act a rule of construction that is applicable only in relation to the criminal law does not apply: s 102(2)(a). The intricacies of the notion of possession that belong to the civil law and not the criminal law (He Kaw Te v The Queen [1985] HCA 43 [23]; (1985) 157 CLR 523, 599 (Dawson J) have application. Possession 'is the most protean of concepts': Lee Aitken, Recovery of chattels in the common and civil law: Possession, bailment, and Spoiliation Suits (2008) 82 ALJ 379, 381. The law of possession is ancient and fairly complicated - Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400 [36] (Young CJ in Eq).
Possession may mean actual possession, legal possession or the right to possess or to legal possession. These are different concepts. Although they are often found in combination they are also separable and often separated in practice. The right to possess or to have legal possession can exist without either physical or legal possession. The right to possess, when separated from possession, is often called 'constructive possession'. The right to possess is not necessarily exclusive and a person may have a right to possess as against everyone except another person: Pollock and Wright: An Essay on Possession in the Common Law Oxford, Clarendon Press, 1888 at 26 - 27. 'A. may have the right to possess a thing as against B. and everyone else, while B. has at the same time a right to possess it against everyone except A.' - Pollock and Wright at p 27.
[10] Mulholland v Winslow [56] ‑ [57].

The trial judge then referred to a number of the provisions of the CFPD Act to which I have already referred and concluded that the money, once seized by the police officers, was in the possession of the Commissioner of Police and was subject to the rights and obligations conferred and imposed upon the Commissioner by the CFPD Act. However because the CFPD Act is expressly stated to not affect the operation of the Act, the right to possession conferred upon the Commissioner by the CFPD Act did not prevent Mr Mulholland having possession of the money for the purposes of the Act.
The trial judge then expressed the view that following seizure of the money, Mr Mulholland's right to possession of the property was subject to the powers of the Commissioner of Police. However, Mr Mulholland retained a right to possess the money as against everyone except the Commissioner and, in the view of the trial judge, in that sense retained a right to possession.
In the view of the trial judge the narrow interpretation of the word 'possession' in s 73 of the Act propounded on behalf of Mr Mulholland would not be consistent with the general purposes of the Act because it would reduce the ability of police officers to obtain information about whether seized property was confiscable property and thereby inhibit the capacity to take steps to secure that property for the benefit of the State.
The trial judge rejected an argument to the effect that giving 'possession' a broad meaning in s 73(1) would render s 73(2) entirely otiose. He observed that the fact that one person holds property on behalf of another person does not necessarily mean that the person on whose behalf it is held has possession of the property, and in any event considered that there was no objection to a construction of s 73 which would result in significant overlap between the powers conferred by s 73(1) and the powers conferred by s 73(2).
The trial judge dealt with submissions advanced on behalf of Mr Mulholland by reference to the principle of legality in the following terms:[11]
There is a principle of statutory construction, known as the principle of legality, which provides that common law rights will not be taken by a court to have been displaced by legislation save where the intention to do so is expressed with irresistible clearness. Under the principle of legality a statute said to affect important common law rights and procedural and other safeguards of individual rights and freedom will be construed as effecting no more than is strictly required by clear words or as a matter of necessary implication: Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 [29] (French CJ), [171] - [173] (Kiefel J) and [307] - [312] (Gageler and Keane JJ).
The principle of legality ought not, however, be extended beyond its rationale which is to protect against inadvertent and collateral alteration of important rights, freedoms, immunities, principles and values. It does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature. The principle at most can have limited application to the construction of legislation which has among its objects the abrogation of the particular right, freedom or immunity in respect of which the principle is sought to be invoked: Lee v New South Wales Crime Commission [313] - [314] (Gageler and Keane JJ).
[11] Mulholland v Winslow [43] ‑ [44].
In summary, the trial judge rejected the proposition that 'possession' in s 73 of the Act should be construed as limited to physical possession, and concluded that because Mr Mulholland retained a right to possession of the money as against all except the Commissioner of Police, Detective Sergeant Winslow had reasonable grounds to suspect that Mr Mulholland was in possession of confiscable property in the form of that money at the time he purported to exercise the powers conferred by s 73 and s 76 of the Act.
The trial judge also dealt with a number of issues relating to the relief which he would have granted to Mr Mulholland had he found in favour of one or more of the grounds upon which the purported exercise of powers pursuant to s 73 and s 76 of the Act by Detective Sergeant Winslow were impugned. In that context the trial judge reviewed various arguments and issues raised by the parties and, in effect, concluded that if he had found in favour of Mr Mulholland, he would have granted relief in the form of certiorari, having the effect of quashing the purported exercise of the powers of detention and compulsory interrogation by Detective Sergeant Winslow.

The grounds of appeal

There are two grounds of appeal. The first ground asserts that the trial judge erred by concluding that 'a reasonable suspicion that a person had a mere right to possession of relevant property (without physical possession of that property) was sufficient to enliven the power to stop and detain the person under s 73(1) of the Act'.
The second ground asserts that because of the error identified in the first ground, the trial judge erred in concluding that Detective Sergeant Winslow had lawfully exercised the powers conferred upon him by s 73 and s 76 of the Act. All parties accepted, properly, that the second ground embodies the logical corollary of the first ground so that, if the first ground of appeal succeeds, the second ground must also succeed, whereas if the first ground of appeal fails, the second ground of appeal must also fail.

The appellant's submissions

Written submissions

In the written submissions served on behalf of Mr Mulholland it is contended that in the context of s 73 of the Act, 'possession' should be given its natural and ordinary meaning of physical possession. That proposition is said to be supported by the fact that s 73 is concerned with the exercise of physical powers, namely detention and search.
The trial judge is said to have erred in his construction of s 73 for two primary reasons:
(a)he failed to properly apply the principle of legality; and
(b)he failed to realise that his construction rendered s 73(2) otiose.
It is further submitted that the trial judge erred in concluding that the construction for which Mr Mulholland contended would impede the attainment of the objectives evident in the Act. That submission is said to be supported by the facts of this case, in that the construction for which Mr Mulholland contends would not have jeopardised the State's capacity to confiscate the money, which had already been seized and was being held securely by police, and the objective of obtaining greater information with respect to the money could have been achieved by an application for examination of Mr Mulholland in the District Court.
It is further submitted that the trial judge erred by referring to the meaning of 'possession' at common law,[12] especially in a context in which the relevant powers are conferred upon police officers who may have little or no legal training, and the legal concept of 'possession' is one of the most difficult known to the law.[13]
[12] Contrary to R v Getachew [2012] HCA 10; (2012) 248 CLR 22 [11].
[13] Relying upon an observation by Meagher J in his Foreward to the 1990 reprint of the Pollock Essay on Possession.
It is further submitted that the inclusion of s 73(2) shows that s 73(1) was intended by the legislature to only apply when the relevant property was in the physical possession of the person to be detained.

Oral submissions

In the course of oral argument counsel for Mr Mulholland amplified what was meant by 'physical' possession by giving examples in which property was physically separated from a person who had an immediate right to possession and who was thereby said to be in possession of that property.[14] In that context counsel submitted that a person would, for the purposes of s 73 of the Act, be in possession of funds standing to that person's credit in an account with a bank because that person had the immediate right to call upon the bank to produce funds in that amount. However, later in the argument counsel submitted that the critical criterion was not so much the right to immediate possession, but rather control over the property.[15]
[14] Appeal ts 7.
[15] Appeal ts 18.
In relation to the principle of legality, counsel submitted that the trial judge erred by citing and relying upon a passage from the judgment of Gageler and Keane JJ in Lee v New South Wales Crime Commission,[16] when that passage did not reflect a consensus view of the court.[17] Counsel further submitted that the reasons given by the trial judge did not reveal that he had brought the principle of legality 'into the mix'.[18]
[16] Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196.
[17] Appeal ts 21.
[18] Appeal ts 23.
When the breadth of the definition of 'property' in the Act was put to him, counsel for Mr Mulholland conceded that Mr Mulholland was in possession of an equitable or legal interest in the money, which was 'property' within the meaning of the Act, at the time Detective Sergeant Winslow purported to exercise powers pursuant to s 73 and s 76 of the Act.[19] However, counsel submitted that Detective Sergeant Winslow purported to exercise those powers in respect of the money itself, in the form of the bank notes, rather than in respect of Mr Mulholland's right or interest in the money. In support of that submission counsel submitted that Mr Mulholland was not stopped and detained for the purpose of being asked about his right or interest in the money, but for the purpose of being asked about the money itself, in the form of the bank notes.[20] Counsel further submitted that the line of questioning was focused upon the source of the money which, according to counsel, had 'nothing whatever to do with his right to get it back'.[21]
[19] Appeal ts 34 - 35.
[20] Appeal ts 38.
[21] Appeal ts 38.
Counsel further submitted that s 73 falls within a part of the Act that is concerned with physical things, and in that context the word 'possession' should be construed as meaning 'physical' possession.[22] However, counsel expressly denied any submission that s 73 of the Act only applied to property that was capable of being physically possessed,[23] somewhat inconsistently with the principal proposition underpinning the appeal.
[22] Appeal ts 36.
[23] Appeal ts 37.

The Commissioner's arguments

In his written submissions the Commissioner reiterated the argument which had found favour with the trial judge - namely, at the time Detective Sergeant Winslow purported to exercise powers pursuant to s 73 and s 76 of the Act, Mr Mulholland had a legally enforceable right to physical possession of the money, subject only to the powers conferred upon the Commissioner by the CFPD Act. However, the fact that the Commissioner was given possession of the money by operation of the CFPD Act did not prevent Mr Mulholland also having possession of the money for the purposes of the Act, because the CFPD Act is expressly stated to not effect the operation of the Act.
Further, the Commissioner relied upon the breadth of the definition of 'property' to support the proposition that confiscable property is not limited to property which exists only in physical form, with the consequence that 'possession' in s 73 of the Act cannot be construed as limited to 'physical possession'.
The Commissioner further submitted, consistently with the view of the trial judge, that the construction of s 73 of the Act propounded on behalf of Mr Mulholland would defeat the purpose of the Act because of the wide range of circumstances in which a police officer might wish to obtain information for the purpose of assessing whether property is confiscable and if so, taking the steps necessary to secure that property for the benefit of the State. In that context the Commissioner submits that construing 'possession' in s 73 consistently with the legislature's inclusion of intangible rights and interests within the definition of 'property' is consistent with the legislative objectives evident in the scheme of the Act as a whole.
In relation to the assertion that such a construction of 'possession' in s 73(1) of the Act renders s 73(2) otiose, the Commissioner essentially adopts the proposition which found favour with the trial judge, to the effect that in a circumstance in which one person holds property on behalf of another, it does not mean that the person on whose behalf the property is being held necessarily has 'possession' of that property.
In the course of his brief oral submissions counsel for the Commissioner emphasised the significance of the breadth of the definition of 'property' to the resolution of the issue raised by the appeal.[24]
[24] Appeal ts 33 - 34.

Disposition

The reasoning of the trial judge, augmented by the Commissioner's argument based upon the breadth of the definition of 'property', must be accepted.
It is clear from the definition of 'property' in the glossary to the Act, that the Act applies to a wide range of rights and interests falling within that definition, including intangible rights and interests in any property. Having regard to that definition, it is impossible to construe 'property' as being limited to property which has a physical or tangible existence and which is capable of being possessed physically. It follows that there is no basis for construing the term 'confiscable property' in s 73 of the Act as being limited to confiscable property in physical or tangible form, as counsel for Mr Mulholland ultimately conceded. However, as I have already noted, that concession cannot be reconciled with the fundamental proposition underpinning this appeal, which is to the effect that 'possession' in s 73 of the Act is confined to 'physical possession'. Put another way, if, as counsel conceded,[25] 'property' includes intangible property, such as legal and equitable rights or interests in property, it necessarily follows that 'possession' cannot be limited to 'physical possession', but must extend to and include the enjoyment and benefit of equitable and legal rights and interests in property. As counsel for Mr Mulholland properly conceded that he retained a right or interest in the money which had been seized at the time Detective Sergeant Winslow purported to exercise powers pursuant to s 73 and s 76 of the Act, it follows that Detective Sergeant Winslow had reasonable grounds to suspect that Mr Mulholland was in possession of confiscable property in the form of his right or interest in the money which had been seized, as the trial judge held.
[25] Appeal ts 37.
This process of reasoning is sufficient to dispose of the appeal. However, for the sake of completeness I will specifically address each of the propositions advanced on behalf of Mr Mulholland, which I have summarised above.
The fundamental difficulty with those arguments became apparent during the course of oral submissions by counsel for Mr Mulholland, and in particular, apparent in the lack of clarity which attended the meaning given to 'possession' in the argument advanced in support of the appeal. Although 'possession' was said to be limited to 'physical possession', counsel accepted that a person who did not have property in his or her physical possession, but who had an immediate right to possession of that property would, relevantly be in 'possession' for the purposes of s 73 of the Act. Counsel also accepted that the section would apply to a person with an interest in funds standing to that person's credit in a bank account. But once it is accepted that a person can be in 'possession' of a right or interest in property which is not in that person's 'physical possession' no impediment to the process of reasoning adopted by the trial judge is apparent.
Counsel's later change of tack, to assert that the critical criterion was not so much the nature of the right enjoyed by the relevant person, but rather the right of 'control' over the property introduced a further element of uncertainty. Although the argument was not fully developed, if 'control' in this context includes rights and interests which confer the capacity to determine the location, disposition or use of property, those rights and interests will, in themselves, often be intangible and incapable of being possessed 'physically'. Counsel's apparent acceptance of the proposition that s 73 can apply to 'possession' of confiscable property taking the form of rights or interest in other property is consistent with the critical concessions I have already noted, to the effect that s 73 is not confined to property which is capable of being possessed physically, and that Mr Mulholland had a right or interest in the money which had been seized by police at the time Detective Sergeant Winslow purported to exercise powers pursuant to s 73 and s 76 of the Act.
The proposition that 'possession' has a natural and ordinary meaning of 'physical possession' in the context of s 73 of the Act cannot be accepted. Statutory construction is primarily contextual.[26] Once it is accepted that confiscable property includes intangible property, including legal and equitable rights and interests, 'possession' in s 73 of the Act cannot be limited to 'physical possession'.[27]
[26] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 [14].
[27] Whatever that means.
One version of the appellant's submission was that:
(1)property such as a credit balance in a bank account that is incapable of being physically possessed can nevertheless be possessed for the purposes of s 73 of the Act;
(2)however, in relation to property that is capable of being physically possessed, 'possession' in s 73 is limited to a physical possession.
This submission is wholly untenable. It produces an incoherent construction and has no foothold in the text, structure or evident object of s 73. There is no basis for giving 'possession' a different and narrower meaning in relation to some types of property than others.
Further, the fact that s 73 is contained within a part of the Act is concerned with the exercise of physical powers relating to detention and search is entirely irrelevant, as a matter of logic, to the proper construction of the provisions giving rise to the exercise of those powers including, in particular, the ambit of the proprietary rights and interests which can sustain the exercise of those powers. The fact that the powers conferred involve a degree of physical coercion, including detention and compulsory interrogation, provides no guidance whatsoever as to the legislative intention as to the character of the proprietary rights and interests which can sustain the invocation of those powers.
There is no basis for the appellant's criticism of the manner in which the trial judge dealt with the principle of legality. Given his express reference to the principle in his reasons, there is no reason to suppose that it was not taken into account. Nor is there any substance in the criticisms of his summary of the principles by reference to the reasons given by the High Court in Lee v New South Wales Crime Commission.[28] The trial judge's observation that the principle can at most have limited application to the construction of legislation which has among its objects the abrogation of the particular right, freedom or immunity in respect of which the principle is sought to be invoked is entirely consistent with the reasons given by all members of the court in that case and other decisions of the High Court on the same topic.[29]
[28] Lee v New South Wales Crime Commission.
[29] Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1; Coco v R [1994] HCA 15; (1994) 179 CLR 427.
The proposition that s 73(2) of the Act would be rendered otiose unless 'possession' is given a narrow meaning in s 73(1) must be rejected, essentially for the reason given by the trial judge. In a circumstance in which one person is holding property on behalf of another, it does not follow that the person on whose behalf the property is being held has 'possession' of it. Taking an example put to counsel in argument, if a person confers the exclusive right to possession of property upon another for a period, during that period the person may be said to not have possession of the property. However, in the same circumstance it could be said that the property was being held on behalf of that person by another, within the meaning of s 73(2) of the Act. Further and in any event, as the trial judge noted, once it is accepted that the operation of s 73(2) is not entirely confined within the boundaries of the operation of s 73(1),[30] the fact that the operation of the two sections might overlap in some circumstances is no impediment to the construction of s 73(1) for which the Commissioner contends.
[30] Which must be accepted given the example just given.

Further, the proposition that the inclusion of s 73(2) shows that s 73(1) was intended by the legislature to only apply when the relevant property was in the physical possession of the person to be detained must also be rejected, essentially for the same reasons. Section 73(2) covers a specific range of circumstances - namely, the circumstance in which property is held by one person on behalf of another which may or may not overlap with the circumstances to which s 73(1) applies. There is no principle of statutory construction by which subsections should be construed as covering mutually exclusive areas of operation.
The submission that the trial judge was wrong to conclude that the construction of s 73 of the Act propounded by Mr Mulholland would impede the achievement of the objects of the Act must also be rejected. The fact that there are other mechanisms in the Act for the examination of persons who might provide information with respect to potentially confiscable property does not detract from the value of the powers of detention, search and compulsory interrogation conferred by div 6 of pt 5 of the Act. It is easy to imagine circumstances in which the practical ability to locate and seize confiscable property will turn critically upon prompt and effective action by police, utilising powers and information obtained pursuant to div 6 of pt 5 of the Act. Given those circumstances, the trial judge was correct to conclude that a narrow construction of the powers conferred by that division would impede the achievement of the objectives evident in the scheme of the Act and would not, to that extent, be consistent with the intention properly attributed to the legislature.
Further, the appellant's reliance on the observations made in R v Getachew[31] is misplaced. Those observations were concerned with the relevance of common law principles of criminal law to the proper construction of criminal statutes which are to be construed as a code. The proper construction of a statute intended to provide an exhaustive code of prohibited conduct is quite different to the issue that arose in these proceedings. Moreover, the Act expressly provides that no rules of construction applicable only in relation to the criminal law can be applied to the interpretation of the Act.[32] When the legislature uses an expression which has an established legal meaning, like 'possession', when conferring rights and obligations which can be enforced by civil proceedings,[33] it is entirely appropriate for a court to consider whether the legislature should be taken to have intended that the term bear its legal meaning.
[31] R v Getachew [11].
[32] The Act, s 102(2)(a).
[33] The Act, s 102(1).
But in any event, the process of reasoning which defeats the argument advanced on behalf of Mr Mulholland does not depend upon application of the meaning properly given to the word 'possession' at common law or in legal texts of renown. Rather, Mr Mulholland's argument is defeated by the breadth of the definition of 'property' in the Act, with the consequence that 'possession' cannot be construed as limited 'physical possession' in s 73 of the Act.
Further, the proposition that the Act should be construed having regard to the fact that powers of detention, search and compulsory interrogation are conferred upon police officers who may have little or no legal training provides no support for Mr Mulholland's argument, but detracts from it. That is because it would not be appropriate to attribute to the legislature an assumption that police officers would be able to apply sophisticated distinctions in the meaning properly given to 'possession' of the kind propounded on behalf of Mr Mulholland when deciding whether or not to exercise the powers conferred by div 6 of pt 5 of the Act. To the contrary, it is significantly more appropriate to attribute to the legislature an intention that police officers would not be called upon to make sophisticated distinctions of that kind when deciding whether or not to exercise the powers conferred.
Finally, as I have noted, in response to propositions put from the bench, counsel for Mr Mulholland submitted that Detective Sergeant Winslow purported to exercise the powers conferred by s 73 and s 76 of the Act on the basis that the relevant confiscable property was the money, not Mr Mulholland's right or interest in the money. That proposition must be rejected. At the time Detective Sergeant Winslow exercised the powers conferred by the Act he knew very well that the money had been

seized by police and was being held by another police officer. He therefore knew that the money was not being held by Mr Mulholland. If, as counsel proposes, Detective Sergeant Winslow had turned his mind to distinctions of a kind likely to appeal to lawyers, such as the distinction between the money itself and Mr Mulholland's rights to and interest in the money, he could only have concluded that the money was being held by police and any 'property',[34] which Mr Mulholland might have in relation to the money, took the form of his right or interest in the money. But in any event, there is simply no evidence nor anything within the agreed statement filed by the parties which would sustain the factual proposition advanced by counsel for Mr Mulholland.
[34] Within the meaning of that term as defined in the Act.

The same observation can be made with respect to counsel's assertion that the police only wanted to interrogate Mr Mulholland in relation to the money itself, and not in relation to Mr Mulholland's right to get it back. But if and to the extent that any inferences are available from the agreed statement of facts, those inferences are contrary to the proposition advanced. Given that the police knew exactly where the money was (that is, in their custody), it should be inferred that their interest would have been in the source of the money, and the circumstances in which the money came into Mr Mulholland's possession. Given Detective Sergeant Winslow's suspicion that the money was confiscable property, its source and the circumstances in which it came into Mr Mulholland's possession had everything to do with his right to get the money back, contrary to counsel's submission.[35]
[35] Appeal ts 38.

Conclusion

For these reasons the trial judge was correct to conclude that Mr Mulholland had failed to establish that Detective Sergeant Winslow had not lawfully exercised the powers conferred by s 73 and s 76 of the Act. Both grounds of appeal, and the appeal itself must be dismissed.
BEECH JA: I agree that, for the reasons given by the Chief Justice, this appeal must be dismissed. In essence, that is because the appeal is founded on a construction of s 73 of the Act which cannot be accepted. The reasons given by the primary judge, together with the breadth of definition of 'property' in the Act, require the rejection of that construction.

CHANEY J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.