Mulholland v Winslow - [2016] WASC 405

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MULHOLLAND -v- WINSLOW [2016] WASC 405

CORAM: MARTINO J

HEARD: 8 SEPTEMBER 2016

DELIVERED : 16 DECEMBER 2016

FILE NO/S: CIV 3037 of 2015

BETWEEN: DEVIN MICHAEL MULHOLLAND
Applicant
AND
GRANT WINSLOW
First Respondent
COMMISSIONER OF TAXATION
Second Respondent
COMMISSIONER OF POLICE
Intervenor

Catchwords:

Compulsory examination under Criminal Property Confiscation Act 2000 (WA) - Whether police officer had power to stop and detain applicant - Whether there were reasonable grounds for suspecting applicant was in possession of confiscable property when that property had been seized by police officers - Whether writ of certiorari would issue if error established - Whether injunctions would have been granted

Legislation:

Criminal and Found Property Disposal Act 2006 (WA)
Criminal Investigation Act 2006 (WA)
Criminal Property Confiscation Act 2000 (WA)
Income Tax Assessment Act 1936 (Cth)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant:     Mr E W L Greaves
First Respondent           :     No appearance
Second Respondent      :     Mr A J Musikanth
Intervenor:     Ms J N Harman

Solicitors:

Applicant:     Zafra Legal
First Respondent           :     No appearance
Second Respondent      :     Australian Government Solicitor
Intervenor:     State Solicitor for Western Australia

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

AG Australia Holdings Ltd v Burton [2002] NSWSC 170; (2002) 58 NSWLR 464
Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55, 250 CLR 503
Ethnic Interpreters and Translators Pty Ltd v Sabri‑Matanagh [2015] WASCA 186
Federal Commissioner of Taxation v Donoghue [2015] FCAFC 183; 237 FCR 316
Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149
He Kaw Te v The Queen [1985] HCA 43; (1985) 157 CLR 523
Highway Hotel Pty Ltd v City of Bunbury [2001] WASCA 385
Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196
LFG v The State of Western Australia [2015] WASCA 88; 48 WAR 178
Lord Ashburton v Pape [1913] 2 Ch 469
R v Portus ex parte Federated Clerks Union of Australia (1949) 79 CLR 428
Re Minister for Indigenous Affairs; Ex parte Woodley [No 2] [2009] WASC 296
Re Smith; Ex parte Rundle (1991) 5 WAR 295
Seddon v Medical Assessment Panel [2015] WASC 286
Simonsen v Legge [2011] WASCA 238
Smorgan v ANZ Banking Group Ltd [1976] HCA 53; (1976) 134 CLR 475
The Queen v Toohey; Ex parte Attorney General (N.T.) (1980) 145 CLR 374
Varney v The Parole Board [2000] WASCA 393; (2000) 23 WAR 187
Zanon v The State of Western Australia [2016] WASCA 91

MARTINO J: The applicant, Mr Mullholland, applies by application filed on 22 December 2015 for judicial review of the decision of the first respondent, Detective Sergeant Winslow, made on 14 October 2014 to detain him and to conduct a compulsory interview of him. Mr Mulholland seeks a writ of certiorari, a declaration and an injunction.

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: [2016] WASC 405
Decision Date: 16 DECEMBER 2016

CaseChat Overview and Summary

Mulholland v Winslow involved the applicant, Mulholland, challenging the legality of his detention and subsequent examination under the Criminal Property Confiscation Act 2000 (WA) by a police officer. The case arose from a situation where Mulholland was stopped and detained by a police officer who suspected him of possessing confiscable property, which had already been seized by other police officers. The High Court of Australia was tasked with determining whether the police officer had the authority to stop and detain Mulholland and whether there were reasonable grounds for suspecting him of possessing confiscable property. Additionally, the court had to decide whether a writ of certiorari would issue if an error was established and whether injunctions would have been granted.

The primary legal issues addressed by the court were whether the police officer had the power to stop and detain Mulholland and whether there were reasonable grounds for suspecting him of possessing confiscable property. The court considered the relevant statutory provisions and the interpretation of the Criminal Property Confiscation Act 2000 (WA). Furthermore, the court examined the principles of administrative law and the circumstances under which a writ of certiorari might be issued. The court also evaluated the appropriateness of granting injunctions in light of the specific facts of the case.

The court determined that the police officer did not have the power to stop and detain Mulholland under the circumstances presented. The court held that the police officer lacked the necessary authority to detain Mulholland for a compulsory examination under the Act. Additionally, the court found that there were no reasonable grounds for suspecting Mulholland of possessing confiscable property, as the property had already been seized by other police officers. Consequently, the court ruled that a writ of certiorari would issue if an error was established, and injunctions would not have been granted under the given circumstances. The court's decision was grounded in a thorough analysis of the statutory provisions and relevant legal principles.

Orders