Mulholland v Winslow
[2016] WASC 405
•16 DECEMBER 2016
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 RespondentCOMMISSIONER OF TAXATION
Second RespondentCOMMISSIONER 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.
Detective Sergeant Winslow has filed notice that he does not intend to take part in the proceedings and will accept any order made by the Court on the application other than as to costs. On 16 February 2016 I gave the intervenor, the Commissioner of Police, leave to intervene in the action. On 6 April 2016 I ordered that the second respondent, the Commissioner of Taxation, be added as second respondent to the action.
The grounds of the application are that Detective Sergeant Winslow 'being a police officer for the purposes of the Criminal Property Confiscation Act 2000 (WA) ('the Act') made jurisdictional errors, or alternatively erred in law, when, at or about 2.56 am on 14 October 2014 he:
1.Purportedly pursuant to s 73 of the Act, determined to 'stop and detain' [Mr Mulholland]. The following pre-conditions to the exercise of that power were absent:
a.[Mr Mulholland] was already under arrest at the time and accordingly it was not possible to 'stop and detain' him and/or
b.There were no objectively 'reasonable grounds for suspecting' either:
i.in accordance with s 73(1), that [Mr Mulholland] was in possession of any 'confiscable property, or property-tracking documents', he being an arrested person at the relevant time and thus not in possession of any property or documents whatsoever, nor
ii.in accordance with s 73(2), that 'another person [was] holding confiscable property, or property-tracking documents, on behalf of' [Mr Mulholland].
2.Purportedly pursuant to s 76 of the Act, placed a requirement on [Mr Mulholland] to answer certain questions. The necessary pre‑condition to the exercise of that power, namely that [Mr Mulholland] had been stopped and detained under s 73 of the Act, was not present. [Mr Mulholland] repeats the grounds in 1 above.
The Agreed Facts
The parties filed an agreed statement of facts on 5 July 2016. In the evening of 13 October 2014 Mr Mulholland was driving in Beaconsfield when he was subject to a traffic stop by Western Australian police officers, First Class Constable Lyon and Sergeant Magee. The officers searched Mr Mulholland and his vehicle. They allege that they found a loaded handgun in the centre console. At approximately 9.35 pm Mr Mulholland was arrested on suspicion of unlicensed possession of a firearm and ammunition. That arrest was made pursuant to s 128(2) of the Criminal Investigation Act 2006 (WA). Other police officers attended. The police officers allege that in the search of Mr Mulholland and his vehicle after the handgun was found they located $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.
At approximately 10.28 pm, while still at the location in Beaconsfield at which he had been stopped, Mr Mulholland was interviewed by Sergeant Magee. Mr Mulholland declined to answer Sergeant Magee's questions.
At approximately 10.31 pm police officers seized all of the items they had found on the search of Mr Mulholland and his vehicle, other than the two encrypted Blackberry mobile phones in their packaging, and they issued interim property receipts for the seized items.
Later that evening a police officer obtained approval under s 133(4) of the Criminal Investigation Act to search Mr Mulholland's home and police officers then searched the home. The police officers allege that in the search of the home they found $77,345 in cash, a clip seal bag containing blue tablets, a clip seal bag containing green pills, a clip seal 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. The police officers seized all of those items and issued interim property receipts for them. During the search Mr Mulholland was questioned in relation to those items but declined to answer those questions. The 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, an officer attached to the WA Police Proceeds of Crime Squad, received a telephone call from a police officer who was at Mr Mulholland's home. The police officer informed Detective Sergeant Winslow that some hours earlier police officers had conducted a traffic stop of a vehicle being driven by Mr Mulholland and during a search had located $2,200 cash, a firearm and instructions on how to make methylamphetamine, that during a subsequent search of Mr Mulholland's residence police officers had located steroids, heart shaped pills and approximately $77,000 in cash in three separate locations, including approximately $50,000 in cash in the kitchen and other amounts in a bedroom and a study, that the police officers were in the process of winding up the search of Mr Mulholland's residence and that he would then be taken to Fremantle Detectives Office, that Mr Mulholland had possible associations with outlaw motorcycle gangs, that Mr Mulholland had a quantity of Blackberry mobile phones and that Mr Mulholland was believed to own or be linked to a business or businesses.
Mr Mulholland was taken 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. At the police station Detective Sergeant Winslow learned that Mr Mulholland was listed on WA Police databases as being associated with the Coffin Cheaters Outlaw Motor Cycle Gang and that he was a director of three companies. Detective Sergeant Winslow viewed items that had been seized by the police officers. Those items were with one of the police officers who had searched Mr Mulholland's home.
Detective Sergeant Winslow suspected that Mr Mulholland was a person in possession of confiscable property under the Act, namely $79,200 in cash, which may have been crime used property or was derived as a result of criminal activity. The grounds for Detective Sergeant Winslow’s suspicion were:
a)some hours earlier, [Mr Mulholland] was stopped while driving a vehicle in which was located a firearm (and specifically a handgun) in the centre console of the vehicle, instructions on how to make methylamphetamine and $2,200 in cash;
b)a subsequent search of [Mr Mulholland's] residence located approximately $77,000 in three locations, including approximately $50,000 in a plastic bag under the sink in the kitchen, as well as steroids and heart shaped pills;
c)[Mr Mulholland] was recorded on police computer systems as having Outlaw Motorcycle Gang associates;
d)the presence in the vehicle of two Blackberry mobile phones, still in their open packaging, which, from [Detective Sergeant Winslow's] experience, were known to use encrypted software and be used by drug dealers;
e)as a result of the above [Detective Sergeant Winslow] suspected that [Mr Mulholland] might be a drug dealer; and
f)as a result of the above [Detective Sergeant Winslow] formed the suspicion that [Mr Mulholland] was in possession of approximately $79,200, which may have been crime used property or was derived as a result of criminal activity, that is, that it was 'confiscable property' for the purposes of [the Act].
Detective Sergeant Winslow and another police officer interviewed Mr Mulholland at approximately 2.56 am on 14 October 2014. Detective Sergeant Winslow informed Mr Mulholland that he was being detained under 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 did answer the questions that he was asked.
Mr Mulholland was subsequently charged with carrying a firearm without a licence, possession of ammunition without a licence, possession of $79,545 that was reasonably suspected of being unlawfully obtained and two charges of possession of a prohibited drug. At approximately 4.04 am on 14 October 2014 Mr Mulholland was released on bail, to appear in the Magistrates Court on 4 November 2014.
On 15 October 2014 Detective Sergeant Winslow sent an email to an officer at the Australian Taxation Office. Detective Sergeant Winslow informed the Australian Taxation Office officer that the WA Police Proceeds of Crime Squad had interviewed Mr Mulholland, that the WA Police had seized $79,545 from Mr Mulholland and that in the interview Mr Mulholland had informed police officers that:
1He has three businesses and earns about $200,000 a year.
2 States he only claims about $43,000 in previous years to avoid paying tax.
3Also to avoid paying child support.
4He currently claims to have $200,000 in his Commonwealth Bank account.
5The seized $79,545.00 he states is earning from the business he has saved to lower his taxable income which he doesn't put through the books.
Detective Sergeant Winslow asked the Australian Taxation Office officer if the information was of interest to the officer and, if so, what the officer would require WA Police to do.
On 17 October 2014 a freezing notice WAPFN140136 was issued, freezing the $79,545 cash seized from Mr Mulholland.
On 30 October 2014 an officer of the Australian Taxation Office telephoned Detective Sergeant Winslow but was not able to speak to him as he was on leave.
On 3 November 2014 Detective Sergeant Winslow returned the Australian Taxation Office officer's call. The Australian Taxation Office officer's note of the telephone conversation between them was that Detective Sergeant Winslow said that the Western Australian Police action was still ongoing and that he would keep the Australian Taxation Office up to date with the progress of the case and that Detective Sergeant Winslow suggested that the Australian Taxation Office not proceed until the Western Australian Police action had been finalised.
Later that day Detective Sergeant Winslow sent an email to the Australian Taxation Office officer informing the officer that it appeared that Mr Mulholland was in possession of steroids, that it was not an offence for Mr Mulholland to possess the steroids and that it was highly unlikely that WA Police would freeze Mr Mulholland's assets. He said that to secure the money the Australian Taxation Office officer may wish to proceed. Detective Sergeant Winslow also said that one of the companies of which Mr Mulholland was a director had a cash asset at 30 June 2013 of $135,261 and that Mr Mulholland also claimed that he had $200,000 in his bank account.
On 22 January 2015 the Commissioner of Taxation issued a notice under s 264 of the Income Tax Assessment Act 1936 (Cth) to the Commissioner of Police, requiring him to produce to the Commissioner of Taxation all documents relating to the investigation of Mr Mulholland, including records of interview, statements, bank records and internal analysis.
On 18 February 2015, pursuant to the notice under s 264 of the Income Tax Assessment Act the Commissioner of Taxation obtained a copy of the recording of the interview of Mr Mulholland by Detective Sergeant Winslow.
On 27 May 2015 the Commissioner of Taxation issued to Mr Mulholland income tax assessment notices or amended income tax assessment notices for the tax periods ended 30 June 2011, 30 June 2012, 30 June 2013 and 30 June 2014, notices of assessment shortfall for the years ended 30 June 2011, 30 June 2012 and 30 June 2013 and reasons for decision in relation to the issue of those notices. The reasons included information provided by Mr Mulholland in his interview by Detective Sergeant Winslow on 14 October 2014.
On 24 July 2015 Mr Mulholland objected to those notices.
Application for an extension of time
The decision that Mr Mulholland seeks to have reviewed was made on 14 October 2014. Mr Mulholland was aware of the decision when it was made. The application for judicial review was filed on 22 December 2015, outside of the six month limitation period provided in O 56 of the Rules of the Supreme Court 1971 (WA).
Order 56 rule 2(4) of the Rules of the Supreme Court requires an application made outside the six month limitation period to include an application for leave to proceed with the application and that the applicant file an affidavit explaining why the application was not made within the limitation period.
The application includes an application for leave to proceed with the application. On 16 February 2016 I ordered that the application for leave to proceed be heard at the same hearing as the hearing of the application for judicial review.
The applicant has filed an affidavit of his solicitor James Richard Marzec made 22 December 2015 explaining why the application was not made within the limitation period.
Relevant matters for me to consider when deciding whether to give Mr Mulholland leave to proceed include, but are not limited to, the length of the delay, the reasons for the delay, Mr Mulholland's prospects of success and the extent of any prejudice caused by the delay: Seddon v Medical Assessment Panel [2015] WASC 286 [62] (Mitchell J) (as his Honour then was), referring, in the context of appeals, to Simonsen v Legge [2011] WASCA 238 [8].
In his affidavit Mr Marzec has deposed that he believes that since Mr Mulholland was interviewed Mr Mulholland has made efforts to obtain a copy of the recording of the interview. On 27 May 2015 the notices of assessment and notices of amended assessment were issued to Mr Mulholland. On 6 July 2015 Mr Mulholland first contacted his previous solicitors Wilson & Atkinson for legal advice on the notices of assessment and the interview. He instructed Wilson & Atkinson to retain Mr Edward Greaves as counsel. On 21 July 2015 Mr Greaves first provided advice to Mr Mulholland in relation to the interview. On 24 July 2015 Mr Mulholland lodged an objection to the assessment notices.
On 27 July 2015 Mr Mulholland was admitted to Royal Perth Hospital as a result of a motorcycle accident. He required knee surgery which was scheduled for 12 August 2015.
On 28 July 2015 Wilson & Atkinson caused letters to be sent to the Australian Taxation Office, WA Police Prosecuting and the WA Proceeds of Crime Squad requesting a copy of the recording of the interview, correspondence leading to the provision of a copy of the recording of the interview to the Australian Taxation Office and other information relating to the interview. Correspondence between Wilson and Atkinson, Detective Sergeant Winslow and the Australian Taxation Office followed those letters.
On 10 August 2015 Mr Mulholland was arrested. He remains in custody.
On 10 September 2015 Wilson & Atkinson received from the Australian Taxation Office a copy of the recording of the interview. Documents that Wilson & Atkinson requested be provided to them have still not been provided. Those documents are all correspondence between the WA Police and the Australian Taxation Office leading to the provision of a copy of the interview to the Australian Taxation Office, bail slips and other documentary evidence showing what time Mr Mulholland was released from custody on bail on the morning of 14 October 2014 and running sheets relevant to the interview.
On 23 October 2015 Mr Greaves was instructed to review the material that Wilson & Atkinson had obtained and to advise on commencing an application for judicial review. On 8 December 2015 Mr Greaves provided advice and Mr Mulholland gave instructions for the application to be commenced.
Mr Marzec has deposed that because Mr Mulholland has not been provided with correspondence between the WA Police and the Australian Taxation Office leading to the provision of a copy of the interview to the Australian Taxation Office, bail slips and other documentary evidence showing what time Mr Mulholland was released from custody on bail on the morning of 14 October 2014 and running sheets relevant to the interview it has not been possible to seek judicial review of the decision to disclose answers given by Mr Mulholland in the interview to the Australian Taxation Office.
By letter dated 15 December 2015 Mr Marzec wrote to Detective Sergeant Winslow to confer on the application and enclosing a draft of the application.
Mr Marzec has deposed that since Mr Mulholland's hospitalisation on 27 July 2015 and his arrest on 10 August 2015 it has been difficult to obtain instructions from him and to progress his freedom of information applications. The freedom of information application to WA Police is required to be signed personally by him.
Conclusion as to application for extension of time
Prior to 27 May 2015, when the Commissioner of Taxation issued the income tax assessment notices, Mr Mulholland had no reason to seek legal advice on the use of information obtained by WA Proceeds of Crime Squad in the interview of him. He sought legal advice from Wilson & Atkinson on 6 July 2015. That period of just over a month is a reasonable period of time for a person to locate and instruct a lawyer to advise on a complicated matter.
Wilson & Atkinson had obtained preliminary advice from Mr Greaves by 21 July 2015 and requested information from the Australian Taxation Office, WA Police Prosecuting and the WA Proceeds of Crime Squad on 28 July 2015. On 10 September 2015 Wilson & Atkinson received from the Australian Taxation Office a copy of the recording of the interview of Mr Mulholland by WA Proceeds of Crime Squad officers. In my view until they had received a copy of that interview Mr Mulholland's legal advisors were not in a position to advise on whether there was a proper basis to challenge the interview and the use of the information obtained in it because in July 2015 Mr Mulholland could not be expected to recall the details of an interview that commenced at 2.46 am on 14 October 2014.
On 23 October 2015 Mr Greaves was instructed to advise on the material that the solicitors had obtained and he provided that advice on 8 December 2015. The application was commenced on 22 December 2015.
In my view the delay in commencing the application has been explained and the reasons for it are reasonable. No prejudice has been caused by the delay to the respondents, the intervenor or any other party. The application raises matters of substance. I conclude that Mr Mulholland should be granted leave to proceed with the application although it was not commenced within the six month limitation period.
Principles of statutory construction
Mr Mulholland's application raises questions of the construction of the Act. The task of statutory construction begins and ends with a consideration of the text of the statute in its context: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55, 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). That context includes the general purpose and policy of the provision. The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions: LFG v The State of Western Australia [2015] WASCA 88; 48 WAR 178 (Buss JA) (as his Honour then was). Once the purpose of the legislation is established, a construction that would promote that purpose is to be preferred to a construction that would not do so: s 18 Interpretation Act 1984 (WA), Ethnic Interpreters and Translators Pty Ltd v Sabri‑Matanagh [2015] WASCA 186 [64] (Mitchell J).
The purpose of the provisions in s 73 and s 76 of the Act is to enable a police officer to obtain information about whether property is confiscable. That information is obtained for the purpose of enabling the police and the Director of Public Prosecutions to consider whether property is confiscable and for the purpose of taking the steps provided for in the Act to secure confiscable property for the State: Zanon v The State of Western Australia [2016] WASCA 91 [248] (Mitchell J).
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).
Ground 1(a)
By ground 1(a) of the application Mr Mulholland contends that Detective Sergeant Winslow did not have the power to stop and detain him under s 73 of the Act because he was already under arrest and so 'it was not possible to "stop and detain" him'. Mr Mulholland had been arrested on suspicion of unlicensed possession of a firearm and ammunition at approximately 9.35 pm on 13 October 2014. He was not released from that arrest until he was released on bail at approximately 4.04 am on 14 October 2014.
Section 73(1) provides:
(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.
There is nothing in the provision that expressly provides that the power to stop and detain a person cannot be exercised when that person is already under arrest. To the contrary, the words 'at any time' indicate that if the conditions for the exercise of the power to stop and detain a person exist then there is no limitation on the time at which the power can be exercised.
Counsel for Mr Mulholland submitted that it is not possible to stop a person who is not moving or free to move and that it is an unnatural strain to speak of detaining a person who is not at liberty. I do not accept those submissions. There is nothing unusual or surprising about a person whose liberty is lawfully curtailed on one ground having that liberty lawfully curtailed on another ground. The purpose of the provisions in the legislation is to enable a police officer to obtain information about whether property is confiscable, to enable the police and the Director of Public Prosecutions to consider whether property is confiscable and to take steps to secure confiscable property for the State. Having regard to those purposes I can see no justification in reading down the provisions of s 73(1) to provide that the power to stop and detain cannot be exercised where a person reasonably suspected of having confiscable property in his or her possession is already under arrest. The words of the section do not warrant the power to stop and detain being limited in that way.
Counsel for Mr Mulholland submitted that it is unnecessary to read s 73(1) as enabling a police officer to stop and detain a person who is already under arrest because pt 5 div 2 enables the Director of Public Prosecutions to apply for the examination of a person. However the capacity to apply for such an examination does not warrant implying limitations to s 73(1) which do not appear from the text itself. Further, it is easy to conceive of situations in which a police officer will wish to ask questions of a person reasonably suspected of being in possession of confiscable property when it will be impracticable to apply to the District Court for an order for the examination of that person, such as when there is a perceived need to examine a person in the early hours of the morning.
In my view the construction of s 73 for which Mr Mulholland contends is inconsistent with the purpose of the provisions of the Act, namely to enable a police officer to obtain information about whether property is confiscable, to enable the police and the Director of Public Prosecutions to consider whether property is confiscable and to take the steps provided for in the Act to secure confiscable property for the State.
I conclude that Mr Mulholland has not made out ground 1(a).
Ground 1(b)(i)
By ground 1(b)(i) Mr Mulholland contends that there were no reasonable grounds for suspecting that he was in possession of any confiscable property or property‑tracking documents because he was an arrested person at the relevant time and so was not in possession of any property or documents. The fact that Mr Mulholland had been arrested would not, on its own, mean that he was not in possession of property or documents. However the arguments made on behalf of Mr Mulholland at the hearing of the application were not that he did not have possession of property by reason of his arrest, but because the relevant property had been seized by police officers.
The power of a police officer to stop and detain a person provided for in s 73(1) of the Act exists if there are reasonable grounds for suspecting that the person has confiscable property or property‑tracking documents in his or her possession. The requirement that there be 'reasonable grounds for suspecting' is expressed as an objective test. If that requirement is not satisfied then the power to stop and detain a person is not conferred by s 73(1).
As I have noted the agreed facts include that Detective Sergeant Winslow suspected that Mr Mulholland was a person in possession of confiscable property under the Act, namely $79,200 in cash, and the grounds for that suspicion. Those grounds clearly provided reasonable grounds for suspecting that Mr Mulholland was in possession of confiscable property. Mr Mulholland does not challenge the reasonableness of the suspicion held by Detective Sergeant Winslow that the cash found and seized by police officers on 13 October 2014 was confiscable property. However Mr Mulholland contends that by the time of approximately 2.56 am on 14 October 2014 when Detective Sergeant Winslow decided to stop and detain him Detective Sergeant Winslow no longer had reasonable grounds for suspecting that Mr Mulholland had confiscable property in his possession, because by that time the cash had been seized by police officers and so, he submits, it was no longer in his possession and Detective Sergeant Winslow could not at that time reasonably have suspected that Mr Mulholland was in possession of the cash.
All of the cash that had been found in the search of Mr Mulholland, his vehicle and his residence had been seized by police officers before Detective Sergeant Winslow informed Mr Mulholland that he was being detained under 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.
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.
The operation of the Criminal and Found Property Disposal Act with the Criminal Property Confiscation Act
Once the cash had been seized by police officers it became seized property as defined in s 3 of the Criminal and Found Property Disposal Act 2006 (WA):
seized property means property that has been seized in the course of a criminal investigation other than -
(a)any sample taken or seized under the Criminal Investigation Act 2006 or any other written law; and
(b)any thing used in obtaining an identifying particular of a person under the Criminal Investigation (Identifying People) Act 2002;
For the purposes of the Criminal and Found Property Disposal Act the property, once seized by the police officers, was then in the possession of the Commissioner of Police pursuant to s 5 of the Criminal and Found Property Disposal Act:
5.Chief officer deemed to be in possession of certain property
For the purposes of this Act, the chief officer of a prescribed agency is to be taken to be in possession of any property that is in the possession of the agency, or an employee or officer of the agency, and that is -
(a)found property that has been found by the agency or an employee or officer of it or by some other person;
(b)seized property that has been seized in the course of a criminal investigation by the agency; or
(c)seized property that has been seized in the course of a criminal investigation by the agency and that becomes forfeited property.
The Commissioner's functions in relation to that property were provided for in s 6(1) of the Criminal and Found Property Disposal Act:
6.Chief officer’s functions in relation to property
(1)The chief officer of a prescribed agency -
(a)has the control and management of property in the officer’s possession by virtue of section 5; and
(b)must take reasonable steps to ensure the property is kept safely, and is appropriately stored, managed and maintained, until the property is disposed of under this Act.
The Commissioner's authority to retain that sized property was subject to any order made by a court under s 13 of the Act and ceased in the circumstances provided for in s 9(2) of the Criminal and Found Property Disposal Act:
9.Authority to retain seized property
(1)A chief officer’s authority to retain any property that is seized property is subject to any order made under section 13 in relation to the property.
(2)A chief officer’s authority to retain seized property as seized property ceases if -
(a)the property is not property that may be forfeited to the State;
(b)the property is property that may be forfeited to the State but a court has refused to order its forfeiture;
(c)the property is not the subject of proceedings under the Criminal Property Confiscation Act 2000;
(d)seizure and retention of the property is not authorised by another written law; and
(e)it is no longer necessary for the property to be retained for one or more of these purposes -
(i)to do a forensic examination (as that term is defined by the Criminal Investigation Act 2006) on it;
(ii)to preserve its evidentiary value;
(iii)to prevent it from being used in the commission of an offence.
Section 4 of the Criminal and Found Property Disposal Act provides for the relationship between the Criminal and Found Property Disposal Act and the Act:
4.This Act’s relationship with other Acts
(1)Except as provided by section 15(1), this Act does not affect the operation of -
(a)any other written law that provides for the disposal of forfeited property or property that has been seized or abandoned;
(b)the Criminal Property Confiscation Act 2000;
(c)the Pawnbrokers and Second‑hand Dealers Act 1994 section 86; or
(d)the Road Traffic Act 1974 Part V Division 4.
(2)If a provision in this Act is inconsistent with a provision in the Criminal Property Confiscation Act 2000, the provision in that Act prevails.
Conclusion as to ground 1(b)(i)
At the time of the interview of Mr Mulholland by Detective Sergeant Winslow the seized cash was, for the purposes of the Criminal and Found Property Disposal Act, in the possession of the Commissioner of Police. Mr Mulholland's right to possession of the property was subject to the Commissioner of Police's powers. However, at that time Mr Mulholland retained his right to possession of the property, subject to the powers of the Commissioner of Police. Mr Mulholland retained a right to possess as against everyone except the Commissioner of Police. In that sense he retained a right to possession.
It would not be consistent with the purpose of the provisions of the Act to interpret the term possession in s 73(1) as not including the right to possession of the seized property that Mr Mulholland retained against everyone except the Commissioner of Police. Such an interpretation would reduce the ability of police officers to obtain information about whether seized property was confiscable property to enable steps to be taken to secure confiscable property for the State.
This interpretation of s 73(1) is confirmed by s 4 of the Criminal and Found Property Disposal Act which provides that the Criminal and Found Property Disposal Act does not affect the operation of the Act and that in the event of inconsistency the Act prevails.
Counsel for Mr Mulholland submitted that s 73(2) made clear that the word possession was used in s 73(1) as meaning physical possession. Section 73(2) provides:
(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.
He submitted that if possession were interpreted in s 73(1) as including the right to possession then s 73(2) would be rendered nugatory. I do not accept that submission. 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. That would depend on the circumstances in which the property is being held on behalf of the other person. In any event, there is no reason to interpret s 73 as requiring that a police officer may be able to stop and detain a person under either s 73(1) or s 73(2), but not both. The fact that a police officer may be able to stop and detain a person under s 73(2) because there are reasonable grounds for suspecting that another person is holding confiscable property on behalf of that person does not mean that the police officer is not also able to stop and detain that person under s 73(1) because there are reasonable grounds for suspecting that the person has a right to possession of that confiscable property.
I conclude that at the time that Detective Sergeant Winslow interviewed Mr Mulholland that Mr Mulholland had possession of the seized cash for the purposes of s 73(1) of the Act because he had a right to possession of that cash which was subject to the Commissioner of Police's ability to control and manage the cash. Mr Muholland had possession of the cash for the purposes of s 73(1) because he had a right to possess the cash as against everyone except the Commissioner of Police. As Mr Mulholland had possession of that cash reasonable grounds for suspecting that Mr Mulholland had confiscable property in his possession continued to exist at the time of the interview. Mr Mulholland has not made out ground 1(b)(i).
Ground 1(b)(ii)
By ground 1(b)(ii) Mr Mulholland contends that s 73(2) of the Act did not provide authority to Detective Sergeant Winslow to stop and detain him because there were no reasonable grounds for suspecting that another person was holding confiscable property or property tracking documents on behalf of Mr Mulholland. There were no substantive submissions as to this ground in the outlines of submissions that were filed before the hearing. The outline of submissions on behalf of Mr Mulholland were that there had been no suggestion that s 73(2) was engaged. During the hearing of the application I pointed out that at the commencement of the interview of Mr Mulholland Detective Sergeant Winslow informed Mr Mulholland that he suspected that Mr Mulholland had in his possession, or another person had on his behalf, crime used or crime derived property. I enquired whether there were reasonable grounds for suspecting that the Commissioner of Police was holding confiscable property on behalf of Mr Mulholland. Counsel for Mr Mulholland submitted that the Commissioner of Police was not holding the seized cash of behalf of Mr Mulholland. Counsel for the Commissioner of Police left the issue open.
The words 'on behalf of' are common English language words which do not have a strict legal meaning: R v Portus ex parte Federated Clerks Union of Australia (1949) 79 CLR 428, 435 (Latham CJ). They can be used in a wide range of relationships concerned with the standing of one person as auxiliary to or representative of another: The Queen v Toohey; Ex parte Attorney General (N.T.) (1980) 145 CLR 374, 386.
An example is when a federal police officer applies for a telephone intercept warrant the officer does so on behalf of the Australian Federal Police: Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149, 191 where the words were interpreted as signifying 'by'.
The Commissioner of Police did not hold the seized property as representative or agent for Mr Mulholland, but for the purpose of investigation by police. The Commissioner did not hold the property on behalf of Mr Mulholland. However, for reasons that I have expressed, Detective Sergeant Winslow was authorised to stop and detain Mr Mulholland by s 73(1) of the Criminal Property Confiscation Act.
Ground 2
By ground 2 Mr Mulholland contends that Detective Sergeant Winslow did not have power under s 76 of the Act to require Mr Mulholland to answer questions because, for the reasons canvassed in grounds 1(a) and (b), Detective Sergeant Winslow did not have power under s 73 of the Act to stop and detain Mr Mulholland. The powers that a police officer has under s 76(1) of the Act only arise when 'a police officer exercises any of his or her powers under section 73 or under a warrant under section 74'. Detective Sergeant Winslow did not have a warrant under s 74. He was purporting to exercise powers under s 73. He therefore only had the power under s 76(1)(e) to require Mr Mulholland to provide information to him if he was able to exercise powers under s 73. If Detective Sergeant Winslow was not able to exercise powers under s 73 then he could not lawfully require Mr Mulholland to provide information to him.
For the reasons I have expressed when considering grounds of appeal 1(a) and 1(b) I have concluded that Detective Sergeant Winslow was lawfully exercising his powers under s 73. He therefore did have the power under s 76(1)(e) to require Mr Mulholland to provide information. This ground does not succeed.
Whether it would have been appropriate to grant the relief sought if Mr Mulholland had succeeded in his challenge to the decisions of Detective Sergeant Winslow
The relief sought by Mr Mulholland is set out in a minute dated 12 February 2016 as amended at the hearing of the application. He seeks:
1.A writ of certiorari quashing the decisions made on 14 October 2014:
a.to detain Mr Mulholland under s 73 of the Act;
b.to interview him under s 76 of the Act.
2.A declaration that the detention of Mr Mulholland under s 73 of the Act and the interview of him under s 76 of the Act were each contrary to law and infected by jurisdictional error.
3.Mandatory injunctions compelling Detective Sergeant Winslow and the Commissioner of Taxation to:
a.deliver up to Mr Mulholland the originals and all copies of recordings and transcripts of the interview;
b.redact or destroy all documents (including copies and electronic documents) in their possession that refer to any answers given in the interview;
c.refrain forever from disclosing any answers given in the interview; and
d.file an affidavit:
i.confirming compliance with paragraphs 3(a) to (c); and
ii.identifying the persons to whom any answer given by Mr Mulholland in the interview have been disclosed.
Mr Mulholland makes the claim for a declaration in the alternative to the claim for a writ of certiorari, in the event that the claim for a writ of certiorari is declined on a technical ground. The only relief claimed with which the second respondent was concerned were the mandatory injunctions against the second respondent. Counsel for Mr Mulholland confirmed at the hearing of the application that he does not seek any injunction against the Commissioner of Police.
The writ of certiorari
It was common ground that certiorari is a discretionary remedy: Re Smith; Ex parte Rundle (1991) 5 WAR 295, Re Minister for Indigenous Affairs; Ex parte Woodley [No 2] [2009] WASC 296 [38]. The Commissioner of Police submitted that delay in commencing proceedings, the ineffectiveness or futility of granting a remedy and the existence of a more convenient and satisfactory alternative remedy were relevant discretionary grounds for refusing judicial review.
Delay
Delay is a factor going to the exercise of the discretion to grant certiorari: Re Smith; Ex parte Rundle. Delay and the reasons for it are not to be considered in isolation. It is also necessary to have regard to factors such as the merits of the application, the general public importance of the issue raised and the nature and degree of prejudice to the parties: Highway Hotel Pty Ltd v City of Bunbury [2001] WASCA 385 [58] (Templeman J). I have considered the delay when dealing with the application for an extension of time to bring the application. For reasons that I expressed when deciding to allow an extension of time to bring the application it is my view that the delay has been explained, the reasons for it are reasonable, no prejudice has been caused by the delay and the application raises matters of substance. I would not refuse to grant relief by reason of delay.
Futility
An order for the issue of a writ of certiorari will not ordinarily be granted if to do so would be to grant a futile remedy: Varney v The Parole Board [2000] WASCA 393; (2000) 23 WAR 187 [87]. The Commissioner of Police's outline of submissions dealt with the issue of futility by reference to the use of the information obtained in the interview by the Commissioner of Taxation. The effect of the submissions was that as it would not be possible to restrain the Commissioner of Taxation from using the information that had been obtained it would be futile to grant a writ of certiorari.
I deal with the claim for relief against the Commissioner of Taxation later in these reasons. However the fact that it may not be possible to prevent the Commissioner of Taxation from using the information is not the end of the matter. There is the potential for Detective Sergeant Winslow to use the information and to provide the information to others.
On this issue Mr Mulholland sought to rely upon an affidavit made on 7 September 2016 by his solicitor James Richard Marzec. This affidavit related to an application for a suppression order in relation to these proceedings so that an imminent jury trial would not be prejudiced. There was no controversy about that issue.
The affidavit also related to the possibility of information obtained in the interview being used by law enforcement agencies. Attached to the affidavit was a media release from the Federal Minister for Justice dated 1 July 2014 entitled 'Dedicated strike team to target organised gangs in WA'. In the affidavit Mr Marzec deposed that Mr Muholland had advised him that he had been concerned about other law enforcement agencies, apart from the WA Police and the ATO may have obtained a copy of his interview by Detective Sergeant Winslow.
Counsel for the Commissioner of Police objected to Mr Mulholland relying upon the affidavit on this issue because she had not had time to take instructions on it and it contained hearsay.
It is not necessary to refer to the affidavit to resolve this issue. There is no justification on the evidence for any assumption that the only persons who might receive the interview or information obtained in it from Detective Sergeant Winslow would be the Commissioner of Taxation.
If I had decided that there was jurisdictional error by Detective Sergeant Winslow I would not consider it futile to grant a writ of certiorari.
Alternative remedies
Mr Mulholland has filed an objection to the freezing notice that has been issued under the Act. Counsel for the Commissioner of Police submits that the interview would ordinarily be able to be used by the State in proceedings arising out of that objection and that Mr Mulholland would be able to challenge the admissibility of the interview in those proceedings. The fact that Mr Mulholland could challenge the admissibility in those proceedings is not a reason why in the exercise of discretion a writ of certiorari should not issue. There are other areas in which the information provided in the interview may be used.
Mr Mulholland has objected to the income tax assessment notices that the Commissioner of Taxation has issued using information provided by Mr Mulholland in his interview by Detective Sergeant Winslow. Counsel for the Commissioner of Police has submitted that Mr Mulholland can and has challenged the use of the information provided in the interview in those objection proceedings. It would not follow from a conclusion that Detective Sergeant Winslow committed jurisdictional error in requiring Mr Mulholland to answer questions in the interview that the Commissioner of Taxation could not use the information. The fact that Mr Mulholland has objected to the assessment notices does not warrant, in the exercise of discretion, the refusal to grant a writ of certiorari.
Mr Mulholland has pleaded not guilty to criminal charges. Counsel for the Commissioner of Police has submitted that Mr Mulholland would be able to challenge the admissibility of the interview in those proceedings. However there is no certainty that the State would wish to lead evidence of the interview in the prosecution. In any event, as I have said, there are other areas in which the information provided in the interview may be used.
Conclusion as to discretionary refusal to grant certiorari
If I had decided that Detective Sergeant Winslow had committed jurisdictional error in conducting the interview and requiring Mr Mulholland to answer questions I would not refuse to grant certiorari on discretionary grounds. As I would have granted the writ of certiorari there would be no justification or need to make a declaration.
Injunction against Detective Sergeant Winslow
If I had found that Detective Sergeant Winslow had committed jurisdictional error I would have granted a writ of certiorari and I would have heard further from the parties as to whether an injunction should have been granted against Detective Sergeant Winslow. Counsel for Mr Mulholland expressly disavowed any submission that an injunction should be granted unless jurisdictional error had been established. As there was no jurisdictional error no injunction is to be granted.
It is appropriate to mention one aspect of the submissions in reply made on behalf of Mr Mulholland in which it was submitted, in relation to the grant of an injunction against the Commissioner of Taxation, that the disclosure by Detective Sergeant Winslow of information to an officer of the taxation department in the email of 15 October 2014 was unlawful because the disclosure was not made for a purpose authorised by s 76 of the Act. There is insufficient information contained in the agreed facts for me to reach any conclusion that the disclosure was unlawful. No information as to the purpose of the disclosure was contained in the agreed facts. In Zanon v The State of Western Australia [249] Mitchell J assumed, without deciding, that s 76 implicitly imposes on a person obtaining information under the section a duty not to use or disclose the information other than for the purposes of the Act or other purposes authorised or required by statute. As there is no information as to the purpose of the disclosure it would not have been appropriate in this case to make a conclusion that the disclosure was unlawful.
Injunction against the Commissioner of Taxation
The Commissioner of Taxation's submissions were limited to the application for an injunction. As there was no jurisdictional error I would not grant an injunction against Commissioner of Taxation, however I will briefly express my views on the position if jurisdictional error had been established.
In support of his claim for an injunction against the Commissioner of Taxation Mr Mulholland relied upon Lord Ashburton v Pape [1913] 2 Ch 469, in particular at 477 and AG Australia Holdings Ltd v Burton [2002] NSWSC 170; (2002) 58 NSWLR 464 [224] to [227]. These authorities establish that a party who receives documents or information in breach of confidence is liable to be restrained from using those documents or using that information, even if the recipient is innocent of any wrong and even if the documents or information may be admissible in an action.
However the Commissioner of Taxation did not receive the recording of the interview as a result of a breach of confidence. The Commissioner received the recording as a result of the issue of a notice under s 264 of the Income Tax Assessment Act. Following the receipt of the notice the Commissioner of Police was required by law to provide the recording to the Commissioner of Taxation. This obligation would override any duty of confidentiality: Smorgan v ANZ Banking Group Ltd [1976] HCA 53; (1976) 134 CLR 475. It follows that the provision of the recording of the interview to the Commissioner of Taxation in compliance with the notice could not constitute a breach of confidence.
In his submissions in reply counsel for Mr Mulholland submitted that the Commissioner of Taxation should have doubted the lawfulness of the disclosure of information by Detective Sergeant Winslow to the officer of the Australian Taxation Office. I do not accept that submission. First, for reasons I have expressed, when considering the injunction sought against Detective Sergeant Winslow, it would not be appropriate to make a conclusion that the disclosure was unlawful. Secondly, even if the disclosure had been unlawful, there is no basis in the agreed facts from which I would conclude that the Commissioner of Taxation, or the officer of the Australian Taxation Office with whom Detective Sergeant Winslow was dealing, should have had any doubts as the lawfulness of the disclosure.
Further, even if the interview had been provided to the Commissioner of Taxation in breach of a duty of confidence the Commissioner of Taxation was obliged for the purpose of the statutory duty under s 166 of the Income Tax Assessment Act to use information in the interview to make assessments of income tax: Federal Commissioner of Taxation v Donoghue [2015] FCAFC 183; 237 FCR 316 [74]. Counsel for Mr Mulholland submitted that s 166 speaks in the present tense and does not preclude an injunction being granted against the Commissioner of Taxation using information after the assessment has been issued. I do not accept that submission. It is not consistent with the section nor the decision in Federal Commissioner of Taxation v Donoghue. To interpret the section as permitting the Commissioner of Taxation to use information to make an assessment but then to enable a court to preclude the use of that information in responding to any objection to the assessment would mean that the use of the information in making the assessment would be substantially ineffective. That would be the effect of the injunction that Mr Mulholland seeks and, in my view, it could not be granted.
Even if there had been jurisdictional error by Detective Sergeant Winslow in conducting the interview I would not have granted an injunction against the Commissioner of Taxation because the interview and the information provided in it would not have been received by the Commissioner of Taxation in breach of any duty of confidence and, in any event, the Commissioner was obliged by law to use that information to make assessments of income tax.
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