EVIDENCE - whether Jones v Dunkel inference adverse to respondent should be... [1998] FCA 932 | Case summary

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

Federal Court of Australia|1998-08-07|Before: Heerey J, Tamberlin JJ, Foster J

REASONS FOR JUDGMENT FOSTER J: Heerey J, in his reasons, has dealt extensively with the facts in this appeal. There is no need for me to cover the same ground in these reasons. However, I would add the following material to the factual background outlined by his Honour. (a) After the conversations between Mrs Flack and the officers of the National Crime Authority ("the NCA") referred to by his Honour, Mrs Flack had a further conversation at the premises 6 Broughton Street, Glebe with Chief Investigator Standen. It is recorded in Mr Standen's affidavit (and not denied by Mrs Flack) as follows:- "Mrs Flack said: What will happen now? I said: Well we'll take the money and the bags and try and work out where it came from. It's obviously very suspicious. Mrs Flack: Yes certainly is. I said: We'll investigate the various possibilities. We may find it came from an armed robbery. You never know. What did your husband do for a living? Mrs Flack: He worked for the council, but he had an accident and was sick for a long time, then he died. I said: Did he receive any big payouts from work or because of his accident? Mrs Flack: No, he only got nineteen thousand dollars. I said: Did he have any other large amounts of money that he left to you in bank accounts or anything like that? She said: No, I paid for the funeral and that was about it. See, I've always worked. I've been able to look after myself. Its [sic] only recently that I've gone onto the dole, but it doesn't make be feel guilty or anything because I worked all me life and paid taxes. I'm fifty five you know. I think I deserve it now." (b) Only certain persons had had access to the Broughton Street premises by use of a key provided to them. Mrs Flack's husband had access in this way but he had died in September 1990. A close friend, Mr Sinclair, similarly had access, but he had died on 24 February 1994. It was admitted, on behalf of Mrs Flack, that between 25 February 1994 and 13 April 1994 the only persons who had a key to the house were the applicant, her son Glen Roderick Flack and her daughter Deborah Ann Nichols, neither of whom made any claim to the briefcase or its contents. (c) In addition to the passage from the transcript of Mrs Flack's examination before Mr M. Gray QC, a member of the NCA, which has been included in the reasons of Heerey J, the following passage appears:- "MR THROSSELL: Are you aware of the fact that a briefcase containing some cash was found in your residence by officers? --- Yes, I am. Do you own that briefcase? --- I do not. Do you own that money? --- I do not, I've never seen it before. Have you ever seen the briefcase before? --- No, I haven't. Did you actually see the money? --- I did when they opened it up, yes, I did. MR GRAY: Were you totally unaware that the briefcase was there? --- I was totally unaware. I did not know until such time as I was called into the hallway and [sic] said, 'Mrs Flack, will you come in here', which I did, and they showed it to me and I nearly had a heart attack. I said 'oh, my God'." THE EVIDENCE, ARGUMENTS AND FINDINGS OF FACT Before considering the submissions made in the appeal, it is convenient that I briefly discuss the evidence and make what I consider to be appropriate findings of fact. It appears that the case was conducted before the learned primary judge by way of affidavit evidence, admissions made for the purpose of the proceedings, and the tender of some documents. On behalf of Mrs Flack an affidavit by her solicitor was read. This was merely a vehicle for bringing into evidence correspondence which had passed between him and the NCA in relation to the seized goods. Also, Mrs Flack's residential tenancy agreement in relation to the Broughton Street premises was tendered. She, herself, provided no affidavit nor did either of her children. On behalf of the NCA, affidavit evidence was provided by the relevant officers dealing with the circumstances of the obtaining of the warrant and its execution at the premises, conversations with Mrs Flack in relation to the discovery and seizure of the goods in question, the origin of the briefcase and the evidence as to the dating of the two bank notes. There was no evidence in reply to this material nor any objection to its introduction. There was no oral testimony in the case. In these circumstances, of course, an appellate judge suffers no constraint in finding facts. Before the primary judge and on this appeal, it was submitted that Mrs Flack was entitled to the return to her of the seized goods on the basis that she had a possessory title to them in accordance with the authorities referred to in the reasons of Heerey J. Demand had been made for the return of her goods by her solicitor and there had been a refusal on behalf of the NCA to acquiesce in this demand. At first, return was resisted on the basis that the seized material was necessary as evidence in contemplated proceedings against Mrs Flack's son Glen. Later, however, it having been acknowledged that the goods were no longer required for this purpose, return was resisted on the basis that Mrs Flack had no possessory title. It was only this latter argument that was relied upon by the NCA in this appeal. In effect, it was put that, despite the fact that Mrs Flack, by virtue of her residential tenancy, had possession and control over the premises, and, ordinarily, all chattels within them, even if she were unaware of their presence, the circumstances of the present case were such that she acquired no right to possession of the subject goods. It is necessary, therefore, to have regard to the circumstances as I find them to be, before considering whether they have the asserted effect. The case is, undoubtedly, unusual in that the goods taken or "found" do not have an innocent complexion. They differ from a small bundle of bank notes dropped in the public part of a store or a valuable bracelet lost in an airport lounge. They are of a highly suspicious character, which fact was acknowledged by Mrs Flack in the conversation set out above. The bag and its contents were clearly not lost or abandoned. They were, as I find, hidden in an out-of-the-way place in Mrs Flack's premises. No evidence was provided on behalf of Mrs Flack providing an innocent explanation as to how or why such an extraordinarily large sum of money came to be in her home. Moreover, the April date for one of the bank notes indicated that it must have been placed within the briefcase only a few days before it was discovered and seized. The position of the briefcase in the high portion of the cupboard behind old bags which had, on the evidence, been in the cupboard for a very considerable period of time, can only mean that either the briefcase was placed in that position for the first time after the bank note of recent origin had been placed in it, or that the briefcase, having been placed in the cupboard at some earlier point of time, had been taken out for the purpose of its being opened so that the more recent bank notes could be introduced into it, it being then restored to its hiding place. I am quite satisfied that the briefcase and its contents were concealed by someone in the high portion of the cupboard because it was a part of the premises to which Mrs Flack did not go. On her evidence, indeed, she had not been to that part of the cupboard for twelve to thirteen years. Moreover, the briefcase was further concealed by its being placed behind other bags which would, obviously, have assisted to prevent its detection. Both Mrs Flack's son and daughter had ready access to her premises, each having a key, in the period during which the briefcase must have been placed in the cupboard. It is clear that the NCA investigators suspected that it had been placed there by Mrs Flack's son Glen. However, no evidence was placed before the primary judge in support of that suspicion other than Mrs Flack's reference to the other bags in the cupboard, apart from one of her own placed there in the distant past, as being owned by Glen. I accept that the evidence does not admit of a positive finding that it was Glen who had placed the briefcase and its contents in the cupboard, although there were reasonable grounds for suspicion to that effect. However, the fact that the briefcase containing this sum of money had been placed in Mrs Flack's cupboard without her knowledge or permission, in circumstances where the method of placement was obviously designed to conceal the presence of the briefcase from her, produces the result, in my opinion, that the contents of the briefcase might "be reasonably suspected of being stolen or otherwise unlawfully obtained" (s 527C Crimes Act 1900 (NSW)). It is necessary, next, to consider Mrs Flack's reaction to the discovery of the briefcase and the revelation of its contents. It is clear that she was aghast. She agreed that it was suspicious. She immediately denied all knowledge of the briefcase and, when it was indicated to her that it had been found in the high part of the cupboard, she readily explained that it was not a part of the premises used by her. The passages cited from the evidence are eloquent of her horror at the presence of the briefcase and its contents in her premises, and of her rejection of them. I am satisfied, also, that what she said amounted to an acknowledgment that their presence in her premises was unlawful. Although there is no specific evidence on this point I am satisfied that the only reasonable inference that can be drawn from her behaviour upon the discovery of the briefcase and her reaction to its contents is that if the person who placed the briefcase in the cupboard had sought her permission so to do, it would have been firmly refused. She would not, in any circumstances, have taken into her possession, custody or control the briefcase and its contents. The circumstances would have been too "suspicious" for her to acquiesce in such a course. She did not, of course, assert any right to possess when the briefcase and its contents were removed from her premises by the NCA investigators. In view of the warrant she could not, of course, have resisted such removal. She asked the question "what happens now?". In response to this question she was told, as appears from the passage cited, that the briefcase and money would be removed pending further investigation. She did not assert any claim, at that stage, that the seized goods should later be returned to her. Although she quite clearly denied ownership of the goods she did not, at the same time, make any assertion consistent with her later demand that they be returned to her possession. Indeed, in my view, her subsequent demand for their return is quite at odds with her patent rejection of the goods at the time of their discovery. THE APPEAL On behalf of the appellant it was submitted that these or similar findings should be made on the evidence. I have made them. The next and crucial question, of course, is whether they can preclude a right to possession of the goods being successfully asserted on behalf of Mrs Flack. It is put by the respondent that her claim should succeed because of the presumption of possession arising from her exclusive occupancy and control of the premises at Broughton Street, under her tenancy. The appellant contends, however, that this is a presumption of fact which can and should be rebutted by the circumstances of this case. The presumption of which I speak has been the subject of discussion and definition in the cases referred to by Heerey J in his reasons. The relevant cases were discussed by Donaldson LJ in Parker v British Airways Board [1982] 1 QB 1004. His Lordship referred to the judgment of the court in Bridges v Hawkesworth [1851] 21 LJQB 75, the case of the parcel of bank notes lost on the floor of the shop, in which the finder of the notes was held to have a right to their possession against the shop owner. In Bridges the Court said that in the circumstances "[t]he notes were never in the custody of the defendant, nor within the protection of his house, before they were found, as they would have been had they been intentionally deposited there …". Bridges is not an easy case and Donaldson LJ, after discussing it, said of it (at 1012) that "The ratio of this decision seems to me to be solely that the unknown presence of the notes on the premises occupied by Mr. Hawkesworth could not without more, give him any rights or impose any duty upon him in relation to the notes". I should add that I am satisfied that the reference to "deposit" in the passage from Bridges is to deposit with the consent of the recipient. It is clear that different considerations apply to the possession in a private home of chattels whose presence is unknown to the occupier. This appears from the passages from Parker cited by Heerey J. I shall not repeat them here. I find it useful to focus on the passage from the judgment of Eveleigh LJ in that case where his Lordship said (at 1020):- "I would be inclined to say that the occupier of a house will almost invariably possess any lost article on the premises. He may not have taken any positive steps to demonstrate his animus possidendi, but so firm is his control that the animus can be seen to attach to it." It is the respondent's contention that this and similar statements in other authorities indicate quite clearly that Mrs Flack had the right to possession of the subject goods even though she was totally unaware of their presence in the cupboard. There can be no doubt, of course, that the weight of authority markedly favours the householder's right to possession of such chattels. Donaldson LJ, when speaking in general terms of the rights of the occupier of a building over chattels found upon it, said (at 1018):- "An occupier of a building has rights superior to those of a finder over chattels upon or in, but not attached to, that building if, but only if, before the chattels is found, he has manifested an intention to exercise control over the building and the things which may be upon it or in it." As appears from the passage quoted from the judgment of Eveleigh LJ, a home occupier is in a special position. There are no parts of his home to which the public regularly resorts and in respect of which it may be said he has manifested no intention of control in respect of chattels whose presence is unknown to him. A relevant manifestation of intention to control can be very readily imputed to him. However, it is appropriate to emphasise that even in the passage from the judgment of Eveleigh LJ, which must be a very strong statement in favour of a householder's right to possession, words of qualification appear. The householder does not always possess the lost article. He will "almost invariably" possess it. There is no presumption of law that he will possess it. There is a very strong presumption of fact but, clearly, it is rebuttable. In the present case, the learned primary judge found in favour of Mrs Flack on the basis that, as the householder, she had manifested the necessary intention to possess the subject goods even though unaware of their presence. He approached the matter by posing and answering a question in the following way:- "One may ask rhetorically, could a visitor to Mrs Flack's premises take away the briefcase having found it in the cupboard and claim a superior right to Mrs Flack, whether or not the owner of the bag had intended to hide knowledge of it from Mrs Flack? The answer is clearly no." With very great respect, I am not, myself, convinced that either a question posed in these or similar terms, or the answer which it invites, is particularly helpful in a case such as the present. If this was a universally applicable test to determine whether a householder had a right to possession of unknown chattels in his house then one might say, with confidence, that a presumption to that effect was truly a presumption of law. It is clear that this is not so. A person can assert lawfully a right to possession only if he or she has such a right. It is this basic question which must be decided. I return to the finding which I have made, namely that had her son, or anyone else, sought Mrs Flack's permission to leave this case and its contents in her custody or possession, this permission would have been refused. That is, I am satisfied that she would never voluntarily have taken possession of the briefcase and contents nor assented to them passing into her custody or control. In these circumstances, I ask myself how can it be presumed simply from her status as householder that she had these goods in her possession? To make that assumption on the basis that her occupation and control of her premises as a householder necessarily manifested an intention on her part to exercise control over them would be to fly in the face of a contrary finding of fact. The presumption, which is not irrebuttable, must yield to the finding. To put the matter another way, is it reasonable that Mrs Flack, who clearly manifested shock and horror when confronted with the presence in her home of these goods, and who, quite clearly, would not have countenanced their presence had she known of them, be nevertheless entitled or obliged, by the presumption relied upon, to assume possession of them? This would be to impose upon her possession of unwanted goods. In my respectful view, this is a case where a person to whom Mrs Flack had provided means of access to her premises for lawful purposes has, contrary to the licence so bestowed, imposed upon Mrs Flack by depositing in her premises, in a manner that deliberately concealed the fact from her, goods which she would never have consented to take into her custody or control. In these circumstances, I am not prepared to find that possession of these goods in fact passed from the depositor of them to Mrs Flack. It remained with the depositor. They never came "within the protection of [her] house". I do not consider that the case of Russell v Wilson (1923) 33 CLR 539, relied on by the respondent, requires a different conclusion. In that case there was no dispute, as there is here, that the claimant had possession of the goods prior to their seizure under a warrant. For these reasons I am of the opinion that the appeal should be upheld and judgment should be entered for the appellants. The respondent should pay the appellants' costs of the appeal and of the hearing before the primary judge. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

HEEREY J: The respondent Margaret Elizabeth Flack (Mrs Flack) was the tenant of residential premises at 6 Broughton Street, Glebe. Police officers executed a search warrant on the premises and in so doing they discovered a locked briefcase which was found to contain $433,000 in cash. The search warrant was based on suspicion that Mrs Flack's son Glen had been involved in drug related offences. However no prosecutions were launched against him. Mrs Flack brought a proceeding against the first appellant, the Chairperson of the National Crime Authority (NCA), and the second appellant, the Commonwealth of Australia. The trial judge (Hill J) ordered that the Commonwealth deliver up to Mrs Flack the briefcase and cash.

The Glebe premises Mrs Flack at all material times was a weekly tenant under a residential tenancy agreement with the New South Wales Department of Housing. At the time of the events with which the case is concerned she was aged 55. She was the sole occupant of the premises and had lived alone there since the death of her husband in September 1990. Her son Glen, who was aged 38, had a few clothes in a back room. According to Mrs Flack, he did not stay at the house but visited "about twice a week". Glen had a key to the house, as also did a Mr Sinclair who lived nearby and who was a close friend of Mrs Flack until he died on 24 February 1994. Her married daughter Deborah Ann Nichols had a key as well. Mrs Flack said the various persons who had keys used them "reasonably frequently" and might come into the house when she was not there.

The warrant On 12 April 1994 a Justice of the Peace issued a warrant under s 10 of the Crimes Act 1914 (Cth) to Detective Constable David Stewart of the Australian Federal Police. The Justice recited that she was satisfied by information on oath that there were reasonable grounds for suspecting that there were in or upon the Glebe premises things which satisfied all three of the following conditions. First, that the things were one or more of the following namely cannabis in leaf form or as cannabis resin, correspondence, diary entries, telephone indexes, messages, receipts, wrappings, money, weighing scales and customer and price lists. Secondly, that the things related to Glen Flack. Thirdly, that there were reasonable grounds for believing that the things would afford evidence as to the commission of the crime of being in possession of prohibited imports to which s 233B(1)(c) of the Customs Act 1901 (Cth) applied, that is narcotic goods reasonably suspected of having been imported into Australia. The warrant authorised the holder to enter at any time the Glebe premises and to seize the things which satisfied all of the three conditions.

Execution of the warrant At about 8.20 am on 13 April 1994, Detective Stewart and four other police officers attended at the Glebe premises. They were admitted by Mrs Flack. Detective Stewart produced the warrant. The police officers asked Mrs Flack if she had a son named Glen Flack. Upon that being confirmed they informed her that they had information that he may be storing narcotics in the house. A search of the house took place. During the latter part of the search Detective Stewart and another officer searched a cupboard in an entrance hallway. In the lower portion of the cupboard were, amongst other things, an ironing board and a fold-up hammock. The police officers then opened the top half of the cupboard and removed what were described as a Balmain bag, a Balmain Fleggs bag and two travel bags, all of which were empty. When those bags were removed a large sized black briefcase was revealed. It was removed and found to be locked with a combination lock. The lock was forced and inside were seen a large number of bundles of Australian currency, predominantly fifty dollar notes. The police officers then came into the hallway with Mrs Flack and showed her the black briefcase in a closed position. Detective Stewart asked her who owned the bag. Mrs Flack said "I have never seen it before. I don't know whose it is". The police then opened the bag exposing the money inside. The following exchange took place: Mrs Flack: "Oh my God". Detective Stewart:

"Is there anything else you can tell us about that?" Mrs Flack:

"No, nothing. I've never seen it before, I swear." Mr Stewart (pointing to where the bag had been found):

"Well I never go up there. I don't need to. That's what I use for the linen press there." She indicated a nearby cupboard in use as a linen press. Mrs Flack said she had no idea how the briefcase came to be in the cupboard and that she had not seen her son with the bag. As to the other bags she said: "They're just old bags of Glen's and that one [indicating a travel bag] is mine. I used it when I travelled." She was asked: "Have you ever seen anyone go to this cupboard?" She said: "No, oh, hang on, only Tony who did the painting but I don't know if he was there or not. I doubt it." On 19 July 1994 Mrs Flack was examined before a member of the NCA. She was questioned about the cupboard in which the briefcase was found. The following took place: "Q. Have you ever been up that high in the cupboard yourself? A. I'd say when I first moved into the house, when I first moved in there 12-13 year ago, when we put the bags and that up there to have somewhere to put things, but that's about the only time, that I'd ever ever been there. B. So there were other bags up there? C. Well, there were, yes. There was old football bags, etcetera, up there. D. Did you put them up there? E. Years ago I did, yes. F. I am really asking you this to say that it was you, not your husband or someone else? G. Well I put a few up there. I don't know if my husband put any up there, I wouldn't have a clue. H. The ones that you put up there, when were they were put up there? I. When I first moved into the house about 12-13 year ago. J. And since that time have you had any occasion to go up there? A. No. Q. To look up there? A. No. B. Or to take anything from there? C. No." A Reserve Bank official gave evidence on affidavit that one of the banknotes in the briefcase had a Westpac Banking Corporation stamp dated 13 January 1994 and that another note was from a series first printed in April 1994.

The judgment below After reciting the facts his Honour discussed well known authorities and texts on possession, and in particular Bridges v Hawkesworth (1851) 21 LJ (QB) 75, South Staffordshire Water Company v Sharman [1896] 2 QB 44, Elwes v Brigg Gas Company (1886) 33 Ch D 562, Willey v Synan (1936-7) 57 CLR 200 and Parker v British Airways Board [1982] QB 1004, together with Pollock and Wright's Essay on Possession in the Common Law and Fleming's The Law of Torts (7th ed). His Honour noted as to the events following the raid: "No action was thereafter taken by the Authority. No person was charged in respect of any offence. Requests on behalf of Mrs Flack that the Authority return the bag and money to her were initially met by the response that they might be needed in evidence. Now that some three and a half years have elapsed since the briefcase was seized [the trial and judgment were in November 1997] it is clear that this excuse can no longer be availed of by the Authority. At the hearing, and indeed only after the luncheon adjournment, the Authority by its counsel conceded that there was 'no current operational necessity to retain the money'. The Authority, however, maintains that it can retain the bag and money on the basis that Mrs Flack has not established a sufficient title to sue for it. Whether she has is thus the real issue for decision." His Honour's conclusion and the reasoning for it appear from the following passage: "It follows, in my view, that the rights of an owner/occupier of premises where goods are found will prevail over the rights of a finder, irrespective of knowledge of the existence of the goods on the part of the owner/occupier and irrespective of an acceptance on the part of the owner/occupier of the obligation to exercise dominion over the goods so long as it can be shown that the owner/occupier manifested an intention to exercise control over the premises in which the goods are and all items in those premises. Such manifestation of intention will be presumed where the premises are residential premises of which the owner/occupier has exclusive possession. Conversely, where the goods in question are found in a private residence a finder can not assert a better title than the owner/occupier on the basis that the owner/occupier had no knowledge of the existence of the goods and, they not belonging to the owner/occupier, he or she had not accepted an obligation to keep them safe. The owner/occupier does not need to prove that he or she is the owner of the chattels, nor to prove who the owner is. This is the crux of the present case."

Conclusion on the appeal Mrs Flack's case is that she manifested an intention to exercise control over any chattels on the Glebe premises, including chattels of whose existence she was unaware: J G Fleming, The Law of Torts (8th ed) 1992 Law Book Company at 69. The question has to be considered as at a point in time immediately prior to the discovery of the briefcase containing the cash. The issue is whether the occupier manifests a sufficient intention to control all chattels, known and unknown, which are on the premises, subject only to any superior right. Therefore one does not ask: "What was Mrs Flack's intention in relation to the large amount of cash?" All the cases which were contests between occupiers and finders were dealt with on the basis that the occupier was not aware of the existence of the chattel until the finder found it. Since Mrs Flack was the tenant of an ordinary residential house she had possession in law of those premises. In the circumstances, that fact was sufficient to establish the requisite manifestation of intention to possess all chattels on the premises. In Parker v British Airways Board [1982] QB 1004 the English Court of Appeal had to consider the question of an occupier's intention in relation to the international executive lounge at Terminal One, Heathrow Airport. The plaintiff had found a gold bracelet lying on the floor of the lounge. Donaldson LJ said (at 1018) that, the bracelet not being a fixture, the defendants' claim must "... be based upon a manifest intention to exercise control over the lounge and all things which might be in it." His Lordship concluded (at 1019): "It was suggested in argument that in some circumstances the intention of the occupier to assert control over articles lost on his premises speaks for itself. I think that this is right. If a bank manager saw fit to show me round a vault containing safe deposits and I found a gold bracelet on the floor, I should have no doubt that the bank had a better title than I, and the reason is the manifest intention to exercise a very high degree of control. At the other extreme is the park to which the public has unrestricted access during daylight hours. During those hours there is no manifest intention to exercise any such control. In between these extremes are the forecourts of petrol filling stations, unfenced front gardens of private houses, the public parts of shops and supermarkets as part of an almost infinite variety of land, premises and circumstances. This lounge is in the middle band and in my judgment, on the evidence available, there was no sufficient manifestation of any intention to exercise control over lost property before it was found such as would give the defendants a right superior to that of the plaintiff or indeed any right over the bracelet. As the true owner has never come forward, it is a case of 'finders keepers.'" Eveleigh LJ said (at 1020): "A person permitted upon the property of another must respect the lawful claims of the occupier as the terms upon which he is allowed to enter, but it is only right that those claims or terms should be made clear. What is necessary to do this must depend on the circumstances. Take the householder. He has a key to the front door. People do not enter at will. They come by very special invitation. They are not members of a large public group, even a restricted group of the public, as users of the executive lounge may be. I would be inclined to say that the occupier of a house will almost invariably possess any lost article on the premises. He may not have taken any positive steps to demonstrate his animus possidendi, but so firm is his control that the animus can be seen to attach to it. It is rather like the strong room of a bank, where I think it would be difficult indeed to suggest that a bracelet lying on the floor was not in the possession of the bank. The firmer the control, the less will be the need to demonstrate independently the animus possidendi." Sir David Cairns said (at 1021): "I agree with both Donaldson L.J. and Eveleigh L.J., that, in a situation at all similar to that which we are considering, the occupier has a better claim than the finder only if he had possession of the article immediately before it was found and that this is only so (in the case of an article not in or attached to the land but only on it) when the occupier's intention to exercise control is manifest. I also agree that such an intention would probably be manifest in a private house or in a room to which access is very strictly controlled. Where the borderline should be drawn would be difficult to specify, but I am satisfied that this case falls on the wrong side of the borderline from the defendants' point of view." (Emphasis in original) Thus all members of the Court of Appeal would readily accept that the occupier of a private home will ordinarily manifest the necessary intention to control chattels therein. In my respectful opinion that accords with common sense. I do not see that any different conclusion should be reached in the present case because Mrs Flack's son and daughter and her good friend Mr Sinclair had keys. The inference to be drawn is that keys given or lent by an occupier in such circumstances are provided for the recipients' ease of access and not for the purpose of conferring possessory rights over everything on the premises - at any rate not to the exclusion of, or on an equal basis with, the occupier. It would for example be an everyday occurrence for householders to give, or lend, or make available, keys to children, even children of primary school age. Similarly, an occupier may provide a key to guests, or to a house cleaner or other tradespeople. The fact that the briefcase fairly obviously was not lost or mislaid but deliberately placed in the cupboard by the owner or previous possessor is a circumstance which makes no difference. There may be doubt as to whether it was hidden or cached. The cupboard was not locked. It was a logical place to store, or look for, such bags, irrespective of whether Mrs Flack often used it. Also, whoever put the briefcase there would presumably know that persons other than Mrs Flack had access to the house. And this person need not necessarily have known Mrs Flack did not use the cupboard. But in any event the authorities do not deny a possessory right to an occupier where the article in question has been hidden or deliberately placed on the premises: Johnson v Pickering [1907] 2 KB 437 at 444-445, Re Cohen [1953] Ch 88. If Mrs Flack manifested the necessary intention to control chattels on the premises, how do her rights compare or compete with those of the appellants? If the briefcase containing the cash had been found by a guest on the premises, or a thief, it could hardly be doubted that Mrs Flack would have a superior right. But as against the true owner, Mrs Flack would have to yield. The police executing the warrant were clothed with statutory rights to seize and take away any property which satisfied the three conditions - regardless of whether any other person had possession, or indeed ownership. But at common law an article seized under warrant cannot be kept for any longer than is reasonably necessary for police to complete their investigations or preserve it for evidence. As Lord Denning MR said in Ghani v Jones [1970] 1 QB 693 at 709: "As soon as the case is over, or it is decided not to go on with it, the article should be returned." Section 3ZV of the Crimes Act 1914 (Cth) now provides that a thing seized under warrant must be returned if "the reason for its seizure no longer exists or it is decided that it is not to be used in evidence ... unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership". Section 3ZV is in Part 1AA, introduced by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth), which did not come into force until after the issue and execution of the warrant in the present case. However it would appear to be not relevantly different from the common law. Therefore the appellants' rights to retain the goods taken from Mrs Flack's home ceased once it was conceded that those goods were not required for the purposes of further investigation or prosecution. The power to enter on private property and seize goods is a substantial interference with ordinary liberties and should not be extended beyond limits which the law prescribes: see Levine v O'Keefe [1930] VR 70 at 72, Challenge Plastics Pty Ltd v Collector of Customs (1993) 42 FCR 397 at 402-409. Neither at common law nor under statute is there a general power of the State to forfeit goods simply because they appear "suspicious". The presence of a large amount of cash in a private home is certainly unusual. However the explanation need not necessarily be criminal conduct on the part of the occupier. It could be an eccentric distrust of banks, or conduct that is unlawful or improper, but not criminal, such as concealment from the tax authorities or a spouse or creditor. Before the learned trial judge the appellants did not attempt to prove any connection between the money and Mrs Flack's son. At most there was the fact that, on some grounds not disclosed at the trial, there had at one stage been sufficient cause disclosed for a warrant to be issued. And, notwithstanding the finding of a large amount of cash in a house to which Mrs Flack's son had access, no proceedings were ever brought against him. Counsel for the appellants submitted: "Mrs Flack having prevented a possible criminal charge against her son by denying knowledge of his possession, and having avoided a charge against herself by denying her own possession, is not now entitled to claim possession of the bag and money, simply because the real possessor does not dare to claim the money." It is not correct in my view to say that Mrs Flack denied possession. She certainly denied prior knowledge, and therefore, implicitly, ownership. However in the circumstances she had no choice but to allow the police officers to take control of the goods, as they were then lawfully entitled to do. To speak of someone else as the "real possessor" begs the question. Mrs Flack was a real possessor since she was the occupier of a private house and is to be taken to have manifested an intention to control goods within the house. Somebody else was the true owner, and Mrs Flack could not resist a claim by that person to hand over the cash. If as a result such other person was at risk of prosecution and conviction for a criminal offence then the criminal law would have to take its course. The appellants before his Honour and on appeal sought to rely on the rule in Jones v Dunkel (1959) 101 CLR 298 at 308. That rule provides that any inference favourable to one party for which there is ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the opposing party. Mrs Flack did not give evidence at the trial. Her case was established by an affidavit from her solicitor which exhibited the warrant and correspondence between his firm and the NCA. Her tenancy agreement was also tendered. However, as his Honour pointed out, her case did not depend on the drawing of any inference. She was indisputably the occupier of residential premises on which the goods in question were found. It was no part of her case to prove she had prior knowledge of the goods. For their part, the appellants did not plead in their defence, nor attempt to prove, that she had such prior knowledge. Their case has always been: (i) reliance on their rights under the warrant (a defence effectively abandoned in the course of the trial) and (ii) denial that Mrs Flack ever had possession. Moreover Mrs Flack was, on 19 July 1994, compulsorily examined by the NCA under the powers conferred by s 25 of the National Crime Authority Act 1984 (Cth). The transcript of that hearing was tendered at the trial by the appellants. According to an affidavit by the appellant's solicitor, a direction made under s 25(9) of that Act "to the effect that the contents of the document not be published, was varied to allow the document to be used in the proceeding". The affidavit does not suggest Mrs Flack's consent was obtained, or sought. The propriety of the NCA's course of action may be questioned. As Brennan J said in Johns v Australian Securities Commission (1993) 178 CLR 408 at 423: "Information is intangible. Once obtained, it can be disseminated or used without being impaired, though dissemination or use may reduce its value or the desire of those who do not have it to obtain it. Once disseminated, it can be disseminated more widely. A person to whom information is disclosed in response to an exercise of statutory power is thus in a position to disseminate or to use it in ways which are alien to the purpose for which the power was conferred. But when a power to require disclosure of information is conferred for a particular purpose, the extent of dissemination or use of the information disclosed must itself be limited by the purpose for which the power was conferred. In other words, the purpose for which a power to require disclosure of information is conferred limits the purpose for which the information disclosed can lawfully be disseminated or used. In Marcel v. Commissioner of Police of the Metropolis [1992] Ch 225 at 234, [affirmed [1992] Ch at 261, 262] Sir Nicholas Browne-Wilkinson V.-C. said, in reference to a statutory power conferred on police to seize documents: 'Powers conferred for one purpose cannot lawfully be used for other purposes without giving rise to an abuse of power. Hence, in the absence of express provision, the Act cannot be taken to have authorized the use and disclosure of seized documents for purposes other than police purposes.'" Thus the appellants used in civil proceedings against Mrs Flack evidence extracted from her under compulsion of legal powers conferred for a different purpose. In the course of that questioning the NCA could have asked her any questions it wished in relation to the goods in question. The appellants' argument that it should now get some forensic advantage from Mrs Flack's declining to submit herself gratuitously to a second examination is not a particularly attractive one. The appeal should be dismissed with costs. I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice

REASONS FOR JUDGMENT TAMBERLIN J: The factual background and relevant case law has been set out in the reasons for judgment of Heerey J, which I have had the advantage of reading. In general terms, I agree with his Honour's reasons but wish to make some additional observations. There is no dispute on this appeal that the relevant test to be applied in determining whether the respondent had possession of the briefcase and its contents is that set out by the primary Judge; namely, whether the respondent manifested an intention to exercise control over the goods? The relevant time for making this determination is at a point immediately before the discovery of the briefcase. As the case law cited by his Honour indicates, the starting point for the determination is the premise that a person with exclusive possession over a private home, for example, an owner or lessee, is presumed to exercise control over each and every part of that home and everything in it. In the present case, the circumstance that children of the respondent had keys and were permitted access to the house does not detract from her exclusive possession because such access is only with her permission. In legal terminology they are licensees of those parts of the premises which they are permitted to access or occupy and the exercise by them of this permission does not extinguish the possession vested in the person with the exclusive right to occupy and the associated control which such possession carries with it. As Pollock and Wright point out in their classic "Essay on Possession in the Common Law", 1990 Law Press at 39, when speaking of possession in the context of a private home: "… though an occupier may have no conscious specific intention concerning all the chattels in his house, or on his land, it is certainly his general intention that unauthorized persons shall not meddle with them." At 41, the learned authors say: "But it seems preferable to say that the legal possession rests on a real de facto possession, constituted by the occupier's general power and intent to exclude unauthorized interference." Later, at 42, they observe: "The Common Law pays more regard to the fact that an occupier's general power to exclude strangers from any part of that which he occupies is independent of his knowledge or ignorance as to the specific contents of that part. Possibly the traditional dignity of the freehold may have something to do with this view, but it would seem that a lessee for years would have had the same right as against a sub-lessee." The underlying concept appears to be that of the protection of the family home and its contents in order to prevent unauthorised interference. This notion is reflected in English linguistic usage, to some extent, by the saying that "An Englishman's home is his castle." See Semayne's Case 5 Co Rep 91a. The notion of a person intending to exercise possession or control over an article of which he or she was at all relevant times unaware is somewhat artificial. In some respects it is analogous to a legal "fiction" in the sense that it is a statement which on its face is false but is recognised as having utility in the application of legal principles: see Lon L Fuller, Legal Fictions, 1967 Stanford University Press at 9 and 12. However, its proper characterisation in my view, is rather that of a rebuttable presumption of fact. The presumed intention of a housekeeper to extend the protection of her home to everything in it, is a concept which has been applied in the authorities and serves a useful purpose in resolving disputes between claimants to possession where there might otherwise be an unexplained gap or vacancy in the possessory chain. The presumption is designed to assist in the development of a coherent doctrine of possession. In his text, Professor Fuller specifically refers to fictions of applied law, such as the fiction of "finding" in an action of trover. It provides assistance in dealing with the difficult questions which can arise in deciding which of two competing parties, if any, has the better claim to possession of an article. The nature of the premises and the location of the goods in question will be of considerable importance in any particular case. For example, the fact that the goods are located in a private home is most significant. Emphasis is placed by Pollock and Wright on the fact that the goods remain under the protection or control of the occupier of the private home unless and until some other person exercises a more direct or effective control. They emphasise the assumed general intention that unauthorised persons will not be able to interfere with goods in that home. In the normal course of events it may reasonably be inferred that a homeowner intends to extend the protection of his home to everything contained therein. There are several matters raised in the course of argument by the appellant which call for consideration. First, it was said that the respondent's statements to police officers, when shown the briefcase and contents for the first time, indicated that in fact she had never intended to exercise control over it. The relevant statements are quoted in the reasons of Heerey J, together with an extract from the examination of the respondent by a representative of the National Crime Authority. On close examination, the exclamations of the respondent, in substance, express surprise and anxiety but they do not amount to disclaimer of possession. Nor do they evidence the absence of an intent to assert possession. Rather, they go to the respondent's lack of knowledge that the briefcase was on the premises. These statements are not inconsistent with her claim to be entitled to possession of the goods and are readily understandable as statements of alarm in the context of the confronting situation with police authorities in which such statements were made. Second, it was pointed out that the respondent admitted that she had not been "up that high in the cupboard" where the briefcase was discovered for about 13 years. It was said that failure to access or exercise "control" over this part of the premises supports the conclusion that in fact she lacked the requisite intent to possess the goods. In my view, this fact does not support a conclusion that in some way this area should be excluded from her general intention to exercise control over the house and everything in it. It is not necessary to actually access all areas of the house in order to retain a general control. Nor, in the language of Pollock and Wright, does it show an intention to exclude unauthorised interference with certain areas any more than a failure to climb into the roof area or descend under the floorboards of a house for a long period of time. Third, it was said that because the goods in question comprise a locked briefcase in a relatively inaccessible and concealed position containing an unusually large amount of money, it ought be inferred that she would not have intended to manifest or exercise control over the briefcase or its contents. There was a suggestion that the alleged "highly suspicious" character of the briefcase and its contents rebut any presumed general intention to exercise control or to extend the protection of the home over these articles. There is nothing illicit or illegal in either the brief case or the money found therein. It is true to say that in normal circumstances it is unusual to discover these articles in a private home. However, this circumstance is not necessarily inconsistent with the existence of a presumed but rebuttable intention on the part of a lessee to extend protective control over the contents of his or her private home. If the article in question had been, say, a diamond tiara worth several hundred thousand dollars found in similar circumstances it would not warrant the rebuttal of an intention to exercise control over premises. Again, it would be a most unusual circumstance but the question whether the discovery of such an article is unusual cannot be determinative of whether a person has possession. The discovery of two gold rings in a swimming pool may also be unusual but such discovery was not found to be inconsistent with the existence of a right to possession in South Staffordshire Water Company v Sharman [1896] 2 QB 44. The fact that the gold rings in question were found in a pool of water on the land does not warrant any significant difference in this respect. It is important to bear in mind that the time at which the question must be answered is antecedent to the finding or discovery in question: see Bridges v Hawkesworth (1851) 21 LJ (QB) 75 at 77. The position as to the rebuttable presumed intent might be different if the article in question was an illegal substance, or a prohibited dangerous weapon; for example, where it may be more difficult to accept that an occupier would have intended to extend the protection of the house to its contents. That is not this case. In the present case, if one were to impute a presumed intention to the applicant to act according to law, her likely course of action on locating the articles would be that she would have proceeded to take it to a police station and, in the absence of any further or better claim to possession, she would have sought to recover possession of the briefcase and its contents. Ultimately, the Court is faced with a situation where the briefcase and its contents are discovered in a private home, in circumstances where the respondent had exclusive possession although she was unaware of the presence of the article. It has not been established that any other person has a better claim to possession. In my view, having regard to the above circumstances, the position immediately prior to discovery was that the respondent had possession and intended to exercise control over both the briefcase and its contents. Accordingly, I agree with the conclusion of Heerey J, that the appellants have no present right to possession of the briefcase which is equal to or greater than that of the respondent. The statutory rights of the appellants to retain possession under the warrant have expired. In my opinion the appeal should be dismissed with costs.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate: Dated: 7 August 1998 Counsel for the Appellants: Mr C A Porter QC

Solicitor for the Appellants: Australian Government Solicitor

Counsel for the Respondent: Ms E L Fullerton with Ms S J Goddard

Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994(Cth)

National Crime Authority Act 1984(Cth)

EVIDENCE - whether Jones v Dunkel inference adverse to respondent should be drawn where respondent did not give evidence at trial.

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