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LAWCOMM 442 - Personal Property LN.docx
LAWCOMM_442_-_Personal_Property_LN.docx
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LAWCOMM 442 - Personal Property LN.docx-Don Lye 17...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
LAWCOMM 442 - Personal Property LN....
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
Page 34
Don Lye
171346040
o
Also cites a locked home as giving rise to an inference of manifest intention to
control.
On the facts.
o
“For the defendant [police] it was submitted that in this case there was nothing to
demonstrate that the plaintiff's occupation of the site where the administration
building stood manifested an intention to exercise control over things which might
be on it or in it.”
o
“A number of persons had reasonably free access to the property. In the space of
about a month, more than 500 people had come to pick maize. Mr Dods said that
the large derelict buildings attracted curiosity and he did not restrict access to
them, although he liked people to ask if they could enter, because he had given a
Mr Whitehead permission to store wool and dags in the factory. The administration
building itself was in a fairly dilapidated state of repair with broken windows and
open doors. There was nothing to prevent anybody from entering the building.
Indeed Mr Dods accepted that at his trials his defence was conducted on the footing
that anyone could have gained access to the buildings and hidden the money and
the cannabis where they were found. Persons could have gained access from the
back, over a river, without having to pass by or in the vicinity of the house.”
o
“The evidence, which I have summarised, gives little support for the existence of
any such manifest intention [to exercise control over lost property].”
Commentary
Application of
Parkers
.
Facts in finders’ cases can be very diverse – focus on the general template.
o
Consider the money, it was in possession of police. The Police were the finders,
which is how they acquired possession. They acquired it lawfully, not as trespassers.
Position of Dodds – he cannot argue that he was the true owner of money which would be
inconsistent with his position in the criminal proceedings.
o
Instead argue that he was the occupier of the premises – needed to show that he
manifested an intention to control land and things on it.
o
In the criminal proceedings, he would have denied knowledge of drugs and money
and not wished to show control. Members of public were seen to enter the building.
This assisted defendant’s acquittal but now in civil proceedings, he faced difficulty
in showing that he manifested control.
4.1.2.4
National Crime Authority v Flack
(1998) 86 FCR 16
Consistent with Eichelbaum CJ’s example of a locked home in
Tamworth
.
$433,000 is hidden in a high cupboard without Mrs Flack’s knowledge – beyond her reach as an
elderly lady. Police enter with a search warrant, find the money and confiscate it – suspecting
that they were the proceeds of crime. Mrs Flack’s son was suspected is never charged.
Held
– The occupier of the locked house does not need to prove they had knowledge of the
chattels – high degree of control manifested over the property (locked home).
4.1.3
Things In or Attached to Land or Buildings
Assumption here that the occupier has possession of anything buried in or in land.
From
Pollock and Wright, cited by Lord Russell CJ in
South Staffordshire Water
.
o
“The possession of land carries with it in general, by our law, possession of
everything which is attached to or under that land, and, in the absence of a better
34
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