The Importance of Control and Intention in Possession: A Case Study of Chairman, National Crime Authority v Flack (1998) 86 FCR 16

Court Appearances
New South Wales
4 minute read

We’ve already covered the significance of possession in regards to property rights previously on Younsel, however, the case of Chairman, National Crime Authority v Flack (1998) 86 FCR 16, is illustrative of the fundamental importance of control, when talking about possession. Furthermore, the case is also helpful in regards to why knowledge of a thing is not always necessary when demonstrating ownership.

Facts of the case

Mrs Flack rented a property in Glebe, New South Wales, and was the sole tenant, although, her son, Glen, and daughter, Deborah, also had keys and access to the property at the time of the events in question. Mrs Flack’s daughter would visit on occasions, and it was estimated that Glen would come by a couple of times a week.

In 1994, a search warrant was executed by the Australian Federal Police (the AFP) who suspected that Glen was involved in the commission of drug offences. Whilst searching the premises in the execution of the warrant, a briefcase was found in a cupboard, containing $433,000. Upon the discovery of the briefcase and its contents, the following exchange took place between a surprised Mrs Flack, and a Detective Stewart:

Mrs Flack:** Oh my God.

Detective Stewart: Is there anything else you can tell us about that?

MF: No, nothing. I’ve never seen it before, I swear.

DS: (pointing to where the bag had been found) It was up there.

MF: Well I never go up there. I don’t need to. That’s what I use for the linen press there.

Over three years after the initial search, no legal action was initiated against, Glen. However, the authorities refused to return the briefcase to Mrs Flack, which then resulted in her commencing proceedings to have the briefcase and its contents returned to her. In bringing up the matter before the courts, Mrs Flack argued that the property belonged to her, and that her rights to the briefcase were superior when compared to the National Crime Authority (the NCA).

Issues of the case

The primary issue before the Federal Court, was whether Mrs Flack, as occupier and tenant, manifested the sufficient intention to exercise control over all chattels – and in this case the briefcase – found on her premises.

The NCA argued that Mrs Flack had no possessory title, and although the rules of possession generally state that Mrs Flack by virtue of her residential tenancy, would have possession and control over the premises and all chattels within them – even without having an awareness of all chattels within her property. However, in this case, the NCA argued that based on the facts and the circumstances, Mrs Flack had no title over the briefcase or the cash.

The decision

Ultimately, the Federal Court found in favour of Mrs Flack and ruled that she had a superior title to the briefcase and its contents when compared with the NCA. Furthermore, the briefcase could have only been retained up until the completion of a police investigation, and since no legal action was ever initiated against, Glen, Mrs Flack was then entitled to have the briefcase and its contents returned to her according to the Federal Court.

Did Mrs Flack have the requisite intention to possess the suitcase?

When the discussion revolves around the notion of possession, the two essential elements when establishing possession are:

• a person must have control of a thing • a person must have an intention to possess a thing.

Astute readers will be asking themselves: How did Mrs Flack exercise an intention to possess the briefcase and its contents, if she had no knowledge of its existence? Well, in this particular case, intention essentially boiled down to the fact that because Mrs Flack had the intention to possess her home, which then extended to the intention to possess anything within her home – and in this case, included the briefcase and the $433,000 – even if she had no knowledge of its existence prior to the search conducted by the AFP.

Why is control over a thing important?

What this case illustrates, is the importance of control over a thing when determining possessory rights. Despite the fact that Mrs Flack was not the true owner of the suitcase, or that she had knowledge of the briefcase and its contents, this did not change the fact that her rights to possession were superior to the NCA, and the Federal Court ruled accordingly.