Byrne v Farrell and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 06 July 2012
• Neutral Citation: [2012] IEHC 428
• Docket Number: [No. 8528P/2000]
• Court: High Court
• Date: 06 July 2012

[2012] IEHC 428

THE HIGH COURT

[No. 8528P/2000]

B (P) v F (A) & Ors

BETWEEN

P.B.

PLAINTIFF

AND

A. F. AND J.P.M. F.

DEFENDANTS

PROCEEDS OF CRIME ACT 1996 S3

PROCEEDS OF CRIME ACT 1996 S7

MURPHY v M (G) 2001 4 IR 113

PROCEEDS OF CRIME ACT 1996 S2

MCK v F & F UNREP FINNEGAN 24.2.2003

PROCEEDS OF CRIME ACT 1996 S8(1)

PROCEEDS OF CRIME ACT 1996 S3

PROCEEDS OF CRIME ACT 1996 S8

MCK v (T) H 2007 1 ILRM 338

PROCEEDS OF CRIME ACT 1996 S8(5)

GILLIGAN v CRIMINAL ASSETS BUREAU 1998 3 IR 185

MCK (F) v G W D 2004 2 IR 470

CRIMINAL JUSTICE ACT 1994 S32

CRIMINAL JUSTICE ACT 1994 S31

CLARKE v GOVERNOR OF CLOVER HILL PRISON 2011 2 IR 742

MCKEON v DPP UNREP SUPREME 12.10.1995 1998/25/9920

CRIMINAL LAW

Proceeds of crime

Application for interlocutory order and appointment of receiver - Real property - Bank accounts - No requirement of mens rea - Serious risk of injustice - Delay - Opinion evidence - Hearsay evidence - Ability to cross-examine - Correct procedure for determining admissibility of hearsay or opinion evidence - Factors in determining quality of belief evidence - Extent of personal knowledge of witness - Informer privilege - Crime committed outside State - Cumulative effect of factors - Whether reasonable grounds for opinion evidence - Whether onus shifted to defendant - Murphy v GM [2001] 4 IR 113; McK v F and F (Unrep, Finnegan P, 24/2/2003); McK v H(T) [2006] IESC 63, [2007] 1 ILRM 338; Gilligan v Criminal Assets Bureau [1998] 3 IR 185; Clarke v Governor of Cloverhill Prison [2011] IEHC 199, [2011] 2 IR 742 and McKeon v Director of Public Prosecutions (Unrep, SC, 12/10/1995) considered - McK(F) v WD(G) (Proceeds of crime outside the State) [2004] IESC 31, [2004] 2 IR 470 applied - Proceeds of Crime Act 1996 (No 30), ss 2, 3, 7 and 8 - Relief refused (2000/8528P - Feeney J - 6/7/2012) [2012] IEHC 428

B(P) v F(A)

Facts: The plaintiff was the Chief Bureau Officer of the Criminal Assets Bureau who sought orders to confiscate certain properties and bank accounts of the late P.F. and appoint a receiver to take possession pursuant to ss. 3 and 7 of the Proceeds of Crime Act 1996 (as amended) ("the 1996 Act") respectively. The first named defendant was the widow of P.F. and sued in a personal capacity as well as in her capacity as guardian ad litem of the estate. The second named defendant was the daughter of P.F. who had an interest in a number of the assets.

It was claimed by the plaintiff that even if the defendants were unaware the property was acquired as a result of the criminal activity of P.F. and uninvolved in any way; this did not prevent orders pursuant to ss. 3 and 7 of the 1996 Act being made. It was the plaintiff's belief that P.F. had acquired a number of properties with the proceeds of criminal activities and that a number of lodgements had been made to various bank accounts which amounted to money laundering. It was the defendant's claim that a number of the properties were acquired in the 1970s and 1980s and it was unfair to require them to have to defend the origin of these funds after such a long period of time.

Held by Feeney J that whilst the court accepted that the court could make the orders sought under ss. 3 and 7 even where there was a lack of knowledge in relation to the defendants, the court had a discretion to refuse to make such orders where it would be considered an injustice to do so. In this case, the action was not being taken against the person who was accused of being involved in criminal activity, but against the individuals in control of his estate. It was also undisputed that a number of the properties had been acquired a considerable time ago and the court was compelled to take this into account.

The first step was to consider the quality of the belief evidence of the plaintiff. If it was found to be of an unacceptable standard and the grounds on which the beliefs were formed were determined to be unreasonable, the court was obliged to exclude it. It had been 34 years since the first property had been acquired and most of the evidence was hearsay that had derived from third parties. In those circumstances, it was an impossible task for the court to test much of the evidence and even if it were available, the passage of time would have led to the possibility of inaccuracies. It was also apparent to the court that on the evidence that was available, a number of inconsistencies were clearly visible in relation to the extent of the criminal activity. These factors also related to the allegations of money laundering. When these factors were considered together, it was held that the strength of the plaintiff's belief evidence failed to meet the necessary standard and should be excluded.

In the absence of the belief evidence of the plaintiff, it was held that there was insufficient evidence before the court to determine whether the assets of P.F. were derived from the proceeds of criminal activity and the orders sought should be refused. It was further held that even if the evidence was admitted, the court would have refused the orders on the basis that it would have created an in-justice to the defendants in defending the action mainly because of the passage of time and their non-involvement and lack of knowledge in the criminal activity alleged

Orders sought refused.

Mr. Justice Feeney

1 2 1.1 The plaintiff as Chief Bureau Officer of the Criminal Assets Bureau seeks orders under ss. 3 and 7 of the Proceeds of Crime Act 1996 (as amended), ("the 1996 Act") in relation to certain properties and in respect of certain bank accounts in the State. It is claimed by the plaintiff that those properties and bank accounts represent the proceeds of crime of the late P. F., who is the deceased husband of the first named defendant and the father of the second named defendant. P. F., deceased, was murdered on the 10^th September, 1997. The properties and bank accounts the subject matter of this application are set forth in the schedule to the general endorsement of claim in fourteen separate numbered paragraphs.

2 3 1.2 The proceedings were originally entitled F. McK. v A. F. and J.P.M. F. and an order was made on the 8^th December, 2009 substituting the then Chief Bureau Officer of the Criminal Assets Bureau, P. B., for F. McK. as plaintiff in these proceedings. The first named defendant is the widow of the late P. F., deceased, and in the amended statement of claim delivered on the 29^th January, 2009 it was claimed that the first named defendant as the widow of the late P. F., deceased, was sued in her personal capacity and also in her capacity as guardian ad litem of the estate of the late P. F., deceased, having been so appointed by order of the Court on the 15^th January, 2009. It was also claimed that the first named defendant was in possession of and or in control of all the property other than for the items at paragraphs 11 and 12 of the schedule. It was also claimed that the first named defendant was in receipt of rental income from one of the properties, namely the property identified in paragraph 8 of the schedule, that being Apartment 243, The Sweepstakes, Ballsbridge, Dublin, 4. The plaintiff further claimed that insofar as the first named defendant was not in possession of the scheduled property that she has been in control of that property as the surviving spouse of the late P. F., deceased, and as the party with priority entitlement to the extraction of administration to his estate. It was also pleaded that the first named defendant was in possession of and/or control of the scheduled property by virtue of being the guardian ad litem of the estate of the late P. F.. The second named defendant asserted an interest in two of the items of property the subject matter of the proceedings, being the amounts in two accounts held by the Permanent TSB (formerly Irish Permanent Plc.) in Dundalk, County Louth. Those being the items of property identified at paragraphs 11 and 12 of the schedule. A settlement was concluded between the plaintiff and the second named defendant prior to the commencement of the hearing of the action on the 8^th December, 2009 and the terms of the settlement were handed in to the Court on that date. The Court ruled that the effect and consequence of the consent agreement would be revisited at the end of the case. The property the subject matter of the application consists of nine items of real property and five bank accounts, including the two bank accounts which are the subject of the consent agreement between the plaintiff and the second named defendant.

3 4 1.3 Nine items of real property are identified in the schedule in the first nine paragraphs of that schedule. Four of the items of property represent contiguous lands at Ardkirk, County Monaghan, which lands were acquired in four separate parcels and transactions in December 1977, August 1978, March 1980 and January 1985. Those lands are identified at paragraphs 1,2,4 and 5 of the schedule. The properties in issue also include a separate holding of land in County Monaghan acquired in 1983 which is situated a few miles distant from the Ardkirk property which lands were acquired in May of 1983 and is the property referred to at paragraph 7 of the schedule. The proceedings also relate to properties situated in Drumnasillagh in County Louth consisting of a derelict house known as Ravensdale Hall which was acquired in 1989 and is the property identified at paragraph 3 of the schedule together with some six acres of adjoining land which was acquired in 1987 and is identified at paragraph 6 of the schedule. The Court heard evidence in relation to the dates, circumstances and price of purchase of each of the said seven items of property covering the period from December 1977 when the property at paragraph 1 of the schedule was purchased up to and including the...