Criminal Assets Bureau v Saunders and Another
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 15 February 2024 |
| Neutral Citation | [2024] IECA 35 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Number: 270/2022 |
[2024] IECA 35
Whelan J.
Faherty J.
Haughton J.
Appeal Number: 270/2022
THE COURT OF APPEAL
Judgment of Ms. Justice Faherty dated the 15 th day of February 2024
. This is an appeal against the judgment ( [2022] IEHC 550) and Order (perfected 22 November 2022) of the High Court (Owens J., hereinafter “the Judge”) where the Judge made an order pursuant to s.3(1) of the Proceeds of Crime Act 1996 (as amended) (hereinafter “the 1996 Act”) prohibiting the appellants and any person with notice of the making of the Order from disposing or otherwise dealing with or diminishing the value of property located at Hazelbury Park, Dublin 15. The property in question is a house in the joint ownership of the appellants and is their family home.
. Section 1(1) of the 1996 Act defines “the proceeds of crime” as meaning any property obtained or received at any time by or as a result of or in connection with criminal conduct. The provisions of the Act apply not only to such property but also to property that was acquired in whole or in part with or in connection with property that directly or indirectly constitutes the proceeds of crime. Pursuant to s.3, application may be made to the High Court by the Criminal Assets Bureau (“the Bureau”) for orders prohibiting a named respondent from disposing of or dealing with such property.
. Section 3 provides, in relevant part:
“3.—(1) Where, on application to it in that behalf by the applicant, it appears to the Court, on evidence tendered by the applicant, consisting of or including evidence admissible by virtue of section 8 —
(a) that a person is in possession or control of—
(i) specified property and that the property constitutes, directly or indirectly, proceeds of crime, or
(ii) specified property that was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime,
and
(b) that the value of the property or, as the case may be, the total value of the property referred to in both subparagraphs (i) and (ii) of paragraph (a) is not less than € 5000,
the Court shall, subject to subsection (1A) make an order (“an interlocutory order”) prohibiting the respondent or any other specified person or any other person having notice of the order from disposing of or otherwise dealing with the whole or, if appropriate, a specified part of the property or diminishing its value, unless, it is shown to the satisfaction of the Court, on evidence tendered by the respondent or any other person—
(I) that that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime, or
(II) that the value of all the property to which the order would relate is less than € 5,000:
Provided, however, that the Court shall not make the order if it is satisfied that there would be a serious risk of injustice.”
. For the purposes of an application under s. 3, the Bureau may rely upon evidence of the belief of certain members of the gardaí that the property in question falls within the definition of proceeds of crime. In this regard s. 8(1) provides:
“8.—(1) Where a member or an authorised officer states—
(a) in proceedings under section 2, on affidavit or, if the Court so directs, in oral evidence, or
(b) in proceedings under section 3, on affidavit or, where the respondent requires the deponent to be produced for cross-examination or the court so directs, in oral evidence,
that he or she believes either or both of the following, that is to say:
(i) that the respondent is in possession or control of specified property and that the property constitutes, directly or indirectly, proceeds of crime,
(ii) that the respondent is in possession of or control of specified property and that the property was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime,
and that the value of the property or, as the case may be, the total value of the property referred to in both paragraphs (i) and (ii) is not less than € 5,000, then, if the Court is satisfied that there are reasonable grounds for the belief aforesaid, the statement shall be evidence of the matter referred to in paragraph (i) or in paragraph (ii) or in both, as may be appropriate, and of the value of the property.
Pursuant to s. 8(2), “The standard of proof required to determine any question arising under this Act shall be that applicable to civil proceedings.”
. The combined effect of ss.1, 3 and 8 of the 1996 Act is to define the conditions under which certain persons in possession of property will be required to prove to the satisfaction of the court that the property was lawfully obtained without recourse to the proceeds of crime or otherwise face the prospect of having the property frozen and, later, the prospect of an application pursuant to s. 4 of the 1996 Act for a “a disposal order” directing that the whole or part of the property be transferred to the Minister or such other person as the court may determine. Section 4 of the 1996 Act is not in issue in this case: as already referred to, the relevant order under appeal is one made under s.3(1).
. For the purpose of imposing the onus on a respondent to an application pursuant to s.3(1) of satisfying the court that the property was acquired lawfully and not as a result of the proceeds of crime, the Bureau must first establish a prima facie case that the property was the proceeds of crime or comprised property acquired with the proceeds of crime. A prima facie case is established by the expression of admissible belief (if not undermined in cross-examination) of the relevant officer, as provided for in s. 8 of the 1996 Act, and which then may be answered by a respondent if he or she has a credible explanation for how the property lawfully came into his or her possession, and establish that in evidence ( per Hardiman J. in McK v. TH [2007] 1 ILRM 338, at p. 346). As held in Murphy v. GM [2001] 4 IR 113 (“ Murphy”), since a person in control or possession of property should be in a position to account for its provenance, there is no injustice in enabling the Bureau to adduce hearsay evidence of this kind (at p. 155).
. The Bureau's application in this case was grounded on a number of affidavits including that of the Chief Bureau Officer of the Bureau (“the Chief Bureau Officer”), sworn 18 September 2020. The Chief Bureau Officer attested to his belief, pursuant to s.8(1) of the 1996 Act that the appellants or either of them were in possession or control of property (“the Property”) as described in the Schedule to the Originating Notice of Motion, and to his belief pursuant to s.8(1) that “the Property constitutes directly or indirectly the proceeds of crime and/or that the Property was acquired, in whole or in part, with or in connection with property that, directly or indirectly constitutes proceeds of crime”. The Chief Bureau Officer's affidavit was sworn from facts within his own knowledge and information supplied to him by other Bureau Officers, and other members of An Garda Síochána.
. Other affidavits adduced on behalf of the Bureau attested variously to: past criminal investigations into the first appellant including prosecutions that were unsuccessful; the first appellant's membership of what was described as the Saunders Organised Crime Group; the arrest of the first appellant on 7 October 2016 and his subsequent conviction (on a plea of guilty) in Trim Circuit Court on 12 June 2018 on counts of conspiracy to commit robbery and possession of a firearm for which he was sentenced to 10 years custody with two and a half years suspended. The affidavit evidence of Revenue Bureau Officer No. 3 and Revenue Bureau Officer No. 68 gave details of Revenue records pertaining to the appellants. The affidavit sworn by Social Welfare Bureau Officer No. 58 set out details of past claims made by the appellants to the Department of Employment Affairs and Social Protection.
. The appellants filed a total of six affidavits, two sworn by the appellants on 2 December 2020, respectively, two sworn, respectively, on 6 April 2021 and two replying affidavits sworn on 2 June 2021. The appellants' affidavits of 2 December 2020 set out their application for admission to the ad hoc legal aid scheme and therein outlines details of their current income, savings, real property, assets and general living expenditure. Both appellants argued that there was a fair issue to be tried and both denied that the Property was acquired through the proceeds of crime. In their respective affidavits of 6 April 2021, both appellants denied any suggestion of criminality or that the Property was acquired through the proceeds of crime. Both averred that the Property was purchased from funds acquired through employment, gifts and savings. Both stated that the assertion on the part of the Bureau Forensic Accountant that there was a significant excess of expenditure over income was based on an inaccurate assessment. The affidavits sworn by each of the appellants on 2 June 2021 were by way of reply to the Bureau's allegations.
. The Property as described in the Schedule to the Originating Notice of Motion comprised two properties, namely, premises comprised in Folio DN 135866F and Folio DN 171596F (hereinafter, respectively, “Hazelbury Park” and “Mayeston Lawns”).
. The appellants purchased Hazelbury Park in 2005 for €360,000 with a mortgage loan of €324,000 from Ulster Bank. Shortly after it was bought it was extended and refurbished. They bought...
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