Criminal Assets Bureau -v- Murphy & anor, [2018] IESC 12 (2018)

Docket Number:35 & 36/16
Party Name:Criminal Assets Bureau, Murphy & anor
 
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THE SUPREME COURT

[Supreme Court Appeal No: 35/2016 and 36/2016]

[Court of Appeal No: 2014/1452 and 2014/1453]

[High Court No: 2011/10 CAB]

Clarke C.J.

McKechnie J.

MacMenamin J.

Dunne J.

O’Malley J.

BETWEEN:

CRIMINAL ASSETS BUREAURESPONDENTAND

MICHAEL MURPHY JUNIOR AND MICHAEL MURPHY SENIORAPPELLANTSAND

AMY FORRESTNOTICE PARTY

JUDGMENT of Ms. Justice O’Malley delivered the 27th day of February 2018.

Introduction

  1. The value of the property in dispute in these civil forfeiture proceedings is relatively insignificant – less than €20,000 in cash – but the litigation raises important questions. The context for those questions is that the cash, in respect of which the respondent has obtained orders under the Proceeds of Crime Act 1996, was seized from the dwelling of one of the appellants on foot of an invalid search warrant and thus in breach of his constitutional rights. The acknowledged difficulty with the warrant was that it had been issued under the provisions of s. 29 of the Offences Against the State Act 1939, as amended, before that section was held to be unconstitutional by this Court in Damache v. Director of Public Prosecutions [2012] 2 I.R. 266.

  2. The appellants (“the Murphys”) have argued that the cash should have been excluded from evidence because it was unconstitutionally or illegally obtained. The respondent (“the Bureau”) has contended, in essence, that any rule excluding evidence on that basis has no application in in rem proceedings. This argument was accepted by the trial judge (see Criminal Assets Bureau v Murphy [2014] IEHC 583) and by the Court of Appeal (Criminal Assets Bureau v Murphy [2016] IECA 40). The Court of Appeal held that the exclusionary rule was intended to prevent the deployment of unconstitutionally obtained evidence only in in personam proceedings against the person whose rights had been breached, and had no relevance in in rem proceedings where the issue before the court was the provenance of the property itself.

  3. In its determination on the application for leave to appeal this Court noted the wide public importance of clarifying the law on whether any rule as to the exclusion of evidence which is illegally or unconstitutionally obtained is applicable in civil proceedings. Leave to appeal to this Court was thus granted on the following points:

    (i) Where a dwelling is entered other than in accordance with law, and that dwelling is not that of a person seeking to assert a constitutional right to the inviolability thereof, may evidence be excluded in proceedings concerning a person not dwelling therein?

    (ii) Is there any rule of law requiring that evidence obtained in consequence of illegal entry into a dwelling should be excluded from civil proceedings, including proceedings in rem under the Proceeds of Crime Act 1996, as amended?

    (iii) Is there any rule of law requiring the exclusion of evidence in civil proceedings obtained in consequence of a deliberate illegality, or a mistake amounting to an illegality, or in consequence of the deliberate and conscious violation of the rights of one of the parties?

  4. I feel it necessary to observe at this stage that couching the questions in terms of the exclusion of evidence did not, perhaps, accurately describe the central issue to be determined by the Court. The cash was not produced before the Court as evidence tending to prove any disputed issue of fact – rather, the evidence in the case was adduced by the Bureau and by the Murphys to respectively support or undermine the proposition that the money represented the proceeds of criminal activity. The distinction becomes particularly apparent in relation to the first and third questions posed, which raise the possibility that evidence of the cash might be excluded in respect of some parties but admitted in respect of others. While this result could be accommodated in criminal trials, it would be absurd in proceedings of the instant character if, for example, the property seized were to be claimed on the basis of joint ownership by an occupant and a non-occupant.

  5. In reality, therefore, the problem is not whether items found and seized in such circumstances can be put in evidence, since the Bureau does not intend to do so or to prove any matter thereby, but whether the Bureau was entitled, having regard to the established illegality, to an order intended to deprive the Murphys of the cash. In broader terms, it seems to me that the question that the Court should address is whether the constitutional principles underpinning the exclusionary rule have any application in proceedings of this nature such that the State should, in all or in any circumstances, be denied the benefit of an action taken by its agents in breach of an individual’s constitutional rights.

  6. Despite the breadth of the terms upon which leave to appeal was granted, I think it preferable, for present purposes, to confine consideration of the issue to litigation involving the State and to illegality and breach of rights arising from the actions of State agents. This is because the instant case involves, as do most such cases, the use of the coercive powers conferred upon elements of the force publique. The factors that may properly influence the Court’s approach to the matter will not often arise in purely private litigation and indeed it seems clear that there are few recorded cases where it has. Since private parties normally lack such legally coercive powers, a case where one party seeks to secure an advantage over the other by the use of means which violate the rights of that other will, it seems likely, involve considerations of the criminal law and/or the law of tort. To deal with these issues in the context of the instant proceedings would be to engage in an undesirable level of hypothetical discussion.

    Background facts

  7. The Murphys are father and son. In May, 2009 a number of firearms were found in the course of a search of a vehicle driven by Michael Murphy Jr. He was subsequently prosecuted and sentenced for firearms offences. Following his arrest, investigating gardaí obtained a warrant pursuant to s.29 of the Offences against the State Act 1939, as amended, which was relied upon as authority for a search of a house in Co. Cork on the 28th May, 2009. There is no question but that this house was the residence of the notice party, who was the girlfriend of Mr. Murphy Jr. On the evidence put before him in the High Court, the trial judge considered it proper to treat it as being the dwelling of Mr. Murphy Jr. also.

  8. In the course of the search the gardaí found and seized a number of items, including sterling and euro sums in the amount of Stg£6,625 and €9,000 in cash. The second named appellant, Mr. Michael Murphy Sr., has asserted ownership of a certain amount of the cash. He originally claimed that he owned all of the sterling and that he was also entitled to €5,000 out of the €9,000 on the basis of a loan made by him to his son. At the hearing of this appeal it was confirmed that his claim now relates to the sterling only. Mr. Murphy Jr. claims the remainder.

    The High Court proceedings

  9. In July, 2010 the Bureau obtained an order pursuant to s.2 of the Act of 1996 in respect of the two sums of cash and some other items seized or discovered in the course of the investigation. Section 2 provides for the making of an interim order, on an ex parte application, where it is shown to the satisfaction of the Court that the property in question constitutes, directly or indirectly, the proceeds of crime. The Bureau then sought an order pursuant to s.3 of the Act. In brief summary, that section provides that where it appears to the Court, on evidence tendered by or on behalf of the Bureau, that the respondent to the application is in possession or control of specified property that constitutes, directly or indirectly, the proceeds of crime, the Court is to make an order prohibiting the respondent from disposing of or otherwise dealing with the property unless it is shown to the satisfaction of the Court, on evidence tendered by the respondent or any other person, that the particular property does not constitute the proceeds of crime and was not acquired, in whole or in part, with or in connection with property that constitutes the proceeds of crime. This provision has been interpreted as requiring the Bureau to make out a prima facie case, following which the burden of proof shifts to the respondent. Section 3 includes a proviso that the Court shall not make the order if it is satisfied that there would be a serious risk of injustice.

  10. An order made under s.3 can, if not discharged or varied for reasons specified in the Act, remain in force for a period of seven years at which point the Bureau may seek a disposal order under s.4. The effect of such an order is to deprive the respondent of his or her rights (if any) in the property concerned and to transfer it to the Minister for Public Expenditure and Reform, or to such other person as the Court may determine. The respondent is entitled to oppose the application, and the order is not to be made if the court is satisfied that there is a serious risk of injustice.

  11. Section 16 of the Act makes provision for the payment of compensation to a property owner in respect of loss caused by the making of an order under the Act, should it be established that the property was not the proceeds of crime.

  12. Section 8 of the Act renders admissible hearsay evidence given on the question of the respondent’s ownership or control of the property, and its connection with criminal activity, by either a member of the Garda Síochána not below the rank of Chief Superintendent or an authorised officer of the Bureau. Section 16A (inserted by s. 12 of the Proceeds of Crime (Amendment) Act 2005) reduces the normal scope of the hearsay rule still further by rendering admissible without further proof the contents of specified types of documents.

  13. Section 8(2) stipulates that the...

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