Criminal Assets Bureau v Kelly

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 29 November 2012
• Neutral Citation: [2012] IESC 64
• Court: Supreme Court
• Date: 29 November 2012

Criminal Assets Bureau v Kelly & T (T)

IN THE MATTER OF AN APPLICATION PURSUANT TO THE PROCEEDS OF CRIME ACT 19961996 AND 2005

BETWEEN

CRIMINAL ASSETS BUREAU

APPLICANT

AND

JOHN KELLY AND T.T.

RESPONDENTS

[2012] IESC 64

Denham C.J.

Hardiman J.

MacMenamin J.

[Appeal No. 364/2007]

THE SUPREME COURT

CRIMINAL LAW

Proceeds of crime

Appeal against making of disposal order - Injustice - Family home - Constitutional rights - Order in family law proceedings that family home held jointly by applicant and husband - Strike out of earlier proceedings - Onus of proof - Requirement of verifiable evidence - Abuse of process - Factors to be weighed in balance in assessing risk of injustice - Whether judicial determination in relation to merits of matter - Whether order of confiscation constituted injustice - F McK v AF [2002] 1 IR 242; Rowan v Byrne, (Unrep, Barr J, 17/12/1990); Royal Bank of Ireland v O'Rourke [1962] IR 159; Director of Public Prosecutions v Gill [1980] 1 IR 263; Murray v McArdle (Unrep, Morris J, 11/5/1998); The State (Clarke) v Roche [1986] IR 619; CAB v H (Unrep, Feeney J, 3/10/2007); Gilligan v Criminal Assets Bureau [1998] 3 IR 185 and Murphy v GM [2001] 4 IR 113 considered - CAB v H [2011] IESC 10, (Unrep, Supreme Court, 25/3/2011) followed - Proceeds of Crime Act 1996 (No 30), ss 2, 3, 4 and 8 - Family Law Act 1995 (No 26), s 36 - Constitution of Ireland 1937, Arts 40.3.2 , 41.2 and 43 - European Convention on Human Rights 1950, art 8 - Appeal dismissed (364/07 - SC - 29/11/2012) [2012] IESC 64

Criminal Assets Bureau v Kelly

Facts: Property belonging to the first respondent at first instance had been seized by the respondent (the applicant at first instance) pursuant to orders of the High Court in relation to the proceeds of crime. The first respondent was thought to have obtained the property by the proceeds of drug dealing. The property included the home that his wife ("the appellant") and children occupied. The appellant now appealed, contending that the orders made under s 4 of the Proceeds of Crime Acts 1996 to 2005 ("s 4") had been made without due regard to the personal circumstances of the case.

Held by MacMenamin J, that the Court would review the factors and principles which were derived from existing case law and then apply them to the instant facts. The recent case of Criminal Assets Bureau v H [2011] IESC 10 was particularly relevant. The factors listed as to be considered in that case also applied here, despite arguments to the contrary advanced on behalf of the appellant to distinguish the case. Criminal Assets Bureau v H [2011] IESC 10 applied.

In respect of the nature of the submissions seeking to re-open points of principle clearly settled, the Court considered whether the instant case was an abuse of process. Given that counsel for the appellant did not prolong those submissions, no abuse of process would be held. Further repetition of similar conduct would however attract sanctions.

The appeal was therefore dismissed.

PROCEEDS OF CRIME ACT 1996 S4

PROCEEDS OF CRIME ACT 1996 S8(4)

PROCEEDS OF CRIME ACT 1996 S4(8)

CRIMINAL ASSETS BUREAU v H (T) & H (J) UNREP SUPREME 25.3.2011 2011 IESC 10

CONSTITUTION ART 41.2

PROCEEDS OF CRIME (AMDT) ACT 2005 S6

PROCEEDS OF CRIME ACT 1996 S4(1)

PROCEEDS OF CRIME ACT 1996 S3

PROCEEDS OF CRIME ACT 1996 S2

PROCEEDS OF CRIME ACT 1996 S3(3)

FAMILY LAW ACT 1995 S36

MCK (FJ) v F (A) & F (J) 2002 1 IR 242 2002 2 ILRM 303 2002/20/5101

ROWAN v BYRNE UNREP BARR 17.12.1990 1991/6/1300

ROYAL BANK OF IRELAND LTD v O'ROURKE 1962 IR 159 1963 97 ILTR 112

DPP v GILL 1980 IR 263 1980/1/124

MURRAY v MCARDLE UNREP MORRIS 11.5.1998 (EX TEMPORE)

CLARKE, STATE v ROCHE 1986 IR 619

MURPHY v C (M) & ORS UNREP SUPREME 8.3.2004 2004/32/7509

MURPHY v M (G) & ORS; GILLIGAN v CRIMINAL ASSETS BUREAU & ORS 2001 4 IR 113 2002 2 ICLMD 20 2003/39/9225

CRIMINAL ASSETS BUREAU v H UNREP FEENEY 3.10.2007 (EX TEMPORE)

CONSTITUTION ART 40.3.2

CONSTITUTION ART 43

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

GILLIGAN v CRIMINAL ASSETS BUREAU & ORS 1998 3 IR 185 1998/7/1996

1 JUDGMENT of Mr. Justice John MacMenamin dated the 29th day of November 2012.

2 1. The central issue arising for consideration in this appeal relates to the factors to which a court must have regard, in the balance of justice, in making an order for the disposal of property under section 4 of the Proceeds of Crime Act 1996 to 2005. This judgment reiterates principles which have already been decided by this Court in proceedings of this type, so as to clearly identify issues which are subject to precedent.

Background

3 2. On the 3 ^rd October, 2007, the High Court, (Feeney J.) delivered a judgment and made an order, the effect of which was, in summary that:-

4 (i) pursuant to Section 8(4) of the Proceeds of Crime Acts 1996-2005 ("the Act"), that the identity of the second named respondent and her two children not be revealed in the prosecution of these proceedings;

5 (ii) pursuant to Section 4 of the said Act, sums of money standing in the name of the first respondent, in the EBS Building Society and Irish Permanent plc be transferred to the Minister for Finance for the benefit of the Central Fund; and

6 (iii) a house where the second named respondent and her children live together with the fixtures and fittings therein, be transferred to the Minister for Finance, pursuant to the provisions of s. 4 of the Act, subject to the condition that the second named respondent, T.T. (Ms. T) and her two children be permitted to reside in the family home identified in that folio until 30 ^th June, 2008.

7 3. These orders, pursuant to s. 4 of the Proceeds of Crime Acts 1996-2005, were for the confiscation of certain properties, which had been acquired with the proceeds of crime. Evidence was adduced before the High Court from the Chief Bureau Officer, and a number of other members of An Garda Síochána that the properties had been acquired by John Kelly, who was the first named respondent (and Ms. T.'s husband, who did not appeal the High Court decision). That evidence was to the effect that he had acquired the properties in question with monies arising from his criminal activities, in particular drug-dealing. This appeal is brought only by the second named respondent to the High Court proceedings, who will be referred to as Ms. T., or "the appellant". The High Court judge observed that the evidence adduced before him largely overlapped with testimony which had been available to that Court at the time an order was made restraining the disposal of the properties in 1997.

8 4. At the time of the High Court application herein, Ms. T was residing in the family home, which is in a suburb of Dublin. Her adult daughter and her teenage son were also living in the same property. Her daughter was in third level education and had an income of €300 per week. Her son was still in second level education. It was not disputed in the High Court that the properties had been bought by John Kelly and were the proceeds of crime. Therefore, the only issue was whether an order of confiscation would constitute an "injustice" under s. 4(8) of the Act, the provisions of which are set out below.

9 5. It was submitted on behalf of the appellant that the High Court had erred in making such an order in circumstances where, at the time of the making of the order, there were a number of special circumstances, which would have rendered the making of a s. 4 order an injustice. As will be explained, the facts in this case, in a number of aspects, bear close resemblance to those which gave rise to the judgment of this court in Criminal Assets Bureau v H. [2011] IESC 10. This point is particularly relevant in light of the fact that counsel for the respondent ("CAB") in this appeal has contended that these proceedings constitute an abuse of court process by reason of the fact that they constitute an attempt to relitigate issues which are subject to binding precedent. This judgment will consider the principles which have already been outlined in the case law, and thereafter apply those principles to the facts of the instant case.

The appellant's case

10 6. The factors on which Ms. T, relies in seeking to make out grounds of injustice are as follows:-

11 (1) the lack of any criminality alleged against her;

12 (2) the stated a lack of awareness on her part that the family home had been purchased from the proceeds of crime;

13 (3) the fact that she was not a "dependent spouse" living off a drug dealer's earnings but rather was a self-supporting public service employee;

14 (4) that she had brought family law proceedings against her husband and had been awarded 50% of the beneficial interest in the family home;

15 (5) that John Kelly, her husband, had, since the High Court hearing, been apparently acquitted of the criminal charges outstanding against him;

16 (6) the alleged delay by the Criminal Assets Bureau in seeking her removal from the family home;

17 (7) the policy of the State in favour of a mother's position in the home as expressed through Article 41.2 of the Constitution of Ireland

18 (8) the policy of the State against homelessness as given expression in the Housing Acts.

19 A number of the headings which are advanced in this appeal were not substantiated by evidence, and consequently this judgment will focus on those matters supported by evidence.

The matters not dealt with in evidence

20 8. The history of the criminal charges is outlined below. Both the husband and Ms. T ultimately accepted that the property had actually been acquired by the proceeds of crime. There was no evidence that Ms T or her children would be rendered homeless as the result of the...