Criminal Assets Bureau v Hunt

 
FREE EXCERPT

[2003] IESC 20

THE SUPREME COURT

Keane C.J.

Murray J.

McGuinness J.

Fennelly J.

McCracken J.

173 & 174/01
CRIMINAL ASSETS BUREAU (CAB) v. HUNT & MAKER

BETWEEN

CRIMINAL ASSETS BUREAU
PLAINTIFF/RESPONDENT

AND

SEAN HUNT AND ROSALEEN HUNT (NEE MAHER) ALSO KNOWN ASJEAN HUNT AND JEAN MAHER
DEFENDANTS/APPELLANTS

AND

SEAN HUNT
APPLICANT/APPELLANT

AND

ANONOMOUS REVENUE OFFICIAL
RESPONDENT

Citations:

CRIMINAL JUSTICE ACT 1994 S63

TAXES CONSOLIDATION ACT 1997 S933(9)(A)

RSC O.60

CRIMINAL ASSETS BUREAU ACT 1996 S3(1)

CRIMINAL ASSETS BUREAU ACT 1996 S4

CRIMINAL ASSETS BUREAU ACT 1996 S5(1)(B)

CRIMINAL ASSETS BUREAU ACT 1996 S5(1)

CRIMINAL ASSETS BUREAU ACT 1996 S8(1)(A)

CRIMINAL ASSETS BUREAU ACT 1996 S7

CRIMINAL ASSETS BUREAU ACT 1996 S10

CRIMINAL ASSETS BUREAU ACT 1996 S8(5)

CRIMINAL ASSETS BUREAU ACT 1996 S8(7)

TAXES CONSOLIDATION ACT 1997 S41

TAXES CONSOLIDATION ACT 1997 S951

TAXES CONSOLIDATION ACT 1997 S952

TAXES CONSOLIDATION ACT 1997 S958(2)

TAXES CONSOLIDATION ACT 1997 S919(4)

TAXES CONSOLIDATION ACT 1997 S922

TAXES CONSOLIDATION ACT 1997 S954(3)

TAXES CONSOLIDATION ACT 1997 S966

TAXES CONSOLIDATION ACT 1997 S966(1)

TAXES CONSOLIDATION ACT 1997 S966(5)

TAXES CONSOLIDATION ACT 1997 S966(5)(A)

TAXES CONSOLIDATION ACT 1997 S966(5)(A)(I)

TAXES CONSOLIDATION ACT 1997 S966(5)(A)(II)

TAXES CONSOLIDATION ACT 1997 S966(5)(B)(I)

TAXES CONSOLIDATION ACT 1997 S966(5)(B)(II)

TAXES CONSOLIDATION ACT 1997 S966(5)(B)(III)

TAXES CONSOLIDATION ACT 1997 S966(8)

TAXES CONSOLIDATION ACT 1997 S933(1)(A)

TAXES CONSOLIDATION ACT 1997 S933(7)

TAXES CONSOLIDATION ACT 1997 S957(2)(A)

TAXES CONSOLIDATION ACT 1997 S957(2)(A)(I)

TAXES CONSOLIDATION ACT 1997 S957(2)(A)(II)

TAXES CONSOLIDATION ACT 1997 S933(6)(A)

VALUE ADDED TAX ACT 1972 S2(1)(A)

VALUE ADDED TAX ACT 1972 S3

VALUE ADDED TAX ACT 1972 S5

VALUE ADDED TAX ACT 1972 S11

VALUE ADDED TAX ACT 1972 S6

VALUE ADDED TAX ACT 1972 S17

VALUE ADDED TAX ACT 1972 S19(1)

VALUE ADDED TAX ACT 1972 S19(3)

VALUE ADDED TAX ACT 1972 S22

VALUE ADDED TAX ACT 1972 S23

VALUE ADDED TAX ACT 1972 S23(2)

TAXES CONSOLIDATION ACT 1997 S933(6)(A)

VALUE ADDED TAX ACT 1972 S19(3)(A)

TORMEY V IRELAND 1985 IR 283

CONSTITUTION ART 34.2.3.1

CONSTITUTION ART 38.2

CONSTITUTION ART 37

CONSTITUTION ART 34.3.4

CONSTITUTION ART 36

CONSTITUTION ART 34.3.1

CONSTITUTION ART 37.1

WARD V KINAHAN 1984 IR 292

R V R 1984 IR 90

DEIGHAN V HEARNE 1986 IR 603

O'R V O'R 1985 IR 367

CALCUL V APPEAL CMSR 3 ITR 577

KELLY ON THE IRISH CONSTITUTION 3ED 412

CRIMINAL ASSETS BUREAU (CAB) V MCSWEENEY 2001 2 ILRM 81 2000/5/1636

TAXES CONSOLIDATION ACT 1997 S961(1)

TAXES CONSOLIDATION ACT 1997 S851(2)

VALUE ADDED TAX ACT 1972 S24

TAXES CONSOLIDATION ACT 1997 S1100

TAXES CONSOLIDATION ACT 1997 SCH 31

TAXES CONSOLIDATION ACT 1997 S24(1)(B)

TAXES CONSOLIDATION ACT 1997 S24(1)(A)

BANKERS BOOKS EVIDENCE ACT 1879

CENTRAL BANK ACT 1989

Synopsis:

EVIDENCE

Admissibility

Hearsay - Admissibility of unproven bank statements - Whether unproven bank statements within exceptions to rule against hearsay - Whether Criminal Assets Bureau entitled to rely on unproven bank statements - Criminal Assets Bureau Act, 1996, section 8 (173 & 174/2001 - Supreme Court - 19/03/2003)

Criminal Assets Bureau v Hunt - [2003] 2 IR 168

PRACTICE AND PROCEDURE

Recovery of taxes

Plenary summons - Whether proceedings for recovery of taxes may be commenced by plenary summons - Taxes Consolidation Act, 1997, section 966(1)

(173 & 174/2001 - Supreme Court - 19/03/2003)

Criminal Assets Bureau v Hunt - [2003] 2 IR 168

Assessments were raised against the defendants for income tax and VAT based on information gleaned from bank statements obtained by the plaintiff and the first, plenary, proceedings were issued for recovery of sums allegedly due thereby. In the meantime, the applicant in the second proceedings was granted leave, inter alia, to judicially review those assessments. Both sets of proceedings came before the High Court (Smyth J), who found the second defendant liable to the plaintiff in the sum of £1,778,343.76 in respect of unpaid taxes. He appealed that decision to the Supreme Court on the grounds, inter alia, that the proceedings were not properly instituted, as they should have been by way of summary summons and that the sums found due were based on inadmissible hearsay evidence, being the unproven bank statements.

Held by Keane CJ, delivering the judgment of the court, in allowing the appeal in relation to the first proceedings and dismissing the plaintiff’s claim against both defendants that the relief sought by the plaintiff depended on the unproven bank statements which should not have been admitted in evidence in the High Court.

Obiter dictum: the provision in section 966(1) of the Taxes Consolidation Act, 1997 that proceedings for the recovery of taxes “may be commenced by summary summons” is enabling only and does not preclude the institution of proceedings by plenary summons.

The court could not exercise any appellate function in relation to the judicial review proceedings, there having been no determination of them at first instance.

1

19th day of March, 2003, byKeane C.J.

Keane C.J.
Introduction
2

In November 1998, the plaintiff in the first proceedings (hereafter"the Bureau") began inquiries into the affairs of the firstnamed defendant (hereafter "Mr. Hunt"), one of theirofficers having received informationto the effect that he was involved in the illegal importation of tobaccoproducts and fireworks and the subsequent sale on the streets of theseproducts. It transpired that Mr. Hunt had not made any tax returns forat least 10 years and that the second named defendant, who is married toMr. Hunt (hereafter "Mrs. Hunt") had been claiming SocialWelfare payments from 1990 until 1995 with Mr. Hunt named as adependant. Mrs. Hunt made tax returns for the years 1996 and 1997disclosing relatively small profits of the order of £10,000 to£15,000. Thereafter, an officer of the Bureau obtained orderspursuant to S.63 of the Criminal Justice Act 1994enabling him to obtain documents and materials from a number offinancial institutions relating to accounts in those institutions in thenames of Mr. Hunt and/or Mrs. Hunt. These accounts allegedly disclosedthat in a 10 year period between 1988 and 1998 a sum in excess of£3 million had passed through the various bank accounts.

3

On the 16 th June 1999, assessments were raised on Mr. Huntfor income tax in the sum of £1,296,859.76 in respect of the 10year period beginning with the year 1988/1989 and ending with the year1998. An assessment was also raised on the first named defendant in thesum of £481,484 in respect of value added tax for approximatelythe same period. The first proceedings were then commenced by the issueof a plenary summons on the following day.

4

The plenary summons claimed the following relief:

5

(1) An interim, and thereafter an interlocutory, injunctionrestraining Mr. Hunt and Mrs. Hunt and any person having notice of themaking of the order from selling, transferring, mortgaging or in any waydealing with their interests in the properties described in theschedule, i.e., a house in their joint names in Ballyfermot, a number ofbank accounts and a life insurance investment policy;

6

(2) An interim, and thereafter interlocutory, injunction restrainingMr. Hunt or any person having notice of the making of the order, fromreducing his assets wherever situated to a sum less than£1,778,343.76;

7

(3) Declarations that Mr. Hunt was obliged to discharge income taxon his earnings and value added tax on the supply of taxable goods andservices for the periods already mentioned and that he had failed to paythe tax due for those periods;

8

(4) An inquiry in respect of all taxes due for each of the periodsand payment of such sums as were found due upon such inquiry;

9

(5) In the alternative, judgment for the sum of£1,778,343.76;

10

(6) A declaration that Mr. Hunt was the beneficial owner of theamounts standing to the credit of Mrs. Hunt in the financialinstitutions specified in the Schedule and the life insurance policy inthe names of Mr. & Mrs. Hunt and;

11

(7) Damages for conspiracy to defraud against both Mr. Hunt and Mrs.Hunt in the amount of £1,778,343.76 or such sum as the court mightdecide.

12

On the same day, the High Court (O'Higgins J) made an interim order onthe ex parte application of the Bureau in the terms of paragraphs (1)and (2) above. A notice of motion was then brought on behalf of theBureau seeking an interlocutory injunction in the same terms which wasgranted by O'Higgins J on the 17 th July, 1999 (hereafter the"Mareva injunction. Pleadings having been delivered in the actionin the form of a statement of claim, defence and reply, it came on forhearing before Smyth J on the 14 th November 2000.

13

In the meantime, Mr. Hunt had been given leave to institute the secondproceedings by way of judicial review claiming interalia:-

14

2 (1)An order of certiorari quashing the assessments made on the16 th June 1999 in respect of income tax and value addedtax;

15

3 (2)A declaration that the refusal to entertain appeals in respectof those assessments or to extend the time for appealing them wasunlawful;

16

4 (3)A declaration that s.933(9)(a) of the Taxes Consolidation Act 1997was unconstitutional and invalid;

17

5 (4)An order of certiorari quashing notices of attachment served onthree of the banks named in the proceedings on the 28 th July1999.

18

The second and third reliefs were claimed because of developments whichhad occurred in relation to appeals purportedly brought by Mr. Hunt tothe Appeals Commissioners in respect of the assessments inquestion.

19

A statement of opposition having been filed on behalf of the respondentin the judicial review proceedings, they were listed for hearing beforeSmyth J on the same day as the first proceedings.

20

Following a hearing lasting 12 days, the learned trial judge reservedhis judgment which he delivered...

To continue reading

REQUEST YOUR TRIAL