Criminal Assets Bureau v Michael Murphy (Junior) and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 07 November 2014 |
| Neutral Citation | [2014] IEHC 583 |
| Court | High Court |
| Date | 07 November 2014 |
[2014] IEHC 583
THE HIGH COURT
BETWEEN
AND
AND
PROCEEDS OF CRIME ACT 1996 S3
PROCEEDS OF CRIME ACT 1996 S2
OFFENCES AGAINST THE STATE ACT 1939 S29
DAMACHE v DPP & ORS 2012 2 IR 266 2012 2 ILRM 153 2012/9/2413 2012 IESC 11
PROCEEDS OF CRIME ACT 1996 S8(1)
GILLIGAN v CRIMINAL ASSETS BUREAU & ORS 1998 3 IR 185 1998/7/1996
AG, PEOPLE v O'BRIEN 1965 IR 142
DPP v KENNY 1990 2 IR 110
KENNEDY v LAW SOCIETY OF IRELAND & ORS (NO 3) 2002 2 IR 458
COMPETITION AUTHORITY v IRISH DENTAL ASSOCIATION 2005 3 IR 208 2006 1 ILRM 383 2005/11/2395 2005 IEHC 361
UNIVERSAL CITY STUDIOS INC & ORS v MULLIGAN (NO 3) 1999 3 IR 407 1999/24/7942
MCK (FJ) v D (GW) 2004 2 IR 470 2004 2 ILRM 419 2004/35/8106 2004 IESC 31
Proceeds of crime – Admissibility of evidence – Constitutional rights – Applicant seeking confiscation of property constituting the proceeds of crime – Whether evidence was unconstitutionally obtained
Facts: The first respondent, Mr Murphy Jr, was caught in possession of a number of firearms while driving an Audi motor car in May, 2009. Arising from the seizure of the firearms, he received and served a six year prison sentence. Following the arrest, Mr Murphy Jr indicated that the firearms were being transported to Cork, where they would be used to apply pressure on drug dealers. After the vehicle was stopped, a follow up search took place at 12 Clonard Avenue, Granagh, Co. Cork, the residence of the notice party (Ms Forrest), the girlfriend of Mr Murphy Jr. The warrant was issued pursuant to s. 29 of the Offences against the State Act 1939. The applicant, the Criminal Assets Bureau (CAB), applied to the High Court pursuant to s. 3 of the Proceeds of Crime Act 1996, in relation to the following property: the Audi motor car; the sum of Stg£6,625; the home of the notice party; the sum of €9,000; an Irish Life Investment Bond in the name of the second defendant, Mr Murphy Sr, in the amount of €20,000; and an Irish Life Investment Bond in the name of Mr Murphy Jr in the amount of €10,000. The Chief Bureau Officer stated pursuant to s. 8(1) of the 1996 Act, that it was his opinion that the property constituted directly or indirectly the proceeds of crime or was property that was acquired, in whole or in part with or in connection with property that directly or indirectly constitutes proceeds of crime. The evidence adduced by CAB indicated that the greater part of the funds to purchase the investment bonds could not be accounted for by any traceable sources and represents the proceeds of crime. The first respondent mounted a challenge to the admissibility of much of the evidence sought to be adduced by the applicant, arguing that evidence was unconstitutionally obtained as it derived from the search carried out on foot of the s. 29 warrant, relying upon DPP v Damache [2012] 2 IR 266; the search of the premises was unlawful, following on an unlawful entry and that the evidence obtained as a result of that search was unconstitutionally obtained evidence.
Held by Birmingham J that, having considered the combination of unsatisfactorily explained funds, inconsistent explanations and a background of criminality, the property in question represents directly or indirectly the proceeds of crime. He considered that a young man in the position of Mr Murphy Jr, who was in a relationship and in a situation where his girlfriend had her own home, would likely spend considerable periods of time there. Having formed that view, Birmingham J thought it proper to approach the case on the basis that 12 Clonard Avenue was a dwelling of Mr Murphy Jr. Having referred to the fact that Proceeds of Crime applications are sui generis, Birmingham J considered that the question of whether the exclusionary rule applies with full force and effect is free from authority and that Irish Competition Authority v Irish Dental Association [2005] 3 IR 210 did not dispose of the issue and the question was whether the exclusionary rule should be extended to cover such cases. Birmingham J held that factors that militate against extending the rule are that the gardaí who carried out the search were following a procedure provided by statute; this was not a case of wilful disregard of constitutional rights, of recklessness, or shortcut taking or even carelessness. In all the circumstances, Birmingham J was not of the view that he was precluded from having regard to the outcome of the Clonard Avenue Search by virtue of the Supreme Court decision in Damache; he therefore followed the procedure directed in F McK v GWD [2004] 2 IR 470. By reference to the belief evidence of the Chief Superintendent and the other evidence adduced on behalf of the applicant, Birmingham J was satisfied that a prima facie case has been made out by CAB; he was not satisfied that the respondents discharged the onus on them.
Birmingham J held that, having regard to the quality of the evidence, the amount that he proposed to exclude is generous. Subject to that qualification, he made the order sought by the applicant.
Application granted.
1. At issue in the present proceedings is an application pursuant to s. 3 of the Proceeds of Crime Act 1996, in relation to property referred in the schedule to the notice of motion, namely an Audi A4 motor vehicle, registration number 03 C 25314, the sum of Stg£6,625, now in the possession of An Garda Síochána subsequent to a search of 12 Clonard Avenue, Granagh, Co. Cork, the home of the notice party on the 28 th day of May, 2009, the sum of €9,000 taken possession of by gardaí in the course of the same search, an Irish Life Investment Bond in the name of Michael Murphy Senior in the amount of €20,000 (Irish Life Sure Options Plus Plan No. 11XXXXXX) and an Irish Life Investment Bond in the name of Michael Murphy Junior in the amount of €10,000 (Irish Life Sure Options Plus Plan No. 11XXXXXX).
2. The history of the proceedings is that the s. 2 order was made by Feeney J. on the 20 th July, 2010. The application for a s. 3 order then came on for hearing before Feeney J. in December 2012 and January, 2013. Sadly, Feeney J's untimely death occurred before he delivered judgment. It is of some significance that the notice party did not participate actively in the s. 3 proceedings before Feeney J. The first named respondent did not participate either. The circumstances in which he opted not to participate, or came to be regarded as having opted not to participate was the subject of some controversy during the run up to the listing of the matter before me. However, that controversy was disposed of when I gave leave to Mr. Murphy Junior to intervene and participate, which Mr. Murphy Junior duly did.
3. Having decided to participate on this occasion and having been given leave to do so, the first respondent, Mr. Murphy Junior, has mounted a challenge to the admissibility of much of the evidence sought to be adduced by the applicant, arguing that evidence was unconstitutionally obtained as it derived from a search carried out by members of An Garda Síochána on foot of a warrant issued pursuant to the provisions of s. 29 of the Offences Against the State Act 1939, as amended.
4. At the hearing before me a significant issue in the case was whether 12 Clonard Avenue, Grenagh, Co. Cork, was as a matter of fact and law the dwelling of the first named respondent and if that was the situation, what consequences for the application followed.
5. The challenge to the admissibility of the fruits of the search was advanced in circumstances where the Supreme Court had delivered its judgment on the 23 rd February, 2012, in Damache v. DPP [2012] 2 I.R. 266, declaring s. 29 of the Offences Against the State Act 1939, to be unconstitutional.
6. I propose to leave to one side the issues relating to the search of 12 Clonard Avenue, Grenagh, Co. Cork, on the 28 th May, 2009, but instead seek to offer context for that issue by addressing some of the wider issues in this case.
7. The evidence presented on behalf of the applicant included evidence from the Chief Bureau Officer who was cross examined on his affidavit. He stated pursuant to s. 8 (1) of the Proceeds of Crime Act 1996, that it was his opinion that the property referred to in the schedule constituted directly or indirectly the proceeds of crime or was property that was acquired, in whole or in part with or in connection with property that directly or indirectly constitutes proceeds of crime.
8. The starting point for the present proceedings is that on the 28 th May, 2009, the first named respondent, Michael Murphy Junior was caught in possession of a number of firearms while driving the Audi motor car referred to in the notice of motion.
9. Arising from the seizure of the firearms, he received and served a six year prison sentence. The case for the applicant is that Mr. Murphy Junior was actively involved with a well known major Limerick criminal gang, which was involved in very serious criminal activity, including drug trafficking. In the course of interviews conducted with Mr. Murphy Junior following the arrest, he indicated that the firearms were being transported to Cork, where they would be used to apply pressure on drug dealers.
10. After Mr. Murphy Junior's vehicle was stopped at Abbeyleix, a follow up search took place at 12 Clonard Avenue, Granagh, Co. Cork, the residence of Amy Forrest, the notice party, and the girlfriend of Mr. Murphy Junior. The warrant was issued pursuant to s. 29 of the Offences against the State Act 1939, as amended. That search took place on foot of a warrant issued by Supt....
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Criminal Assets Bureau v Murphy
...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 in......
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Criminal Assets Bureau v Murphy
...[2016] IECA 40. This, in turn, was an appeal from the decision of Birmingham J in the High Court, delivered on the 7th November 2014 [2014] IEHC 583. 2 The background is that Michael Murphy Jr was found on 28th May 2009 in possession of a number of firearms. The gardaí sought and obtained a......