Criminal Assets Bureau v Ms. N. McE
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE KEVIN FEENEY |
| Judgment Date | 31 July 2007 |
| Neutral Citation | [2007] IEHC 322 |
| Docket Number | CAB 4/2007 |
| Court | High Court |
| Date | 31 July 2007 |
[2007] IEHC 322
THE HIGH COURT
DUBLIN
PROCEEDS OF CRIME ACT 1996 S10(7)
MCK v D 2004 2 IR 470 2004 2 ILRM 419 2004 35 8106 2004 35 8134
MISUSE OF DRUGS ACT 1977 S15(a
PROCEEDS OF CRIME ACT 1996 S4(8)
MR. JUSTICE KEVIN FEENEY ON TUESDAY. 31ST JULY 2007
I hereby `certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.
APPEARANCES
THE APPLICANT
MR. JAMES DOHERTY BL
Instructed by:
MS. MARY POWER
CHIEF STATE SOLICITOR'S OFFICE
For THE Defendant
MR. RICHARD HUMPHREYS BL
Instructed by:
MICHAEL E. HANAHOE SOLICITORS
COPYRIGHT: Transcripts are the work of Gwen Malone stenography services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services
MR. HUMPHREYS: Just before the Court gives judgment, I just wanted to remind the Court that the Court did direct in relation to the hearing and the previous application that it be heard in camera.
MR. JUSTICE FEENEY:I did.
MR. HUMPHREYS: I gather there is somebody from the media here.
MR. JUSTICE FEENEY: Certainly the last application was in camera, that is correct.
MR. HUMPHREYS: I am just not sure what directions the Court wants to give?
MR. JUSTICE FEENEY: The direction is that if anybody was in court at the time that the last application was heard, which was an application in relation to security for costs - sorry, in relation to number of counsel, that that was in fact a case which was heard in camera and cannot be reported.
MR. HUMPHREYS: I am obliged to the Court, but I think the court is now going on to deal with the question of giving judgment in the McE case. And just for the benefit of, because I think I did see a representative of the media in court, just for the benefit of that person, I think this particular matter that the Court is about to give judgment in is also a matter that was heard in camera.
MR. JUSTICE FEENEY: It was also a matter which was heard in camera, but I will hear the parties in relation to whether or not the judgment should be given in open court.
MR. HUMPHREYS: I suppose my primary concern would be that the name or any identifying details would be redacted.
MR. JUSTICE FEENEY: That is absolutely the case that in relation to the judgment of the case when it comes out, it's an extempore judgment. The judgment will not identify the parties and therefore the name or identifying matters relating to the defendant in the proceedings or any matters which would tend to identify her should not be disclosed.
MR. HUMPHREYS: Yes. I'm particularly concerned about the identity of my client obviously primarily but if the identity of Mr...(INTERJECTION).
MR. JUSTICE FEENEY: well, the answer is it would identify somebody if you identify their immediate relation.
MR. HUMPHREYS: Yes. Or boyfriend perhaps as well in the case of the defendant.
MR. JUSTICE FEENEY: I will refer by initials to the boyfriend.
MR. HUMPHREYS: Yes, I'm grateful, Judge.
MR. DOHERTY: The Bureau's view on the matter just for the assistance of the Court is the Court does have power under section 8(4) to make an order other than the blanket in camera provision under section 8(3).
MR. JUSTICE FEENEY: I am aware of that.
MR. DOHERTY: And I think that is what your Lordship has indicated. I understand maybe the...(INTERJECTION).
MR. JUSTICE FEENEY: The judgment will be given in open court but the parties will be referred to by initials and that the parties should not be identified, and that is consistent with the judgment which you are going to hear in relation to the matter. I will give the judgment in open court. The parties and identifying features will be referred to by initials. I hope because it is extempore I do not err by referring to a person by name. If I do so, that matter will be known to the parties in relation to the matter.
MR. DOHERTY: I suppose the Bureau's concern was that obviously that, and this is the Bureau's view, that if the blanket embargo under section 8(3) of the in camera rule applies, then nothing could be published at all.
MR. JUSTICE FEENEY: That is why I invited the parties, but I took from Mr. Humphreys was that he was not in fact asking the Court for a blanket but was content to limit his application in relation to identifying features of names of the parties; is that correct, Mr. Humphreys?
MR. HUMPHREYS: of the parties and their boyfriends or relatives.
MR. JUSTICE FEENEY: well, facts that would tend to identify them, and relationship by name when it is the father of the child of the applicant, in those circumstances that would tend to identify them if they were named.
MR. DOHERTY: If I might simply ask the court to - I may have something to say depending on the decision the Court makes on the substantive application about that aspect of matters, and if I might reserve my position in relation to that?
MR. JUSTICE FEENEY: Of course. It seems unwise to make an application until you know what is going to happen and of course will hear the parties at the end in relation to a matter. I shall now give my extempore judgment in those proceedings. The reason for it being an extempore judgment is that the asset involved is a wasting asset as regards it being a motor car which has a value which would diminish the longer it was detained or retained pending the determination, and it is for that reason that the Court has given a judgment in the days immediately following the hearing before it.
MR. JUSTICE FEENEY: The proceedings herein were brought on foot of an originating motion which resulted in an order being made pursuant to s. 2 the Proceeds of Crime Act, 1996 by this Court on 9th March 2007. That order was made on the basis the Court was satisfied that the property set out in the schedule, namely a BMW 316 motor vehicle bearing a particular registration constituted directly or indirectly the proceeds of criminal activity.
After the said order was made, the Applicant herein filed a motion on the same day seeking an order pursuant to s. 3 of the Proceeds of Crime Act, 1996 as amended and also seeking an Order pursuant to s. 7 of the same Act appointing a receiver and also seeking an order pursuant to s. 10(7) of the same Act that the name of the social welfare bureau officer and a revenue officer should not be revealed within these proceedings.
Thereafter an application that the Defendant be awarded legal aid pursuant to the ad hoc Legal Aid Scheme was brought before the Court and an Order granting such legal aid was made on 25th June 2007. Affidavits were sworn within these proceedings including in relation to the application for legal aid and at the hearing of application herein all such affidavits were acknowledged as being admitted in evidence subject only to the contention made on behalf of the Defendant that certain averments amounted to hearsay and should not be admitted in evidence.
Various notices to cross-examine were duly served both on behalf of the Plaintiff and the Defendant. The following persons gave evidence before the Court and were cross-examined, namely a Sergeant Harrington, Detective chief Superintendent John O'Mahony, who is the Chief Bureau Officer of the Criminal Assets Bureau, the Defendant, (her name is given) and her grandfather. Other persons in respect of whom notice of intention to cross-examination had been served were not called in evidence, it being intimated by the party who served such notices that they did not wish such witnesses to be called in evidence.
This application was brought pursuant to s. 3 of the 1996 Act and pursuant to that section the Court must consider whether or not it appears to the Court on evidence tendered by the Plaintiff consisting of or including evidence admissible by virtue of s. 8 of the same Act that the Defendant is a person in possession or control of the property the subject matter of the proceedings and that such property constitutes directly or indirectly the proceeds of crime or was acquired in whole or in part with or in connection with property that directly or indirectly constitutes the proceeds of crime.
s. 8 of the same Act provides that a member or an authorised officer may give evidence of belief pursuant to s. 8(1). Such belief evidence has been given in this case by the chief Bureau Officer and he has been cross-examined in relation to such evidence.
The different functions of s. 3 and s. 8 of the 1996 Act were considered in a Supreme Court judgment of McCracken J. in McKay v. GWD (Proceeds of crime outside state) [2004] 2 IR 470. McCracken J. explained in his judgment the different functions of ss. 3 and 8 commencing at page 490 of the judgment. He identified what seemed to him to be the correct procedure for a trial judge to adopt when considering s. 8 evidence as part of a s. 3 application. He identified a seven-step approach (at p. 491 and 492) as a procedure which might be followed by a trial judge. I am satisfied that the approach therein set out is a correct and proper approach for this Court to follow in this case.
Mccracken J. identified in the following terms within his judgment, and I quote:
"It seems to me that the...
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