Criminal Assets Bureau v Murphy Junior

• Jurisdiction: Ireland
• Judge: MR JUSTICE PEART
• Judgment Date: 18 February 2016
• Neutral Citation: [2016] IECA 40
• Docket Number: APPEAL NOS. 2014/1452/1453
• Court: Court of Appeal (Ireland)
• Date: 18 February 2016

[2016] IECA 40

THE COURT OF APPEAL

Peart J.

APPEAL NOS. 2014/1452/1453

FINLAY GEOGHEGAN J.

PEART J.

IRIVINE J.

IN THE MATTER OF THE PROCEEDS OF CRIME ACT, 1996-2005

BETWEEN:

CRIMINAL ASSETS BUREAU

APPLICANT/RESPONDENT

- AND -

MICHAEL MURPHY JUNIOR

AND

MICHAEL MURPHY SENIOR

RESPONDENTS/APPELLANTS

- AND -

AMY FORREST

NOTICE PARTY

Proceeds of crime ? Admissibility of evidence ? Constitutional rights ? Respondent seeking confiscation of property constituting the proceeds of crime ? Whether evidence was unconstitutionally obtained

Facts: The first respondent/appellant, 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. A warrant was issued pursuant to s. 29 of the Offences against the State Act 1939. The applicant/respondent, 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 respondent/appellant, 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 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 represented the proceeds of crime. In November 2014, the High Court (Birmingham J) made the order sought under s. 3 by the respondent. The appellants appealed to the Court of Appeal against the order of Birmingham J, challenging the admissibility of much of the evidence adduced by the respondent, 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. The appellants also argued that the trial judge erred in admitting hearsay evidence and in holding that the Irish Life Investment Bond (?10,000) in the name of Mr Murphy Jr was the proceeds of crime where there was no evidence to support that determination.

Held by Peart J that the decision in Damache does not speak to proceedings under the 1996 Act, and the exclusionary rule is simply inapplicable to such applications. Peart J was in agreement with the conclusion of Birmingham J on this issue. Peart J held that the admissibility of hearsay evidence for the purpose of supporting the prima facie evidence of belief does no violence to the 1996 Act, and has been found to be constitutional. Peart J noted that no authority to the contrary has been cited, in spite of the number of cases that have been decided where the hearsay issue has been raised. While Birmingham J did not expand upon his conclusion that he had regard to the hearsay evidence and that it was admissible, Peart J was satisfied that he was correct to admit it and to have regard to it. Peart J held that the affidavit evidence referred to by D/Chief Supt. Corcoran on which he based his belief that the Irish Life Investment Bond (?10,000) in the name of Mr Murphy Jr was the proceeds of crime was more than sufficient for that belief to be part of the evidence taken into account by the trial judge under s. 3, and in Peart J?s view the trial judge was correct in his conclusions. In the absence of any rebutting evidence, Peart J held that the trial judge was correct to make the order sought in respect of the items of property over which the order was being sought.

Peart J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT OF MR JUSTICE PEART DELIVERED ON THE 18TH DAY OF FEBRUARY 2016:

1 The appellants (MMJ and MMS) who are father and son have appealed to this Court against an order of Birmingham J. dated 7th November 2014 made pursuant to s. 3 of the Proceeds of Crime Act, 1996 prohibiting MMJ and MMS from disposing of or otherwise dealing with certain property specified in the order. That property comprised part of the property over which CAB had sought the order in its application. Prior to that s. 3 application an interim order had been obtained under s. 2 of the Act.

2 Before he could make the order sought under s. 3, Birmingham J. had, broadly speaking, to be satisfied from the evidence tendered by CAB that the property in question represented the proceeds of crime or was acquired with proceeds of crime, and that its value exceeded ?13,000. The precise terms of s. 3 of the Act of 1996 are as follows:

?3(1) Where, on application to it in that behalf by a member, an authorised officer or the Criminal assets Bureau, it appears to the Court on evidence tendered by the applicant, which may consist of or include evidence admissible by virtue of section 8:-

(a) that a person is in possession or control of:-

(i) specified property and that the property constitutes, directly or indirectly, proceeds of crime, or

(ii) specified property that was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime, and

(b) that the value of the property or, as the case may be, the total value of the property referred to in both subparagraphs (i) and (ii) of paragraph (a) is not less than ?13,000,

the Court shall, subject to subsection (1A), make an order (?an interlocutory order?) prohibiting the respondent or any other specified person or any other person having notice of the order from disposing of or otherwise dealing with the whole, or if appropriate, a specified part of the property or diminishing its value, unless it is shown to the satisfaction of the Court, on evidence tendered by the respondent or any other person ?

(I) that that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime, or

(II) that the value of all the property to which the order would relate is less than ?13,000:

Provided, however, that the Court shall not make the order if it is satisfied that there would be a serious risk of injustice.?

3 The provisions of s.8 of the Act are also relevant to the within appeal, and in particular perhaps, subsections (1) and (2) thereof which provide:

(5) Where a member or an authorised officer states:

(a) in proceedings under section 2, on affidavit, or if the Court so directs, in oral evidence, or in proceedings under section 3, on affidavit or, where the respondent requires the deponent to be produced for cross-examination or the court so directs, in oral evidence, that he or she believes either or both of the following, that is to say:

(i) that the respondent is in possession or control of specified property and that the property constitutes, directly or indirectly, proceeds of crime,

(ii) that the respondent is in possession of or control of property and that the property was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime,

and that the value of the property, or, as the case may be, the total value of the property referred to in both paragraphs (i) and (ii) is not less than ?13,000, then, if the Court is satisfied that there are reasonable grounds for the belief aforesaid, the statement shall be evidence of the matter referred to in paragraph (i) or in paragraph (ii) or in both, as may be appropriate, and of the value of the property.

(6) The standard of proof required to determine any question arising under this Act shall be that applicable to civil proceedings.?

The scheduled property

4 The property alleged to constitute the proceeds of crime, and over which a s. 3 order was sought, are set forth in a Schedule to the notice of motion dated 20th of July 2011 as follows:-

1. Audi A4 motor vehicle, registration number 03?C? 25314, chassis number WAUZZZ8EX3A245899.

2. The sum of STG£6,625 cash, currently in the possession of the Organised Crime Unit, An Garda Siochana, Harcourt Square, Dublin 2 arising from search of 12, Clonard, Grenagh, County Cork on the 28th May 2009.

3. The sum of ?9,000 cash, currently in the possession of the Organised Crime Unit, An Garda Siochana, Harcourt Square, Dublin 2 arising from search of 12 Clonard, Grenagh, County Cork on the 28th May 2009.

4. Irish Life Investment Bond in the name of Michael Murphy Senior valued at ?20,000 held at Irish Life Assurance plc, Lower Abbey Street, Dublin 2 (Irish Life Sure Options Plus Plan Number 11058372).

5. Irish Life Investment Bond in the name of Michael Murphy Junior valued at ?10,000 held as Irish Life Assurance plc, Lower Abbey Street, Dublin 2 (Irish Life Sure Options Plus Plan Number 11058358).

6. By the time the matter came before the High Court, CAB informed the Court that it was no longer seeking an order in relation to the Audi A4 vehicle described above, which, it was accepted, was registered in the name of the notice party.

The affidavit evidence put forward by CAB

5 A number of affidavits were filed in support of the s. 3 application, and in addition two of the deponents were cross-examined on their affidavits, namely the Chief Bureau Officer D/Chief Supt. Eugene Corcoran, and D/Garda...