Criminal Assets Bureau v O' Brien & O' Brien

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 12 January 2010
• Neutral Citation: [2010] IEHC 12
• Court: High Court
• Docket Number: [No. 5 CAB/2007]
• Date: 12 January 2010

Criminal Assets Bureau (CAB) v O'Brien

IN THE MATTER OF SECTION 3(1) OF THEPROCEEDS OF CRIME ACT 1996

BETWEEN

CRIMINAL ASSETS BUREAU

APPLICANT

AND

BARRY O'BRIEN AND MAJELLA O'BRIEN

RESPONDENTS

[2010] IEHC 12

[No. 5 CAB/2007]

THE HIGH COURT

REVENUE

Proceeds of crime

Forfeiture of proceeds of crime - Principles to be applied - Admissibility of belief evidence - Weight to be attached - Jurisdiction to hear application - Whether relevant property valued in excess of IR£10,000 - Interpretation of word 'value' - Whether market value which property would obtain on open market - Whether negative equity could be taken into account when establishing 'value' of property - Whether property subject matter of proceedings constituted directly or indirectly proceeds of criminal conduct - Evidence required to satisfy court whether property acquired in whole or in part by proceeds of crime - Whether onus shifting to defendant - Whether serious risk of injustice if order made - Family home - Whether granting of order in relation to family home would amount to violation of respondent's human rights - McK v GWD (Proceeds of crime outside the State) [2004] 2 IR 470 applied - Criminal Assets Bureau v JK (Unrep, Feeney J, ex temp, 3/10/2007); McK v H (Unrep, Feeney J, ex temp, 17/10/2008); Gilligan v Criminal Assets Bureau [1998] 3 IR 185; Murphy v GM [2001] 4 IR 113 and Pullen v Dublin City Council (Unrep, Irvine J, 12/12/2008) considered - Proceeds of Crime Act 1996 (No. 30), ss 3, 7 and 8 - Orders granted under s. 3 of Proceeds of Crime Act 1996 and receiver appointed to take possession of relevant properties (2007/5CAB - Feeney J - 12/1/2010) [2010] IEHC 12

Criminal Assets Bureau v O'Brien

Facts: The appellant sought orders pursuant to ss. 3 and 7 the Proceeds of Crime Act 1996, as amended, as to three properties. The three properties had previously been the subject of an order pursuant to s. 2 of the Act of 1996. The respondent had sought to introduce an affidavit to the effect that the properties had a value of less than £10,000 or Eur 12,697.38. The Court considered evidence of the criminal record of the first named respondent and his convictions. The Court also had evidence that the first named respondent had provided false information to obtain mortgages. The Court considered extensive evidence from a Detective Chief Superintendent expressed to ground the proceedings as an authorised officer for the purposes of the Act of 1996, as amended. The Court had to consider whether a serious risk of injustice resulted from the making of such an order.

Held by Feeney J. that that the evidence before the Court constituted a prima facie case for the purposes of s. 3 of the Act of 1996 and that the Court was satisfied that the evidence of Mr. O' Brien as to his employment and source of funds was so inconsistent and contradictory that the Court could place no credibility in his evidence. The onus of proof shifted to the respondents after the establishment of a prima facie case. The Court would make the orders sought and would make an order appointing a receiver to take possession of both properties. The Court could identify no basis pursuant to which the taking of possession would create a risk of injustice. The Court was satisfied that the properties which were the subject of the proceedings were obtained by the respondent following the provision of false information.

Reporter: E.F.

PROCEEDS OF CRIME ACT 1996 S3

PROCEEDS OF CRIME ACT 1996 S7

PROCEEDS OF CRIME ACT 1996 S2

PROCEEDS OF CRIME ACT 1996 S3(1)(B)

PROCEEDS OF CRIME ACT 1996 S3(B)(II)

PROCEEDS OF CRIME ACT 1996 S8

PROCEEDS OF CRIME ACT 1996 S8(1)

FMCK v G W D 2004 2 IR 470 2004 2 ILRM 419

EUROPEAN CONVENTION ON HUMAN RIGHTS & & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & & FUNDAMENTAL FREEDOMS ART 8(1)

CAB v K (J) & T (T) UNREP FEENEY 3.10.2007 (EXTEMPORE) (TRANSCRIPT NOT AVAILABLE)

MCK v H (T) & ORS UNREP FEENEY 17.10.2008 (EXTEMPORE) (TRANSCRIPT NOT AVAILABLE)

PROCEEDS OF CRIME ACT 1996 S4

GILLIGAN v CAB UNREP MCGUINNESS 26.6.1997 1998/7/1996

M (MURPHY) v M (G) & ORS; GILLIGAN v CRIMINAL ASSETS BUREAU (CAB) & ORS 2001 4 IR 113

PULLEN & DOUGLAS v DUBLIN CITY CO COUNCIL UNREP IRVINE 12.12.2008 2008/53/11093 2008 IEHC 379

HOUSING ACT 1966 S62

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS S3(1)

Mr. Justice Feeney

1 2 1.1 The applicant seeks orders under s. 3 and s. 7 of the Proceeds of Crime Act 1996, as amended. At the time that the proceedings commenced by originating notice of motion, three properties were identified as being the subject of the proceedings under the Proceeds of Crime Act 1996. Those three properties were:

2 (a) All that and those the property known and more particularly described as Oaktate, Stonetown, Carrickmacross Road, Dundalk, County Louth contained in Folio 11178F, County Louth;

3 (b) All that and those the property known and more particularly described as Greaghlone, Carrickmacross Road, Dundalk, County Louth contained in Folio 1099F, County Louth;

4 (c) All that and those the piece or plot of ground with the dwelling house erected thereon known as No. 6, Mountain Court, Point Road, in the town and parish of Dundalk and County of Louth or in the alternative the proceeds of any sale thereof.

5 Those three properties were the subject of a s. 2 order made by this Court on the 29^th March, 2007. That order was subsequently varied by further order of the High Court made on the 14^th May, 2007. On that date an order was made by consent wherein it was ordered that the original order of the 29^th March, 2007 be varied to enable the sale of the property set forth at paragraph (c) above, that is the property known as 6, Mountain Court, and it was further ordered on consent that upon the sale of the said property that the proceeds of such sale would not be distributed until further order of this Court. That property was subsequently sold and the net proceeds have been retained by the solicitor who had carriage of the sale pending further order of this Court. The evidence before this Court was that the net proceeds of sale amounted to some €70,000 and stands to the credit of the client account of Aaron Kelly, solicitors, pending further order.

6 3 1.2 The first and the second named respondent were married in 2002 and have four children, two born prior to the marriage and two since that date. In April 2003 the respondents purchased a site at Oaktate, the property identified at paragraph (a) of the schedule to the originating notice of motion. After the purchase of the site building works were carried out but prior to the building being finished a fire occurred at the property in November, 2003 resulting in the destruction of the partially completed building. Thereafter the site was cleared and rebuilding commenced and the property was completed. The two respondents and their four dependent children reside in that property.

7 4 1.3 The property identified at paragraph (b) of the schedule to the originating notice of motion known as Greaghlone was purchased by the respondents on the 27^th February, 2006. The property identified at paragraph (a) and known as Oaktate is the family home and the first and second named respondents are joint legal owners of that property and of the property identified at paragraph (b) known as Greaghlone. The details concerning the purchase of the three properties and the source of finance used and the documentary information concerning such purchases together with the financial information concerning Oaktate and its destruction and rebuilding are set out in detail in the evidence of Detective Sergeant Ciaran Murphy in paragraphs 9 to 18 inclusive of his affidavit sworn on the 26^th day of May 2007. Even though certain details of that evidence were disputed, the general conclusion and significance of that evidence remained unchallenged to any real effect and was not contradicted by any documentary evidence or independent testimony. The Court is satisfied that the conclusions expressed in Detective Sergeant Murphy's evidence are credible and persuasive.

8 5 1.4 The applications under s. 3 and s. 7 of the Proceeds of Crime Act 1996, as amended, was heard on affidavit. A number of notices of cross-examination were served. Both respondents were separately represented. The second named respondent was granted legal aid under the ad hoc legal aid scheme (CAB) of April 1999 for representation by a solicitor and two counsel and was also provided by order with the assistance of a forensic accountant. The first named respondent made an application in 2007 seeking to vary the s. 2 order already made to enable him to access the funds covered by the said order for the purposes of enabling him to pay his legal expenses in relation to these proceedings. That application was refused by order of this Court of the 12^th October, 2007. On Monday, 30^th March, 2009, two days prior to the date assigned for the hearing of this case, the first named respondent made an application to Court under the ad hoc legal aid scheme (CAB) for the grant of legal aid under that scheme at a level of legal representation providing for one solicitor and two counsel including a senior counsel. Having heard that application and considered the affidavit of the first named respondent, as to his claimed lack of financial means, the Court granted legal aid under the scheme with provision for one solicitor and one counsel. That order was made on the 30^th March, 2009 and was appealed to the Supreme Court by the first named respondent who sought to have the level of representation extended to include the provision of a senior counsel. That appeal was...