Criminal Assets Bureau v W (A) & W (E)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Feeney |
| Judgment Date | 30 April 2010 |
| Neutral Citation | [2010] IEHC 166 |
| Court | High Court |
| Date | 30 April 2010 |
[2010] IEHC 166
THE HIGH COURT
BETWEEN
AND
PROCEEDS OF CRIME ACT 1996 S2
PROCEEDS OF CRIME ACT 1996 S7
PROCEEDS OF CRIME ACT 1996 S3
PROCEEDS OF CRIME ACT 1996 S3(1)
PROCEEDS OF CRIME ACT 1996 S8
PROCEEDS OF CRIME ACT 1996 S8(2)
MCK (FJ) v D (GW) 2004 2 IR 470 2004 2 ILRM 419 2004/35/8106 2004 IESC 31
MCK (F) v H (T) & H (J) 2007 4 IR 186 2006/36/7594 2006 IESC 63
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)
MCCANN v UNITED KINGDOM 2008 47 EHRR 40 2008 HLR 40 2008 2 FLR 899 2009 1 FCR 390
CRIMINAL ASSETS BUREAU v O'BRIEN UNREP FEENEY 12.1.2010 2010/9/2077 2010 IEHC 12
CRIMINAL LAW
Proceeds of crime
Interlocutory orders - Disposal of property - Admissibility of belief evidence - Standard of proof - Procedures for trial judge when presented with belief evidence - Whether reasonable grounds for belief - Whether prima facie case shifting onus to respondents - Whether onus of proof satisfied - Whether serious risk of injustice - Money emanating from unknown sources - Lack of apparent income - Substantial sums of money available to respondents - Hearsay evidence - Failure to provide credible and rational explanations - Loss of home - Probability that house purchase funded by criminal activity - Wide discretion of court - F McK v GWD [2004] 2 IR 470; F McK v TH [2007] 4 IR 186; Murphy v GM [2001] 4 IR 113; McCann v United Kingdom ECHR 19009/04 and CAB v O'Brien [2010] IEHC 12, (Unrep, Feeney J, 12/1/2010) considered - Proceeds of Crime Act 1996 (No 30), ss 3 and 8 - Orders made (2008/8CAB - Feeney J - 30/4/2010) [2010] IEHC 166
Criminal Assets Bureau v W (A)
Judgment of Mr. Justice Feeney delivered on the 30th day of April, 2010.
1. These proceedings commenced by originating notice of motion dated the 3 rd March, 2008 and on that date an ex parte application was made to Court pursuant to s. 2 and s. 7 of the Proceeds of Crime Act 1996 (the Act of 1996). The Court, being satisfied that the property set out in the schedule to the originating notice of motion constituted directly or indirectly the proceeds of crime, made an order on the 3 rd March, 2002 in respect of each of the six items listed in the schedule. An order was made pursuant to s. 7 appointing a receiver in respect of the items of property set out at paragraphs 2 to 6 inclusive of the said schedule.
2. In this application the applicant seeks orders pursuant to s. 3 of the Act of 1996, as amended, in respect of the six items in the schedule. The motorcar which is the sixth item of property in the schedule was sold by agreement between the parties and the receiver holds the net proceeds of sale and it is that sum of money in respect of which an order is sought rather than the motor vehicle which was originally identified at paragraph 6 of the schedule.
3. The application was heard on affidavit other than for limited cross-examination. The second named respondent served notice to cross-examine Detective Garda Lucy Myles and Detective Chief Superintendent John O'Mahony. The applicant served notice to cross-examine E.W.. Each of those three witnesses were cross-examined by the party who served notices to cross-examine. Whilst the first named respondent had not served any notice to cross-examine on application to Court, the Court permitted a cross-examination to take place on behalf of the first named respondent of Detective Garda Lucy Myles.
4. The schedule of property in respect of which an order under s. 3 of the Act of 1996 is sought is:
(1) All that and those the property known and more particularly described as 'House A', County Kildare contained in Folio xxxxx County Kildare;
(2) €10,900 cash seized from search of 'House A' County Kildare on the 6 th July, 2007;
(3) STG£180 cash seized from search of 'House A' County Kildare on the 6 th July, 2007;
2 (4)IR£559 cash seized from search of 'House A' County Kildare on the 6 th July, 2007;
(5) 18ct diamond cluster ring, value €6,100; and
(6) The net cash sum obtained by the receiver and retained by him on the sale of a Volkswagen Passat bearing registration number 03 WW 5319 sold by the consent of the parties which said sum of money is held pending further order.
5. The premises set out at paragraph 1 of the schedule is the residence and family home of the respondents and is registered in the sole name of the second named respondent, the property having been transferred to her by memorandum of agreement dated the 25 th August, 2004 between J.M. and M.M. of the one part and E.P. of the second part. E.P. is the maiden of E. W., the second named respondent. The second named respondent's interest in the said property was registered in the Land Registry on Folio 14269 on the 1 st August, 2006.
6. The section under which this application is made to Court is s. 3(1) of the Act of 1996. Section 3(1) provides as follows:
"Where, on application to it in that behalf by the applicant, it appears to the Court, on evidence tendered by the applicant, consisting of or including evidence admissible by virtue of section 8-"
a (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 (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 £10,000,
the Court shall 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 dose 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 £10,000:
Provided, however, that the Court shall not make the order if it is satisfied that there would be a serious risk of injustice."
Section 8 of the same Act renders admissible evidence in certain specified circumstances in proceedings under s. 3 of the Act. That section provides that where an appropriate officer states on oral evidence that a respondent is in possession or control of property that constitutes the proceeds of crime or was acquired with property constituting the proceeds of crime, then, if the Court is satisfied that there were reasonable grounds for the belief stated, the statement shall be evidence of the matters stated. It was also provided at s. 8(2) of the Act that the standard of proof required to determine any question arising under the Act shall be that applicable to civil proceedings. In this case opinion evidence was given by Detective Chief Superintendent O'Mahony in oral evidence and he was the subject of cross-examination in respect of the opinion or belief evidence which he tendered. The Court will apply the civil standard of proof with due regard to the nature of the conduct alleged.
7. The Supreme Court in F. McK. v. G.W.D. (Proceeds of crime outside State) [2004] 2 I.R. 470 in the judgment of McCracken J. identified the different functions of s. 3 and s. 8 of the Act of 1996 and set out (at p. 491) the procedures for a trial judge in considering an application under s. 3 of the Act when presented with belief evidence under s. 8. The procedure identified by McCracken J. was as follows:
"It seems to me that the correct procedure for a trial judge in circumstances such as those in the present case is:"
2 (1) he should firstly consider the position under s. 8. He should consider the evidence given by the member or authorised officer of his belief and at the same time consider any other evidence, such as that of the two police officers in the present case, which might point to reasonable grounds for that belief;
3 (2) if he is satisfied that there are reasonable grounds for the belief, he should then make a specific finding that the belief of the member or authorised office is evidence;
4 (3) only then should he go on to consider the position under s. 3. He should consider the evidence tendered by the plaintiff, which in the present case would be both the evidence of the members or authorised officer under s. 8 and indeed the evidence of the other police officers;
5 (4) he should make a finding whether this evidence constitutes a prima facie case under s. 3 and, if he does so find, the onus shifts to the defendant or other specified person;
6 (5) he should then consider the evidence furnished by the defendant or other specified person and determine whether he is satisfied that the onus undertaken by the defendant or other specified person has been fulfilled;
7 (6) if he is satisfied that the defendant or other specified person has satisfied his onus of proof then the proceedings should be dismissed;
8 (7) if he is not so satisfied he should then consider whether there would be a serious risk of injustice. If the steps...
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