Criminal Assets Bureau v Russell
| Jurisdiction | Ireland |
| Judge | Ms Justice Baker |
| Judgment Date | 09 March 2020 |
| Neutral Citation | [2020] IECA 61 |
| Date | 09 March 2020 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal No.: 2014/1033 |
IN THE MATTER OF THE PROCEEDS OF CRIME ACT 19961996 AND 2005
[2020] IECA 61
Baker J.
Costello J.
Donnelly J.
Appeal No.: 2014/1033
2014/1240
THE COURT OF APPEAL
Proceeds of crime – Assets – Appointment of receiver – Appellant seeking to appeal from High Court orders determining that certain assets in the legal title of the appellant were the proceeds of crime and by which the Court appointed receivers and managers over various real and personal property of the appellant – Whether the assets the subject of the order were the proceeds of crime
Facts: The respondent/appellant, Mr Russell, appealed to the Court of Appeal from two orders made by Birmingham J, as he then was, in the High Court, pursuant to the provisions of the Proceeds of Crime Acts 1996 to 2005 (the Act). The orders of Birmingham J concerned the determination that certain assets in the legal title of Mr Russell were the proceeds of crime and by which he appointed receivers and managers over various real and personal property of Mr Russell. The first order under appeal (appeal no. 2014/1033) was the order of 12 November 2013 made pursuant to s. 7 of the Act by which a receiver was appointed over an apartment premises at Lymewood Mews, Northwood, Santry, Dublin 9, being the lands comprised in Folio 183043F, County Dublin (the Lymewood property). The second order under appeal (appeal no. 2014/1240) was the order of 9 April 2014, also made under s. 7 of the Act, which appointed a receiver over a premises at Riverside Park, Clonshaugh, Dublin 17, being the lands comprised in Folio 8355L, County Dublin (the Clonshaugh property), and by which the receiver was directed to take possession and sell or otherwise dispose of same without delay so as to obtain the best price reasonably available. The grounds of appeal of the first order asserted the following: (a) that the respondent was not present at the hearing and was not legally represented; (b) that the assets the subject of the order were not the proceeds of crime; and (c) that the court should not have appointed a receiver over the assets. The notice of appeal also reserved the right to raise further grounds of appeal when Mr Russell obtained legal advice. The grounds of appeal of the second order were as follows: (a) that the finding that the premises at Clonshaugh was the proceeds of crime was wrong in fact and law; and (b) that the appointment of a receiver over his principal private residence was not appropriate.
Held by Baker J that she would reject Mr Russell’s argument that the hearing before Birmingham J on 12 November 2013 was unfair and denied him basic fairness rights and the right to be heard. Having considered the evidence, Baker J concluded that on the balance of probabilities the premises were the proceeds of crime and Mr Russell had not persuaded her that his income and resources were sufficient to support the purchase, to explain his lifestyle or the expenditure vouched and identified in the affidavit evidence of the applicant/respondent, the Criminal Assets Bureau. Baker J saw no basis on which the trial judge’s determination of the s. 7 application could be set aside; his weighing of the discretionary factors was consistent with the approach suggested by the authorities and Mr Russell had not persuaded her that other factors might have been but were not engaged or that the manner by which the trial judge dealt with the application wrongly applied the principles and failed to have due regard to his interests.
Baker J held that the appeal would be dismissed.
Appeal dismissed.
These are Mr Russell's appeals of two orders made by Birmingham J., as he then was, in the High Court, pursuant to the provisions of the Proceeds of Crime Acts 1996 to 2005 (“the Act”). Mr Russell has represented himself in some but not all of the High Court applications made by the Criminal Assets Bureau (“CAB”) and at the hearing of the appeals. The orders of Birmingham J. concern the determination that certain assets in the legal title of Mr Russell were the proceeds of crime and by which he appointed receivers and managers over various real and personal property of Mr Russell.
The first order under appeal (appeal no. 2014/1033) is the order of 12 November 2013 made pursuant to s. 7 of the Act by which a receiver was appointed over an apartment premises at Lymewood Mews, Northwood, Santry, Dublin 9, being the lands comprised in Folio 183043F, County Dublin (“the Lymewood property”). The powers vested in the receiver by that order will be more fully described below.
The second order under appeal (appeal no. 2014/1240) is the order of 9 April 2014, also made under s. 7 of the Act, which appointed a receiver over a premises at Riverside Park, Clonshaugh, Dublin 17, being the lands comprised in Folio 8355L, County Dublin (“the Clonshaugh property”), and by which the receiver was directed to take possession and sell or otherwise dispose of same without delay so as to obtain the best price reasonably available.
The premises at Clonshaugh are the principal private residence of Mr Russell. The notice of appeal filed on his behalf by his then solicitor pleads that the trial judge erred in law or in fact by determining that it was necessary and appropriate to appoint the receiver and in the manner in which the hearing was conducted.
It is fair to say that the two orders, while they were made under the same statutory provision, raise different grounds of appeal and different areas of legal difficulty.
TSection 1(1) of the Act defines the proceeds of crime as:
“[…] any property obtained or received at any time (whether before or after the passing of this Act) by or as a result of or in connection with the commission of an offence”.
It is accepted that the residential property at Clonshaugh is “property” for the purposes of the Act, defined in s. 1(1) as including:
“(a) money and all other property, real or personal, heritable or moveable,
(b) choses in action and other intangible or incorporeal property, and(c) property situated outside the State where —
(i) the respondent is domiciled, resident or present in the State, and
(ii) all or any part of the criminal conduct concerned occurs therein,
and references to property shall be construed as including references to any interest in property”.
Section 2(1) of the Act provides as follows:
“Where it is shown to the satisfaction of the Court on application to it ex parte in that behalf by a member, an authorised officer or the Criminal Assets Bureau—
(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 may make an order (“an interim order”) prohibiting the person 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 during the period of 21 days from the date of the making of the order.”
Section 2(5) of the Act limits the temporal scope of the s. 2 order and provides for the making of an interlocutory order thereafter within twenty-one days, in the absence of which the interim order elapses:
“Subject to subsections (3) and (4), an interim order shall continue in force until the expiration of the period of 21 days from the date of its making and shall then lapse unless an application for the making of an interlocutory order in respect of any of the property concerned is brought during that period and, if such an application is brought, the interim order shall lapse upon—
(a) the determination of the application,
(b) the expiration of the ordinary time for bringing an appeal from the determination,
(c) if such an appeal is brought, the determination or abandonment of it or of any further appeal or the expiration of the ordinary time for bringing any further appeal,
whichever is the latest.”
Section 3 of the Act empowers the court to make an interlocutory order provided the court is satisfied, inter alia, that a person is in possession or control of specified property which “constitutes, directly or indirectly, proceeds of crime”.
The Act is framed in its plain language to put the burden of proof on the applicant to establish that property in respect of which an order is sought is the proceeds of crime and thereafter shifts the burden of the respondent to prove on evidence that the property does not constitute the proceeds of crime or was not acquired in whole or in part with or in connection with property that itself constitutes the proceeds of crime.
The sequence of the evidence was considered by McCracken J. in F. J. McK. v. G. W. D. [2004] IESC 31, [2004] 2 IR 470 at para. 70:
“It seems to me that the correct procedure for a trial judge in circumstances such as those in the present case is:
(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;
(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...
To continue reading
Request your trial