Criminal Assets Bureau v Graham Whelan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Alexander Owens |
| Judgment Date | 19 January 2022 |
| Neutral Citation | [2022] IEHC 26 |
| Court | High Court |
| Docket Number | [2021 NO. 2 CAB] |
Proceeds of Crime
In the Matter of Section 3(1) of the Proceeds of Crime Acts 1996–2016
[2022] IEHC 26
[2021 NO. 2 CAB]
THE HIGH COURT
Proceeds of crime – Credit balance – Money laundering – Applicant claiming that the credit balance in a current account was property which was acquired by the respondent in connection with proceeds of crime – Whether the money was obtained by the respondent as part of a scheme by him to get in clean money and repay from proceeds of crime
Facts: The applicant, the Criminal Assets Bureau, applied to the High Court. The issue in the application was whether the evidence demonstrated that the credit balance of over €75,000 in a current account of the respondent, Mr Whelan, at the Crumlin Branch of Allied Irish Banks PLC (AIB Bank) in Dublin was money “acquired” by Mr Whelan “in connection with property that, directly or indirectly, constitutes proceeds of crime”, as provided for by s. 3(1)(a)(ii) of the Proceeds of Crime Act 1996. The source of the credit balance was a lodgement of €75,000 on 18 January 2019. That money came from a current account of Mr Wilson at Blackrock branch of AIB Bank in County Dublin. The credit balance in Mr Wilson’s bank account was derived from compensation of €110,000 which he received on 17 April 2018.
Held by Owens J that, having reviewed the evidence presented by the Bureau, there were reasonable grounds for the belief of Detective Chief Superintendent Gubbins that the money which came from Mr Wilson was got in by Mr Whelan as part of a money laundering exercise and that his intention at the time when he received the money was to repay Mr Wilson from proceeds of crime. Owens J accepted this belief evidence as evidence of the correctness of the underlying proposition. Owens J, having considered the materials relied on by Detective Chief Superintendent Gubbins, held that those materials justified that belief. Owens J, having also considered affidavits filed by the Bureau which post-date the affidavit of Detective Chief Superintendent Gubbins, held that the material in those affidavits further supported and confirmed his conclusion that the belief of the Chief Superintendent, based on the materials which he had available to him at the time, was well-founded.
Owens J held that the evidence provided by the Bureau established that that the credit balance of €75,000 odd which was frozen in his bank account was caught by s. 3(1)(a)(ii) of the 1996 Act.
Application granted.
JUDGMENT of The Hon. Mr. Justice Alexander Owens delivered on the 19th day of January 2022.
The issue in this application is whether the evidence demonstrates that the credit balance of over €75,000 in a current account of Graham Whelan at the Crumlin Branch of Allied Irish Banks PLC (AIB Bank) in Dublin is money “acquired” by Graham Whelan “…in connection with property that, directly or indirectly, constitutes proceeds of crime”, as provided for by s.3(1)(a)(ii) of the Proceeds of Crime Act 1996 (the 1996 Act).
The source of this credit balance was a lodgement of €75,000 on 18 January 2019. This money came from a current account of John Wilson at Blackrock branch of AIB Bank in County Dublin. The credit balance in John Wilson's bank account was derived from compensation of €110,000 which he received on 17 April 2018.
On 31 January 2019 Graham Whelan was caught by Gardaí in a room in the Intercontinental Hotel in Dublin. Gardaí found a drugs tick list, 6 mobile phones, including an “Encrochat” device commonly used by sophisticated drug dealers and other criminals, some cash, a small quantity of controlled drugs, and an “Audemars Piguet” watch worth €28,000. Graham Whelan has been convicted of money laundering offences in relation to the cash and the watch.
John Wilson is married to Graham Whelan's aunt. A loan agreement relating to the €75,000 was executed by Graham Whelan and John Wilson on the day after the Garda raid at the Intercontinental Hotel.
Following the finds at the Intercontinental Hotel, the Criminal Assets Bureau (the Bureau) began to investigate and discovered the transfer of the €75,000 into Graham Whelan's bank account.
A direction was given to AIB Bank to prevent transactions on this bank account under s.17 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (the 2010 Act) on 5 February 2019. This was continued by orders of the District Court under s.17(2) of the 2010 Act. The Bureau was granted an order under s.2 of the 1996 Act by this court on the morning of 16 February 2021.
An application by Graham Whelan to the District Court under s.19 of the 2010 Act for revocation of the order which that court had made under s.17(2) of the 2010 Act then became redundant. The effect of the order under s.2 of the 1996 Act was to prevent Graham Whelan from dealing with the money.
A submission on behalf of Graham Whelan relied on an assertion that that the District Court made an order under s.19 of the 2010 Act on consent on 16 February 2021 which revoked the previous order of that court under s.17(2) of that Act preventing transactions on the account.
It was submitted that the effect of this consent order was to decide conclusively that Graham Whelan was entitled to the credit balance in his bank account. The order of the District Court was not produced to this court and it is unclear whether an order under s. 17(2) was allowed to lapse or whether there was consent to its revocation.
Where a claim is advanced that a decision of any court of record gives rise to a determination which binds another court, it is necessary to produce the order which is relied on as having this effect. The order of the District Court of 16 February 2021 was not produced to this court.
Even if such an order of the District Court had been produced, and if it had been established that such order preceded in time the order of this court under s.2 of the 1996 Act, these facts would not lead to a conclusion in favour of Graham Whelan.
This court was advised by the Bureau of the pending matter in the District Court when the Bureau moved the application under s.2 of the 1996 Act on the morning of 16 February 2021. This court directed in the order that the District Court be made aware of the fact that this court had granted an order under s.2 of the 1996 Act. My conclusion on this issue would not be affected if, as asserted in the Affidavit of Graham Whelan, the District Court was not advised of the making of the order under s.2 of the 1996 Act until after it had made its own order.
The issue before this court is not the same as that which was required to be decided by the District Court. The issue before the District Court was whether it was necessary during the course of a money laundering investigation that a bank be directed or ordered not to carry out dealings on Graham Whelan's bank account because it was reasonably suspected that such dealings, if permitted, would comprise or assist in money laundering. The issue before this court is whether the credit balance in the current account is property which was acquired by Graham Whelan in connection with proceeds of crime.
Was the money which passed from John Wilson into the current account at AIB Bank in Crumlin obtained by Graham Whelan as part of a scheme by him to get in clean money and repay John Wilson from proceeds of crime?
Having reviewed the evidence presented by the Bureau in this application, I have concluded that there are reasonable grounds for the belief of Detective Chief Superintendent Gubbins that the money which came from John Wilson was got in by Graham Whelan as part of a money laundering exercise and that his intention at the time when he received the money was to repay John Wilson from proceeds of crime. I am accepting this belief evidence as evidence of the correctness of the underlying proposition.
I have considered the materials relied on by Detective Chief Superintendent Gubbins. These materials justify this belief. I have also considered affidavits filed by the Bureau which post-date the affidavit of Detective Chief Superintendent Gubbins. The material in these affidavits further supports and confirms my conclusion that the belief of the Chief Superintendent, based on the materials which he had available to him at the time, is well-founded.
This does not mean that I am concluding that John Wilson was privy to this intention of Graham Whelan or that there is no basis on which John Wilson could have a valid claim to the money under s.3(3) of the 1996 Act. John Wilson was not a party to this application.
This application illustrates dangers which those who come into substantial money from sources such as compensation payments or inheritances should be made aware of. These beneficiaries may be vulnerable to tricks, pressures and blandishments of criminal relatives or acquaintances who spot an opportunity to launder proceeds of crime. This is not the first application under the 1996 Act in which evidence has established that proceeds of a compensation award or settlement were taken by a criminal for use in money laundering.
John Wilson knew of Graham Whelan's criminal reputation and lack of track record in legitimate business. John Wilson should, perhaps, have known that an arrangement which involves handling money which cannot be shown to come from a legitimate source carries risks because €10,000 in cash had been seized from him by Customs. Evidence shows that John Wilson received cash payments which related to money advanced by him at the behest of Graham Whelan in order to assist a business called “Wheelie Clean”.
It remains to be seen whether John Wilson was an honest participant who was duped and taken advantage of, or whether he entered into the €75,000 loan transaction with his eyes open and...
To continue reading
Request your trial
-
Criminal Assets Bureau v Whelan
...as the proceeds of crime Facts: The appellant, Mr Whelan, appealed to the Court of Appeal from the decision of the High Court (Owens J, [2022] IEHC 26) on foot of which an order was made on 19th January, 2022 under s. 3 of the Proceeds of Crime Act 1996 in respect of four items of property ......