Criminal Assets Bureau v D.W.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 09 November 2021 |
| Neutral Citation | [2021] IECA 295 |
| Docket Number | Appeal Number: 2020/139 |
| Year | 2021 |
| Court | Court of Appeal (Ireland) |
and
[2021] IECA 295
Whelan J.
Costello J.
Collins J.
Appeal Number: 2020/139
THE COURT OF APPEAL
Legal aid – Proceeds of crime – Criminal assets – Appellant appealing against the order admitting the respondents to the Criminal Assets Bureau Ad Hoc Legal Aid Scheme – Whether the means of the respondents were insufficient to enable them to obtain legal representation on their own behalf
Facts: The appellant, the Criminal Assets Bureau (CAB), appealed to the Court of Appeal against the order of the High Court (Owens J) made on 2 June 2020, perfected on 3 June 2020, admitting both respondents to the Criminal Assets Bureau Ad Hoc Legal Aid Scheme with the legal fees payable being restricted to one solicitor and one junior counsel for both respondents. By notice of appeal dated 30 June 2020, CAB contended that the trial judge erred in law and/or in fact in determining that the respondents’ means were insufficient to enable them to obtain legal representation on their own behalf and determining that by reason of exceptional circumstances it was essential in the interests of justice that the respondents should be admitted to the Scheme. In particular, CAB contended that the trial judge erred in determining that the historic position of the respondents was not relevant, that there was no obligation on the respondents to explain the substantial difference between their legitimate income and the funds required to fund their property and their lifestyle, that the proceedings were extremely complicated by virtue of their length, and that if the court had to go into the “merits” of the case no one would ever be admitted to the Scheme. It was further contended that the trial judge erred in failing to deal with either the “necessity” or the “interest of justice” legs of the test. CAB contended that the trial judge erred in law and/or in fact in failing to make any determination as to the ability of the respondents to fund the properties set out in the schedule to the originating notice of motion from legitimate means and in failing to deal with the evidence undermining the explanation of the respondents as to how the said properties were funded, and finding that the respondents had discharged their burden of proof in respect of the motion. The respondents opposed the appeal in its entirety.
Held by Whelan J that there was evidence before the trial judge that entitled him to conclude on the balance of probabilities that the means of the respondents were insufficient to enable them to obtain legal representation on their own behalf as provided by s. 5(i) of the Scheme. She held that, in light of the number and complexity of the various transactions, the period of time under consideration and the sundry business and employment issues arising, the trial judge’s determination that exceptional circumstances of such a nature as rendered it essential in the interests of justice that the respondents be admitted to the Ad Hoc Scheme had been demonstrated by the respondents was one he was entitled to reach for the purposes of s. 5(ii) of the Scheme. She was satisfied that the trial judge had before him, in the affidavits and exhibits filed on behalf of the respondents, evidence of sufficient engagement by the respondents and an indication of the broad areas of dispute likely to inform the framework of their defence to the claim and the complex web of transactions said to underpin it, such as entitled him to make the orders as he did under the Scheme. She was satisfied that the trial judge adequately engaged with the evidence and correctly refrained from carrying out an exercise that involved an evaluation of the merits of the case or an assessment of the prospects of success of the respondents. She did not believe that the trial judge could be criticised for the manner in which he addressed the issue of the legal aid application.
Whelan J dismissed the appeal on all grounds. Her provisional view was that since the respondents had been wholly successful in the appeal, they were entitled to their costs as against CAB to be adjudicated in default of agreement with a stay on that order pending conclusion of the proceedings.
Appeal dismissed.
Judgment of Ms. Justice Máire Whelan delivered on the 9th day of November 2021
This is an appeal against the order of Owens J. made on 2 June 2020, perfected on 3 June 2020, admitting both respondents to the Criminal Assets Bureau Ad Hoc Legal Aid Scheme (“the Scheme”) with the legal fees payable being restricted to one solicitor and one junior counsel for both respondents.
On 26 July 2019, the appellant, the Criminal Assets Bureau (“CAB”), issued an originating notice of motion ex parte seeking inter alia orders pursuant to ss. 2, 3(1) and 7 of the Proceeds of Crime Act 1996, as amended, against the first named respondent in respect of certain properties. Orders pursuant to ss. 10(1) and 10(7) of the Criminal Assets Bureau Act 1996, as amended, were also sought.
For the purposes of this judgment, the properties the subject of CAB's application will be numbered in order of their acquisition. Properties 2 and 3 are occupied by tenants. The respondents reside in a newly built house – Property 4 – with their children. This judgment will also refer to the first property acquired by the first respondent, Property 1, although it is not the subject of the within application.
The substantive case against the respondents is set out in the extensive affidavits sworn on behalf of CAB. Briefly put, it is CAB's contention that the first named respondent could not have funded the deposit, refurbishment costs and/or mortgage repayments of Property 1, which he purchased in 2001, from legitimate sources and that it was instead funded by the proceeds of crime.
When Property 1 was sold, part of the equity released was invested in Property 2. Accordingly, CAB contends, Property 2 and any income derived therefrom constitute the proceeds of crime. Since part of the purchase price of Property 3 was funded by the refinancing of Property 2, it is likewise contended that Property 3 comprises the proceeds of crime. It is further alleged that the acquisition, development and construction of Property 4 was funded by the proceeds of crime.
On 30 July 2019 the High Court (Stewart J.) made an order ex parte pursuant to s. 2 of the Proceeds of Crime Act 1996 that the first respondent and any person having notice of the making of the order be prohibited in the meantime from disposing of or otherwise dealing with Properties 2, 3 and 4. The court also made an order pursuant to ss. 10(1) and 10(7) of the Criminal Assets Bureau Act 1996 for the preservation of anonymity of certain bureau officers. CAB was granted liberty to issue and serve a notice of motion pursuant to s. 3 of the Proceeds of Crime Act 1996 on the first respondent, returnable on Thursday 15 August 2019. The said notice of motion issued on 31 July 2019 and was thereafter adjourned from time to time.
On 26 November 2019, the first named respondent filed a notice of motion seeking, inter alia, an order admitting him to the Scheme, in respect of one solicitor and one counsel. The application was grounded on the affidavit of the first respondent sworn on 15 November 2019.
In his grounding affidavit, the first respondent deposed as to how he financed the properties and renovations. He averred that he was currently unemployed and his sole source of income was rental income from Properties 2 and 3 from which mortgage repayments for both properties were payable. He deposed that his wife was receiving an income from her business and was also in receipt of children's allowance.
After setting out details of his current income and living expenditure, he averred that he could not afford to retain legal advisers in respect of the herein proceedings.
A supplemental affidavit was sworn on behalf of CAB by a Detective Garda on 31 January 2020 in order to dispute the averments contained in the first respondent's grounding affidavit. In particular, the Detective disputed the details of the first respondent's current income on the basis of previous tax returns; deposed to numerous occasions on which the respondents were observed driving vehicles registered in the name of third parties; provided details of foreign travel enjoyed by the respondents in circumstances where the first respondent averred to spending €3,000 on “Holidays/Xmas/Birthdays”; and, referred to significant lodgements from unknown sources to the respondents' bank accounts over and above their declared income.
In response, the first respondent swore a further affidavit on 25 February 2020, disputing matters raised by the said Detective Garda.
Further to the application to be admitted to the Scheme, an application was brought on 2 March 2020 whereby the first respondent's wife sought to be joined as a party to the proceedings on the basis that she had a beneficial interest in the family home, Property 4, and that she and the first respondent were jointly assessed for taxation purposes. An application was also brought for her admittance to the Scheme in the case that she was joined to the proceedings. In support of that application, the second respondent swore an affidavit on 25 February 2020. At para. 12 thereof, the second respondent deposed to receiving income from “several small businesses” that she runs.
Thereafter, a number of supplemental affidavits were filed on CAB's behalf, including those of the said Detective Garda sworn on 10 March 2020; Bureau Forensic Accountant No. 4 sworn on 10 March 2020, 15 May 2020 and 28 May 2020; Revenue Bureau Officer No. 81 sworn on 9 March 2020 and 15 May 2020; and, Social Welfare Bureau Officer No....
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