DPP v Gerard Alphonsus Humphreys and Others
| Jurisdiction | Ireland |
| Judge | Ms Justice Iseult O'Malley |
| Judgment Date | 21 October 2014 |
| Neutral Citation | [2014] IEHC 539 |
| Judgment citation (vLex) | [2014] 10 JIC 2103 |
| Court | High Court |
| Date | 21 October 2014 |
[2014] IEHC 539
THE HIGH COURT
PROCEEDS OF CRIME (AMDT) ACT 2005 S21
CRIMINAL JUSTICE ACT 1994 S38(1)
CRIMINAL JUSTICE ACT 1994 S38(2)
CRIMINAL JUSTICE ACT 1994 S38
CRIMINAL JUSTICE ACT 1994 S39
CRIMINAL JUSTICE ACT 1994 S38(3)(A)
CCR O.69
CIRCUIT COURT RULES (NO 2) (SECTION 39 CRIMINAL JUSTICE ACT 1994) 2004 SI 448/2004
CCR O.69 r3
CCR O.69 r5
CCR O.64
CCR O.67 r15
CCR O.13 r2
DPP v ENGLAND UNREP SUPREME 16.5.2011 2011/17/4009 2011 IESC 16
KSK ENTERPRISES LTD v BORD PLEANALA 1994 2 IR 128 1994 2 ILRM 1 1994/4/1176
KEELGROVE PROPERTIES LTD v BORD PLEANALA 2000 1 IR 47 2000 2 ILRM 168 1999/14/4126
MCK (F) v F (A) & ORS 2005 2 IR 163 2005/43/8945 2005 IESC 6
R (JG) v DPP & ORS UNREP CLARK 31.7.2008 2009/47/11893 2008 IEHC 461
MCDONNELL v DISTRICT JUDGE MAC GRUAIRC & ORS UNREP KEARNS 20.6.2001 2003/40/9586 2001 IEHC 76
PROCEEDS OF CRIME ACT 1996 S3
RSC O.136
DELANEY v JUDGE COUGHLAN & ORS UNREP SUPREME 27.6.2012 2012/9/2492 2012 IESC 40
Procedure – Seizure of Property – Detainment of Cash – Forfeiture Order – Motion of Notice – Service – Proceeds of Crime – Appeal.
The facts of this case involved of a sum of money seized from the respondent by officers of Customs and Excise. The respondent in this instant case appealed against an order made by the Circuit Court in respect of the seized sum. The cash in question was detained for a period of just under two years on foot of orders of the District Court and ultimately was the subject of an application for forfeiture made in the Circuit Court. The respondent appeals specifically the order by the Circuit Judge to refuse to accede to an application on behalf of a number of the respondents/notice parties to dismiss the application for a forfeiture order. The primary issue in the appeal is whether or not the forfeiture application was made within the time prescribed. The issue came before O'Malley Iseult J. in the High Court.
O'Malley Iseult J. examined the procedural requirements used by the circuit court in relation to the forfeiture application being made with in specific time limit and the requirement of notice on all parties of a decision on the matter. O'Malley Iseult J. firstly detailed that the Circuit court has an inherent right to protect its own process against abuse by any party. It has specific powers under the rules to deal with situations where one party sits on its rights, to the detriment of others, or another party evades service with a view to extinguishing a right of action. O'Malley Iseult J. stated that the appellants did not contend that the Director's application must be moved in court within the time limit, but rather that notice of the motion must be served, on all relevant parties, within that time.it seemed to O'Malley Iseult J. that the statements of principle by the Supreme Court in KSK Enterprises and DPP v England were broad enough to bind this court to find that, where a statutory time limit requires that an application be brought by way of motion on notice, the notice must be served on all necessary parties within that time limit. Unconvinced that the appellant was evading service O'Malley Iseult J. declared that the forfeiture order and application to dismiss were not handled according to the procedural standard. O'Malley Iseult J. allowed the appeal and reversed the decision of the Circuit court.
Appeal Allowed
This is an appeal against an order made by the Circuit Court in respect of a sum of money seized by officers of Customs and Excise from Gerard Alphonsus Humphreys, the first named respondent/notice party in the Circuit Court proceedings. The seizure was pursuant to the provisions of the Criminal Justice Act, 1994, as amended by s.21 of the Proceeds of Crimes (Amendment) Act, 2005 (together referred to as "the Act"). The cash in question was detained for a period of just under two years on foot of orders of the District Court made from time to time, and ultimately was the subject of an application for forfeiture made in the Circuit Court.
The order under appeal is the refusal of the learned Circuit Judge to accede to an application on behalf of a number of the respondents/notice parties to dismiss the application for a forfeiture order. The primary issue in the appeal is whether or not the forfeiture application was made within the time prescribed. This, in turn, depends on the answer to the question when an application is "made" to the Court within the meaning of the Act.
It appears that Mr Humphreys and Mr Davis were for periods of time in the past directors of the third named respondent/notice party (hereafter "Pacnet"]. The fourth named respondent/notice party (hereafter "Anona") is a company registered in the British Virgin Islands.
On the 17 thMay, 2010 Mr Humphreys landed at Shannon Airport, having arrived on a private aircraft which he had flown from the Netherlands. He was carrying two holdall bags and four FedEx parcels. The parcels were examined by Customs and Excise and were found to contain cash equivalent in value to about €210,000 made up in a variety of different currencies. The cash was seized under s.38(1) of the Act, which authorises the officers to seize and detain it for up to forty-eight hours if inter alia, there are reasonable grounds for suspecting that
(b) the cash directly or indirectly represents the proceeds of crime or is intended by any person for use in connection with any criminal conduct.
An application was subsequently made to the District Court for the detention of the cash. Its further detention was authorised by a sequence of orders in that Court, made under s. 38(2) of the Act. Any such order may specify a period of up to three months detention. The total period of detention may not exceed two years from the date of the first District Court order. In this case, all orders were made on notice to the appellants, and to the other respondents or notice parties, who were legally represented throughout the proceedings. The reasons for the detention, and the arguments and evidence put forward by the parties, are not of concern in this appeal. However, it is necessary to refer briefly to the explanation given for the cash which involved business dealings between the two companies Pacnet and Anona.
It is apparently common case that Anona owned the money. Mr Humphreys told the officers of Customs and Excise that he was transporting it on behalf of Pacnet to a related company in Canada, which would then lodge it to a client account held in Anona's name. Pacnet was described as "a global payments processing company."
On the 19 th May, 2010 the appellants had appeared in the District Court on behalf of Pacnet to contest the application for a detention order relating to the money. Mr Davis had previously been a director of Pacnet, up until the 27 th November, 2009. He continued to be a shareholder. On foot of this appearance Mr Davis was added as a notice party/respondent in the matter.
The last such order was made in the District Court on the 25 th April, 2012 and was due to expire on the 18 th May, 2012.
An originating notice of motion seeking forfeiture of the cash was listed in the Circuit Court list in Ennis on the 1 st May, 2012 by the applicant/respondent, who in this context essentially acts on behalf of the Revenue Commissioners and will for the sake of simplicity be referred to hereafter as the Director. The notice is undated but the court is told that it was filed in the office on the 27 th April. The motion was grounded upon an affidavit sworn by Ms Patricia Smullen, an officer of Customs and Excise on the 26 th April, 2010.
When the matter was dealt with on the 1 st May, an ex parte application was made to the court for orders providing for substituted service of the proceedings on Mr Humphreys by way of ordinary pre-paid post at his address in Co. Limerick and substituted service by way of ordinary prepaid post on Pacnet at its registered office in the Shannon Free Zone. In the alternative, an order deeming service good on these parties was sought. This application was grounded on affidavit evidence to the effect that the solicitors who had been representing the first and third respondents/notice parties in the District Court (Carmody & Company) had been served with the proceedings on the 27 th April but had indicated that they did not have authority to accept them. An effort to effect personal service on Mr Humphreys on the 30 th April at his residence had not been successful - he was not there and his wife refused to accept service. Also on the 30 th April, an employee of Pacnet at its registered office refused to accept service. The officer who swore the affidavit deposed that she believed that the first and third respondents/notice parties were trying to frustrate service of the proceedings.
A second ex parte application made on the same day sought leave to serve notice of the proceedings on Mr Davis out of the jurisdiction at Avondale House, Queen's Promenade, Douglas in the Isle of Man, and on Anona at a business address in the Commonwealth of Dominica, British West Indies. This was grounded on evidence that Mr Davis was a citizen of the United Kingdom, who had...
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