DPP v McHugh

• Jurisdiction: Ireland
• Judge: FENNELLY J.
• Judgment Date: 12 February 2002
• Neutral Citation: 2002 WJSC-CCA 2175
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 214 of 1999]
• Date: 12 February 2002

DPP v. McHUGH

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

DESMOND McHUGH

Applicant

2002 WJSC-CCA 2175

Fennelly J.

Kearns J.

Ó Caoimh J.

214/99

COURT OF CRIMINAL APPEAL

Synopsis:

CRIMINAL LAW

Appeal

Money laundering - Evidence - Handling property representing proceeds of drug trafficking - Trial judge's charge to the jury - Whether conviction safe - Whether evidence of drugs on banknotes of probative value - Whether statement of accused contained evidence of probative value - Criminal Justice Act, 1994 (214/1999 - Court of Criminal Appeal - 12/02/2002) - [2002] 1 IR 352

DPP v McHugh

Facts: The applicant was convicted on a charge of handling stolen property contrary to section 31(3) of the Criminal Justice Act, 1994 ("the 1994 Act") and had already served the sentence of 12 months imprisonment that was imposed on him. The applicant sought leave to appeal against his conviction essentially on the grounds that there was not sufficient evidence for the charge to have gone to the jury.

Held by Fennelly J.( Kearns J. and Ó Caoimh J. agreeing) in setting aside the conviction. In order to make out such a charge the prosecution must prove that as a fact the criminal origin of the property in question. It was not contested that the statement of the applicant contained evidence from which the jury were entitled to infer that the applicant knew that the property, a large sum of money, was or represented the proceeds of drug trafficking. The controversy was entirely about the quality of the proof offered that the money was actually of criminal origin. The presence of traces of diamorphine on the banknotes did not tend to establish that the notes themselves represented the proceeds of drug trafficking and this evidence should, consequently, be ignored so far as proof of the origin of the money was concerned. The statement made by the applicant contained elements of suspicion and furnished direct proof of the applicant's involvement in the arrangements for placing the money in his attic. However at best it represented evidence of the applicant's strong suspicion or belief but not of the fact that the money represented the proceeds of drug trafficking. Neither of the two pieces of evidence upon which the prosecution relied to prove this crucial fact constituted admissible evidence of probative value. The learned judge should have acceded to the application to withdraw the case from the jury. The conviction would be quashed.

Citations:

CRIMINAL JUSTICE ACT 1994 S13(3)

CRIMINAL JUSTICE ACT 1994 PART IV

EEC DIR 1991/308

COUNCIL OF EUROPE CONVENTION ON LAUNDERING, SEARCH, SEIZURE AND CONFISCATION OF THE PROCEEDS OF CRIME ETS 141

DPP, PEOPLE V MADDEN 1977 IR 336

INSPECTOR OF TAXEX V KIERNAN 1981 IR 117

CRIMINAL JUSTICE ACT 1994 S31(7)

R V PORTER 1976 CLR 106

R V MARSHALL 1977 CLR 106

ATTORNEY GENERAL REFERENCE 4/1979 71 CAR 341

ARCHBOLD 1997

SURUPAUL V R 42 CAR 266

COMPTROLLER OF CUSTOMS V WESTERN ELECTRIC 1996 AC 367

1 12th day of February, 2002 by FENNELLY J.

FENNELLY J.

2 The applicant was convicted on 16 ^th December 1999 by a jury in the Circuit Criminal Court on a charge of handling stolen property contrary to section 31(3) of the Criminal Justice Act, 1994("the act of 1994"). He has already served the sentence of 12 months imprisonment that was imposed on him by His Honour Judge Dominic Lynch.

3 Nonetheless, he applies for leave to appeal against his conviction, essentially on the ground that there was no sufficient evidence to go to the jury. The other grounds of appeal, including some complaints concerning the judge's charge to the jury all come back to that essential ground.

4 Part IV of the act of 1994 is entitled "Money Laundering." That part implements Council Directive 91/308 EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering ( OJ No L 166/77 of 28 ^th June 1991). It also reflects the Council of Europe Convention on Laundering, Search, Seizure and confiscation of the Proceeds from Crime. The offence of which the applicant was convicted is described as follows in section 31(3) of the act of 1994:

"A person shall be guilty of an offence if he handles any property knowing or believing that such property is, or in whole or in part directly or indirectly represents, another person's proceeds of drug trafficking or other criminal activity."

5 The single charge in the indictment originally alleged that the applicant at his home in Clondalkin, County Dublin, "handled property, namely IR£95, 785.00p approximately and STG£7,240.00p knowing or believing that such property was, or in whole or in part directly or indirectly represented, Mark Connor's proceeds of drug trafficking or other criminal activity."Following defence submissions, the learned trial judge amended the indictment by removing the reference to "other criminal activity." Mark Connor is the brother-in-law of the applicant, being his wife's brother. The result of the amendment was that the prosecution had to prove that the money mentioned in the indictment, which the applicant admittedly handled, was, to his knowledge, the proceeds of drug trafficking and not of any other criminal activity of Mark Connor. No issue arises on this appeal as to whether the learned trial judge was correct to amend the indictment. It might on another occasion have to be considered whether the prosecution must necessarily opt for proof that property covered by an indictment under that section constitutes proceeds of drug trafficking, on the one hand, or of crime other than drug trafficking, on the other.

6 There is one complicating element in this appeal. It was common ground at the trial that the prosecution had to discharge the burden of proving two essential facts, namely that, as a matter of fact, the property was or represented the proceeds of drug trafficking and, as a distinct matter, that the applicant knew this to be so. When the matter was listed before this court on an earlier date, the court raised the issue as to whether it was necessary for the prosecution to prove the first of these facts or whether the offence could be constituted by handling property believing it to be or to represent the proceeds of drug trafficking or other criminal activity without any proof of its actual provenance. At the hearing of the application for leave to appeal, counsel for the Director of Public Prosecutions adopted the latter interpretation of the statutory provisions as his primary, indeed his exclusive argument. Counsel for the applicant objected strongly to what he claimed to be a radical change in the parameters of the appeal. The Director of Public Prosecutions should not be allowed to resile from the position he had adopted throughout the trial. While unable to cite any authority directly in point, counsel argued that no appellate court would, or should, allow a party so fundamentally to alter its position at the hearing of an appeal. The function of this court is limited, he said, in the manner described in the judgment of O'Higgins C.J. in the People (DPP) v Madden [1977] I.R. 336 at page 340:

"Subject to the grounds of appeal, it would seem to be the function of this Court to consider the conduct of the trial as disclosed in the stenographer's report to determine whether or not the trial was satisfactory in the sense of being conducted in a constitutional manner with fairness, to review as far as may be required any rulings on matters of law, to review as far as may be necessary the application of the rules of evidence as applied in the trial, and to consider whether any inferences of fact drawn by the Court of trial can properly be supported by the evidence; but otherwise to adopt all findings of fact, subject to the admonitions in the passages cited above."

7 It is certainly a novel situation that the prosecution should claim to be able to sustain a conviction founded on a lesser burden of proof than was accepted at the trial, although the cited judgment of O'Higgins C.J. does not concern this issue. In the normal course of events, it is clear that the prosecution should not be permitted to alter its stance for the purpose of the hearing of the appeal. On the other hand, the accused suffered no inherent prejudice in the criminal trial itself because the prosecution undertook what is now said to be an unnecessary burden of proof. Rather, he had the benefit of the possibility of acquittal if the prosecution failed to prove a matter which it need not have undertaken to prove. Nor is the applicant put at any procedural disadvantage in the appeal because the prosecution now claims that a lesser burden would have sufficed. Having given the matter careful consideration, the court has decided that, in the special circumstances of this case it should rule on the new submission by the Director of Public Prosecutions. It would be unreal that the court should consider the correctness of a conviction based on a considered appreciation of the need to prove two elements of the offence, while implying that it may be basing itself on an incorrect interpretation of the section creating it. In any event, as will appear, this is not to the disadvantage of the applicant.

8 The submission of the Director of Public Prosecutions depends on a literal interpretation of the provisions of section 31(3) of the act of 1994. The wording does not in terms require proof that the property in fact have a criminal origin. It suffices to show that the accused handled it knowing or believing it to have such an origin. Counsel accepted, in argument, that it was not possible as a matter language to "know" property to be the proceeds of crime which was not so as a fact. It was, on the other hand, possible to believe to be so something which was not so.

9 Counsel for the applicant recalled the dictum of...