DPP v Murphy

• Jurisdiction: Ireland
• Judge: the President
• Judgment Date: 30 January 2017
• Neutral Citation: [2017] IECA 6
• Date: 30 January 2017
• Court: Court of Appeal (Ireland)
• Docket Number: [2016 CCAOT0084] [2008 SC 0001]

[2017] IECA 6

THE COURT OF APPEAL

Ryan P.

The President

Sheehan J.

Edwards J.

[2016 CCAOT0084]

[2008 SC 0001]

BETWEEN

THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

THOMAS MURPHY

APPELLANT

Conviction – Failure to make Income Tax returns – Documentary evidence – Appellant seeking to appeal against conviction – Whether the prosecution was unable to dispel a reasonable doubt concerning the authorship of relevant documentation

Facts: The appellant, Mr Murphy, was convicted by the Special Criminal Court on 17th December 2015 on nine offences alleging that, being a chargeable person, he failed to make Income Tax returns for the years between 1996 and 2004. Counts 1 to 4 in the indictment alleged that he failed to make the returns without reasonable excuse contrary to s. 10 of the Finance Act 1988. Counts 5 to 9 were brought under s. 951 of the Taxes Consolidation Act 1997 and alleged that the appellant failed to make the returns knowingly or wilfully. The appellant was sentenced to 18 months imprisonment on each count to run concurrently. The appellant appealed to the Court of Appeal against his conviction, claiming that the court erred in admissibility rulings and in its decisions at direction and verdict. The appellant claimed that the court failed to provide any adequate reasons for its decisions, including the ultimate verdict of guilt, which hampered any effective appellate analysis of those decisions. It was also submitted that the prosecution was unable to dispel a reasonable doubt concerning the authorship of relevant documentation.

Held by the Court that there was material available to the trial court on which it was entitled to conclude that the requirements of s. 16 of the Criminal Justice Act 2006 had been satisfied. The Court held that it was slow to interfere with evaluations and judgments of trial courts that were based on observation and assessment of witnesses. The Court held that the evidence of the operation of an account as accepted by the court of trial was evidence that the accused was a chargeable person. The Court held that the Special Criminal Court was entitled to come to the conclusion that it did in respect of documentary materials. The Court rejected the grounds of appeal relating to the evidence of the Revenue Bureau Officer. The Court held that the handwriting expert’s evidence alone was insufficient to raise a reasonable doubt as to the authenticity of all the documents on which the prosecution relied to make its case. The Court held that there was no basis for contending that the trial court did not give reasons for its verdict.

The Court held that it would accordingly dismiss the appeal against conviction.

Appeal dismissed.

JUDGMENT of the President delivered 30th January 2017

Introduction

1 This is an appeal by the accused, Thomas Murphy, against his conviction by the Special Criminal Court on 17th December 2015 on nine offences alleging that, being a chargeable person, he failed to make Income Tax returns for the years between 1996 and 2004. Counts 1 to 4 in the indictment allege that he failed to make the returns without reasonable excuse contrary to s. 10 of the Finance Act 1988. Counts 5 to 9 are brought under s. 951 of the Taxes Consolidation Act 1997 and allege that the accused failed to make the returns knowingly or wilfully. The accused was sentenced to 18 months imprisonment on each count to run concurrently and is serving those sentences at present. Although the notice of appeal also seeks to challenge the sentence, at the hearing at present the court is dealing only with conviction and the sentence appeal is in abeyance for the present.

The Prosecution's Case Generally

2 The prosecution submitted that it had to prove beyond reasonable doubt that (1) the accused was a chargeable person in respect of each of the periods specified in the indictment counts; (2) that he had failed to make returns as required by law within the requisite time and and (3) that he had failed to do so without reasonable excuse in relation to Counts 1 to 4 inclusive and knowingly or wilfully in relation to Counts 5 to 9 inclusive.

3 It was submitted that the case in essence was and remained a relatively straightforward one. It was not disputed that a substantial cattle trade was carried out in the name of Thomas Murphy of Ballybinaby, Hacksballscross, County Louth; that monies generated from that trade went into the bank account in the name of the accused and that a pension policy, personally incepted by him, was funded from that bank account. It was not seriously contested that the accused had failed to make the appropriate returns in respect of the relevant periods. Ultimately, the case came down to whether or not the prosecution had proven beyond a reasonable doubt that the accused was a chargeable person in respect of that cattle trade.

4 Evidence at the trial included (the name of the witness in brackets):

(a) Herd No. 0127124X (the 24X herd) was registered to the appellant (Grainne Dalton); sales and purchases of cattle took place in relation to the herd in the name of the appellant (mart and factory witnesses) and application forms and documents associated with the registration of the Herd No. showed it to have been in the name of the appellant (Larry Cashman).

(b) An account in the appellant's name was held with Permanent TSB, which considered him to be entitled to the money in the account; money lodged to the account included sums generated by dealings in respect of the 24X herd (Charles McCarthy, Chartered Accountant); payment orders were made by the Paymaster General in respect of the 24X herd payable to Thomas Murphy and such payments were lodged into the account (Niall McKeown, Patrick O'Hara, Chartered Accountant, Charles McCarthy); money from the account was used to service the appellant's pension investment (Charles McCarthy, Jim Duffy, Chartered Accountant); whether another person lodged money to the account or effected withdrawals from it (if such was the case) did not affect the entitlement to the monies (Charles McCarthy).

(c) Patrick Flanagan, a veterinary surgeon, gave evidence of the involvement of the appellant in cattle farming.

(d) Brian Garvey, a farmer, rented land to the appellant for cattle farming.

(e) Evidence from a forensic accountant with the Criminal Assets Bureau in respect of books and records showing the appellant's involvement in a farming business (Chartered Accountant).

(f) Certificate and oral evidence from an Inspector of Taxes (‘Revenue Bureau Officer 35’) that the appellant was a chargeable person and that he had not made returns for the relevant periods.

5 Turning to the appellant's case, the prosecution submitted that he put forward a positive defence that the cattle trade in the name of Thomas Murphy had in fact been carried out by his brother, Patrick Murphy, and that Patrick Murphy was the chargeable person in respect thereof and not Thomas Murphy. However, it was submitted that the defence never really addressed the point that, irrespective of Patrick Murphy, Thomas Murphy was a chargeable person in respect of the cattle trade in question if he was receiving or entitled to receive income from same. The submissions say that the essence of the defence case may be seen in questions and submissions by Counsel for the appellant during the trial, as follows for example.

‘… the person in control of this account, that's Patrick Murphy we say, was using this account as a vehicle of convenience to enable him to lodge cattle cheques made out to Thomas Murphy and empty that account in big round figures of the money that had gone in through these cheques. And I'm suggesting to you when we go through the statements that you will see that that is the pattern.’ (Day 89 [reference], Page 30, Line 33)

… Patrick Murphy established this account back in the day, apparently when there are no records retained. I'm saying that Patrick Murphy ran this account from its inception until its death and I'm saying that Patrick Murphy is the person who entered that bank on every single occasion –

MR JUSTICE BUTLER: And signed them -- passed himself off as T Murphy?

MR KEARNEY: Absolutely passed himself off. Absolutely, Judge. Now -- well, sorry, I'm saying’ – (Day 9, Pg 72, Line 34-73, Line 7)

And Also MR BURNS: No, no, I'm just not clear what my friend is saying about one particular thing and I appreciate my friend doesn't have to say anything if he doesn't want to, but, given that he has engaged in this process, is he saying that Patrick Murphy signed the cheques? Is that what he is saying?

MR KEARNEY: No.

MR BURNS: You see, it's --

MR JUSTICE BUTLER: Well, I asked -- that's specifically what I asked.

MR KEARNEY: No, no, I'm saying he ran the account. That's exactly what I'm saying.

MR BURNS: I don't know what that means.

MR JUSTICE BUTLER: I specifically asked did Patrick Murphy sign the cheques from page 161 to page 189.

MR KEARNEY: I have never put that fact to any witness in this case. I've never done that.

MR JUSTICE BUTLER: I only asked. So now the answer is no, or I don't know.

MR KEARNEY: No, no, there's an issue for the prosecution in the case as to whether they prove their case or not, Judge, but I have never put that case at any time. I've never put that case, never done that.’ (Day 9, Pg 79, Lines 2-14)

‘Now what I want to suggest to you is that these prosecution papers, these chequebooks uplifted in search product in March of 2006, suggest, I am suggesting to you, that a process was in play whereby Thomas Murphy was asked to sign blank cheques for his brother Patrick who controlled the cheque book and the account … which seems to have been originally born to feed direct debits for insurance …’ (Day 9, Pg 91, Lines 19-24)

and

‘At what I want to suggest to you that is - - the presence of these blank but...