England v Judge Elizabeth Dunne & DPP
| Jurisdiction | Ireland |
| Judge | Justice Kearns |
| Judgment Date | 14 February 2003 |
| Neutral Citation | 2003 WJSC-HC 4707 |
| Judgment citation (vLex) | [2003] 2 JIC 1401 |
| Court | High Court |
| Date | 14 February 2003 |
2003 WJSC-HC 4707
THE HIGH COURT
BETWEEN
AND
Citations:
CRIMINAL JUSTICE ACT 1994 S39
CRIMINAL JUSTICE ACT 1994 S45
CRIMINAL JUSTICE ACT 1994 S38
CRIMINAL JUSTICE ACT 1994 PART VI
CRIMINAL JUSTICE ACT 1994 S38(1)
CRIMINAL JUSTICE ACT 1994 S38(6)
CRIMINAL JUSTICE ACT 1994 S39(1)
CRIMINAL JUSTICE ACT 1994 S39(2)
CRIMINAL JUSTICE ACT 1994 S39(3)
CRIMINAL JUSTICE ACT 1994 S39(7)
CRIMINAL JUSTICE ACT 1994 S45
CONSTITUTION ART 40.3
CONSTITUTION ART 38
MURPHY V GM 2001 4 IR 113
MELLING V O MATHGHAMHNA 1962 IR 1
MCLOUGHLIN V TUITE 1989 IR 82
PROCEEDS OF CRIME ACT 1996
WELCH V UK 9.2.1995 ECHR
DRUG TRAFFICKING OFFENCES ACT 1986 S2 (UK)
O'KEEFFE V FERRIS 1997 3 IR 463
COMPANIES ACT 1963 S297
RSC O.36 r38
CCR O.67 r16
O'CALLAGHAN V CLIFFORD 1993 3 IR 603
Synopsis:
CRIMINAL LAW
Forfeiture of assets
Proceeds of drug trafficking - Adjournment of forfeiture hearing to receive additional evidence - Whether proceedings civil or criminal in nature - Jurisdiciton - Whether trial judge had jurisdiciton to adjourn - Whether discretion to adjourn exercised outside jurisdiction - Whether exercise of discretion unreasonable - Whether adjournment possible to receive additional evidence - Criminal Justice Act, 1994 section 39 (2001/269JR - Keane J - 14/2/2003)
England v Dunne
the DPP applied to the first respondent for an order pursuant to section 39 of the Criminal Justice Act, 1994 directing forfeiture of monies seized from the applicant which he alleged represented the proceeds of drug trafficking. The evidence proceeded on affidavit which she was unsatisfied with. Accordingly, holding that, as it was a “hybrid” case with a civil standard of proof, she had jurisdiction to put the matter back so that further evidence could be given to the court, she adjourned the matter for that purpose. The applicant obtained leave to apply for an order of prohibition restraining the first respondent from proceeding with any hearing held to receive further evidence which might be tendered on behalf of the second respondent on the grounds that the proceedings were criminal in nature and, that being so, the court did not have any jurisdiction to adjourn the hearing at the conclusion of the second respondent’s case for the purpose of receiving additional evidence.
Held by Kearns J in refusing the relief sought that section 39 of the Act of 1994 provides for a forfeiture proceeding which is in rem and does not provide for the creation of a criminal offence. Although possessing characteristics which could be described as “hybrid”, the nature of the proceedings are essentially civil in character. In civil proceedings a judge may adjourn a matter for further consideration, accordingly the judge had jurisdiction to adjourn. In so adjourning, the trial judge was entitled to take into account the assurance given by the DPP that no new or additional material would be entered and so the exercise of her discretion could not be said to be unreasonable.
Justice Kearns delivered the 14th day of February, 2003.
On the 26 th March, 2001, counsel on behalf of the D.P.P. applied to the first named respondent in the Dublin Circuit Court for an order pursuant to Section 39 of the Criminal Justice Act, 1994, directing forfeiture in accordance with the provisions of Section 45 of the Act of the sum of £79,960.00 which said monies were seized from the applicant on the 15 th of May 1998 at Dublin Airport and thereafter detained pursuant to Section 38 of the said Act of 1994.
Part VI of the Criminal Justice Act, 1994deals with drug trafficking money-imported or exported in cash and provides as follows at Section 38:-
" (1) A. member of the Garda Siochana or an officer of Customs and Excise may seize and, in accordance with this Section, detain any cash which is being imported into or exported from the State if its amount is not less than the prescribed sum and he has reasonable grounds for suspecting that it directly or indirectly represents any person's proceeds of, or is intended by any person for use in, drug trafficking."
(6) If at a time when any cash is being detained by virtue of the foregoing provisions of this Section -
(a) an application for its forfeiture is made under Section 39 of this Act; or
(b) proceedings are instituted (whether in the State or elsewhere) against any person for an offence with which the cash is connected,
the cash shall not be released until any proceedings pursuant to the application or, as the case may be, the proceedings for that offence have been concluded."
It is then provided as follows by Section 39:
2 " (1) A judge of the Circuit Court may order the forfeiture of any cash which has been seized under Section 38 of this Act if satisfied, on an application made while the cash is detained under that Section, that the cash directly or indirectly represents any person's proceeds of, or is intended by any person for use in, drug trafficking.
(2) Any application under this Section, shall be made, or caused to be made, by the Director of Public Prosecutions:
(3) The standard of proof in proceedings on an application under this Section shall be that applicable to civil proceedings; and an order may be made under this Section whether or not proceedings are brought against any person for an offence with which the cash in question is connected."
Where a forfeiture order is made under Section 39 of the Act, any party to the proceedings, other than the Director of Public Prosecutions, may within 30 days appeal in respect of the order to the High Court. The following provisions of Section 40 then apply:-
" (3) An appeal under this Section shall be by way of a re-hearing (7) Section 39(3) of this Act shall apply in relation to a re-hearing on an appeal under this Section as it applies to proceedings under Section 39 of this Act."
Section 45 provides:-
" Any money representing cash which is forfeited under this Part of this Act or accrued interest thereon shall, following the payment of any expenses or remuneration that may have arisen in relation to such forfeiture, be paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance."
Arising out of difficulties which had been encountered in similar applications in the past, counsel on behalf of the Director informed Judge Dunne at the outset of the hearing that while he intended to proceed on affidavit evidence, he would, if there was any objection raised that the affidavit contained hearsay evidence which was inadmissible for that reason, seek an adjournment to rectify matters. Mr. Hunt, who appeared for the applicant, objected however to any hearing consisting of affidavit evidence only. In ruling on this objection, the learned trial judge indicated that as procedure by affidavit had been adopted in other applications and as there were no specific rules of court in place for such applications, she would allow the application to proceed.
The evidence presented by way of a booklet to the court comprised a notice of motion, the affidavit of Brian Smyth, Officer of Customs and Excise, and the replying affidavit of the applicant. A notice to cross-examine Mr. Smyth had been served on Mr. Smyth by the applicant's solicitors in advance of the hearing and virtually the entirety of the hearing which followed consisted of the cross examination of that witness. No notice to cross examine had been served on the applicant.
Mr. Smyth's affidavit is quite lengthy and refers in the first instance to events which took place on the 15 th May 1998 when the applicant was detained at Dublin Airport by Kevin Murtagh, Officer of Customs and Excise, for the purpose of a search. The applicant was at the time at the Iberia check-in desk and had in his possession an airline ticket from Dublin to Barcelona. In the course of the interview which followed, two packages containing about £80,000 were found in a holdall bag which was in his possession. These packages were subsequently referred to the Forensic Science Laboratory of the Department of Justice and examined by Dr. Carol Downey whose findings are also then set out in Mr. Smyth's affidavit. The affidavit then proceeded to deal in more general detail with the investigation of the particular case, both hi Ireland and in England, which said enquiries also included events which occurred in 1995 which were investigated by yet another officer of Customs and Excise, Mr. Seamus Mac An Ridire. Mr. Smyth concluded his affidavit by deposing as follows:-
"From my aforementioned experience as a customs officer specialising in drugs trafficking and from my knowledge of the facts deposed to herein and from confidential information from reliable sources, I am satisfied that the monies seized from the respondent on the 15 th May 1998, directly or indirectly represented the proceeds of or were intended for use in drugs trafficking. I ground my belief on the following matters:-"
(a) The respondent has a history of involvement in drugs trafficking
(b) The respondent was proposing to transfer a substantial amount of cash in specie instead of transferring same through the normal banking channels
(c) The respondent intended to travel to Spain which is known to be a centre for the purchase of illegal drugs for import into the State
(d) Being without lawful declared income and not having claimed any unemployment benefit, the respondent was in a position to deal in the sum of £79,960.00."
In the course of his cross examination, Mr. Smyth conceded that his involvement was as co-ordinator of the investigation and that his affidavit was gathering together the...
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