Gavin v Judge Haughton

JurisdictionIreland
JudgeMr. Justice Roderick Murphy
Judgment Date27 May 2004
Neutral Citation2004 WJSC-HC 4290
CourtHigh Court
Date27 May 2004

2004 WJSC-HC 4290

THE HIGH COURT

[170 JR/2003]
HC 209/04
GAVIN v. JUDGE HAUGHTON & MINISTER FOR JUSTICE
JUDICIAL REVIEW
BETWEEN/
THERESA GAVIN
APPLICANT

AND

JUDGE GERARD HAUGHTON MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENTS
Abstract:

Evidence - Judicial review -Taking of evidence in State for use in criminal proceedings in other jurisdiction - Validity of witness summons - Direction permitting Minister to inspect client accounts - Criminal Justice Act 1951, s. 51 - Bankers’ Books Evidence Act 1879, ss. 6 and 7

Facts: The respondent judge issued a witness summons following a request by the Italian police authorities to the Minister for assistance in obtaining evidence they wanted for a criminal investigation. The applicant applied for judicial review for an order of certiorari quashing the witness summons issued by the Judge under s. 51 of the Criminal Justice Act 1994 and quashing his direction under s. 7 of the Bankers’ Books Evidence Act 1897 permitting the Minister to inspect the client’s accounts at the AIB. The applicant contended that s. 51 of the Act of 1994 was unconstitutional and that the judge had no jurisdiction to make the order he made under s. 7 of the Act of 1897.

Held by Murphy J. in refusing the application for judicial review that the judge acted within the powers devolved on him, was unaware of the sensitivities and adhered to the appropriate statutory procedures.

Reporter: R.W.

1

Mr. Justice Roderick Murphy delivered the 27th day of May, 2004.

1. Judicial Review Application
2

A year before the hearing, on 10 th March, 2003, O'Donovan J. gave the applicant leave to apply for judicial review for an order of certiorari quashing the witness summons issued by Judge Haughton, the first named respondent, on 15 th April, 2002 under s. 51 of the Criminal Justice Act, 1994(the Act) and quashing his direction of 5 th March, 2003 under s. 7 of the Bankers”Books Evidence Act, 1879, permitting the Minister, the second named respondent, to inspect and/or take copies of the applicant's client accounts at the AIB, Dame Street (the Bank). The applicant was also allowed to apply for an order that the Minister hand back to the applicant the documentation and other materials obtained on the afternoon of 5 th March, 2003 at District Court No. 50 and that no copy of that material should be given to the Minister by the Chief State Solicitor.

3

The grounds on which such relief was sought were as follows:

4

(i) Section 51 of the Criminal Justice Act, 1994, was repugnant to the Constitution and invalid; consequently there was no legal basis for compelling officers of the AIB to attend at District Court No. 50;

5

(ii) alternatively, the only lawful way that, in the circumstances, the said officer could have been compelled to attend the District Court No. 50, for the purpose stipulated in the witness summons issued (was) under s. 6 of the Bankers”Book Evidence Act, 1879, which was never sought nor made;

6

(iii) the first named respondent had no jurisdiction in the circumstances to make the order he made under s. 7 of the 1879 Act as,

7

• - he had accepted that the bank officials could not have been compelled to give evidence, as required by the said witness summons, without a High Court Order made under s. 6 of the 1879 Act, and consequently, he had no jurisdiction to compel the attendance of the said bank officer;

8

• - he had been informed that the information being sought was the subject of a bank/customer confidentiality and that the customer (the applicant herein) had not released the bank from its duty of confidentiality;

9

• - he had been requested on behalf of the applicant to put a stay on his order, pending an appropriate application to the High Court, and was aware that there was an injunction application listed to be heard on 10 th March, 2003;

10

(iv) alternatively, the first named respondent misconstrued such authority he had under s. 7 of the 1879 Act by, instead of permitting inspection and taking copies, as envisaged therein, he took evidence on oath regarding the transactions in question; in other words, in reality he adopted the procedure of s. 6 of the 1879 Act which he had accepted he had no jurisdiction to adopt.

11

The matters came before this Court for hearing on 9 th March, 2004.

2. The witness summons
12

The summons sought to be quashed is as follows:

13

"IN THE MATTER OF THE CRIMINAL JUSTICE ACT, 1994

14

PART VII AND SECTION 51 AND THE SECOND SCHEDULE OF

15

THE SAID ACT AND

16

IN THE MATTER OF A CRIMINAL INVESTIGATION IN RELATION TO ALPHA CLUB

WITNESS SUMMONS
17

The Alpha Club, together with Dario Bellandina and Gerrard Joseph Byrne is currently the subject of a criminal investigation and prosecution by the Italian authorities. It is suspected that the company and the aforesaid individuals are involved in the offences of fraud, conspiracy to defraud and embezzlement contrary to the Italian Criminal Code which offences commenced in or about 1997.

18

WHEREAS the Minister for Justice has received from the Office of the Public Prosecutor in Turin a request for assistance in obtaining evidence in this State in connection with the criminal proceedings being conducted initially and

19

WHEREAS the Minister for Justice is satisfied that there are reasonable grounds for suspecting that offences under the law of Italy has ( sic) been committed and that criminal proceedings have been instituted in respect of those offences and he has by notice in writing nominated a judge of the District Court to receive such evidence to which the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request and

20

WHEREAS the Minister for Justice is satisfied that any evidence that may be furnished in response to the request will not without his consent be used for any purpose other than that specified in the request.

21

You Brian Molloy, Allied Irish Bank, Dame Street, Dublin are hereby requested to attend at a sitting of the District Court to be held at Court No. 50, Richmond Hospital, North Brunswick Street, in the County of Dublin on the 26 th day of April, 2002 at 2.00 p.m. and on any date to which the hearing of the proceedings shall be adjourned to give evidence (which includes documents and other articles) in connection with the aforesaid criminal investigation and proceedings in relation to bank accounts No. 2311066 and 28261130 and any other related accounts either in name or beneficiary and you are hereby requested to bring with you the following documents and other articles:

22

1) The balance (cash in hand) of the two accounts referred to above.

23

2) Copies of all customer files, customer record cards, status inquiry cards, account opening forms, records showing authorised signatories and all correspondence between the bank and the account holder, the bank and third parties and internal bank correspondence and other records maintained by the bank relating to the monitoring of the said accounts from the date of opening to the present time.

24

3) All documents pertaining to the co-holders of, or other persons authorised to make transactions through such bank accounts together with addresses for such persons identified.

25

4) Copies of all bank statements and vouchers including ledgers, documents, evidencing Swift transactions, paycheques, debit advices, pay-in slips and other credit advices for the said accounts operated from the date of opening to the present date and specifically all documents pertaining to debit transactions over the sum of €10,000 from 1998 to date. In particular, those documents identifying the identity of the beneficiary of the transactions, the account and bank to which the credit was made, or confirmation as to any cash debit transactions over the said sum.

26

5) Copies of all documents held by the bank or on computer or in hard copy in respect of the use of the said accounts.

27

You are hereby further put on notice that the copies of the said documents must comply with provisions of ss. 4 and 5 of the Bankers”Books Evidence Act, 1879, as amended, where applicable to the said documents. That is to say

28

6) that the book or document or microfilm as the case may be was at the time of the making of the entry one of the ordinary books of the bank and that the entry was made in the ordinary course of business of the bank and the book is in the custody or control of the bank and furthermore that the copy must be examined with the original and is correct.

29

Dated this 15 th day of April, 2002.

30

Signed:

31

A Judge of the District Court

32

TAKE NOTICE that if without lawful excuse you do not obey this summons, a warrant may be issued for your arrest."

33

2.2 It would appear that the accounts numbered are, as per interpolation, the client account of Gavin-Burke Solicitors where the applicant was the principal. Matters moved quickly between the end of February and the beginning of March.

3. International Rogatory Commission
34

A 26-page fax dated Rome 24.05.2001 had been sent to IP Dublin relating to specified penal proceedings concerning Alpha Club SRL - Operation Money Chains. It was addressed to the Central Authority, Department of Justice, Equality and Law Reform, being the competent (judicial) authority in Ireland, by Dr. Vincenzo Pacilio, Assistant Public Prosecutor at the Tribunal of Turin, in relation to proceedings against Mr. Dario Bellandina and Mr. Gerrard Joseph Byrne charged with certain offences request of the competent authority to provide them with information regarding the bank accounts "on which funds from the “Alpha Club”, Italy had been deposited, seize the balance of such accounts, and provide us with informations concerning the corporations and persons specified hereafter."

35

The actions requested by the rogatory recited ...

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1 cases
  • Volkering v Haughton
    • Ireland
    • High Court
    • 15 Julio 2005
    ... ... Marcel Bernarus Johannes Volkering, Bastiaan Paul Mosterd, Carolus Niolaas Maria Groenewegen and Beheersmij Helling BV ... Applicants ... Judge Gerard Haughton and The Minister for Justice, Equality and Law Reform ... Respondents ... [2005] IEHC 240, [2004 No. 357 JR] High Court ... 884; [1980] 2 All E.R. 81; (1980) 70 Cr. App. R. 283. Brady v. Haughton [2005] IESC 54, [2006] 1 I.R. 1. Gavin v. Haughton [2004] IEHC 209, (Unreported, High Court, Murphy J., 27th May, 2004). Larkins v. N.U.M. [1985] I.R. 671 ... ...

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