Hutch v Dublin Corporation

• Jurisdiction: Ireland
• Judge: McCarthy J.,O'FLAHERTY J.,EGAN J.
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-SC 530
• Court: Supreme Court
• Docket Number: [S.C. No. 336 of 1989]
• Date: 01 January 1993

HUTCH v. DUBLIN CORPORATION

IN THE MATTER OF SECTION 12 (1) OF THE MALICIOUS

INJURIES ACT 1981

AND IN THE MATTER OF SECTION 38(3) OF THE COURTS OF

JUSTICE ACT 1936

BETWEEN

EDWARD HUTCH

APPLICANT/APPELLANT

AND

THE RIGHT HONOURABLE THE LORD MAYOR ALDERMEN ANDBURGESSES OF DUBLIN

RESPONDENTS

1992 WJSC-SC 530

Finlay C.J.

Hederman J.

McCarthy J.

O'Flaherty J.

Egan J.

336/89

THE SUPREME COURT

Synopsis:

MALICIOUS INJURIES

Compensation

Entitlement - House - Fire - Contents - Destruction - Owners claim to compensation - Criminal record - Whether owner acquired articles with money obtained from crime - Relevance of source of purchase money - Cross-examination of owner - Propriety - Disbelief in evidence - Malicious Injuries Act, 1981, ss. 5, 12 - (336/89 - Supreme Court - 1/4/92)- [1993] 3 I.R. 551- [1992] ILRM 596

|Hutch v. Corporation of Dublin|

Citations:

MALICIOUS INJURIES ACT 1981

AG, PEOPLE V OGLESBY 1966 IR 162

MCGOWAN V CARVILLE 1960 IR 330

PRENDERGAST V CARLOW CO COUNCIL 1990 2 IR 482

COURTS OF JUSTICE ACT 1936 S38(3)

MALICIOUS INJURIES ACT 1981 S12(1)

BANCO AMBROSIANO V ANSBACHER & CO 1987 ILRM 667

CO-OPERATIVE AGRICULTURAL & DAIRY SOC V CAVAN & LEITRIM CO COUNCIL 1915 2 IR 85

COKE 2ND INSTITUTE 170

STATUTE OF WINCHESTER 13TH ED 1 ST 2 CH 2

POYNINGS ACT

GRAND JURY (IRL) ACT 1836

LOCAL GOVT (IRL) ACT 1898

ENGLISH V KERRY CO COUNCIL 1900 ILTR 76

BROWN V DONEGAL CO COUNCIL 1980 IR 132

MOLONEY & LEE COMPENSATION FOR CRIMINAL INJURIES 1912 2–11

GREER & MITCHELL COMPENSATION FOR CRIMINAL DAMAGE TO PROPERTY 1982 1–29

MALICIOUS INJURIES (AMDT) ACT 1986

KELLY MALICIOUS INJURIES CODE & THE CONSTITUTION 1969 IJ 223

MALICIOUS INJURIES ACT 1981 S12(3)(a)

R V NATIONAL INSURANCE COMMISSIONER, EX PARTE CONNOR 1981 1 AER 769

MALICIOUS INJURIES ACT 1981 S6

MALICIOUS INJURIES ACT 1981 S20

MALICIOUS INJURIES ACT 1981 S12

COMMITTEE ON MALICIOUS INJURIES, REPORT OF (DUBLIN) PR 8142

28 EDWARD 3 C11

1 Judgment of McCarthy J.delivered the 1st day of April, 1992. [FINLAY AGR]

2 Edward Hutch, at the relevant time, lived at 11 Portland Place, North Circular Road, Dublin with his wife and family, in a house rented from Dublin Corporation, the Respondents. On the night of the 10th October 1984, a fire occurred at his home and damaged furniture, furnishings and domestic appliances which had been bought between January 1983 and September 1984 at a total cost of £19,772.14. The fire was caused maliciously and under the malicious damage code then applying the Local Authority was answerable for such damage under the Malicious Injuries Act 1981.

3 On the date of the fire, Edward Hutch was in prison having been convicted of breaking a Barring Order; he has beenin prison a number of times, on at least one occasion for larceny. His wife has a criminal record. He gave evidence as to the source of the funds with which he purchased the goods; the learned High Court Judge rejected that evidence but was "satisfied, on the balance of probabilities, that the money came from the proceeds of crime." At all relevant times, Edward Hutch was in receipt of social welfare payments, the amount of which was not stated.

4 The learned trial Judge posed certain questions for the determination of this Court dealing with the propriety of allowing cross-examination as to the source of the money with which to buy the goods, the adequacy of evidence to support a finding that the money was the proceeds of crime and the results that flow from particular conclusions to thosequestions.

5 The Applicant was cross-examined and, apparently, did not object to being questioned; he was not warned that he need not answer if the answer tended to incriminate him there being no evidence that the larceny offence proved had provided the purchase money. The answer to the first question, accordingly, is - in the circumstances, yes.

6 As to the conclusion that the goods were purchased with the proceeds of crime, I am unable to uphold this finding. It requires the conclusion that the money actually used for the purchase of any individual item was, itself, the actual cash received in the sale of stolen goods. It takes no account of the money received by the Applicant for social welfare or any other casual money that he may have received. It requires a conclusion that a given chair or table or bed was, itself, purchased and paid for with the actual cashreceived by the sale of stolen goods. I question the propriety of concluding that if one disbelieved the claimed source, it followed that the money must be the proceeds of crime. That is a quantum leap that I am not prepared to take. There may be a variety of reasons for giving a different and, possibly, untrue account which do not amount to proving guilt of a series of crimes. To hold that an individual has been guilty of crime because one disbelieves his account as to how he came into possession of a significant sum of money would, in my opinion, be an unwarranted gloss on the criminal law. The law of evidence does not change by a transposition from the criminal to the civil Courts although the requirements of proof may do so. To permit an inference of guilt of serious crime to be made from disbelief in the proferred evidence cannot, in my judgment, be permitted. I do not accept that a determination of such gravity can depend only on the Court being satisfied on the balance of probabilities possibly at all, but certainly not where that balance has to be determined not by the acceptance of evidence but by its rejection.

7 In applications of this kind there are no pleadings so as to determine the issue raised. The only statement of that issue is contained in the judgment of the learned Circuit Judge, which judgment is annexed to the case stated:

"At the time when the fire occurred he had a criminal record and it is this circumstance which lends the case its peculiar character because the Respondents maintain that the goods which he claims were destroyed in the fire could only have been acquired by him with money which was the proceeds of crime and that this being, as they maintain, the case, he cannot claimcompensation under the Malicious Injury Act for their destruction. It is important to note that the Respondents" contention is not that the goods were themselves stolen goods but that they were goods purchased with money which was the proceeds of crime."

8 In the law of evidence inferences of fact may be drawn from facts proven. That does not mean that inferences of fact may be drawn if some statement of fact is rejected. (See the judgment of the Court of Criminal Appeal in the People .v. Oglesby ( 1966 IR) 162). There is a risk of non-persuasion in every case in which an onus lies upon a party, but non-persuasion of one set of facts does not prove another. There may be instances where a matter lies within the peculiar knowledge of one party, for example, in cases where a licence is involved. That does not necessarily mean that such party has to prove the existence of a licence. (See McGowan .v. Carville ( 1960 IR) 330).

9 It follows that it would not be necessary to answer the third question. Having regard to the argument addressed to it, however, and the possibility that other views may prevail in respect of the issue of proof, I think it right to express my view in regard to it.

10 The historical base of this legislation was to encourage neighbourhood watch, (see Prendergast .v. Carlow County Council - (1990) 2 I.R. 482)although the Act of 1986, not applicable here, generally restricted claims to those in regard to damage arising from riot or the actions of subversives. The local element was effectively removed by the right to refund to the Local Authority by the Minister for the Environment. It is not, therefore, a question of public policyin general but of the public policy of the particular code if the thief by converting the stolen goods or money into other goods can recover against the community from whom he stole. It not merely offends against common sense; it offends against the scheme of the Act. If it arose, therefore, I would answer the third question no.

11 In my judgment, the questions of law should be answered asfollows:-

12 (1) In the circumstances, yes.

13 (2) No.

14 (3) Does not arise.

15 (4) Does not arise.

16 JUDGMENT delivered on the 1st day of April 1992by O'FLAHERTY J.

17 This is a case stated on the 6th October, 1989, by Mr. Justice Blayney pursuant to the provisions of s. 38(3) of the Courts of Justice Act, 1936for the determination by the Supreme Court of certain questions of law arising in an appeal from the Circuit Court brought by Edward Hutch. The appeal was at hearing on the 9th and 10th March, 1988. Mr. Hutch was, in the course of the case stated,referred to as the applicant and thus he will be referred to in the course of this judgment.

18 The case recited that the applicant had applied to the Dublin Circuit Court under the Malicious Injuries Act, 1981for the sum of £20,000 which he alleged was the value of his property destroyed by fire on the night of the 10th October, 1984 when a fire occurred at 11 Portland Place, North Circular Road, Dublin, a house held by the applicant as tenant from Dublin Corporation.

19 In his judgment of the 23rd February, 1987, the learned Circuit Court judge, Judge-Carroll, disallowed the major part of the applicant's claim on the ground that the goods destroyed had been purchased with the proceeds of crime. He gave a decree for £1,250.

20 The learned High Court judge has found the following facts to have been proved or admitted:-

21 (a) On the night of the 10th November, 1984 furniture, furnishings and domestic appliances, the property of the applicant, were destroyed in a fire whichoccurred at No. 11 Portland Place, North Circular Road, Dublin.

22 (b) The said fire was started maliciously.

23 (c) The applicant is a married man with four children. He has been the...