K (K) v Garda Eamonn Taaffe and Others

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 15 May 2009
• Neutral Citation: [2009] IEHC 243
• Court: High Court
• Date: 15 May 2009

[2009] IEHC 243

THE HIGH COURT

[No. 258 J.R./2008]

K (K) v Garda Taaffe & Ors

K.K.

APPLICANT

AND

GARDA EAMONN TAAFFE, JUDGE JOHN COUGHLAN, JUDGE MARY COLLINS

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENTS

MISUSE OF DRUGS ACT 1977 S26

CRIMINAL JUSTICE ACT 1994 S38(1)

CRIMINAL JUSTICE ACT 1994 S38(2)

PROCEEDS OF CRIME (AMDT) ACT 2005 S20

CRIMINAL JUSTICE ACT 1994 S38(2)

CRIMINAL JUSTICE ACT 1994 S38(1)

CRIMINAL JUSTICE ACT 1994 S38(1A)

MULLINS v HARNETT 1998 4 IR 426

SWAINE v C 1964 IR 423

DPP v KEMMY 1980 1 IR 160

BYRNE v GREY 1988 1 IR 31

INTERPRETATION ACT 2005 S5

DPP v DUNNE 1994 2 IR 537

SIMPLE IMPORTS v REVENUE CMRS 2000 2 IR 243

MISUSE OF DRUGS ACT 1977 S26(1)

MISUSE OF DRUGS ACT 1984 S13

DCR O.38 r6(3)

DISTRICT COURT (CRIMINAL JUSTICE ACT 1994 SECTION 38)RULES 2006 SI 47/2006

CUSTOMS CONSOLIDATION ACT 1876 S205

CUSTOMS & EXCISE (MISCELLANEOUS PROVISIONS) ACT 1988 S5(1)

CRIMINAL LAW

Proceeds of crime

Retention of cash - Order - Purported errors on face of record - Statutory interpretation - Substitution of statutory provision -Whether failure to insert express reference to amending statutory provision invalidated order of District Court authorising further detention of cash - Whether alleged failure to specify that order made pursuant to sworn evidence invalidated order - Whether alleged failure of Judge to record election for particular grounds of suspicion invalidated order - Whether failure to show jurisdiction - Mullins v Harnett [1998] 4 IR 426, Swaine v C [1964] IR 423 and DPP v Kemmy [1980] 1 IR 160 considered; Byrne v Grey [1988] 1 IR 31, Simple Imports v Revenue Commissioners [2000] 2 IR 243 and DPP v Dunne [1994] 2 IR 537 distinguished - Misuse of Drugs Act 1977 (No 12), s 26 - Criminal Justice Act 1994 (No 15), s 38 - Proceeds of Crime (Amendment) Act 2005 (No 1), s 20 - Interpretation Act 2005 (No 23), s 5 - District Court Rules 1997, O.38 r. 6 - Relief refused (2008/258JR - O'Neill J - 15/5/2009) [2009] IEHC 243

K (K) v Taaffe

Facts The applicant sought by way of judicial review, an order of certiorari quashing the order made by the second named respondent on the application of the first named respondent authorising the detention of €13,000 cash seized from the applicant for a period of 3 months. The applicant also sought a declaration that the aforementioned order was null and void and of no legal effect. The applicant sought similar orders in relation to an order made by the third named respondent authorising the detention of the cash for a further period of 3 months. It was submitted on behalf of the applicant that there was a legislative lacuna, in that, there was an absence of express reference in s. 38(2) of the Act of 1994 to the exercise of powers under s. 38(1A) of the Act of 1994. It was submitted that s. 38(2) of the 1994 Act only referred to the exercise of powers under the original s. 38(1) of that Act and that the order in this case was made under s. 38(1A). It was further submitted that there were a number of errors on the face of the two orders and in particular, it was not apparent from the first order that it was made on foot of sworn testimony and also the second named respondent failed to make the appropriate election as to the precise grounds for the suspicion formed by the first named respondent. Similar submissions were made in relation to the second order. Finally, the applicant submitted that the first order did not state what power was relied upon in order to give jurisdiction to make the order.

Held by O'Neill J. in dismissing the application: That the insertion of new text into s. 38(1) of the Act of 1994, by virtue of s.20 of the Act of 2005, created the situation that the reference in s.38(2) to the power under s.38(1) continued the connection between s. 38(2) and the substituted provision. The omission of the word 'sworn' from the first order was an error of no substance, as it was clear the second named respondent considered the sworn information of the first named respondent. As regards the second order, it was clear that the third named respondent heard the sworn evidence of the first named respondent before making the order and the fact that that was not recorded on the face of the order did not vitiate the order. The omission of a recital paragraph from the first order did not affect the validity of the order and all other errors complained of were inconsequential and did not invalidate the orders.

Reporter: L.O'S.

1. Relief sought

2 1.1 On the 7 ^th March, 2008, leave was granted by this Court (Peart J.) to the applicant to seek the following reliefs by way of judicial review:-

1 An order of certiorari quashing the order made on the 13 ^th October, 2007, by the second named respondent on the application of the first named respondent authorising the detention of €13,000 cash seized from the applicant until the 12 ^th January, 2008.

2 A declaration that the order made on the 13 ^th October, 2007, by the second named respondent on the application of the first named respondent authorising the detention of €13,000 cash seized from the applicant until the 12 ^th January, 2008, is null and void and of no legal effect.

3 An order of certiorari quashing the order made on the 11 ^th January, 2008, by the third named respondent on the application of the first named respondent authorising the detention of €13,000 cash seized from the applicant until the 11 ^th April, 2008.

4 A declaration that the order made on the 11 ^th January, 2008, by the third named respondent on the application of the first named respondent authorising the detention of €13,000 cash seized from the applicant until the 11 ^th April, 2008, is null and void and of no legal effect.

2. The facts

2 2.1 On the 12 ^th October, 2007, the applicant's house was searched by the gardaí on foot of a search warrant, issued pursuant to s.26 of the Misuse of Drugs Act 1977 and a safe was discovered. As the applicant was not at home at the time of the search, he gave the gardaí the co-ordinates to open the safe. Cash in the sum of €13,000 was seized from the safe by the gardaí pursuant to s. 38(1) of the Criminal Justice Act 1994 ("the Act of 1994").

3 2.2 On the following day, the 13 ^th October, 2007, the first named respondent made an ex parte application to the second named respondent, District Judge Coughlan, under s.38(2) of the Act of 1994 for an order authorising the detention of the said cash for a period of three months. This order ("the first order") was duly made.

4 2.3 On the 11 ^th January, 2008, an inter partes application was made to the third named respondent, District Judge Collins, to extend the detention of the said cash for a further three month period. An order ("the second order") to this effect was made on that date.

5 2.4 These proceedings were instituted on the 7 ^th March, 2008, and leave was granted by this Court on the same date. On the 16 ^th July, 2008, the Director of Public Prosecutions was released from the proceedings and the fourth named respondent, the Commissioner of An Garda Síochána, was added as a respondent, the Director of Public Prosecutions having written to the applicant's solicitors stating that he had no interest in the proceedings and wished to be released. The Commissioner was joined for the purpose of indemnifying the first named respondent in respect of costs.

3. Statutory Interpretation

2 3.1 The first issue to arise in these proceedings is one of statutory interpretation, the question being, whether or not a failure to insert an express reference to an amending statutory provision (i.e. s.20 of the Proceeds of Crime (Amendment) Act 2005) connecting it to the original legislative provision (i.e. s. 38(2) of the Act of 1994) means that the District Court did not have power to make an order under s. 38(2) of the Act of 1994. Section 20 of the Proceeds of Crime (Amendment) Act 2005 ("the Act of 2005") substitutes two subsections for subsection s. 38(1) of the Act of 1994. It reads as follows:-

" 20. - Section 38 of the Act of 1994 is hereby amended-"

(a) by the substitution of the following subsections for subsection (1):

'(1) A member of the Garda Síochána or an officer of customs and excise may search a person if the member of officer has reasonable grounds for suspecting that-

(a) the person is importing or exporting, or intends or is about to import or export, an amount of cash which is not less than the prescribed sum, and

(b) the cash directly or indirectly represents the proceeds of crime or is intended by any person for use in connection with any criminal conduct.

(1A) A member of the Garda Síochána or an officer of the Revenue Commissioners may seize and in accordance with this section detain any cash (including cash found during a search under subsection (1)) if -

(a) its amount is not less than the prescribed sum, and

(b) he or she has reasonable grounds for suspecting that it directly or indirectly represents the proceeds of crime or is intended by any person for use in any criminal conduct.'

and

(b) by the insertion of the following subsection after subsection (3):

'(3A) Where an application is made under section 39(1) for an order for the forfeiture of cash detained under this section, the cash shall,notwithstanding subsection (3), continue to be so detained until the application is finally determined."

Section 38(2) of the Act of 1994, under which the first and second orders in the District Court in this case were made, states as follows:-

"(2) Cash seized by virtue of this section shall not be detained for more than forty-eight hours unless its detention beyond forty-eight hours is authorised by an order made by a judge of the District Court and no such order shall be made unless the judge is satisfied -"

(a) that...