M v D

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [1996 No. 9270P]
• Court: High Court

M. v. D.

In the matter of the Proceeds of Crime Act, 1996,M. Applicant, and D.

Respondent

[1996 No. 9270P]

High Court

Discovery - Criminal Assets Bureau - Standard of proof required to ground application - Hearsay rule - Privilege against self-incrimination - Retrospective effect - Whether retrospective effect of Act related to income and property as well as to proceeds of crime - Whether respondent required to disclose documents which came into existence after commencement of Act - Whether Act results in unjust attack on property rights - Proceeds of Crime Act, 1996 (No. 30), ss. 2, 8, 9 and 10 - Constitution of Ireland 1937, Articles 15.5 and 40.3.

A discovery motion was brought by the applicant pursuant to s. 9 of the Proceeds of Crime Act, 1996, requiring the respondent to detail on affidavit the property in his possession or control and his income and its sources, during the ten years prior to the application. This followed upon the granting of aninterim order on the 23rd October, 1996, pursuant to s. 2 of the Act of 1996.

The court considered the respondent's objections under the following headings:

• (a) That the proofs adduced against the respondent at theinterim application were inadequate to ground a discovery order and offended against the hearsay rule.

• (b) That the respondent's privilege against self-incrimination would be infringed by the granting of the relief sought.

• (c) That although the Act of 1996 is expressly defined so as to operate retrospectively as regards proceeds of crime it should be held not to have retrospective effect in relation to income and property and if there is retrospection in relation to property, the Act infringes Article 40.3 of the Constitution resulting in an unjust attack on the respondent's property rights.

Held by the Moriarty J., in making an order for discovery, 1, that the evidence adduced by the applicant was sufficient to take it beyond the realm of hearsay.

2. That the disclosure of assets could result in self-incrimination but there was no need for the respondent to rely on the privilege where his protection was assured by other means such as an undertaking by the applicant not to profit from any information obtained through the affidavit of discovery.

3. That it was the intention of the Oireachtas that the Act of 1996 would allow the applicant to explore matters which are historic in nature and therefore to interpret the Act so as to confine the retrospective operation of it such that it did not include sources of income and property but was limited to proceeds of crime alone would be to frustrate the intention of the Oireachtas. In any event, Article 15.5. was not infringed as the Act did not render any act unlawful which was not so at the date of its commission.

Hamilton v. Hamilton [1982] I.R. 466 applied.

Cases mentioned in this report:-

Bekhor Ltd. v. Bilton [1981] 1 Q.B. 923; [1981] 2 W.L.R. 601; [1981] 2 All E.R. 565.

Chestvale Properties Ltd. v. Glackin [1993] 3 I.R. 35; [1992] I.L.R.M. 221.

Director of Public Prosecutions v. Doherty (Unreported, Supreme Court, 26th February, 1993).

Hamilton v. Hamilton [1982] I.R. 466; [1982] I.L.R.M. 290.

Heaney v. Ireland [1996] 1 I.R. 580.

In re Hefferon Kearns Ltd. [1993] 3 I.R. 177; [1992] I.L.R.M. 51.

Istel Ltd. v. Tully [1993] A.C. 45.

McKeon v. Director of Public Prosecutions (Unreported, Supreme Court, 12th October, 1995).

In Re O (Restraint Order) [1991] 2 Q.B. 520; [1991] 2 W.L.R. 475; [1991] 2 All E.R. 330.

In re Thomas (Disclosure Order) [1992] 4 All E.R. 814.

Motion on notice.

The facts are summarised in the headnote and fully set out in the judgment of Moriarty J.infra.

Proceedings were instituted by plenary summons dated the 23rd October, 1996, seeking relief pursuant to ss. 2, 3, 7 and 9 of the Proceeds of Crime Act, 1996. Aninterim order was granted by Moriarty J. pursuant to s. 2 of the Act of 1996, on the 23rd October, 1996. The discovery application was instituted by motion dated the 6th November, 1996, seeking an order pursuant to s. 9 of the Act which was heard on the 21st November, 1996.

Cur. adv. vult.

Moriarty J. 10th December, 1996

This ruling relates to a contested discovery application brought by the applicant against the respondent pursuant to the provisions of s. 9 to the Proceeds of Crime Act, 1996, requiring him to specify on affidavit both the property in his possession or control, and his income and its sources, during the ten years prior to the application. This follows upon the granting of aninterim order on the 23rd October, 1996, pursuant to s. 2 of the Act of 1996, restraining the respondent from removing, disposing of, or otherwise dealing with certain monies held in his name at the branch of Allied Irish Banks, situate at 5 College Street, Dublin, in an aggregate amount marginally in excess of £53,000. Relatively brief affidavits were exchanged between the parties in addition to the applicant's substantial initial affidavit and exhibits, and as befitted issues that were not only of importanceinter-partes but which represented the first occasion application had been made under the Act of 1996 by the Criminal Assets Bureau, detailed legal submissions were made on the hearing of the interlocutory motion by counsel on behalf of their respective clients, and the matter reserved until today.

In addition to addressing certain of counsel for the respondent's objections both in anticipation and rebuttal, counsel for the applicant in essence contended that the relief of discovery under s. 9 was an essential intrinsic element in enabling the scheme and intent of the Act of 1996 as a whole to be implemented, and was justified in the present instance on the proofs adduced against the respondent. Counsel for the respondent citeddicta of the English courts criticising what he contended were broadly analogous legislative provisions there as "draconian", stressed that both in the relevant section and otherwise the Act of 1996 imposed new potential obligations and provided for potentially momentous financial...