Michael F. Murphy v John Gilligan and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 09 July 2014
• Neutral Citation: [2014] IESC 43
• Court: Supreme Court
• Date: 09 July 2014

[2014] IESC 43

THE SUPREME COURT

Denham C.J.

Murray J.

Clarke J.

MacMenamin J.

Dunne J.

[Appeal Nos: 275, 276, 277, 278, 279 and 280/2012]

Murphy v Gilligan

Between/

Michael F. Murphy

Plaintiff/Respondent

and

John Gilligan, Geraldine Gilligan, Darren Gilligan and Tracy Gilligan

Defendants/Appellants

MURPHY v GILLIGAN 2009 2 IR 271 2008/44/9462 2008 IESC 70

PROCEEDS OF CRIME ACT 1996 S2

PROCEEDS OF CRIME ACT 1996 S3

PROCEEDS OF CRIME ACT 1996 S7

PROCEEDS OF CRIME ACT 1996 S3(1)

PROCEEDS OF CRIME ACT 1996 S3(3)

PROCEEDS OF CRIME ACT 1996 S4

PROCEEDS OF CRIME ACT 1996 S4(2)

MURPHY v M (G) & ORS; GILLIGAN v CRIMINAL ASSETS BUREAU & ORS 2001 4 IR 113 2003/39/9225

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

MURPHY v GILLIGAN UNREP FEENEY 27.1.2011 2011/39/11083 2011 IEHC 62

MURPHY v GILLIGAN UNREP FEENEY 20.12.2011 2011/23/5964 2011 IEHC 465

MURPHY v GILLIGAN UNREP FEENEY 20.12.2011 2011/39/11173 2011 IEHC 464

GREENDALE DEVELOPMENTS LTD (IN LIQUIDATION), IN RE; FAGAN & MALONE v MCQUAID 2000 2 IR 514 2001 1 ILRM 161 2000/9/3223

LYNAGH v MACKIN 1970 IR 180

MURPHY v MIN FOR DEFENCE & ORS 1991 2 IR 161 1991/4/981

EMERALD MEATS LTD v MIN FOR AGRICULTURE & ORS UNREP SUPREME 30.7.2012 2012/14/3921 2012 IESC 48

Appeals- Proceeds of crime - Proceeds of Crime Act 1996 - Freezing of property - Appointment of receiver to take possession of property - Order preventing disposal or dealing with property or diminishing its value - Discharge or vary of order - Whether injustice caused - Legal aid - Disclosure of documents - Admission of new evidence sought on appeal - Forensic accountant”s report

Facts Section 3 (1) of the Proceeds of Crime Act 1996 states an application can be made to the High Court for an order preventing the respondent from disposing of or otherwise dealing with the relevant property or diminishing its value. Section 3 (3) of the Act states the Court can discharge or vary such an order where any other person claiming ownership to the property can show, to the satisfaction of the Court, that “that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime” or that the order causes any other injustice. Persons who are subject to the order may have an opportunity to present evidence to the Court challenging the basis of the making of such an order. On 5 ^th December 1996, under s.3 of the 1996 Act, an order was made restraining the Gilligans from disposing of or dealing with the property in question until further order. On the 16th July, 1997, Moriarty J. made an order under s.3 of the 1996 Act to the same effect. During that time, the appellant Mr John Gilligan brought proceedings against the Criminal Assets Bureau challenging the provisions of the 1996 Act as invalid. On appeal, the constitutionality of the Act was upheld. Mr Gilligan sought once again a declaration that s. 3 of the 1996 Act was contrary to the Constitution together with a declaration that the 1996 Act was incompatible with the European Convention on Human Rights, brought under s. 5 of the European Convention on Human Rights Act 2003. The application was refused. Feeney J was satisfied, on the balance of probabilities, the relevant properties were purchased with the proceeds of crime and that no injustice was caused by the s.3 order remaining in place. A s.4 hearing occurred whereby the Gilligans sought legal aid to procure and admit the report of a forensic accountant as to whether the relevant properties had been purchased with the proceeds of crime or, as they asserted, gambling winnings. The judge ruled against them claiming it would an abuse of process to revisit this issue which had been resolved against them in the s.3 (3) hearing. Feeney J. ruled that the Gilligans had not established that the s. 3(1) proceedings, the order made, or the section itself were in breach of the Gilligans” rights as guaranteed by the ECHR. The Gilligans sought to admit further evidence on appeal, namely the report of a forensic accountant. According to the test set out in Lynagh v Mackin [1970] I.R. 180. an appellant is normally required to satisfy three conditions in order to admit fresh evidence on appeal: first, to show that the further evidence could not have been obtained with reasonable diligence for use at the trial; second, to show that the further evidence was such as would probably have an important influence on the result of the case; and third, to show that such evidence was apparently credible.

Held The judge applied the appropriate test and concluded it would be wholly inappropriate to permit a forensic accountant”s report to be admitted in evidence so far as the appeal in respect of the s.3 (3) order was concerned. The judge concluded a forensic accountant”s report of the type sought to be admitted would not be relevant to the appeal in respect of the s.4 hearing. He said it would be wholly inappropriate to allow the issue of whether relevant monies were the proceeds of crime or the proceeds of gambling to be re-litigated, on the basis of the introduction of new evidence, which could and should, if it was considered important, have been placed before the High Court at the time of the initial hearing.

-Motion regarding the forensic report dismissed.

-In light of the adjournment of the second motion seeking disclosure of documents, disputed issues should be either resolved between the parties or placed before the Court in a timely fashion such as will not delay the substantive appeals coming on for hearing.

1 Judgment of Mr. Justice Clarke delivered the 9th July, 2014.

2 Ruling of Mr. Justice Clarke delivered the 9th July, 2014.

3 Judgment delivered by Clarke J [Nem diss]

1. Introduction

4 2 1.1 There has been protracted litigation between the Criminal Assets Bureau and members of the Gilligan family. The plaintiff/respondent represents the Bureau in these proceedings and will be referred to as the Bureau for that reason. Very many hearings, judgments and orders have been made by the High Court. This Court has already had to deal with important issues arising out of that litigation in a way which might, on one view, be said to have brought finality to at least many of the issues which have arisen (see Murphy v Gilligan [2009] 2 I.R. 271). A series of further appeals are currently before this Court arising out of subsequent orders made by the High Court. It will be necessary to say a little about some of those appeals in due course.

5 3 1.2 In the context of those appeals a number of applications by motion were brought before this Court by the defendants/appellants (collectively "the Gilligans"). Some of those motions have now been heard and are the subject of this judgment. In order to understand the precise issues which arise it is necessary to say something about the background to these appeals and, indeed, these proceedings generally.

2. The Background

6 2 2.1 These proceedings were issued on the 21 ^st November 1996 and sought orders under s.2, and thereafter under s.3, of the Proceeds of Crime Act 1996 (the "1996 Act") freezing certain property alleged to be the proceeds of crime, together with an order under s.7 of the same Act appointing a receiver to take possession of that property.

7 3 2. 2 S.3(1) of the 1996 Act provided that an application can be made to the High Court for an order preventing the respondent to the application from disposing of or otherwise dealing with property or diminishing its value.

8 4 2. 3 S.3(3) of the 1996 Act then provided that, where an order under s.3 is in place, the court can discharge or vary such order where, on an application by the respondent to the proceedings, or any other person claiming ownership of the property in question, it is shown to the satisfaction of the court that "that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime," or that the order causes any other injustice.

9 5 2.4 Where an order made under s.3 of the 1996 Act has been in force for not less than seven years, the court, on application to it under s.4 of the 1996 Act, can grant a disposal order in relation to the property "directing that the whole or, if appropriate, a specified part of the property be transferred, subject to such terms and conditions as the Court may specify, to the Minister or to such other person as the Court may determine." S.4 is once again subject to the clause, provided here in the form of subsection 2, that the order shall be granted, "unless it is shown to its satisfaction that that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime."

10 6 2.5 Persons the subject of an order under s.3 have, through a separate application under s.3(3), or, at the stage of the s.4 hearing, the opportunity to present the court with evidence challenging the basis of the making of the order or providing the court with evidence of injustice caused by the making of the order.

11 7 2.6 An Order was made on the 5 ^th December, 1996 under s.3 of the 1996 Act, restraining the Gilligans from disposing of, or dealing with, the relevant property until the 19 ^th December, 1996. On the 19 ^th December, Costello P. ordered, on foot of the earlier motion, that the Gilligans be restrained from disposing of, or dealing with, that property...