Murphy v Gilligan

JurisdictionIreland
JudgeMs. Justice Dunne
Judgment Date01 February 2017
Neutral Citation[2017] IESC 3
Date01 February 2017
CourtSupreme Court
Docket NumberSC No. 172/98 SC No. 293/08 SC Nos. 295 & 296/12 SC No. 320/08 SC No. 276 & 277/12 SC No. 235/06 SC No. 71/06 SC No. 86/06 SC Nos. 278 & 279/12 SC No. 327/08 SC Nos. 275 & 280/12

IN THE MATTER OF THE PROCEEDS OF CRIME ACT 19961996 AND 2005

BETWEEN
MICHAEL F. MURPHY
PLAINTIFF/RESPONDENT
AND
JOHN GILLIGAN, GERALDINE GILLIGAN, DARREN GILLIGAN

AND

TREACY GILLIGAN
DEFENDANTS/APPELLANTS
AND
IN THE MATTER OF AN APPLICATION UNDER THE PROCEEDS OF CRIME ACT, 1996 2004 No. 536SP
BETWEEN
FELIX J. McKENNA
PLAINTIFF/RESPONDENT
AND
JOHN GILLIGAN
FIRST NAMED DEFENDANT/APPELLANT
GERALDINE GILLIGAN, DARREN GILLIGAN

AND

TREACY GILLIGAN
DEFENDANTS

[2017] IESC 3

Dunne J.

Denham C.J.

McKechnie J.

MacMenamin J.

Laffoy J.

Dunne J.

SC No. 172/98

SC No. 129/06

SC No. 293/08

SC Nos. 295 & 296/12

SC No. 320/08

SC No. 276 & 277/12

SC No. 235/06

SC No. 71/06

SC No. 86/06

SC Nos. 278 & 279/12

SC No. 327/08

SC Nos. 275 & 280/12

THE SUPREME COURT

Proceeds of crime – Property – Constitutional rights – Appellants seeking to appeal three judgments of the High Court – Whether there had been a breach of their constitutional rights

Facts: The defendants/appellants, the Gilligans, appealed three judgments of the High Court (Feeney J), the first of which was delivered on the 27th January, 2011 and two further judgments delivered on the 20th December, 2011. The judgment of the 27th January 2011 ([2011] IEHC 62) concerned applications brought by each of the Gilligans pursuant to s. 3(3) of the Proceeds of Crime Act 1996. The next judgment of the 20th December 2011 ([2011] IEHC 464) was in respect of s. 4 applications brought by the Criminal Assets Bureau in respect of properties owned by the Gilligans and the final judgment related to a challenge to the 1996 Act on grounds based on the European Convention on Human Rights in proceedings brought by Ms G Gilligan and Mr J Gilligan. Mr J Gilligan previously brought proceedings challenging the constitutionality of the 1996 Act. Those proceedings were heard jointly with other proceedings and were the subject of an appeal to the Supreme Court ([2001] 4 IR 113). Subsequently, a further challenge was brought to the 1996 Act by Ms G Gilligan and Mr J Gilligan challenging its validity and seeking to have declarations made that all or parts of s. 3 of the 1996 Act were repugnant to the Constitution together with a claim that the Act was incompatible with the European Convention on Human Rights within the meaning of s. 5 of the European Convention on Human Rights Act 2003. Given that it was accepted by all parties concerned that the issues as to constitutionality had been previously determined by the Supreme Court those proceedings proceeded solely on the basis of the arguments in relation to the Convention claims. Feeney J, in his second judgment of the 20th December 2011 ([2011] IEHC 465), dismissed the claims of Mr J Gilligan and Ms G Gilligan relating to the Convention. The final matters before the Supreme Court related to motions issued on behalf of the Gilligans in which they sought to set aside a judgment of the Supreme Court delivered on 19th December, 2008 ([2009] 2 IR 271) which was delivered at an earlier stage of the proceedings (the Greendale motions). At the heart of the appeal was the contention on behalf of the Gilligans that there was no trial of the issue as to whether or not the property at issue in the proceedings was acquired directly or indirectly with the proceeds of crime when the operative s. 3 order was made freezing the property in the hands of the Gilligans pursuant to the f 1996 Act. As a result, it was contended that there was no valid s. 3 order; thus, the hearing before Feeney J was without jurisdiction and could not stand and ultimately no disposal order under the 1996 Act could be made in respect of the property.

Held by Dunne J that the Gilligans were not entitled to succeed in the?Greendale?motions; they had not established that the judgment of the Supreme Court delivered in the proceedings in 2008 came within the rare or exceptional circumstances in which a final judgment or order may be set aside. Dunne J noted that to do so, it would have been necessary to show that through no fault of theirs they had been the subject of a breach of their constitutional rights. Dunne J was satisfied that there had been no such breach; there was nothing extraneous in the circumstances of the case going to the very root of the fair and constitutional administration of justice which would necessitate the setting aside of the 2008 judgment of the Supreme Court.

Dunne J held that she would dismiss the applications of the Gilligans on the?Greendale?motions and would dismiss the appeals.

Appeal dismissed.

Judgment of Ms. Justice Dunne delivered the 1st day of February, 2017
1

There are a number of appeals before this Court brought by the defendants/appellants in the proceedings. I will refer to them collectively as 'the Gilligans' but if the context demands, I will refer to them individually. As is evident from the title of these proceedings, the proceedings arise from a series of applications made by the plaintiff/respondent, the then Chief Superintendent, Michael F. Murphy, who, for ease of reference, will be referred to as Mr. Murphy or, where more appropriate to describe the body to which he belonged, as the Criminal Assets Bureau ('CAB').

2

The Gilligans have appealed three judgments of the High Court (Feeney J.), the first of which was delivered on the 27th January, 2011 and two further judgments delivered on the 20th December, 2011. The judgment of the 27th January 2011 ( [2011] IEHC 62) concerned applications brought by each of the Gilligans pursuant to s. 3(3) of the Proceeds of Crime Act 1996 (hereinafter referred to as the Act of 1996). The next judgment of the 20th December 2011 ( [2011] IEHC 464) was in respect of s. 4 applications brought by CAB in respect of properties owned by the Gilligans and the final judgment related to a challenge to the Act of 1996 on grounds based on the European Convention on Human Rights in proceedings brought by Geraldine Gilligan and John Gilligan. It is relevant to point out that John Gilligan previously brought proceedings challenging the constitutionality of the Act of 1996. Those proceedings were heard jointly with other proceedings and were the subject of an appeal to the Supreme Court which is reported as Murphy v. G.M. [2001] 4 I.R. 113. Subsequently, a further challenge was brought to the Act of 1996 by Geraldine Gilligan and John Gilligan challenging its validity and seeking to have declarations made that all or parts of s. 3 of the Act of 1996 were repugnant to the Constitution together with a claim that the Act was incompatible with the European Convention on Human Rights within the meaning of s. 5 of the European Convention on Human Rights Act 2003. Given that it was accepted by all parties concerned that the issues as to constitutionality had been previously determined by the Supreme Court those proceedings proceeded solely on the basis of the arguments in relation to the Convention claims. Feeney J., in his second judgment of the 20th December 2011 ( [2011] IEHC 465), dismissed the claims of John and Geraldine Gilligan relating to the Convention.

3

The final matters before this Court relate to motions issued on behalf of the Gilligans in which they have sought to set aside a judgment of this Court delivered on 19th December, 2008 ( [2009] 2 I.R. 271) which was delivered at an earlier stage of these proceedings and I will refer to those motions collectively as the ' Greendale' motions.

4

At the heart of this appeal is the contention on behalf of the Gilligans that there was no trial of the issue as to whether or not the property at issue in these proceedings was acquired directly or indirectly with the proceeds of crime when the operative s. 3 order was made freezing the property in the hands of the Gilligans pursuant to the Act of 1996. As a result, it is contended that there was no valid s. 3 order; thus, the hearing before Feeney J. was without jurisdiction and could not stand and ultimately no disposal order under the Act of 1996 could be made in respect of the property.

The judgment of Feeney J. of the 27th January, 2011
5

I propose to consider the Greendale motions to begin with. In order to understand the basis upon which the Greendale motions have been brought it is necessary to look briefly at the judgment of Feeney J. delivered on the 27th January, 2011 which dealt with the four separate applications brought by the Gilligans pursuant to s. 3(3) of the Act of 1996. As was pointed out by Feeney J. at para. 1.3 of his judgment:

'Applications under s. 3(3) of the [Act of 1996] can be taken by persons affected by a s. 3 order where a s. 3 order is in force.'

6

He relied on the decision of the Supreme Court at an earlier stage in these proceedings in the case of Murphy v. Gilligan [2009] 2 I.R. 271. In particular he made reference at para. 1.3 of his judgment as follows:

'Applications under s. 3(3) of the [Act of 1996] can be taken by persons affected by a s. 3 order where a s. 3 order is in force. As was set out in the judgment of Geoghegan J. in the recent Supreme Court decision (at 294):

"It is not in dispute and cannot be in dispute that an operative order under s. 3(1) was and remains in force."'

7

Feeney J. went on, at para. 1.4, to say:

'It is the existence of that operative order which provides this Court with jurisdiction to consider an application under s. 3(3) which is predicated upon such application being taken in circumstances where an interlocutory order, that is a s. 3(1) order, is in force. That position was identified in the judgment of Geoghegan J. in the Supreme Court when, in obiter dicta (at 298), Geoghegan J. stated:

'... I am firmly of the view that an application under s. 3(3) can still be brought and that that might well be a more appropriate remedy than raising the questions in the s. 4 application but that is all a matter for the...

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