Murphy v GM

 
FREE EXCERPT

[2001] IESC 82

THE SUPREME COURT

KEANE C.J.

DENHAM J.

MURPHY J.

MURRAY J.

GEOGHEGAN J.

287/99
298/99
166/00
275/97
276/97
M (MURPHY) v. M (G) & ORS; GILLIGAN v. CRIMINAL ASSETS BUREAU (CAB) & ORS

BETWEEN:

MICHAEL F. MURPHY
Plaintiff/Respondent

AND

G. M., P. B., P.C. LTD. G. H.
Defendants/Respondents

BETWEEN:

JOHN GILLIGAN
Plaintiff/Appellant

AND

CRIMINAL ASSETS BUREAU, BARRY GALVIN, REVENUE COMMISSIONER, FRANK LANNIGAN, THE GARDA COMMISSIONER, IRELAND AND THE ATTORNEY GENERAL
Defendants/Respondents

Citations:

PROCEEDS OF CRIME ACT 1996 S2

PROCEEDS OF CRIME ACT 1996 S3

PROCEEDS OF CRIME ACT 1996 S7

PROCEEDS OF CRIME ACT 1996 S9

CRIMINAL ASSETS BUREAU ACT 1996 S8(1)

CRIMINAL ASSETS BUREAU ACT 1996 S14

PROCEEDS OF CRIME ACT 1996 S3(1)

PROCEEDS OF CRIME ACT 1996 S2(1)

PROCEEDS OF CRIME ACT 1996 S2(2)

PROCEEDS OF CRIME ACT 1996 S2(3)

PROCEEDS OF CRIME ACT 1996 S2(4)

PROCEEDS OF CRIME ACT 1996 S2(5)

PROCEEDS OF CRIME ACT 1996 S3(3)

PROCEEDS OF CRIME ACT 1996 S3(4)

PROCEEDS OF CRIME ACT 1996 S8(1)

PROCEEDS OF CRIME ACT 1996 S8(2)

PROCEEDS OF CRIME ACT 1996 S4

PROCEEDS OF CRIME ACT 1996 S7(1)

NESTOR V MURPHY 1979 IR 326

CONSTITUTION ART 29.3

CONSTITUTION ART 29.8

MAUDSLAY, RE 1900 1 CH 602

CAUDRON V AIR ZAIRE 1985 IR 716

PROCEEDS OF CRIME ACT 1996 S1(1)

HAMILTON V HAMILTON 1982 IR 466

PROCEEDS OF CRIME ACT 1996 S8

GILLIGAN v CRIMINAL ASSETS BUREAU (CAB) 1998 3 IR 185

MELLING V O MATHGHAMHNA 1962 IR 1

AG V SOUTHERN INDUSTRIAL TRUST 1960 94 ILTR 161

PEISCH V WARE 4 CRANCH 374

US V HALPER 490 US 435

AUSTIN V US 509 US 602

DEPARTMENT OF REVENUE V KURTH RANCH 511 US 767

US V URSERY 518 US 267

US V BAGAKAJIAM 524 US 321

REPUBLIC OF INDIA V INDIAN STEAMSHIP CO (NO 2) 1998 AC 878

CLANCY V IRELAND 1988 IR 326

MCLOUGHLIN V TUITE 1989 IR 82

O'KEEFFE V FERRIS 1993 3 IR 165

PROCEEDS OF CRIME ACT 1996 S4(1)

CONSTITUTION ART 40.1

PROCEEDS OF CRIME ACT 1996 S8(1)(b)

SUNDAY TIMES CASE (NO 2) 2 EHRR 245

KING V AG 1981 IR 233

COX V IRELAND 1992 2 IR 503

PROCEEDS OF CRIME ACT 1996 S3(5)(c)

MCDONALD V BORD NA GCON (NO 2) 1965 IR 217

EAST DONEGAL COOPERATIVE V AG 1970 IR 317

CONSTITUTION ART 38.1

CONSTITUTION ART 38.5

CUSTOMS CONSOLIDATION ACT 1876 S207

CUSTOMS (TEMPORARY PROVISIONS) ACT 1945 S5

CONSTITUTION ART 38

CONSTITUTION ART 40

CONSTITUTION ART 43

GETTIGAN, STATE V FAWSITT 1945 IR 183

SCRAP IRON (CONTROL OF EXPORT) ACT 1938

CUSTOMS CONSOLIDATION ACT 1876 S186

CUSTOMS CONSOLIDATION ACT 1876 S11

O'CROININ V BRENNAN 1939 IR 279

AG V CASEY 1930 IR 163

DAIRY PRODUCE (PRICE STABILISATION) ACT 1935

PROPRIETARY ARTICLES TRADE ASSOCIATIONS V AG FOR CANADA 1931 AC 310

KENNY OUTLINES OF CRIMINAL LAW

FRAILEY V CHARLTON 1920 1 KB 147

LEE V DANGAR 1892 2 QB 337

BAGGE V WHITEHEAD 1892 2 QB 355

OFFENCES AGAINST THE STATE (AMDT) ACT 1985 S2

OFFENCES AGAINST THE STATE ACT 1939 S22

HAUGHEY, RE 1971 IR 217

CALERO-TOLEDO V PEARSON YACHT LEASING CO 1974 419 US 663

INCOME TAX ACT 1967 S500

COMPANIES ACT 1963 S297(1)

MCCAULEY & MCCUTCHEON CRIMINAL LIABILITY

US V URSERY 1996 135 L ED 2D 549

VARIOUS ITEMS OF PERSONAL PROPERTY V US 282 US 577

THE PALMYRA 12 WHEAT 1 1827

MCINTOSH V LORD ADVOCATE 2001 2 AER 638

EUROPEAN CONVENTION FOR THE PROTECTION OF FUNDAMENTAL RIGHTS & FREEDOMS ART 6(2)

CRIMINAL JUSTICE ACT 1994

PHILLIPS V UK UNREP 5/7/2001

O'ROURKE, STATE V KELLY 1983 IR 58

CONSTITUTION ART 29

PROCEEDS OF CRIME ACT 1996 S2(5)(C)

CONSTITUTION ART 29.6

O LAIGHLEIS 1960 IR 93

BLACKSTONE COMMENTARIES VOL 4 5

PROCEEDS OF CRIME (SCOTLAND) ACT 1994

Synopsis:

CRIMINAL LAW

Proceeds of crime

Restraining orders - Disposal of assets - Statutory interpretation - Property - Fair procedures - Practice and procedure - Jurisdiction of High Court - Statutory injunction restraining disposal of assets - Whether statute penal or criminal in nature - Whether property in "possession or control" of respondent - Whether monies constituted proceeds of crime - Whether legislation intended to operate retrospectively - Whether statutory receiver could be appointed ex parte - Whether proceedings could be issued by way of plenary summons - Proceeds of Crime Act, 1996 - Bunreacht na hÉireann, 1937 (275 & 276/1997; 287 & 298/1999; 166/2000 - Supreme Court - 18/10/01)

Murphy v M (G) and Gilligan v Criminal Assets Bureau - [2001] 4 IR 113

STATUTE

Validity

Proceeds of crime - Statutory interpretation - Property - Fair procedures - Practice and procedure - Jurisdiction of High Court - Statutory injunction restraining disposal of assets - Whether statute penal or criminal in nature - Whether property in "possession or control" of respondent - Whether monies constituted proceeds of crime - Whether legislation intended to operate retrospectively - Whether statutory receiver could be appointed ex parte - Whether proceedings could be issued by way of plenary summons - Proceeds of Crime Act, 1996 - Bunreacht na hÉireann, 1937 (275 & 276/1997; 287 & 298/1999; 166/2000 - Supreme Court - 18/10/01)

Murphy v M(G) and Gilligan v Criminal Assets Bureau - [2001] 4 IR 113

Both the defendants in the first proceedings and the plaintiff in the second proceedings sought to challenge aspects of the Proceeds of Crime Act, 1996 claiming that the legislation was unconstitutional. In addition in the first proceedings the defendants sought to challenge various orders made by the High Court pursuant to the 1996 Act. Mr. Justice O’Higgins in the High Court had made an order prohibiting the defendants from dealing with the sum of £300,000 and appointed a receiver over the monies. The defendants claimed that the order appointing the receiver was made without jurisdiction as the required interim order was not in force. Furthermore it was claimed that as part of the funds were in a bank account in London no order could be made in respect of the funds.

Held by the Chief Justice Keane in rejecting the submissions. The order made restraining the defendants from dealing with the assets was made first and was in force when the subsequent orders were made. As a solicitor had transferred the funds held in London at the request of the receiver no issue regarding jurisdiction arose for determination. In addition it was settled law that the courts in exercise of their equitable jurisdiction could appoint receivers over property not within their jurisdiction. The Proceeds of Crime Act, 1996 in plain and unambiguous language expressly extended to property obtained before the passing of the Act. In respect of the burden of proof it had been open to the defendants to cross-examine deponents and to adduce oral evidence. Having elected not to do so they could not now complain of the result.

In relation to the second part of the case both the defendants in the first case and the plaintiff in the second argued that the legislation although criminal in nature deprived them of the historical safeguards which were a feature of the criminal law. It was contended that the legislation was unconstitutional for a number of reasons. There was no provision to provide details to respondents of the case they had to meet. The admission of hearsay evidence was provided for. The reversal of the onus of proof in favour of the plaintiff was a manifestly unfair procedure. It was also submitted that the Act was so over-broad in its sweep that it constituted an abdication of legislative responsibility. A further point was made that the Act violated the guarantee of private property under the Constitution. The Act was also unconstitutional in applying retrospectively.

Held by the Chief Justice in rejecting the arguments made. Proceedings for the forfeiture of property authorised under the 1996 Act were civil in nature even where accompanied by parallel procedures for the prosecution of criminal offences. It was to be presumed that the Oireachtas intended that any procedures provided for in the 1996 Act would be conducted in accordance with constitutional justice and that any departure from those principles would be corrected by the courts. The provision providing for the admission of hearsay evidence was not per se unconstitutional. It had not been demonstrated that the sections referred to were repugnant to the Constitution. The appeal was dismissed and the High Court orders affirmed.

1

JUDGMENT delivered the 18th day of October, 2001 by Keane C.J. [nem diss]

2

In these cases the defendants/respondents and the plaintiff/appellant respectively have sought declarations that some or all of the provisions of the Proceeds of Crime Act, 1996(hereafter the "1996 Act") are invalid having regard to the provisions of the Constitution. In the first case, the defendants/respondents have also challenged the validity of certain orders made by the High Court in purported exercise of certain powers conferred by the 1996 Act on the court. The first part of this judgment is concerned with the non-constitutional issue raised in the first case. The second part is the judgment of the court on the constitutional issue raised in both cases.

The non-constitutional issue
3

The plaintiff in the first proceedings is a Detective Chief Superintendent in An Garda Síochána. He has instituted the proceedings as a member of the gardaí within the meaning of the 1996 Act and in them he seeks:

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