Volkering v Haughton

JurisdictionIreland
Judgment Date15 July 2005
Date15 July 2005
Docket Number[2004 No. 357 JR]
CourtHigh Court
Volkering v. Haughton
Marcel Bernarus Johannes Volkering, Bastiaan Paul Mosterd, Carolus Niolaas Maria Groenewegen and Beheersmij Helling BV
Applicants
and
Judge Gerard Haughton and The Minister for Justice, Equality and Law Reform
Respondents
[2004 No. 357 JR]

High Court

Evidence - Best evidence rule - Exception - Bankers' books - Whether evidence received by court restricted by statute - "Entry in a banker's book" - Whether documentation can be construed as "entry in a banker's book" - International judicial mutual assistance - District Judge nominated to receive evidence pursuant to request for assistance in aid of foreign judicial investigation - Bankers' Books Evidence Act 1879 (42 & 43 Vict., c. 11), ss. 3 and 9 - Criminal Justice Act 1994 (No. 15), s. 51 and sch. 2.

Section 3 of the Bankers Books Evidence Act 1879 provides,inter alia, that:-

"Subject to the provisions of this Act, a copy of any entry in a banker's book shall in all legal proceedings be received as prima facie evidence of such entry, and of the matters, transactions, and accounts therein recorded."

Section 9(2)(a) of the Act of 1879, as amended by the schedule to the Bankers' Books Evidence (Amendment) Act 1959 and s. 131(d) of the Central Bank Act 1989, provides that the expression "bankers' books" includes "any records used in the ordinary business of a bank … whether comprised in bound volume, loose-leaf binders or other loose-leaf filing systems, loose-leaf ledger sheets, pages, folios or cards, or … kept on microfilm, magnetic tape or in any non-legible form (by the use of electronics or otherwise) which is capable of being reproduced in a permanent legible form".

Section 51 of the Criminal Justice Act 1994 provides for a procedure by which evidence may be obtained in the State for use in criminal investigations in another state and further, that "evidence" received by a District Judge who has been nominated to receive such evidence includes documents and other articles.

Paragraph 5 of sch. 2 to the Act of 1994 provides, inter alia, that:-

"For the avoidance of doubt it is hereby declared that the Bankers' Books Evidence Act, 1879, applies to the proceedings as it applies to other proceedings before a court."

The second respondent nominated the first respondent to receive evidence pursuant to a request made to him by a prosecutor in the Netherlands in aid of a Dutch judicial investigation into the alleged evasion of corporation tax by a company with which the applicants were associated and had been identified as suspects in that investigation.

The first respondent admitted in evidence, inter alia,two categories of documents comprising firstly, account opening documentation and, secondly, banker's files comprising correspondence, in respect of an identified bank account, on the basis that they constituted entries in a banker's book such as would render them admissible in evidence under the exception to the best evidence rule provided under ss. 3, 4 and 5 of the Act of 1879, as amended by s. 131 of the Act of 1989.

The applicants were granted leave to seek judicial review of the decisions of the first respondent on the basis that the documents did not fall within the definition of an entry in a banker's book and, accordingly, the decision to permit them to be adduced in evidence pursuant to s. 3 of the Act of 1879 was wrong in law.

Held by the High Court (Murphy J.), in refusing the relief sought, 1, that the amendments made to the definition of an entry in a bankers' book in the Acts of 1959 and 1989 meant that that term was not constricted ejusdem generis by ledgers, day books, cash books and account books but included correspondence emanating from a bank's customers which had been recorded by the bank.

2. That a District Judge nominated to receive evidence in aid of foreign criminal investigations under the Act of 1994 was entitled to receive such of the evidence to which the request related as appeared to him to be appropriate for the purposes of giving effect to the request. His function was to receive, not to prove, the evidence and was more an administrative than a judicial function. Therefore, no restricted definition of bankers' books could take away the discretion of a nominated District Judge to receive such of the evidence as he deemed appropriate.

3. That para. 5 of sch. 2 to the Act of 1994 enabled a nominated District Judge to receive records of a bank used in the ordinary course of its business by way of secondary evidence as provided for in the Bankers' Books Evidence Act 1879, as amended.

Cases mentioned in this report:-

Barker v. Wilson [1980] 1 W.L.R. 884; [1980] 2 All E.R. 81; (1980) 70 Cr. App. R. 283.

Brady v. Haughton [2005] IESC 54, [2006] 1 I.R. 1.

Gavin v. Haughton [2004] IEHC 209, (Unreported, High Court, Murphy J., 27th May, 2004).

Larkins v. N.U.M. [1985] I.R. 671.

J.B. O'C. v. P.C.D. [1985] I.R. 265; [1985] I.L.R.M. 123.

R. v. Dadson (1983) 77 Cr. App. R. 91.

R. v. Jones [1978] 1 W.L.R. 195; [1978] 2 All E.R. 718; (1977) 66 Cr. App. R. 246.

Salinas de Gortari v. Smithwick [1999] 4 I.R. 223; [2000] 1 I.L.R.M. 463.

Salinas de Gortari v. Smithwick (No. 2) [2000] 2 I.R. 553.

Williams v. Williams [1988] Q.B. 161; [1988] I.F.L.R. 455; [1987] 3 W.L.R. 790; [1987] 3 All E.R. 257.

Judicial review

The facts have been summarised in the headnote and are more fully set out in the judgment of Murphy J., infra.

Leave to apply for judicial review was granted by the High Court (Quirke J.) on the 26th April, 2004.

The application for judicial review was heard by the High Court (Murphy J.) on the 5th July, 2005.

Cur. adv. vult.

Murphy J.

15th July, 2005

Issue

[1] The office of the Public Prosecutor at the District Court of Breda in the Netherlands had requested that certain evidence be taken in aid of a Dutch judicial investigation into the alleged evasion of corporation tax by a company called Flugel N.V. ("Flugel") which is involved in the manufacture and sale of an alcoholic beverage. The applicants, whom it was alleged were closely associated with that company, had been identified as suspects in that investigation. It was alleged that licence fees were wrongly paid by Flugel to an Irish registered company called International Licensing Limited ("ILS"), thereby improperly lowering Flugel's profits and its liability to corporation tax. It was further alleged that those licence fee payments were made into a bank account held by ILS at a branch of the Bank of Ireland in Dublin. That account was the subject of the application before the first respondent who had been nominated by the second respondent under s. 51 of the Criminal Justice Act 1994. The provision, in conjunction with the second schedule to that Act, establishes a procedure for the taking of evidence within the State for use in a criminal investigation or prosecution in another jurisdiction.

[2] The applicants sought an order ofcertiorari to quash the first respondent's decisions of the 8th and the 31st March, 2004, regarding the receiving of evidence requested. The evidence consisted of documents, being bank account opening documentation (exhibit "A") and banker's files with correspondence (exhibit "C"). There was no issue in relation to the receipt of exhibit "B", which were copies of the relevant statements of the applicants held by the Bank of Ireland.

[3] The first respondent had received exhibits "A" and "C" on the ground that the documents constituted an entry in a banker's book, such as would enable them to be proved within the exception to the best evidence rule constituted by the terms of the Bankers' Books Evidence Act 1879, as amended.

[4] There is no issue with regard to the second respondent nominating a judge of the District Court "to receive such of the evidence to which the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request".

[5] In addition, no issue arises in the present application regarding the second respondent being satisfied that an offence under the law of the Netherlands has been committed or that there are reasonable grounds for suspecting that such an offence has been committed and that proceedings in respect of that offence have been instituted in the Netherlands or that an investigation into that offence has been carried on there.

[6] The issue is a net one: whether evidence received by the first respondent is restricted by reference to the Bankers' Books Evidence Act 1879, as amended.

[7] "Evidence" is defined in s. 51(4)(4) of the Act of 1994 to include documents and other articles. Is a nominated judge of the District Court in the context of a request for assistance in obtaining bank evidence in connection with criminal proceedings or in connection with criminal investigation limited by reference to the Bankers' Books Evidence Act 1879, as amended? Alternatively, is the term "evidence" in the Act of 1994 such as appears to the nominated District Judge to be appropriate for the purpose of giving effect to the request?

Grounds for judicial review

[8] The applicants were given leave by the High Court (Quirke J.) on the 26th April, 2004, to apply for judicial review on the following four grounds:-

  • 1. the first respondent is a Judge of the District Court, who it is claimed was nominated by the second respondent by notice in writing, pursuant to the terms of s. 51(2) of the Criminal Justice Act 1994, to receive certain evidence requested by the office of the Public Prosecutor at the District Court of Breda in the Netherlands or the Cabinet Examining Judge at Breda in the Netherlands or both, and identified in a letter of request dated the 8th July, 2003, and an additional letter of request dated the 16th December, 2003;

  • 2. at a hearing before the first respondent on the 8th March...

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