High Court of Ireland Decisions

D.P.P. v. Hollmann [1999] IEHC 20 (29th July, 1999)

BETWEEN

JUDGMENT of Mr Justice O'Higgins delivered on the 29th day of July 1999.

In this application the Third Named Plaintiff seeks an Order under Section 3 of the Proceeds of Crime Act 1996 in respect of sums totalling [sterling]55,652.82 held in two accounts of the Third Named Respondent and the Allied Irish Bank in Cobh, Co. Cork. This application was originally brought by the Second Named Plaintiff who is a recently retired Chief Superintendent of the Garda Siochanna. Following his retirement an application was made to add the Third Named Plaintiff and this Order was made on consent.

THE EVIDENCE

1. The evidence of the Plaintiff is that an offence was committed in Switzerland which was summarised in the joint affidavit of Francis Glacken and Detective Inspector Terry McGinn. [It would be more appropriate in cases such as this for separate Affidavits to be sworn by the Deponents. A joint Affidavit is particularly inappropriate where the belief of one of the Deponents but not that of the other may constitute evidence under Section 8 of the Proceeds of Crime Act].

2. The evidence in paragraph 5 of the joint Affidavit is as follows:-

"A credit contract was entered into between a lending company named N.C.C. Investments S. A. (hereinafter called the lender) and Hotel Meeresstrand Wiese (hereinafter called H.M.W./K.G.). The lender requested guarantees of four million D.M. H.M.W./K.G. was unable to secure these guarantees and retained the services of a Mr. U.P. and Mr. P.J. from the company International Investment Group, to raise the guarantee. Fictitious letters and receipts were furnished to the lender, who as a result agreed to enter into the contract with H.M.W./K.G.. Mr. P. presented a forged receipt showing the delivery of two million D.M. to the lender. The lender then issued in favour of H.M.W./K.G., a Bill of Exchange in the sum of four million D.M.. Mr. P. subsequently received two cheques to a total value of two million D.M. from H.M.W./K.G.. These cheques were dated the 30/7/96 and the 6/8/96."

w There is evidence before the Court that in the opinion of the Swiss Examining Magistrate that this activity amounts to a crminal offence. An international request for legal assistance was received from Magistrate Junker from Switzerland which is exhibited in the Affidavit of Chief Superintendent Glacken and Detective Inspector McGinn.

w There is evidence before the Court that the Third Named Defendant Mr. P. lodged a sum totalling IR [sterling]55,652.82 in the AIB Bank in Cobh County Cork. The lodgment was made in two instalments, one of which was in Austrian Schillings and one in Swiss Francs. Both Chief Superintendent Glacken and Detective Inspector Terry McGinn deposed in the Affidavits dated the 13th of July 1998 that they believed the said monies to be the proceeds of crime. The belief of Detective Inspector Terry McGinn is not evidence in this case.

Section 8 of the Proceeds of Crime Act 1996 makes provision for the belief of "a member or an authorised officer" to be evidence of certain matters in Section 3 proceedings. If the Court is satisfied there are reasonable grounds for the belief. Section 1.1 defines a member as follows:-

"Member means a member of the Garda Siochana not below the rank of Chief Superintendent."

3. The Section must be strictly construed and in my view, the belief of a Chief Superintendent must refer to a person who is a Chief Superintendant at the time of the giving of oral evidence under Section 3 of the act. The belief of a former Chief Superintendent is not evidence under the Act. In this application the only valid evidence under Section 8 of the Act is the evidence of Chief SuperintendentFelix McKenna.

4. Chief Superintendent McKenna has given oral evidence in these proceedings that the Third Named Defendant is in possession or control of the said sum of [sterling]55,652.82 held in accounts number 17119012 and 17119285 at the A.I.B. Bank plc. Co. from the County of Cork. In forming that belief he has had regard to the Affidavits of former Chief Superintendent Glacken and Detective Inspector Terry McGinn. He also had regard to the conviction in this jurisdiction of Mrs J M arising out of the same transaction. Their Affidavits which have been open to the Court contain a number of exhibits on which reliance is placed.

5. Mr. Junker, the Examining Magistrate in Switzerland dealing with these matters has deposed to his belief that an offence occurred in the manner set out above.

w The Court has been told of a statement made by Mr. H the First Named Defendant in which he apparently told the Gardaí that money that he received from Mr. P. was "not correct" and that he wanted to "hide it here". I have been informed that in the criminal trial the statement of Mr. H was ruled inadmissible on the basis of his knowledge of the English language was suspect. In those circumstances I do not propose to attach any weight to the statement of Mr. H.

w B J-M was convicted of offences under 31(3) of the Criminal Jurisdiction Act 1994 arising out of the transactions outlined above and referred to in the Affidavit of Mr. Junker. She made certain admissions which concerned the money which she received from Mr. P arising out of the transactions referred to above and complained of by Mr. Wiese. She stated that Mr. P "had to get rid of some money because the police were going to make an investigation on him and take the money". He further told her "he had to move money, that he was involved in something that was not right". She further said that he "wanted to hide money".

w Inis Milier according to D/I McGinn made various remarks in detention which would assist the Plaintiff's case. There is a dispute concernning those statements, Ms Mieir's detention and the quality of the translation. I am ignoring any such evidence for the purpose of this application.

w Mr. Wiese gave evidence of both at the criminal trail and in this application. He also gave evidence of the circumstances in which he apparantly resiled from his allegations against the Third Named Defendant. He is a credible witness and I accept his evidence and his explanation of the foreign affidavit.

THE MOVEMENT OF THE MONIES

6. The Plaintiffs make the case that the Third Named Defendant Mr. P. and with Mr. Jehle having perpetrated fraud set about concealing the monies. The monies the subject matter of the fraud being investigated by Mr Junker and in connection with some of which monies Mrs Jehle-Mair was convicted were originally lodged to the U.B.S. Bank in Switzerland in an account opened on the 8th of August 1996. This is deposed in the Affidavit of Mr. Junker. The monies were lodged on the 8th, 14th and 16th of August. On the 12th of August 500,000 D.M. were transferred to the A.I.B. Bank in Cahir, County Tipperary and on the 13th and 21st of August the remaining money was transferred to an Austrian Bank. On the 13th, 16th and 21st of August and also on the 3rd of September, monies were removed from the Austrian Bank in cash, both in D.M. and in Austrian Schillings. On the 3rd of September the Austrian account was closed. On the 26th of August 1996, the first A.I.B. Cobh account was opened with a cash lodgment of 70,000 D.M.. That is deposed to in the Statement of John Glasheen the Assistant Manager which is exhibited in the Affidavit of Terry McGinn dated the 23rd of March 1999. On the 9th of December the second account was opened with a cash lodgment of Austrian Schillings. Significantly M., and not co-incidentally, Mr. H. and Mrs J.M. had accounts in this bank one of which was opened on the very same day as the Third Named Defendant made his first lodgment.

7. On the evidence above tendered by the Plaintiff it appears to the Court that the Third Named Defendant is in possession or control of property which constitutes directly or indirectly the proceeds of crime or was a property acquired in connection with property that directly orindirectly constitutes the proceeds of crime. The value of the property is more than [sterling]10,000.00. In those circumstances "the Court shall make an Order unless it is shown to the satisfaction of the Court on evidence tendered by the Respondent or any other person that the property is not the proceeds of crime" within the meaning of the Act or alternatively if there would be a serious risk of injustice. It is now proposed to examine the evidence of the Respondent in the light of the above. The evidence proffered by the Third Named Defendant can be summarised as follows:-

(i) Affidavit of The Third Named Defendant stating that the monies were commission earned from an estate agency;

(ii) An affidavit from the Estate Agents saying that sums of money were paid by her to the Third Named Defendant in 1997;

(iii) The Affidavit of Inis Meier as to the conditions of her detention at the time of her interview by the Gardaí and criticisms of the translation;

(iv) evidence of a translator proffering in a translation of Mr. Wiese's affidavit and letter and;

(v) An affidavit from Mr. P.'s Solicitor pointing out inaccuracies in Mr. Wiese's letter.

8. I propose to deal with these in turn.

(i) The affidavit of the Third Named Defendant.

9. The affidavit is skimpy indeed and I agree with the submission of Counsel that it is more remarkable for what it does not contain. He does not deny fraud, he does not offer an explanation why Mrs. J. made the statements which she did. He fails to provide any indication of why themonies lodged to the account in the UBS account were moved so suddenly. He fails to give any reason why the monies lodged from the commission from the Estate Agent were lodged (a) in cash and (b) in a bank account in Ireland.

(ii) The affidavit of Ms Jullig the Estate Agent merely states that monies were paid to Mr. P. She does not purport to say what happened those monies. She has nothing to say about the bank accounts the subject matter of these proceedings.

(iii) The affidavit of Inis Meier.

10. For reasons I have stated above I propose to place no reliance on evidence obtained by means of interview with this deponent.

(iv/v) Mr. Wiese gave evidence before this Court in which he confirmed the evidence he gave at the trial of Mrs. J.M. as being correct. He also accounted for an affidavit in another jurisdiction which tends to exonerate Mr. P. As I have already indicated I accept his testimony as being truthful. In his Court appearance he dealt with the points raised by the translator's affidavit and also with the affidavit of Mr. P.'s Solicitor.

THE LAW

11. It was contended that the Act did not apply to the proceeds of crime when the crime was committed outside the country. I have been referred to the case of Bonalumi -v- Secretary of State [1985] 1 All E.R. 979 to Antonelli -v- Secretary of State [1998] All E.R. 997, where it was held that a conviction of an "offence involving fraud or other dishonesty or violence" applied to offences outside the jurisdiction and to my own decision in the case of M. -v- M. and Others Judgement the 4th day of June 1999 where the same point was argued and considered. In my view the Act applies to the proceeds of crime even if that crime was committed outside of the State notwithstanding the failure of the legislation to explicitly say so. The object of the crime is the divestment of assets generated by or in connection with crime. I agree with the submission of Counsel that there is no reason why this objective should be limited to offences committed in this jurisdiction and there are many reasons why it should not. It would be strange indeed if the legislature to be deemed to have intended that persons committed criminal offences in another jurisdiction were free to obtain money from that crime and retain it in Ireland, while those engaging in the same conduct here would be liable to have the assets from similar offences forfeited. These are not criminal proceedings. They are based on the public policy consideration that people should not have in this State the enjoyment of the benefits of assets accumulated as a result of crime. If I am wrong in that it appears to me that the Order should be made nonetheless the lodging of themonies in the bank accounts in Cobh County Cork appear to me to be the proceeds of crime, that is the crime of money laundering in this jurisdiction insofar as the monies were "obtained or received ... by or as a result of or in connection with the commission of the said offence."

12. In all the circumstances I am prepared to make the Order sought.