High Court of Ireland Decisions

1. I have already ruled that the Applicant has failed to establish appropriate service on the first Defendant, who is a brother of the second Defendant, and accordingly the first Defendant is not involved in this application.

2. Oral evidence, as contemplated by Section 8 of the Act of 1996 was offered by the Applicant who is now a Deputy Chief Superintendent of the Garda Siochana. He said it was his belief that the property at K. Road is in the possession and control of both Respondents and constitutes directly or indirectly the Proceeds of Crime or property which was acquired in whole or in part with or in connection with property that directly or indirectly constituted the Proceeds of Crime.

3. The basis of this opinion was the admission by the second Defendant that he had sold the property to his brother for £50,000.00 which money was in his opinion the proceeds of crime and in coming to that opinion he relied upon the evidence set out in the Affidavit of Detective Sergeant D. O’L sworn in these proceedings. He said that during the 1990’s the first Defendant was the subject of a number of Garda investigations and that in 1995 Gardaí had observed him selling drugs to an undercover Garda posing as a student and that he had admitted being involved in the distribution of Heroin in the Dolphins Barn area of Dublin.

4. He gave evidence of two occurrences in 1997, namely, in April when he was arrested in a car prior and had swallowed drugs. On that occasion he was detained for 6 days under the Drug Trafficking Act. He was charged together with his father J. Snr., and a Mr. W. in connection with that occasion but ultimately all charges were withdrawn or dismissed. In November of that year first Defendant was stopped in Dublin Airport with the same Mr. W. Some £30,000.00 was seized from them under the Drugs Trafficking laws and confiscated under a subsequent order made in the Circuit Court in 1998.

5. The Applicant gave his evidence that the monies paid to the second Defendant in 1996 for the purchase of K.Road was money generated from the illegal distribution of Heroin in the Crumlin and Dolphins Barn areas. The first Defendant is serving a six year prison sentence in the United Kingdom in connection with the seizure of drugs in 1998 when he was arrested in England by Customs and Excise Officers for the importation of Heroin from France to England. The first Defendant was more or less unemployed or was in receipt of small amounts of monies (including from Social Welfare) during his life and any accumulated monies were the proceeds of drugs trafficking and other crimes in earlier years. He gave his view that the value of K.Road was not less than £10,000.00 (and this was accepted by Counsel for the second Defendant). The second Defendant had keys to K. Road and kept dogs and a pigeon loft in the back garden.

6. Under cross-examination he accepted that he would not bring the case on next year as his advice was that under the Act of 1996 he had to wait for 7 years. He accepted that K.Road now belonged to the first Defendant but maintained that the second Defendant was still in control. His activities were conducive to safeguarding the property. He had no difficulty with the second Defendant minding the property. On the occasion of a search of the property on the 15th of April 1997, the Gardai seized Bank Drafts, cash, Title Deeds and other property but not the keys of the property as they were content to allow the second Defendant look after the house and maintain control of the property. The second Defendant has no convictions for drug trafficking or money laundering. He was investigated in 1999 by the Criminal Assets Bureau for money laundering and was arrested on the 6th of March 1999 and detained in the course of that investigation. On the 27th of March the Director of Public Prosecutions directed that the second Defendant not be prosecuted for money laundering.

7. He relied on the evidence including evidence from confidential sources and sources that were kept anonymous pursuant to the powers in the Act of 1996 set out in the Affidavit of Detective Sergeant D. O’L. in reaching his conclusions in this case. The second Defendant has earned an honest living having operated a coal run and dealt in property but he said that, the second Defendant had an excess of property which remained unexplained in the Applicant’s view notwithstanding these legitimate activities. This view was based in part on the returns the second Defendant made to the Revenue Commissioners regarding his income. He acknowledged that he had an accident claim and bred thoroughbred terriers. The Applicant felt that Detective Sergeant O’L. would be able to furnish greater detail about the second Defendant’s income. Regarding the purpose of the Order now being sought the Applicant said that the purpose was to secure the property for the State given that the ultimate objective was the making of a “disposal order” under Section 4 of the Act of 1996 directing that the property be transferred to the Minister for Finance. He did not think that the second Defendant would vandalise or damage the property although it was possible that he could telephone associates and the property could be vandalised overnight.

8. The Applicant accepted that K. Road was originally purchased by the second Defendant with “clean” money. His case was that it was subsequently sold to the first Defendant (the second Defendant’s brother) who paid for it with money that constituted the proceeds of crime and that therefore K. Road was property that was acquired (by the first Defendant) with property that constituted the proceeds of crime. It was common case that its value was not less than £10,000.00 and he contended that the second Defendant was in possession and/or control of K. Road, in all the circumstances.

9. By way of introduction I indicated that I intended applying the principle established by Parke J. in Irish Trust Bank -v- Central Bank of Ireland (1976-7: ILRM: 50 at page 53) where he said

10. Accordingly, if any point that the parties wished to raise had already been decided in the High Court I intended to follow that determination unless the foregoing exceptions identified by Parke J. to the principle of stare decisis applied. Dr. Forde for the second Respondent submitted that I should disregard all hearsay evidence in the Affidavit of Detective Sergeant O’ L. and evidence from anonymous sources.

11. The hearsay point was dealt with by O’Higgins J. in Michael Murphy -v- GM and Others (unreported: 4th June 1999 at pages 78 following) and in my view this submission does not come within any of the exceptions identified in the Irish Trust Bank case and accordingly the principle of stare decisis applies and I decline to consider the point.

12. In the same Judgment (pages 84 following) O’Higgins J. considered the admissibility of evidence of belief pursuant to Section 8 (1) of the Act of 1996 and ruled it admissible and the same principle applies and accordingly I decline to consider this point.

13. A further point was made that the unacceptability of hearsay evidence was compounded by the fact that the Applicant relies on anonymous sources.

14. Mr. Murphy SC for the Applicant referred to Section 10 of the Criminal Assets Bureau Act 1996 which makes specific provisions in several different specific sets of circumstance for the preservation of the anonymity of Bureau Officers or members of the staff of the Bureau. I was also referred by Dr. Forde to Director of Consumer Affairs and Fair Trade -v- Sugar Distributors Limited (1991: ILRM : 395 following) and Burke and Others -v- Central Independent Television PLC (2 IR : 61 following) which it is suggested establish a principle applicable to the present circumstances although these were two cases dealing with discovery.

15. In the present case in my opinion if I were to exclude any reliance on “anonymous sources”, there is still clearly admissible evidence to establish the likelihood that the money paid by the first Defendant to the second Defendant for K. Road, constitutes directly or indirectly the proceeds of crime. I make this clarification because I wish to reserve for another occasion a determination on the status of evidence from sources which are anonymous. Given that there are clear statutory provisions within specified and thereby delimited circumstances for the preservation of the anonymity of specified classes of individual it may well be that the Applicant would not be entitled to assert the anonymity of individuals in different classes or in different circumstances. Nor am I convinced that the principles established in the two cases dealing with discovery of documents necessarily apply to a case such as the present one. However, I do not think it is necessary for me to decide on this point in the present application nor is it desirable in the absence of more elaborate submissions.

16. A further submission made by Dr. Forde for the first Defendant was that the meaning of the phrase “possession or control” in Section 3 (1) (a) of the Act of 1996 must be construed by reference to the purpose of that subsection which was the making of an order prohibiting such a person from either disposing of, otherwise dealing with, or diminishing the value of the property. Therefore if a person was not in a position to dispose of or deal with or diminish the value of the property, such a person could not be either in “possession or control” within the meaning of the Section. He further submitted that on the evidence the second Defendant could not dispose of the property (his brother owned it, not he) he could not deal with it (for the same reason) and there was no evidence that he was likely to diminish its value (to the contrary his presence was welcomed by the Applicant in terms of maintenance and security).

17. Once again, however, this issue has been determined by O’Higgins J. in Murphy -v- GM (Supra) at pages 9 following. In that case O’Higgins J. held that notwithstanding the appointment of a receiver over the property in question, the same was in the “possession or control” of the Respondents. The matter has been determined and in accordance with the discipline of stare decisis I decline to reopen the issue as I do not think that the exceptions identified by Parke J. in the Irish Trust Bank case applies.

18. Dr. Forde SC submitted that the argument (in relation to the specific purpose of Section 3 (1) of the Act of 1996) was not made to O’Higgins J. in Murphy -v- GM and Others . I respectfully disagree with him on this: no fewer than 16 pages of the Judgment are devoted to the topic and it is clear that my learned colleague took the view that he was entitled to look to the purpose or scheme of the Act (page 21). He referred to the essential structure of the Act (contained in Sections 2, 3 and 4) when construing the ambit of the phrase “possession or control”. The point in my view was clearly argued in the earlier case and has accordingly been decided.

19. Given that the Applicant has established that the second Defendant is indeed in “possession or control” of K. Road, Section 3 of the Act of 1996 mandates the making of an order in the terms set out unless it is shown to the satisfaction of the Court on evidence tendered that the particular property is not the proceeds of crime or is worth less than £10,000.00. I note in passing that neither of the Defendants has sworn an Affidavit in this case. Accordingly, no such case has been made. Finally there is a proviso in the following terms:

20. Dr. Forde has instanced six categories of injustice in the present case as follows:-

21. In response Mr. Murphy says that the scheme of the Act requires the identification and seizure (preceded by the preservation) of criminal assets. So far from an order being futile it is the attainment of one of the objects of the Act which comprises a step by step scheme as determined by the Judgment of O’Higgins J. in Murphy -v- GM (supra). There is no question of the Court being unjust to itself because the order would achieve a statutory objective.

22. In my opinion the order would not be futile. Moreover, I have significant reservations about the notion that “injustice” as it appears in Section 3 (1) of the Act of 1996 includes the concept of a futile order.

23. I fail to see any serious risk of injustice on this ground.

24. As has been decided by O’Higgins J. in Murphy -v- GM and Others the making of the interlocutory order is of itself (within the scheme of the Act) already the attainment of one of the objectives of the Act (namely the preservation of the property which is the proceeds of crime), nor indeed am I convinced that it is entirely accurate to say that no ultimate relief can be obtained “against” the second Defendant. Under Section 4 of the Act of 1996 a “disposal order” can be made as therein contemplated. Given that the second Defendant is (together with his wife) registered as legal owner it may well be that such an Order might entail directions requiring the second Defendant to divest himself of the legal title to the property. Furthermore an order in the terms sought by the Applicant (namely prohibiting the second Defendant from disposing of, dealing with or diminishing the value of the property) could not in any meaningful sense constitute a substantial risk of injustice to the second Defendant because it would not, and certainly would not necessarily, interfere with his continued access to the property for the purpose of keeping his dogs and pigeons. There is no evidence that the second Defendant either wishes to (or could) dispose of the property, reduce its value or otherwise deal with it. That being the case the making of the Order prohibiting all of these things would not interfere with the second Defendant’s access to and possession of the property. I can see no serious risk of injustice.

25. In light of the foregoing, I must reject the “non constitutional” arguments of the second Defendant. However it is not appropriate that I make an Order at this time because it has been indicated by Counsel on behalf of the second Defendant that he wishes to advance constitutional arguments and that he would do so prior to any appeal on my present ruling. That being the case I should not make any Order which would set time for appeal running.