Supreme Court of Ireland Decisions

THE SUPREME COURT

173 & 174/01

Keane C.J.

Murray J.

McGuinness J.

Fennelly J.

McCracken J.

BETWEEN

CRIMINAL ASSETS BUREAU

PLAINTIFF/RESPONDENT

AND SEAN HUNT AND ROSALEEN HUNT (NEE MAHER) ALSO KNOWN AS JEAN HUNT AND JEAN MAHER

DEFENDANTS /APPELLANTS

AND SEAN HUNT

APPLICANT/APPELLANT

AND ANONOMOUS REVENUE OFFICIAL

RESPONDENT

JUDGMENT delivered the 19th day of March, 2003, by Keane C.J., [Nem Diss]

Introduction

1.      In November 1998, the plaintiff in the first proceedings (hereafter "the Bureau") began inquiries into the affairs of the first named defendant (hereafter "Mr. Hunt"), one of their officers having received information to the effect that he was involved in the illegal importation of tobacco products and fireworks and the subsequent sale on the streets of these products. It transpired that Mr. Hunt had not made any tax returns for at least 10 years and that the second named defendant, who is married to Mr. Hunt (hereafter "Mrs. Hunt") had been claiming Social Welfare payments from 1990 until 1995 with Mr. Hunt named as a dependant. Mrs. Hunt made tax returns for the years 1996 and 1997 disclosing relatively small profits of the order of £10,000 to £15,000. Thereafter, an officer of the Bureau obtained orders pursuant to S.63 of the Criminal Justice Act 1994 enabling him to obtain documents and materials from a number of financial institutions relating to accounts in those institutions in the names of Mr. Hunt and/or Mrs. Hunt. These accounts allegedly disclosed that in a 10 year period between 1988 and 1998 a sum in excess of £3 million had passed through the various bank accounts.

2.      On the 16^th June 1999, assessments were raised on Mr. Hunt for income tax in the sum of £1,296,859.76 in respect of the 10 year period beginning with the year 1988/1989 and ending with the year 1998. An assessment was also raised on the first named defendant in the sum of £481,484 in respect of value added tax for approximately the same period. The first proceedings were then commenced by the issue of a plenary summons on the following day.

3.      The plenary summons claimed the following relief:

(1) An interim, and thereafter an interlocutory, injunction restraining Mr. Hunt and Mrs. Hunt and any person having notice of the making of the order from selling, transferring, mortgaging or in any way dealing with their interests in the properties described in the schedule, i.e., a house in their joint names in Ballyfermot, a number of bank accounts and a life insurance investment policy;

(2) An interim, and thereafter interlocutory, injunction restraining Mr. Hunt or any person having notice of the making of the order, from reducing his assets wherever situated to a sum less than £1,778,343.76;

(3) Declarations that Mr. Hunt was obliged to discharge income tax on his earnings and value added tax on the supply of taxable goods and services for the periods already mentioned and that he had failed to pay the tax due for those periods;

(4) An inquiry in respect of all taxes due for each of the periods and payment of such sums as were found due upon such inquiry;

(5) In the alternative, judgment for the sum of £1,778,343.76;

(6) A declaration that Mr. Hunt was the beneficial owner of the amounts standing to the credit of Mrs. Hunt in the financial institutions specified in the Schedule and the life insurance policy in the names of Mr. & Mrs. Hunt and;

(7) Damages for conspiracy to defraud against both Mr. Hunt and Mrs. Hunt in the amount of £1,778,343.76 or such sum as the court might decide.

4.      On the same day, the High Court (O'Higgins J) made an interim order on the ex parte application of the Bureau in the terms of paragraphs (1) and (2) above. A notice of motion was then brought on behalf of the Bureau seeking an interlocutory injunction in the same terms which was granted by O'Higgins J on the 17^th July, 1999 (hereafter the "Mareva injunction. Pleadings having been delivered in the action in the form of a statement of claim, defence and reply, it came on for hearing before Smyth J on the 14^th November 2000.

5.      In the meantime, Mr. Hunt had been given leave to institute the second proceedings by way of judicial review claiming inter alia:-

(1) An order of certiorari quashing the assessments made on the 16^th June 1999 in respect of income tax and value added tax;

(2) A declaration that the refusal to entertain appeals in respect of those assessments or to extend the time for appealing them was unlawful;

(3) A declaration that s.933(9)(a) of the Taxes Consolidation Act 1997 was unconstitutional and invalid;

(4) An order of certiorari quashing notices of attachment served on three of the banks named in the proceedings on the 28^th July 1999.

6.      The second and third reliefs were claimed because of developments which had occurred in relation to appeals purportedly brought by Mr. Hunt to the Appeals Commissioners in respect of the assessments in question.
7.      A statement of opposition having been filed on behalf of the respondent in the judicial review proceedings, they were listed for hearing before Smyth J on the same day as the first proceedings.
8.      Following a hearing lasting 12 days, the learned trial judge reserved his judgment which he delivered on the 27^th June 2001. He granted a declaration that Mr. Hunt was obliged to discharge income tax and value added tax in respect of the named period and had failed to pay the taxes in question. He found Mr. Hunt liable to the plaintiff, in its capacity as an officer of the Revenue Commissioners, in the sum of £1,778,343.76 and also granted a declaration that Mr. Hunt was the beneficial owner of the bank accounts and life assurance policies set out it the schedule to the statement of claim. He refused the claim for an inquiry and also refused to grant any relief in respect of the claim for damages for conspiracy against the defendants. It should be pointed out that, at the time the court delivered its reserved judgment, it was informed by counsel for the Bureau that, because, as they claimed, no valid appeal had been brought by Mr. Hunt in respect of the assessments raised on 26^th June 2001, they had now become final and conclusive and that the Bureau, in the result, no longer required any inquiry to be conducted in relation to the amount of the tax actually due and owing by Mr. Hunt in respect of the periods in question.

The issues on the appeal

9.      A number of issues arose in the High Court which were also the subject of the appeal to this court.

10.      The first issue was as to whether the Bureau were entitled to maintain the proceedings in the form which they took. It was submitted on behalf of Mr. Hunt and Mrs. Hunt that, at the time the proceedings were issued, his tax liability, if any, had not been established or, at the least, quantified. It was a necessary precondition to the Bureau's right to sue, they said, that the assessments raised on Mr. Hunt had become "final and conclusive" under the relevant legislation, either because of a failure to bring an appeal within the statutory time limits or the determination of the appeal. On behalf of the Bureau, it was submitted that within the meaning of the relevant legislation, the taxes in respect of which assessments had been raised were "due" by Mr. Hunt and that, accordingly, the Bureau were entitled to maintain the proceedings in their present form. While it was conceded on their behalf that Mr. Hunt in those proceedings would be entitled to dispute the assessments raised by the Bureau, the High Court, in the exercise of its inherent jurisdiction, could determine the amount of the tax admittedly due by Mr. Hunt in the light of the evidence adduced by the Bureau and, assuming evidence was adduced on his behalf, by Mr. Hunt.

11.      The second issue was as to whether, assuming the proceedings could be maintained before the assessments became final and conclusive, they could be brought in plenary form. It was submitted on behalf of Mr. Hunt and Mrs. Hunt that, in any event, proceedings under the relevant provisions of the legislation could only be brought by summary summons. It was submitted on behalf of the Bureau that, while the provisions in question enabled the proceedings to be brought in that form, they did not exclude the right of the Revenue Commissioners or their authorised officers to institute proceedings, where appropriate, in plenary form.

12.      It was further submitted that on behalf of Mr. Hunt and Mrs. Hunt that the proceedings were in any event premature, not merely because the assessments never became final and conclusive, but also because no prior demand for payment of the tax alleged to be due was made by the Bureau. It was submitted on behalf of the Bureau that the terms of the legislation made it clear that no prior demand was necessary.

13.      The next issue that arose was as to whether the proceedings were ultra vires the Bureau. It was submitted on behalf of Mr. Hunt and Mrs. Hunt that the relevant legislation made it clear that the objective for which the Bureau was established was the recovery of the proceeds of crime and that there was no evidence in this case that any of the sums in question had been the proceeds of crime. It was submitted on behalf of the Bureau that the Bureau were entitled to exercise their statutory powers in circumstances where they suspected particular assets to represent the proceeds of crime and that this was what had happened in the present case.

14.      It was further submitted on behalf of Mr. Hunt that the assessments were so patently arbitrary that they should be quashed as being unreasonable. It was submitted on behalf of the Bureau that, in the light of the evidence as to the sums in the relevant bank accounts, they were entitled to raise the assessments in question and it was a matter for Mr. Hunt to demonstrate in what respect they were excessive, which he had wholly failed to do.

15.      The next issue was as to the admissibility of evidence relied on by the Bureau for the purpose of establishing Mr. Hunt's liability to tax. It was submitted on behalf of Mr. Hunt and Mrs. Hunt that the Bureau were not entitled to rely, as they had done, on bank statements which had come into their possession without proper proof being adduced to the court of the documents in question. Without such proof, it was said, all of the records in question were hearsay evidence which could only be admitted if they came within one of the recognised exceptions to the rule against hearsay. It was submitted on behalf of the Bureau that, in the circumstances in which they had come into the possession of the Bureau, the documents were made admissible by virtue of specific statutory provisions.

16.      It was submitted on behalf of Mrs. Hunt that the Bureau were not entitled to a declaration that Mr. Hunt was beneficially entitled to the funds standing to her credit in the financial institutions. It was submitted that if, as claimed on behalf of the Bureau, these funds had been transferred into Mrs. Hunt's name by Mr. Hunt in order to avoid a liability to tax, then, in the light of the authorities, Mrs. Hunt was entitled to the funds in question and Mr. Hunt could not make any claim to them. It was submitted on behalf of the Bureau that the authorities relied on had no application in circumstances where the transfer of the monies constituted a fraudulent conveyance which could be set aside by the court. A claim based on conspiracy between Mr. Hunt and Mrs. Hunt, which was dismissed in the High Court, was not pursued on the appeal by the Bureau.

17.      As I have already noted, after the learned trial judge had given judgment in the High Court, he was informed by counsel for the Bureau that the assessments relied on had now become final and conclusive and, that, accordingly, they no longer required an inquiry into the amount of tax owed by Mr. Hunt in addition to the order for the payment by him of the sum of £1,778,343.76.

18.      It should be pointed out that, apart from disputing the claim of the Bureau to be entitled to maintain the proceedings at a stage when the assessments had not become final and conclusive, it was also argued on Mr. Hunt's behalf that, in any event, he had in fact served a valid notice of appeal within the time prescribed which had, however, not been accepted as a valid appeal by the Bureau. In the alternative, it was submitted on his behalf that the provisions of the legislation relied on by the Bureau as invalidating his appeal were invalid having regard to the provisions of the Constitution.

19.      As I have indicated, a claim for a declaration to that effect was included in the relief claimed in the judicial review proceedings. However, when the two sets of proceedings first came on for hearing before Smyth J, he was informed by counsel for Mr. Hunt that, because of the existence of the Mareva injunction, his client was not in a position to fund the judicial review proceedings. The judgment of the trial judge contains no reference to them and, although counsel for Mr. Hunt, after the judgment had been delivered, suggested to the trial judge that he had failed to deal with some matters on which he (counsel) had been relying, no reference was made to the absence of any adjudication on the judicial review proceedings. Nor is there any order of the High Court in respect of those proceedings: the order which is the subject of this appeal deals exclusively with the first proceedings. In these circumstances, I am satisfied that this court cannot exercise any appellate function in relation to the judicial review proceedings, there having been no determination of them at first instance.

20.      The alleged unconstitutionality of appeal provisions was also pleaded in the defence delivered in the first proceedings. There was, however, no claim for a declaration and, although a notice pursuant to Order 60 of the Rules of the Superior Courts had been served on the Attorney General in the judicial review proceedings, no such notice appears to have been served in the first proceedings. Again, there was no adjudication by the High Court on this issue in the first proceedings. In these circumstances, it would not be possible for this court to resolve the constitutional issue even if it were properly before the High Court, but I am also satisfied, for reasons which will become obvious, that, in the circumstances of the present case, it is not necessary to remit that issue for a determination by the High Court.

21.      It should be finally noted that, in both their written and oral submissions, counsel for Mr. Hunt argued that the judgement delivered by the learned High Court judge was not a reasoned judgment and was therefore in breach, as it was urged, of the requirements of both the common law and the European Convention on Human Rights and Fundamental Freedom and that the proceedings should be remitted to the High Court in their entirety. This court was informed that the trial judge had seen counsel for all the parties in his chambers before delivering his judgment on the 27^th June 2001 and had informed them that, unless he delivered judgment in the case immediately, he would have to defer delivering it for some considerable time for health reasons. Ultimately, this ground of appeal was not pursued by counsel for Mr. Hunt and I have no doubt that, in the circumstances of this case, they were correct in adopting that approach.

The Statutory Framework

(a) The Criminal Assets Bureau Act, 1996

The Bureau was established by S3(1) of this Act (hereafter "the 1996 Act") and its objectives were defined by S4 as

"(a) The identification of the assets, wherever situated, of persons which derive or are suspected to derive, directly or indirectly, from criminal activity,

(b) the taking of appropriate action under the law to deprive or deny those persons of the assets or the benefits of such assets in whole or in part, as may be appropriate,

(c) the pursuit of any investigation or the doing of any other preparatory work in relation to any proceedings arising from the objectives mentioned in paragraphs (a) and (b)".

22.      Section 5(1) provides that one of the functions of the Bureau, operating through its officers, is to be the taking of all necessary actions….

"(b) Under the Revenue Acts or any provisions of any other enactment, whether passed before or after the passing of this Act, which relates to revenue, to ensure that the proceeds of criminal activity or suspected criminal activity are subjected to tax and that the Revenue Acts, where appropriate, are fully applied in relation to such proceeds or activities, as the case may be…."

23.      Under S8(1)(a), the Minister for Justice, Equality and Law Reform may appoint, with the consent of the Minister for Finance, members of the Garda Siochána, officers of the Revenue Commissioners and officers of the Minister for Social Welfare to be "bureau officers" for the purposes of the Act. In the case of officers of the Revenue Commissioners, they are to be nominated by the Revenue Commissioners and their powers and duties are to be the powers and duties vested in them by virtue of the Revenue Acts. Those powers and duties for the purposes of the Act are to be exercised or performed in the name of the Bureau and under the direction and control of the Chief Bureau Officer, the latter office being established under S7 of the Act.

24.      It is accepted in this case that, in pursuance of these powers, an inspector and collector respectively of the Revenue Commissioners were appointed as bureau officers. The officers in question gave oral evidence in the proceedings in the High Court and, in accordance with the provisions of s.10 of the Act, their identity was revealed only to the trial judge. The validity of that procedure has not been challenged in the present appeal.

25.      Section 8 (5) and (7) of the Act, provide for the admission in evidence of certain information, documents or other material obtained from bureau officers under those subsections. They were relied on in the first proceedings as permitting the adduction in evidence of bank documents which would otherwise have been inadmissible as hearsay. Those provisions are considered at a later point in this judgement.

(b) The Tax Legislation

26.      Part 41 of the Consolidated Tax Act, 1997 (hereafter "the 1997 Act") sets out the "self assessment" procedures which have been applicable to persons chargeable to tax since the Finance Act 1988. Section 951 obliges every chargeable person to make a return in respect of any chargeable period to the appropriate inspector on or before the specified return date for that period. Section 952 obliges a chargeable person to pay "preliminary tax" appropriate to the chargeable period i.e.,

"The amount of tax, which in the opinion of the chargeable person is likely to become payable by that person for the chargeable period by reason of an assessment or assessments for the chargeable period, made or to be made by the inspector…."

Section 958(2) provides that

"Preliminary tax appropriate to a chargeable period shall be due and payable

(a)… on or before the 1^st day of October in the year of assessment…"

27.      There are provisions in S.919(4), 922 and 954(3) of the Act enabling the inspector to make an assessment as to the amount which the chargeable person ought be charged for tax where the person concerned has failed to make a return or has made an insufficient return. It is not in dispute in this case that the assessment raised in respect of income tax by the inspector who gave evidence in the High Court was properly raised in accordance with these provisions.

28.      Section 966 is the provision under which it is submitted on behalf of the Bureau the present proceedings were properly instituted. That section, so far as relevant, provides that

"(1) Without prejudice to any other means by which payment of sums due in respect of income tax may be enforced, an officer of the Revenue Commissioners authorised by them for the purposes of this subsection may sue in his/her own name in the High Court for the recovery of any sum due in respect of that tax, as a debt due to the Minister for Finance for the benefit of the central fund, from the person charged with that tax or from that person's executors or administrators or from any person from whom the sum in question is collectable, whether the person so charged was so charged before or after the passing of this Act, and the proceedings may be commenced by summary summons…

(5) In proceedings pursuant to this section –

(a) a certificate signed by an inspector certifying the fact that before the institution of the proceedings a stated sum for income tax became due and payable by the defendant –

(i) under an assessment which had become final and conclusive or,

(ii) under Section 942(6),

and

(b) a certificate signed by the Collector General certifying the following facts –

(i) that he/she is the Collector General duly authorised to collect the stated sum referred to in paragraph (a).

(ii) that before the institution of the proceedings payment of the stated sum was duly demanded from the defendant and

(iii) that that stated sum or a stated part of that sum remains due and payable by the defendant

shall be evidence until the contrary is proved of those facts…

(8) Subject to this section, the rules of the High Court for the time being applicable to civil proceedings commenced by summary summons shall apply to proceedings pursuant to this section."

Section 933 of the Act provides for appeals against the assessment. Subsection (1)(a) provides that

"a person aggrieved by any assessment to income tax or corporation tax made on that person by the inspector or such other officer as the Revenue Commissioners shall appoint in that behalf (in this section referred to as" other officer") shall be entitled to appeal to the Appeal Commissioners on giving, within 30 days after the date of the notice of assessment, notice in writing to the inspector or other officer."

29.      Subsection (7) enables a notice of appeal to be given after the 30 day period has expired, where the inspector is satisfied that owing to absence, sickness or other reasonable cause the applicant was prevented from giving notice of appeal within that specified time, where that application is made within 12 months from the date of the notice of the assessment. Where the application is refused by the inspector, the applicant may, within 15 days, require the inspector to refer the application to the appeal commissioners.
30.      There are, however, special provisions dealing with the right of appeal in a self assessment case. Section 957(2) provides that

"(a) where –

(i) a chargeable person makes default in the delivery of a return, or

(ii) the inspector is not satisfied with the return which is being delivered by a chargeable person, or has received any information as to its insufficiency,

and the inspector makes an assessment in accordance with S919(4) or 922, no appeal shall lie against that assessment until such time as

(i) in a case to which sub paragraph (i) applies, the chargeable person delivers the return, and

(ii) in a case to which either sub paragraph (i) or (ii) applies, the chargeable person pays or has paid an amount of tax on foot of the assessment which is not less than the tax which would be payable on foot of the assessment if the assessment were made in all respects by reference to the statements and particulars contained in the return delivered by the chargeable person,

and the time for bringing an appeal against the assessment shall be treated as commencing at the earliest date on which both the return has been delivered and that amount of tax has been paid, and references in this subsection to an assessment shall be construed as including references to any amendment of the assessment which is made before that earliest date…"

Section 933(6)(a) provides that

"in default of notice of appeal by a person to whom notice of assessment has been given, the assessment made on that person shall be final and conclusive."

(c) Value Added Tax

31.      The liability to value added tax was created by the Value Added Tax Act 1972. Section 2(1)(a) of the Act provides that tax is to be charged in relation to the supply of taxable goods or services within the meaning of SS.3 and 5 of the Act at rates specified in s11. Section 6 requires every taxable person to keep full and true records of all transaction which affect or may affect his liability to value added tax. Section 17 requires the taxable person who supplies goods or services to another taxable person to issue to that person an invoice in the specified form. Section 19(1) provides that tax chargeable under Section 2(1)(a) shall be due at the time of the issue of the invoice or at the expiration of the period within which it should have been issued. Sub section 3 requires the taxable person, within 9 days immediately after the 10^th day of the month immediately following a taxable period, to furnish to the Collector General a true and correct return of the amount of tax which became due by him during the taxable period and

"at the same time remit to the Collector General the amount of tax, if any, payable by him in respect of such taxable period."

32.      Section 22 provides that, if within the time prescribed by S.19(3), a taxable person fails to furnish a return of the tax payable by him in respect of any taxable period, the Revenue Commissioners may estimate the amount of tax payable by him in respect of that period and serve notice on him of the amount estimated. Section 23 enables an inspector, where he has reason to believe that an amount of tax is due and payable under these provisions by a person, to make an assessment in one sum of the total amount of tax which in his opinion should have been paid and serve a notice to that effect on the person concerned. Subsection (2) provides that, where such a notice is served,

"(a) the person may, if he claims that the amount due is excessive, on giving notice to the Revenue Commissioners within the period of 21 days, from the date of the service of the notice, appeal to the Appeal Commissioners, and

(b) on the expiration of the said period, if no notice of appeal is received or, if notice of appeal is received, on determination of the appeal by agreement or otherwise, the amount due … shall become due and payable as if the tax were tax which the person was liable to pay for the taxable period during which the period of 14 days from the date of the service of the notice under subsection (1) expired or the appeal was determined by agreement or otherwise, which ever taxable period is the later".

33.      The provisions of S. 966 of the 1997 Act as to proceedings for the recovery of income tax are applicable to proceedings for the recovery of value added tax.

The Nature of the Proceedings

34.      It is accepted on behalf of the Bureau that, at the time the first proceedings were issued, the assessment raised by the inspector in respect of the liability to income tax of Mr. Hunt had not become "final and conclusive" within the meaning of S. 933(6)(a) and that, in the case of value added tax, the time within which Mr. Hunt was entitled to require the claim to be referred for decision to the Appeal Commissioners had not expired. It is submitted, however, on behalf of the Bureau that in both cases the sums were "due" within the meaning of S. 966(1) of the 1997 Act. It is argued that, under the self assessment provisions, preliminary tax was "due and payable" by Mr. Hunt on or before the 1^st day of October in the year of assessment. In the case of value added tax, the tax became due and payable within the 9 day period following the 10^th day of the month following the taxable period, as provided by S. 19(3)(a) of the 1972 Act. While it was accepted that, at the date of the issue of the proceedings, the assessments had not become final and conclusive and that, accordingly, Mr. Hunt was in a position to contest the precise amount of tax due, this did not preclude the High Court from ascertaining in proceedings brought by plenary summons under S. 966 the amount of tax due and payable by Mr. Hunt in the light of the evidence adduced on behalf of the Bureau and Mr. Hunt respectively.

35.      The submission on behalf of the Bureau, if well founded, would have the surprising and, it would seem, anomalous consequence that a diligent and honest taxpayer who had made a return and paid the preliminary tax which he bona fide believed to be the extent of his liability could be subjected to expensive High Court proceedings and deprived, at least for a period, of his statutory right to dispute the Revenue's claim as to the amount he owed in the appeal procedure prescribed by statute. The qualification as to whether the exclusion of the statutory right of appeal would be temporary or permanent is necessary, because it is not clear what the position would be, assuming the Bureau to be right, if a valid appeal were lodged within the prescribed period after the proceedings were instituted in the High Court by the Bureau. If the High Court retained jurisdiction of the case, despite the lodgement of a valid notice of appeal, one would appear to have a classic example of an allocation of jurisdiction which would be, in the words of Henchy J speaking for this court in Tormey v. Ireland [1985] IR 283, "overlapping and unworkable".
36.      Article 34.2.3.1 of the Constitution provides that

"The courts of first instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal."

37.      In Tormey, this court considered the question as to whether the provisions of the Courts Act 1981 which conferred exclusive jurisdiction on the Circuit Court in a wide range of indictable offences were invalid having regard to the provisions of this article. It was pointed out that the article could not be read in isolation from other articles of the Constitution, including Article 38.2 enabling courts of summary jurisdiction to try minor offences and Article 37 permitting persons or bodies who are not judges to exercise limited functions and powers of a judicial nature in matters other than criminal matters. They must also be read in the light of the provisions of Article 34.3.4 requiring the establishment of "courts of local and limited jurisdiction", and of Article 36 providing for the distribution of jurisdiction and business among the courts according to law.
38.      It was held in Tormey that if, in exercise of its powers under these provisions, parliament commits certain matters or questions to the jurisdiction of the District Court or of the Circuit Court, the functions of hearing and determining those matters and questions may, expressly or by necessary implication, be given exclusively to those courts. Henchy J, however, went on to point out that it did not follow that such matters and questions were "put outside the original jurisdiction of the High Court" since it retained its jurisdiction to ensure that the hearing and determination of the Circuit Court or District Court would be in accordance with law. The learned judge added

"Save to the extent required by the terms of the Constitution itself, no justiciable matter or question may be excluded from the range of the original jurisdiction of the High Court."

39.      Similar considerations clearly apply to the relationship between Article 34.3.1 and Article 37.1 which provides that

"Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, not withstanding that such person or such body of persons is not a judge or a court appointed or established as such under the Constitution."

40.      There is today in existence a huge range of tribunals and other bodies, of which the Appeal Commissioners in revenue cases are just one example, which determine matters in controversy between parties and whose functions and powers are properly categorised as "limited functions and powers of a judicial nature.". It is not uncommon for the legislation establishing such tribunals to provide for a limited form of appeal to the High Court from its decisions, usually confined to questions of law. However, in every case, the High Court retains its power under the Constitution to determine whether such bodies have acted in accordance with the Constitution and the law and such a jurisdiction cannot be removed from the High Court by statute. Subject to that qualification, it is clear, as was found in Tormey's case, that the Oireachtas may confer on such bodies, expressly or by implication, an exclusive jurisdiction to determine specific issues.

41.      As McMahon J observed in Ward v. Kinehan, [1984]IR

"Article 34.3 cannot be construed as conferring a universal right of recourse to the High Court for the determination of all justiciable disputes."

It is true, however, that in R v. R [1984] IR 90 Gannon J concluded that the jurisdiction of the High Court to hear cases in the area of family law had not been removed or restricted by legislation conferring jurisdiction in the area on the Circuit and District Courts but that the High Court retained an inherent power to decline jurisdiction in appropriate cases.

42.      Subsequently, in Deighan v.Hearne, (1986) IR 603, the plaintiff claimed that he was constitutionally entitled to have his liability to tax determined by the High Court. Rejecting that submission, Murphy J said

"…. insofar as it is implicit in the argument of the plaintiff that he and every citizen has the right to have his liability to tax determined in the event of dispute by the High Court, this argument must be reviewed in the light of the decision of Gannon J in R v. R as followed and applied by a decision of my own in O'R v. O'R[1985] IR 367. While those cases clearly accept, as the Constitution very clearly provides, that the High Court is invested with full original jurisdiction and power to determine all matters and questions, whether of law or fact, the High Court has an inherent jurisdiction to decline to entertain certain issues where legislation has provided other suitable and appropriate machinery to resolve them. It seems to me, therefore, whilst accepting that the High Court does indeed possess the jurisdiction to determine in the event of controversy the liability of a citizen to tax that this is not a jurisdiction which the courts would exercise save in the most exceptional circumstances as long as legislation provided a constitutional procedure competently staffed and efficiently operated to carry out that unpopular but very necessary task".

43.      That conclusion was upheld by this court on appeal ([1990] 1IR 499), but in neither the judgment of Murphy J at first instance nor the judgment of Finlay CJ in this court is there any reference to the decision of this court in Tormey.

44.      I should also refer to the decision of Barron J in Calcul v Appeal Commissioners 3 ITR 577. In that case, the Revenue Commissioners had instituted proceedings in the High Court by way of plenary summons against two companies in which, in addition to claiming sums allegedly due in respect of tax and customs duties, it was alleged that the defendants had conspired to bring about the exportation from the State of large sums of Irish currency, contrary to the provisions of the exchange control regulations. In addition, they sought an injunction restraining the defendants from disposing of any of their assets and an order seeking discovery of all their assets was also sought. After the institution of proceedings additional assessments were made against both companies and appealed by the companies to the Appeal Commissioners. The prosecutors obtained a conditional order of prohibition preventing the Appeal Commissioners from hearing the appeals. Barron J discharged the conditional order and, in so doing, rejected a plea by the defendants that the Revenue Commissioners were estopped from having the companies' liability determined otherwise than in the High Court proceedings instituted by them. The learned judge said

"The High Court has a full and original jurisdiction in all matters by virtue of the provisions of Article 34 of the Constitution. This does not, however, give a right to a litigant to have his cause decided by the High Court when the legislature has ordained otherwise. In such cases, the High Court nevertheless retains its supervisory jurisdiction : see Tormey v.Ireland. The plea of estoppel accordingly fails."

45.      Finally, it may be noted that the learned editors of Kelly on The Irish Constitution (3^rd. edtn.) comment at p.412 that

"It would seem that inasmuch as R v.R suggested that the Oireachtas may not confer exclusive jurisdiction on lower courts to the exclusion of the High Court, it has been implicitly overruled in Tormey's case."

46.      I am satisfied that, while it is unnecessary in the present case to conclude whether that was indeed the effect of the decision in Tormey's case, the submission on behalf of the Bureau that the High Court retains an inherent jurisdiction to determine a person's liability to tax, notwithstanding the existence of the machinery for assessment and appeal provided under the relevant legislation, is not well founded. It is clear that it was the intention of the Oireacthas, in enacting the elaborate procedures for the determination of a taxpayer's liability by assessment and appeal to the Appeal Commissioners, accompanied by a right of appeal to the Circuit Court and a provision for the determination of questions of law arising by way of case stated in the High Court, to provide an exclusive machinery for the ascertainment of a taxpayer's liability. It can be inferred from the written submissions on behalf of the Bureau in the present case that this form of proceeding was adopted by the Bureau in the present case because they wished to obtain a Mareva injunction freezing the assets of Mr. and Mrs. Hunt while the extent of their liability to tax was determined and considered it to be at least doubtful whether such relief could be obtained in proceedings commenced by way of summary summons. That is perfectly understandable, but it is for the Oireachtas, and not for the courts, to supply any lacuna that there may be in the powers of the Bureau in this area.

47.      I would, however, reject the submission advanced on behalf of Mr. Hunt and Mrs. Hunt that proceedings pursuant to S. 966 may only be brought by way of summary summons. The provision in subsection (1) that "the proceedings may be commenced by summary summons" is clearly enabling only and does not preclude the institution of proceedings by plenary summons. Nor do the terms of subsection (8), making applicable the rules of the High Court applicable to civil proceedings commenced by summary summons, to proceedings pursuant to the section, necessarily lead to a contrary conclusion. Given that subsection (1) is enabling only and leaves it open to the Revenue Commissioners to commence proceedings by plenary summons, it follows that subsection (8) could only have been intended to apply where the proceedings were commenced by summary summons.
48.      That was also the construction of the section adopted by O'Sullivan J in Criminal Assets Bureau v McSweeney (unreported ; judgment delivered 11^th April 2000) and I am satisfied that he was correct in so holding.

The necessity of a prior demand

49.      Section 961(1) of the 1997 Act provides that

"When income tax becomes due and payable, the Collector General shall make demand of the respective sums given to him or her in charge to collect from the persons charged with those sums, or at the places of their last abode or in the premises in respect of which the tax is charged, as the case may require."

50.      It is accepted that, in the present case, no such demand was made by the Collector General in respect of either the sums alleged to be due and payable in respect of income tax or value added tax. It was, however, submitted on behalf of the Revenue that such a demand was not a prerequisite to proceedings: it was simply a definition of the statutory duties of the Collector General. It follows necessarily from this submission that, in a case such as the present, the "demand" envisaged by the section could take the form of the issue of the plenary summons.

51.      It was pointed out that S. 851(2) of the 1997 Act provides that

"The Collector General shall collect and levy the tax from time to time charged in all assessments to income tax, corporation tax and capital gains tax of which particulars have been transmitted to him or her under S.928."

52.      It was submitted on behalf of the Revenue that, once the relevant particulars have been transmitted to the Collector General, he is obliged by virtue of this provision to "collect and levy" the relevant tax and, where appropriate, the form of collection and levy, as in this case, can be the institution of proceedings.

53.      I am satisfied that this is not the correct construction of the provisions in question. If the intention of the legislature was that the "demand" envisaged by S. 961 could take the form of the institution of proceedings, the provisions of that subsection would seem to be entirely otiose: the Collector General was in any event under a statutory duty by virtue of S. 851 to "collect and levy" the tax due by whatever lawful means were available to him.

54.      It was also argued on behalf of the Bureau that the provisions of S. 966(5), already set out, which make certificates signed by an inspector or the Collector General prima facie evidence of the particular facts referred to in the subsection, is not reconcilable with an obligation on the Collector General to make a demand before proceedings are issued. However, it is quite clear that the provisions of that subsection do no more than enable the plaintiff in such proceedings to prove the facts in question, including the making of a demand, by the certificate: they are entirely consistent with the making of the demand being a prerequisite to the issuing of proceedings.

55.      I am also satisfied that the same considerations apply to the institution of proceedings for value added tax. In this context, counsel drew attention to the wording of S.24 of the 1972 Act, which, as amended by S.1100 and Schedule 31 of the 1997 Act, provides inter alia, as follows:

"(1)(a) Without prejudice to any other mode of recovery the provisions of any enactment relating to the recovery of income tax and the provisions of any rule of court so relating shall apply to the recovery of any tax payable in accordance with this Act and the regulations thereunder as they apply in relation to the recovery of income tax.

(b) in particular and without prejudice to the generality of paragraph (a) that paragraph applies the provisions of S.S. 962, 963, 964(1), 966, 967 and 998 of [the 1997 Act]."

56.      Section 961(1) is unarguably a provision relating to the recovery of income tax and, since S. 24(1)(b) is expressly stated to be without prejudice to the generality of subsection(1)(a), I see no reason to attribute to the legislature an intention to relieve the Collector General of the obligation to make a demand in the case of value added tax as distinct from income tax.

Ultra Vires and Unreasonableness

57.      I am satisfied that the submission on behalf of Mr. Hunt and Mrs. Hunt that the proceedings were ultra vires, because there was no evidence before the High Court that the assets in question represented the proceeds of crime and the Bureau were only entitled to institute the proceedings in pursuance of their statutory objectives under S.4 of the 1996 Act where the assets were derived from criminal activity, is not well founded. One of the functions of the Bureau under S. 5(1)(b) is to ensure that the proceeds of "suspected criminal activity" are subjected to tax and there was ample evidence before the High Court that the assets which were the subject matter of these proceedings were suspected by the officers of the Bureau to be the proceeds of criminal activity, i.e, the illegal importation of tobacco and fireworks into the State. I have also no doubt that, assuming it was required, there was also evidence on which the trial judge was entitled to conclude that those suspicions were reasonably entertained by the Bureau officers.

58.      I am also satisfied that the submission on their behalf that the raising of the assessments on them was in some sense unreasonable and arbitrary is also wholly unfounded. Under the statutory provisions in question, the inspector was clearly entitled to form an opinion in the light of the bank statements as to the amount of preliminary tax and value added tax due by Mr. Hunt, subject, of course, to the right of the latter to dispute the actual amount.

Inadmissibility of evidence

59.      The adduction in evidence of the bank statements was strenuously objected to on behalf of Mr. Hunt and Mrs. Hunt during the course of the proceedings in the High Court on the ground that they were hearsay. It was, however, submitted on behalf of the Bureau that they were admissible in evidence by virtue of S. 8(5) and (7) of the 1996 Act.

60.      Section 8(5) provides that

"A bureau officer may exercise or perform his/her powers or duties on foot of any information received by him/her from another bureau officer or on foot of any action taken by that other bureau officer in the exercise or performance of that other bureau officers powers or duties for the purposes of this Act and any information, documents or other material obtained under this subsection shall be admitted in evidence in any subsequent proceedings." [Emphasis added].

61.      Section 8(7) provides inter alia that

"Any information or material obtained by a bureau officer for the purposes of this Act may only be disclosed by the bureau officer to –

(a) Another officer or a member of the staff of thebureau….

(c) Any officer of the Revenue Commissioners for the purposes of the Revenue Acts or any provision of any other enactment, whether passed before or after the passing of this Act, which relates to revenue….

and information, documents or other material obtained by a bureau officer or any other person under the provisions of this subsection shall be admitted in evidence in any subsequent proceedings….." [Emphasis added].

62.      In this case, Detective Garda Flanagan, a bureau officer, gave evidence of having obtained orders pursuant to S. 63 of the Criminal Justice Act 1994 for the production of accounts in the name of Mr. Hunt or Mrs. Hunt in the named financial institutions. On foot of those orders, he was furnished with the relevant documents by the financial institutions concerned. This information was furnished by him to the inspector who subsequently gave evidence and who said that it was on foot of that documentary evidence that he raised the assessments which were the subject of the proceedings.

63.      It is clear, that in accordance with the rules of evidence normally applicable in civil proceedings, the documents in question could be proved only by their authors giving sworn evidence and being subject to cross-examination, unless advantage was taken of the provisions of the Bankers Books Evidence Acts, 1879 – 1959. The documents in question, accordingly, should not have been admitted in evidence in the High Court unless, as the Bureau contend, they were admissible under the provisions to which I have referred.

64.      The precise scope of the abridgement of the rule against hearsay effected by those provisions is difficult to identify. However, it would certainly appear that, where it is a necessary proof in proceedings, whether under the 1996 Act or other legislation, that a bureau officer took certain actions as a result of information, documents or other material received by him from another bureau officer, the court may act on the sworn evidence of the bureau officer that he received the information, documents or other material from the other bureau officer. To that extent, the rule against hearsay is relaxed and the court is entitled to accept as truthful an unsworn statement made out of court by a bureau officer to the bureau officer who gives evidence that he acted on foot of the information in question. While the wording of the section is far from clear, it would seem from the addition of the words "documents or other material" in the closing words of each sub-section that it was envisaged that the "information" received by the bureau officer need not necessarily be oral information.

65.      However, it certainly does not follow from the fact that the unsworn out of court statement of the first bureau officer to the bureau officer giving evidence is admissible that any evidence which he obtained, and of which he informs the bureau officer giving evidence, is also admissible. That would have the absurd consequence that a bureau officer would be precluded by the operation of the rule against hearsay from giving evidence as to what he was told by another person not before the court, but that the same plainly inadmissible evidence could be rendered admissible if he informed another bureau officer of the contents of the conversation. I am satisfied, that unless the provisions in question are incapable of any other construction, they should not be so construed. In the present case, if Detective Garda Fleming had, for any reason, been unavailable to give evidence, the inspector would have been entitled to give evidence that he had made the assessments on foot of the bank statements furnished to him by Detective Garda Fleming, provided that the statements were properly proved but not otherwise. I am, accordingly, satisfied that the evidence in question should not have been admitted in the High Court.

The denial of the right of appeal

66.      As I have already noted, it was argued on behalf of Mr. Hunt that the assessments in this case had not become "final and conclusive" at the time of the High Court judgment and that, on this ground also the trial judge should not have acceded to the application on behalf of the Bureau for judgment in the sum of £1,778,343.76. It was argued on his behalf that the meaning of S. 957(2)(a), set out in an earlier part of this judgment, was that, under the self assessment procedure, the time for bringing an appeal did not begin to run until a return had been made and the amount of preliminary tax estimated as due by the taxpayer had been paid. It was submitted on behalf of the Bureau that so to construe these provisions would be to allow a person by his own default to defer indefinitely the appeal period and consequently the date upon which the assessment became final and conclusive. Having regard to the conclusions I have already arrived at in this judgment, I do not find it necessary to express any opinion as to the proper construction of the provisions in question and am satisfied that it would not be desirable to do so, since, as I have already pointed out, the judicial review proceedings instituted with the leave of the High Court and which raise inter alia the question as to whether those assessments had become "final and conclusive" are still in being and have never been determined in the High Court.

Conclusion

67.      I am satisfied, in the result, that the first proceedings should have been dismissed as against Mr Hunt. Since the relief sought against Mrs Hunt depended on the statements from the financial institutions being admissible , it follows that the proceedings should also have been

dismissed as against her.

68.      I would, accordingly, allow the appeal and substitute for the order of the High Court an order dismissing the Bureau's claim.