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Supreme Court of Ireland Decisions |
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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> McK. -v- H. & anor [2006] IESC 63 (28 November 2006) URL: http://www.bailii.org/ie/cases/IESC/2006/S63.html Cite as: [2006] IESC 63, [2007] 4 IR 186, [2007] 1 ILRM 338 |
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Judgment Title: McK. -v- H. & anor Composition of Court: Murray C.J., Denham J., Hardiman J. Judgment by: Hardiman J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||
- 16 - THE SUPREME COURT Murray C.J. 343/02 97/03 245/03 405/03 Denham J. Hardiman J. Between: McK. Plaintiff/Respondent and H. and Anor. Defendants/Appellants and H. NOTICE PARTY JUDGMENT of Mr. Justice Hardiman delivered the 28th day of November, 2006. These are the appeals of the first and second-named defendants against the Order of the High Court (O’Sullivan J.) made the 7th September, 2001, pursuant to s.3 of the Proceeds of Crime Act, 1996, principally in respect of premises at 67 Seannacloc Tower, Blarney, Co. Cork. The other items to which the s.3 Order related were a motor car and a motor cycle. The appellants also appeal against the order of the High Court (Finnegan P.) on the 26th October, 2001, whereby a receiver with power of sale was appointed over the dwellinghouse pursuant to s.7 of the same Act. It is possible to deal immediately with a number of points. First, Ms. Tracy Homan, wife of Thomas Homan, was made a Notice Party to the proceedings in the High Court but no appeal has been lodged on her behalf. Accordingly no special consideration of her position is necessary here. Secondly, the first and second-named defendants are father and son, Thomas being the son and James the father. The evidence on behalf of the plaintiff in the High Court included evidence of significant criminal activities on the part of Mr. Homan Junior. This gentleman did not himself give evidence or contradict in any way the evidence on behalf of the plaintiff. Nor did he call any other person to give evidence on his behalf. In the receivership proceedings, however, Thomas Homan swore an affidavit in which he denied that he had at any time any beneficial interest in the premises 67 Seannacloc Tower, Blarney, Co. Cork. It would thus appear that he lacks standing personally to appeal the order insofar as it relates to those premises. It is undisputed that the real property at issue here is in the name of the second-named defendant, James Homan, father of Thomas. The premises are subject to a mortgage in his name. At the hearing in the High Court, a garda gave evidence about investigations he had carried out with a director of the Company which had built the house in question. This gentleman said that the contract was signed by James Homan and stage payments were received by cheque from James Homan. However, in the course of the construction project, between December 1998 and July 1999, the builder saw James Homan only four or five times, but saw Thomas on the site about twice a week. At the time of the hearing, Thomas was living in the house with his wife and two children but James was living in his own premises at 21, Kerryhall Road, Fairhill, Co. Cork. The receipts for the stage payments in relation to the construction were found in the premises at Seannacloc together with personal documents of Thomas Homan. It appears that James selected, and paid for in cash, a fireplace now fitted in the house in question. There is a mortgage in the name of James Homan in the sum of £50,000 from the Allied Irish Banks which was used to pay for the building of the house. The repayments were made through an account in the name of James Homan which is funded in cash. It was the evidence of the plaintiff that these payments were in fact funded by Thomas Homan. This case was at hearing in the High Court for a total of nine days. During this time the plaintiff, Chief Superintendent McKenna, Detective Inspector Quilter, Detective Garda Flanagan and Detective Garda McGreevy gave evidence on behalf of the plaintiff and all but Inspector Quilter were cross-examined. Mr. Homan Senior gave evidence on his own behalf. A number of rulings were given by the learned trial judge during and after the hearing. Of particular relevance is the ruling of the 25th April, 2001, in relation to the admissibility of evidence of the plaintiff’s belief that the property in issue in the proceedings represented the proceeds of crime. On the 17th May, 2001, the learned trial judge accepted the evidence given for the plaintiff and rejected that of Mr. James Homan, for the reasons given in that ruling. Other rulings were given in the course of the hearing which are less relevant for the purpose of this appeal. The nature of the s.3 hearing. It is urged on behalf of the appellants that the s.3 hearing in the present case was wrongly treated as an interlocutory hearing. No point was taken on this in the first submissions filed on behalf of the second-named defendant but subsequently further submissions, said to “take precedence” of the first set of submissions were filed in which this point was taken. Reliance was naturally placed on the decision of this Court in Murphy v. G.M. [2001] 1 IR 113. But no point to the effect that the Court was proceeding on a misunderstanding of the nature of the s.3 proceedings was taken during the hearing; in the High Court the topic was never mentioned. The complaints presently made about the consequences of the High Court’s understanding of the nature of the proceedings are that the plaintiff was not ordered to deliver a statement of claim; that, accordingly, the defendants had no opportunity to seek particulars and that Mr. Thomas Homan was refused an application for discovery. Accordingly, say the appellants, their right to natural and constitutional justice was breached as was their audi alteram partem rights. The plaintiff’s case in McK v. S.M., cited above, proceeded on precisely the same basis as this case did i.e. that the s.3 order was interlocutory in the conventional sense of that term so that, for example, it was unnecessary to deliver a statement of claim. But the respondent in that case challenged that belief and issued a motion to dismiss the plaintiff’s action for failure to deliver a statement of claim. The present appellants took no such step. Mr. Thomas Homan equally did not appeal the refusal of his application for an order for discovery, as an applicant similarly unsuccessful did in McK v. F.C. [2001] 4 IR 113. In Murphy v. G.M. [2001] 4 IR 113, the High Court dealt with a very similar complaint as follows:
The public interest and the interest of individual litigants alike requires that litigation should be conducted as expeditiously as possible and that a person who has been successful in a claim or defence should not (save by the ordinary process of appeal) be harassed by the other party reopening the subject of litigation. In what has become a classic passage, it was said in Henderson v. Henderson [1843] 3 Hare 100, the Court will not normally:
Apart from the foregoing, it is clear from a reading of the transcript that the appellants here have in fact suffered no injustice, or even procedural disadvantage in their defence of the claim brought against them by the plaintiff, in the manner in which they elected to defend it. The purely factual dispute involved in the hearing was in one sense quite narrow, because the first-named defendant did not himself or by other witnesses adduce evidence, contradict the plaintiff’s claim that he was and had been for some time involved in substantial crime relating to dealings in unlawful drugs. The issues raised in relation to the plaintiff’s evidence were legal issues and in particular related to the range of hearsay or belief evidence permitted under the relative statutes. A considerable volume of detailed cross-examination was engaged in, including cross-examination of lay witnesses as to the meaning of the statutory provisions in question, which was of doubtful admissibility. The legal issues raised in relation to this evidence stood or fell on their own merits. Insofar as there was a conflict of evidence, raised by the testimony of the second-named defendant, it is clear that the learned trial judge who saw and heard the witnesses in the extensive cross-examination of them found the evidence called on behalf of the plaintiff credible and satisfactory, as he was entitled to do. Hearsay and belief evidence. A number of points were made on behalf of the second-named defendant on this topic. In order to deal with them it is necessary first to set out the relevant statutory provisions which appear to me to be as follows. Section 8 of the Proceeds of Crime Act, 1996, provides:
(a) In proceedings under s.2, on affidavit or if the Court so directs on oral evidence or (b) In proceedings under s.3, in oral evidence, that he or she believes either or both of the following that is to say: (i) That the respondent is in possession or control of specified property and that the property constitutes, directly or indirectly, proceeds of crime, (ii) That the respondent is in possession of or control of specified property and that property was acquired, in whole or in part, with or in connection with the property that, directly or indirectly, constituted the proceeds of crime, And that the value of the property or as the case may be the total value of the property referred to… is not less than £10,000, then, if the Court is satisfied that there are reasonable grounds for the belief aforesaid, the statements shall be evidence of the matters referred to in paragraph (i) or in paragraph (ii) or in both as may be appropriate, and of the value of the property. (2) The standard of proof required to determine any question arising under this Act shall be that applicable to civil proceedings.
(7) … 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”.
A considerable volume of the challenge to the belief expressed, with statutory evidential force, by the plaintiff was directed to the question of whether there were reasonable grounds to support it, whether the plaintiff actually had the belief which he proclaimed, whether it was rational for him to entertain it. His understanding of the law was explored at some considerable length. This was directed at undermining the two statutory pre-conditions which must be met before the plaintiff’s statement of belief can constitute evidence: that the plaintiff should have and express the belief and that there are reasonable grounds for it. If the plaintiff surmounts these two hurdles then his belief constitutes evidence in relation to the defendants possession of the property and the property constituting, directly or indirectly the proceeds of crime, or that the respondent is in possession of property which was acquired wholly or partly with or within connection with property that, directly or indirectly, constituted the proceeds of crime. This evidence is not conclusive and may be counteracted by evidence called by or on behalf of the defendant. Accordingly, the effect of the expression of an admissible belief under the Section, if it is not undermined in cross-examination, is to create a prima facie case which may be answered by the defendant if he has a credible explanation as to how he lawfully came into possession or control of the property in question, and establish this in evidence. The defendants here concede that s.3 allows for hearsay evidence (“will require a portion of oral evidence involving hearsay…”, as it is put in the written submissions on behalf of the second-named defendant). They say that the only hearsay evidence which is provided for is the statement of belief referred to in s.8(1) and that it is to be inferred that no other hearsay is permitted. In particular it is objected that statements and information alleged to have been received by identified third parties were used as the basis for the plaintiff’s belief. Mr. Mason, the builder mentioned earlier in this judgment, is given as an example of this. Equally, the plaintiff made use of evidence or information contained in the affidavits of other bureau officers. These submissions, with respect, seem to ignore s.8(5) and (7) of the Criminal Assets Bureau Act, 1996. Subsection (7) permits the disclosure of information or material obtained by a bureau officer for the purposes of the Act to be disclosed to another bureau officer, a member of the Garda Síochána, and certain other classes of person. It is then provided that “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”. The question of the admissibility of the plaintiff’s belief was lengthily debated and was the subject of a ruling of the learned trial judge on the 25th April, 2001. From this it will be seen that the judge made a nuanced ruling, finding that there was reasonable grounds for the plaintiff’s belief insofar as the first-named defendant was concerned, and that there were reasonable grounds for one aspect, but not another, of the plaintiff’s belief in respect of the second-named respondent. It must be emphasised that this belief in itself, once there were held to be reasonable grounds for it, would be sufficient to ground an order under s.3 if there were no evidence to the contrary or if, as happened here, the second-named defendant’s evidence to the contrary were rejected. A very considerable part of the submissions on behalf of the second-named defendant is based on an analysis of answers given in cross-examination and on suggestions that the plaintiff did not understand particular statutory terms or legal propositions, and suggestions that the learned trial judge should have interpreted the evidence differently. For example, it is claimed that the plaintiff’s evidence and belief is worthless on the basis of his statement that “… we started at our investigation because we believed that the property in the case was the proceeds of crime…”. This is to said to indicate that the plaintiff’s belief was “predetermined” and “flawed”. It does not seem to me logically to have this effect and the credibility of the belief and the finding that there were reasonable grounds for it appear to me to be primarily matters for assessment by the learned trial judge. The judge came to the determination that was required of him in three separate stages: as to the reasonableness of the grounds for the plaintiff’s belief on the 6th April, 2001, as to the admissibility of that belief into evidence on the 25th April, 2001, and on the general issues in the proceedings on the 17th May, 2001. In these circumstances it is apt to recall the very often cited terms of the judgment of this Court (McCarthy J.) in Hay v. O’Grady [1992] 1 IR 210: “(1) An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but also observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial. (2) If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings however voluminous and apparently weighty the testimony of the evidence against them. The truth is not the monopoly of any majority. (3) Inferences of fact are drawn in most trials: it is said that an appellate court is as good a position as the trial judge to draw inferences of fact… I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgement, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence an appellate tribunal is as good a position as the trial judge”. I can find no ground to differ from the findings of the learned trial judge in this case. Statute of Limitations. The defendants claimed for the first time in this Court that the plaintiff’s claim was statute barred by virtue of the provisions of s.11(7)(b) of the Statute of Limitations, 1957, since it claimed a “forfeiture”. The judgment of this Court in McK. v. D [2004] 2 ILRM 419 has already dealt with this issue, finding that an order under s.3 “is not, in any normal sense, an order of forfeiture. It would do violence to the language of s.3 to hold that it effects a forfeiture”. In any event, I would not entertain a reliance on the Statute which occurs for the first time on appeal. In a case governed by the ordinary rules of pleading, the Statute must be expressly pleaded. This case is not so bound and its procedures are, to some extent, sui generis. Nevertheless I would hold that reliance on the Statute must be indicated at an early stage and certainly cannot be kept in reserve until after the defendant relying on it has been unsuccessful in the High Court. Car and motorcycle. It does not appear to me that any stateable legal point was taken in respect of the application of the order to the car and motorcycle in question that has not been dealt with above. Appointment of receiver. By order of the 26th October, 2001, the High Court (Finnegan P.) made an order appointing a receiver with power of sale over the dwellinghouse at issue in these proceedings. This was done pursuant to s.7 of the Proceeds of Crime Act, 1996. This order was appealed on the grounds, firstly, that it is invalid as it flows from the s.3 order. Secondly it is contended that there was no equitable reason in all the circumstances for the appointment of the receiver over the property. This in turn was on the basis that the mortgage was paid up-to-date and that the premises were then occupied then by a family. Since I favour upholding the s.3 order made in this case it follows that the first ground of objection to the receivership order is of no weight. It is indeed true that an application for an order under s.7 of the Proceeds of Crime Act requires to be considered on equitable principles. Finnegan P. adverted to this saying:
Moreover, the purpose of a receivership is to preserve the property over which the receiver is appointed for the benefit of the party ultimately found to be entitled to it. A vital aspect of this preservation, in the case of a building, is to ensure that the premises are at all times properly and validly insured. In my view the evidence before the learned President to the effect that the policy of insurance was likely to be or to become void, which was not contradicted, was quite sufficient in itself to justify the appointment of a receiver with power of sale. Conclusion. I would dismiss the appeal and affirm the orders of the High Court. McK. v. H. and Anor. | ||||||||||||||
