The Supreme Court appeal concerned an order under the Proceeds of Crime Act 1996 involving property alleged to have been acquired, at least in part, with proceeds of crime. The judgment excerpt identifies the parties only as McK, the plaintiff and respondent, and D, the defendant and appellant.
In a judgment delivered on 17 May 2004, Mr Justice McCracken said he agreed with Mr Justice Fennelly’s conclusion that the Act did not apply to proceeds of crimes committed outside the State. On that basis, he also would allow the appeal and set aside the High Court order.
Justice McCracken separately addressed the High Court President’s treatment of sections 3 and 8. He described the High Court judgment as ambiguous and confused in its references to the two provisions, but said he was not convinced the judge had been in error. In his view, the judge had ultimately applied the correct tests, and the findings on the evidence should stand.
The judgment explained that section 8 concerns whether an authorised officer’s belief is evidence, including whether there are reasonable grounds for that belief. If so, the trial judge should make a specific finding to that effect. The judge should then assess whether the applicant’s evidence makes out a prima facie case under section 3. If it does, the onus shifts to the respondent or another specified person to show that the property is not proceeds of crime and was not acquired with or in connection with such proceeds.
If the respondent meets that onus, the proceedings should be dismissed. If not, the judge should consider whether making the order would create a serious risk of injustice. Justice McCracken said following these steps in sequence should reduce the risk of confusion between the sections.
The excerpt records Justice McCracken’s agreement with the outcome on appeal and his procedural guidance. It does not reproduce Justice Fennelly’s full reasoning or the Supreme Court’s formal order.