The Supreme Court dismissed a motion by John, Geraldine, Darren and Tracy Gilligan for public funding to obtain a forensic accountant’s report for their appeals in long-running proceedings brought by the Criminal Assets Bureau (CAB).
In a judgment delivered on 9 July 2014, Mr Justice Clarke said the proposed report would be used to support new evidence that money used to acquire properties came from gambling winnings rather than crime. The Gilligans sought to challenge High Court decisions concerning orders under the Proceeds of Crime Act 1996.
The immediate question was whether the report could be admitted on appeal. If not, the court said, there was no basis to fund its preparation. The judgment noted that the High Court had already rejected the gambling explanation at a 2011 hearing on an application to vary or discharge the property restraint order. A later High Court hearing made disposal orders, and the Gilligans’ appeals also concerned those orders and claims under the European Convention on Human Rights Act.
The Court said new evidence on appeal is generally allowed only under a test that includes whether it could have been obtained with reasonable diligence for trial, whether it could probably have an important influence on the result, and whether it appears credible.
On the appeal concerning the later disposal hearing, the proposed report could not help decide the legal question of whether the High Court was entitled to refuse to reopen the gambling issue. If the appeal succeeded on that point, the matter could be returned to the High Court, where evidence might then be relevant, the judgment said.
As to the earlier hearing, the Court found there had been ample opportunity to obtain and present a report. CAB’s accountant’s affidavit had been filed about nine months before that hearing began, and the witness was cross-examined. The judgment said the proposed evidence could and should have been available then, and allowing it on appeal would let a party try its case in the High Court and seek to repair the evidence after losing.
Mr Justice Clarke concluded that the report should not be admitted and dismissed the motion for funding. A separate motion seeking disclosure of documents had been adjourned. The judgment said any remaining document dispute should be resolved or brought before the Court promptly so it would not delay the substantive appeals. The ruling addressed these motions; it did not decide the substantive appeals.