The High Court has made an order sought by the Criminal Assets Bureau in proceedings concerning an Audi A4, cash and two investment bonds, after rejecting a challenge to evidence from a Garda search. The order excludes €14,350 to account for funds the judge accepted as legitimate or potentially legitimate.
The case was heard by Mr Justice Birmingham under section 3 of the Proceeds of Crime Act 1996. The court found reasonable grounds for the Bureau officer’s belief that the property represented proceeds of crime, and that the Bureau had made out a prima facie case. It then considered evidence from the respondents and notice party, and found they had not discharged the onus on them.
The property in the application included an Audi A4; £6,625 sterling and €9,000 seized from a rucksack during a search of 12 Clonard Avenue, Granagh, County Cork; and investment bonds of €20,000 and €10,000 in the names of the senior and junior respondents respectively. The search took place on 28 May 2009, following the arrest of the junior respondent while he was driving the Audi and in possession of firearms. He later served a six-year prison sentence for the firearms matter.
The Bureau’s case included a lifestyle analysis estimating that the junior respondent had a deficit of €133,161.61 between funds available to him and legitimate earnings from 2000 to 2009. The judge found the respondents’ explanations for funds generally unconvincing. He accepted a €7,550 compensation payment as a legitimate source and a €1,800 cheque from DTZ Sherry Fitzgerald for house-clearing and waste-disposal work. He also allowed a further €5,000 for the possibility of limited unrecorded commercial or waste-disposal activity.
The junior respondent argued that evidence from the Clonard Avenue search was unconstitutionally obtained because the search warrant was issued under a statutory provision later declared unconstitutional in Damache v DPP. The judge found, on the balance of probabilities, that Clonard Avenue was a dwelling of the junior respondent. He nevertheless held that he was not precluded from considering the search evidence in these proceeds-of-crime proceedings, noting that the Gardaí had followed a statutory procedure and that the case did not involve wilful disregard or recklessness. He added that, even if the search evidence were excluded, that would affect only property seized in the search, not the car or bonds.
The judgment records that the section 3 hearing had previously been heard by another judge, who died before delivering judgment. The junior respondent later received leave to intervene and participate in the hearing before Mr Justice Birmingham. The judgment directs that the Bureau’s order be made subject to the stated exclusions; it does not specify in this source the final amount attributable to each item.