The Court of Appeal has dismissed John McCormack’s appeal against High Court orders restricting dealings with three properties under the Proceeds of Crime Act 1996. It found no good reason to disturb the orders made on 20 July 2020. The appeal judgment was delivered by Mr Justice Murray on 18 June 2021, with Justices Noonan and McGrath agreeing.
The properties were at 26 Purcell Park, Shannon; Cloontra West, Co Clare; and Claughan Fort, Garryowen, Limerick. The High Court had made interlocutory orders under section 3, following a three-day hearing. These orders prohibit dealing with the properties; the appeal judgment did not make a disposal order transferring them to the State.
The High Court found that the Bureau had established a prima facie case that the properties were acquired with or in connection with proceeds of crime. Under the statutory process, McCormack then had to satisfy the court, on the balance of probabilities, that the properties were not so acquired. The Court of Appeal said the trial judge applied the correct test and explained his conclusions property by property.
The appeal challenged the use of Garda belief evidence, including information from Detective Sergeant Kevin O’Hagan whose sources were not disclosed for operational reasons. The Court of Appeal held that such information could support belief evidence under the Act. It also noted that the Chief Superintendents who gave the belief evidence were not cross-examined. The judgment said the trial judge’s conclusions rested on the wider material, including criminal convictions, evidence concerning events at Cloontra and the unexplained sources of funds used to acquire assets.
The court rejected challenges to the findings on the properties’ funding. The High Court had found the explanation for the Purcell Park deposit shifted during the hearing, and that the source of mortgage payments and the funding for Cloontra’s purchase and development were not satisfactorily explained. It also upheld the trial judge’s assessment that the account of exchanging machinery for Claughan Fort was implausible. The Court of Appeal said alleged accounting errors did not undermine the result, because the trial judge relied only to a limited extent on the accountant’s calculations.
The court also rejected the claim that the orders created a serious risk of injustice for family members living in the houses. It noted that no affidavit evidence had been provided to establish their circumstances or alternative accommodation, and that the wife and adult daughters had not joined the proceedings to assert interests of their own.
Finally, the court rejected the appeal concerning legal aid. It found that the application had been opened at the start of the High Court hearing, but McCormack chose not to bring it to a conclusion after concerns were raised about information on assets in Spain. The appeal was dismissed. The court’s view was that the Bureau was entitled to costs; if McCormack wished to contest that provisional view, he had ten days to notify the Court of Appeal Office, after which a hearing would be fixed.