The Court of Appeal has dismissed an appeal by Edward McCarthy and Anthony Mullane against a High Court order freezing two Limerick properties under the Proceeds of Crime Acts.
The order prevents the respondents and anyone with notice of it from disposing of, dealing with or diminishing the value of 83 Cliona Park, Moyross, and 29 Creagh Avenue, Kileely. The High Court had found that the properties represented, directly or indirectly, the proceeds of crime. The Court of Appeal’s decision leaves that order in place; it was not a final order disposing of the properties.
The appellants challenged the admission of four statements exhibited in an affidavit by Detective Garda Brendan Hand. They argued the statements were hearsay and their authors could not be cross-examined; one author, Kevin Mullane, was deceased. The Court of Appeal held that the statements could be considered in assessing the reasonable grounds for the Criminal Assets Bureau officer’s belief. In this case, the same affidavits formed the basis of that belief, which could itself support a prima facie case once reasonable grounds were established. The court rejected the argument that the statements had to be excluded from the wider assessment of the Bureau’s evidence.
The appeal also alleged that the High Court had not followed the proper sequence for determining whether the Bureau had established a prima facie case and whether the respondents had displaced it. The Court of Appeal said the seven-step approach set out in an earlier case was guidance, and the judgment had to be assessed as a whole. It concluded the High Court had found reasonable grounds for the Bureau officer’s belief and was entitled to find that the respondents had not discharged the burden that then rested on them.
The appellants also argued the High Court had not properly considered explanations for the funding of Creagh Avenue, including money from a personal injury settlement and a lottery bet. The Court of Appeal found the trial judge had considered that evidence as part of the overall assessment. Although the treatment could have been more detailed, it did not undermine the conclusion that the burden had not been met.
Finally, the appeal concerned whether freezing Cliona Park created a serious risk of injustice because it was said to be a family home occupied by Linda Mullane and her children. The Court of Appeal noted that Linda Mullane was not a party and had not sought to join the case, and that no evidence or submission had been put forward to establish injustice. It held the trial judge was not required to seek out such evidence and dismissed the appeal.