Judgment
Title: | Irish Bank Resolution Corporation Limited & ors -v- Quinn & ors |
Neutral Citation: | [2012] IESC 51 |
Supreme Court Record Number: | 372/12 |
High Court Record Number: | 2011 5843P |
Date of Delivery: | 10/24/2012 |
Court: | Supreme Court |
Composition of Court: | Denham C.J., Hardiman J., Fennelly J., O'Donnell J., McKechnie J. |
Judgment by: | Hardiman J. |
Status: | Approved |
Result: | Dismiss |
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| Judgments by | Link to Judgment | Concurring | Dissenting | Fennelly J. | | Denham C.J., O'Donnell J., McKechnie J. | Hardiman J. | Hardiman J. | | | | |
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[2012] IESC 51
THE SUPREME COURT
Appeal Record No.: 372/2012
Denham J
Hardiman J.
Fennelly J.
O’Donnell J.
McKechnie J.
IRISH BANK RESOLUTION CORPORATION LIMITED, QUINN INVESTMENTS SWEDEN AB and LEIF BAECKLUND
Plaintiffs and Respondents
and
SEAN QUINN, CIARA QUINN, COLETTE QUINN, SEAN QUINN JUNIOR, BRENDA QUINN, AOIFE QUINN, STEPHEN KELLY, PETER DARRAGH QUINN, NIALL McPARTLAND, INDIAN TRUST AB, FORFAR OVERSEAS SA, LOCKERBIE INVESTMENTS SA, CLONMORE INVESTMENTS SA, MARFINE INVESTMENTS LIMITED, BLANDUN ENTERPRISES LTD., MECON FZE, CJSC VNESHKONSULT, 000 STROITELELNYE TECKNOLOGII, 000 RLC- DEVELOPENTS and KAREN WOODS
Defendants
JUDGMENT of Mr. Justice Hardiman delivered the 24th day of October, 2012.
1. This is the appeal of the fourth-named defendant (originally the fifth-named defendant) Sean Quinn Junior against certain sentences of imprisonment imposed upon him on the 20th July, 2012, by the High Court (Dunne J.). The orders are complex and not entirely consistent one with the other. Accordingly, rather than state their effect here I will set out the relevant portions below. The case which the first-named plaintiff (“the Bank”) made on the hearing of this appeal was that on the 20th July, 2012 the plaintiff had been committed to prison for three months by way of penalty for criminal contempt and that on the same day he had separately been committed to prison “for an unlimited period of time”.
2. Insofar as the indefinite sentence of imprisonment, imposed in order to secure compliance with coercive orders made in the High Court is concerned, I agree with the Order proposed by Mr. Justice Fennelly to the effect that the coercive orders must be set aside. The rest of this judgment, accordingly, is concerned with the punitive order of three months imprisonment. In fact, this sentence expired on Friday last having been served, in full and without any remission, by the appellant. But he maintains this appeal as he is entitled to do, for the purpose of attempting to set aside the order finding him guilty of a criminal contempt. The sentence has been served in full, and nearly all of it served before the result of the appeal was announced, because the Bank objected to a stay being placed on the order pending appeal. It is my view that this action of the Bank, and the language in which its objection was phrased, casts considerable light on its true motivation for pursuing with avidity the imprisonment of the appellant.
3. The first-named plaintiff in this matter, the Irish Bank Resolution Corporation Limited, is the successor, insofar as these proceedings are concerned, to Anglo-Irish Bank. Anglo was, to all appearances, one of the stars of the Celtic Tiger years. Its growth was extraordinary in its rapidity and extent. Its fall was so rapid that during the year 2008 its shares were found to have lost 99% of their value. When, in September, 2008, after the collapse of Lehmann Brothers, Anglo was about to collapse, the Government took the view that it was simply too big to be permitted to fail and decided on the guarantee of Anglo and the other Irish Banks the cost of which for good or ill has dominated the Irish economy since the 29th September, 2008, and seems likely to do so for years to come.
4. The Quinn group of companies, with which many of the individual defendants are intimately associated, and which Mr. Sean Quinn Senior founded, was equally a star of the Celtic Tiger era. It started in the cement business and rapidly expanded to the point where it ran an enormous insurance company and acquired an extraordinary portfolio of property assets, mostly abroad. It too has collapsed and administrators and receivers have been appointed to many of the companies in the group. Mr. Sean Quinn Senior and his family connections have been effectively divested of control of the companies and there has been extensive litigation between the Bank and the companies and the individual members of the Quinn family. It is correct to say that this litigation has been fought on both sides with extraordinary bitterness.
5. Each side considers that the other has perpetrated grave injustices against it. The Bank considers that the Quinn interests have failed to discharge their liabilities to Anglo and thus significantly increased the difficulties which affect that company, its creditors and successors. The Quinns’ consider that Anglo have ruined them by treating them in a cynical and manipulative fashion and in particular by inducing certain of them to borrow money for the purpose of attempting to prop up the Anglo share price by the purchase of its shares, when the latter were in, or approaching, freefall. They consider that the proceedings taken against them are an attempt to saddle them with losses largely caused in the first place by their involvement, wittingly or otherwise, in an Anglo devised and Anglo-promoted scheme to save Anglo itself. They consider that enormous sums covered by the loan contracts which Anglo are attempting to enforce are tainted with illegality by Anglo’s own actions; that the Bank has acted unlawfully and destroyed the Quinn group in the process. There are criminal proceedings outstanding about some aspects of the Bank’s dealings with the Quinns.
6. The Quinns do not deny that, in those circumstances, they or certain of them attempted to remove their assets - lawfully as they see it - from the capacity of Anglo to lay hands on them. They deny however that they did so in a manner or at a time that was in breach of any Court order.
7. In February of this year the Bank issued a Notice of Motion directed at the jailing of Sean Quinn Senior, Sean Quinn Junior and Peter Darragh Quinn for contempt of court. Sean Quinn Senior and Peter Darragh Quinn were accused of six actions constituting, in summary, breaches of the Courts orders which they say were directed at protecting their security; Sean Quinn Junior was allegedly involved in one such action only involving a payment of $500,000 to a lady, Ms. Puga, with a role in a Quinn associated company in Ukraine. Accordingly, Sean Quinn Junior was, on the basis of the Bank’s own motion, apparently the least involved in what the Bank alleged to be an unlawful scheme to defeat their claims. Nonetheless, on the proposal of the Bank it was Sean Quinn Junior who went to jail while the proceedings against his father were adjourned.
8. It is manifest that the Quinns have questions to answer, in legal proceedings and perhaps otherwise, about the matters which are the subject of the dispute between the Bank and themselves. It is, at least to me, no less obvious that the Bank has questions to answer both in the legal actions in which issue has been joined and in a wider forum as well. But the Bank will not have to answer questions while the legal focus remains exclusively on their application to jail the Quinns. This is part of the litigious advantage which may derive from bringing a contempt application against one’s opponents.
Publicity.
9. It is a feature of the present phase of the litigation that both at the time of the High Court proceedings, and at the time of the appeal to this Court, significant evidence which the Bank intended to deploy was widely and one-sidedly publicised, having somehow come into the possession of media organs, firstly The Mail on Sunday and secondly the Irish Times. When evidence is deployed in court, the response of the other side will normally be virtually immediate and media coverage of the case must therefore cover both sides simultaneously. But when evidence on one side is published to the media without the other side being able to reply, one party derives significant litigious advantage and the other is correspondingly damaged. One sided publicity, especially for highly dramatic allegations, is sometimes aimed at building up a “head of steam” in favour of one party and against the other. There is of course no evidence to show how this material came into the hands of the media before it was opened in court, but as Mr. O’Moore S.C. for the appellant said in the course of the hearing, there was no conceivable reason for his side to leak it. It does not necessarily follow from that that the Bank were responsible for the one sided publicity. There are other possibilities which are not beyond the bounds of possibility.
The Orders of Imprisonment.
10. There are no fewer than three orders of the High Court relating to the incarceration of the appellant. They reveal a confused and contradictory picture.
11. The first is entitled “Order of Committal in cases other than judgment debtors”. This is addressed to the members of An Garda Siochana and recites:
“Whereas lately in the High Court it was adjudged that Sean Quinn Junior for default by his failure to comply with the orders of the High Court made on various dates between the 27th June 2011 and the 20th July 2011 together with the order dated the 29th June 2012 was guilty of contempt of the High Court and do stand committed to prison for the said contempt”.
12. The effect of part of the Order is then set out:
“You are hereby commanded to arrest the said Sean Quinn Junior and thereupon to lodge him in Mountjoy prison there to be detained for a period of three months from the date hereof unless discharged in the meantime pursuant to further order of the High Court”. (Emphasis added)
13. This Order is dated, and was apparently perfected, on the 20th July 2012. It prescribed committal to prison for a fixed and limited period of three months namely for a period of three months. This is a sentence of three months for criminal contempt: there is nothing about an indefinite, coercive committal “for an unlimited period”.
14. On the same day, however, there is another Order in the same proceedings which, after certain introductory recitals says:
“And said counsel for the plaintiff intimating to the Court that there is non-compliance on the part of the said defendants with the terms of the said order.”
15. The Order continues:
16. The effective portion of the Order is then made in the following terms:
“And accordingly it is ordered that the said plaintiff be at liberty to issue Orders of Committal (2) directed the Commissioners and members of the Garda Siochana and to the Governor of Mountjoy Prison against the said fifth and ninth named defendants to arrest them and thereupon to lodge them in the said Mountjoy Prison there to be detained for a period of three months.
Liberty to apply to the said defendants in the event of them wishing to purge their contempt in the course of the said detention period.
And on hearing said counsel for the defendants on the issue of a stay on the order committing the said defendants to prison
And said counsel for the plaintiff opposing same
The Court doth refuse same”. (Emphasis added)
17. This is a sentence of three months, but with liberty for the prisoners to apply to purge their contempt. This suggests a coercive sentence for Civil contempt, capped at three months. This is different in nature and meaning to the first order. But the confusion does not end there.
18. There is then a third Order of the High Court in the same matter dated the 20th day of July, 2012 but said to be perfected on the 30th day of July 2012. “Perfecting” is the process whereby an order is formally done up and issued as an order of the Court.
19. This Order appears to be corrective of the previous Order whose effect is summarised above. This third Order recites:
“Upon reading the Order herein of even date and it appearing that there is an omission therein concerning the non-reference to the term of imprisonment imposed in respect of the coercive element of this Order as against the fifth and ninth defendants therein.
And notwithstanding the punitive element of the said Order in respect of which a three month term of imprisonment was imposed on the said fifth and ninth named defendant they having been found guilty of contempt of court for failure to comply with the said interim and interlocutory Orders of the High Court made on various dates between the 27th June 2011 and the 20th July 2011 together with the Order herein dated the 29th June 2012-10-22
It is ordered that the said plaintiff be at liberty to issue Orders of Committal (2) directed to the Commissioner and members of the Garda Siochana and to the Governor of Mountjoy against the said fifth and ninth named defendants to arrest them and thereupon to lodge them in Mountjoy Prison there to be detained for an unlimited period of time until they come before the Court and purged their contempt in respect of the coercive elements of the said Order…”. (Emphasis added)
20. These Orders appear to me to evidence an unfortunate level of confusion on the important topic of for how long the appellant was ordered to be imprisoned and for what.
21. It is well established in the authorities set out below that punitive imprisonment imposed for a criminal contempt of court must be for a finite, fixed period of time.
22. On the other hand, coercive imprisonment in order to enforce compliance in the future with a court order is imposed for civil contempt and can be indefinite in duration.
23. It appears to me that the difficulties which have arisen in relation to the Order are based on an unfortunate degree of confusion between civil and criminal contempt. The last Order, that perfected on the 30th day of July 2012 after the defendant had commenced his sentence, recited that there was “an omission” in relation to the first Order bearing the date 20th July 2012, and perfected ten days earlier than the rectifying Order. This omission is “concerning the non-reference to the term of imprisonment imposed in respect of the coercive element of this Order as against the fifth and ninth named defendants”. It is only in the third order that the spectre of imprisonment “for an unlimited period of time” is introduced. To make room for it, the three month sentence is consigned, unambiguously in my view, to the status of a fixed sentence for criminal contempt, as it had been in the first, but not in the second, perfected order.
24. My reasons for the foregoing conclusions are as follows:
The previous Order of the 20th day of July 2012 does, contrary to what is recited in the third Order, appears to me to contain a reference to coercive imprisonment. As appears from the extract from it set out above, the appellant was directed to be lodged in Mountjoy Prison “there to be detained for a period of three months” but was given “liberty to apply in the event of wishing to purge [his] contempt in the course of the said detention period”.
A period of imprisonment, in respect of a contempt, which can be purged by compliance with an Order, appears to me manifestly to be coercive and not punitive. Therefore it appears to me that the third Order is incorrect in referring to “an omission concerning the non-reference to the term of imprisonment imposed in respect of the coercive elements of this Order”. But the practical effect of the third Order is dramatic. Instead of a term of imprisonment of three months capable of being terminated by purging the contempt, the appellant is in the third Order sentenced to be lodged in Mountjoy Prison “there to be imprisoned for an indefinite period of time”. The three month sentence is stated to be punitive and fixed in duration.
25. These are manifestly entirely different things. But the appeal appeared to me to be conducted on behalf of the Bank, at whose request the appellant was imprisoned, on the basis that he received a three month sentence by way of punishment for criminal contempt and an indefinite coercive sentence to ensure compliance with the Orders of the Court. But this is by no means clear from the Orders.
Contempt of Court, Criminal and Civil.
26. The Irish law of contempt of court is amorphous. It is extremely difficult for a lay person to understand, principally because the term “contempt of court” is used inexplicably, to mean several quite different things and it is not always clear which of them is intended. Even when the term is used by lawyers - and even judges - the distinctions are not always clear. In part, this is because, from the point of view of a party seeking to use the law of contempt to have another person fined, compelled to comply with onerous requirements, or imprisoned, it can be advantageous to cultivate a certain vagueness in the law so as to avoid the strict requirements normally and correctly imposed on a person who wishes to have his opponent stigmatised, deprived of his liberty, and confined in a convict prison.
27. For many years the leading case on the subject, which appears to me to have the virtue of clarity, was the judgment of this Court in Keegan v. De Burca [1973] I IR 223. There, Ó Dálaigh C.J. had this to say:
“The distinction between the Civil and Criminal contempt is not new law. Criminal contempt consists in behaviour calculated to prejudice the new course of justice, such as contempt in facie curiae, words written or spoken or acts calculated or prejudiced the due course of justice or disobedience to a writ of habeas corpus by the person to whom it is directed - to give but some examples of this class of contempt. Civil Contempt usually arises where there is a disobedience to an order of the Court by a party to the proceedings and in which the Court has generally no longer interest to interfere unless moved by the party for whose benefit the order was made.”
He continued:
“Criminal contempt is a common law misdemeanour and, as such, is punishable by both imprisonment and fine at discretion, that is to say without statutory limit, its object is punitive: see the judgment of this Court In Re Haughey. Civil contempt, on the other hand, is not punitive in its object but coercive in its purpose of compelling the party committed to comply with the order of the Court, and the period of committal would be until such time as the order is complied with or until it is waived by the party for whose benefit the order was made”.
28. But in Shell E.P. Ltd. v. McGrath and Ors. [2007] 1 IR 671 Finnegan P. held that the classic passages quoted above were merely obiter insofar as they concerned civil contempt. And he held that the definition of civil contempt was “not completely accurate”. The learned President felt that there might be, in a civil or coercive order, a criminal or punitive element. In so holding he followed the decision of Ross Company Ltd. v. Swan and Ors. [1981] ILRM 417, a decision of O’Hanlon J. in the High Court. This, if followed, would tend to blur the distinction between Criminal and Civil contempt.
29. This divergence of view perhaps derived from what Keane C.J. said in Flood v. Lawlor [2002] 3 IR 67:
“there may be some room for a difference of view as to whether a sentence imposed in respect of civil contempt is exclusively - as distinct from primarily - coercive in its nature in civil proceedings generally…”. (Emphasis added)
30. But, the learned Chief Justice concluded that:
“whereas here the proceedings are inquisitorial in their nature and the legislature has expressly empowered the High Court to secure compliance with the orders of the Tribunal, it cannot be said that a sentence imposed in respect of a contumelious disregard of the orders of the Tribunal and the High Court is coercive only in its nature”.
31. In Lawlor v. Flood, the proceedings in question were those of a Tribunal of Inquiry so that the case is not directly relevant to the present one. In relation to non-inquisitorial proceedings, such as the civil proceedings between the appellant here and his relations and the Bank, one cannot do more than echo Keane C.J. in holding that “there may be some room for a difference of view”. This “difference of view” does not suggest the clarity and precision normally required in a procedure which can lead to loss of liberty.
32. This appears to me to be a very unsatisfactory situation especially from the point of view of one at risk of his liberty. It is twenty years now since the Law Reform Commission urged the need for statutory reform in this area and some thirty-one years since such reform took place by statute in the neighbouring jurisdiction. It is most unfortunate that no positive steps have been taken here with the result that this fraught matter has come on for resolution in an uncertain state of the law.
33. However, in my view the authority of Keegan v. De Burca is unaffected by the later decisions. Two of these are High Court decisions and the more recent Supreme Court decision does not purport to resolve the issue except in relation to Tribunal proceedings. Accordingly I propose to follow the judgment of this Court in Keegan v. De Burca which in my view remains the authoritative statement of the law until reversed by this Court or overruled by statutory intervention. Accordingly I adhere to the clear distinction between criminal contempt and civil contempt which is there set out. This requires a clear distinction to be explicitly made as to whether an order for imprisonment is civil or criminal in nature.
34. In Keegan, the defendant was attached and committed for contempt of court when she refused to answer a relevant question which the judge had asked. She was imprisoned indefinitely, until she purged her contempt. The Supreme Court held that the contempt disclosed on the above facts was a criminal contempt and that the penalty should have been by way of imprisonment for a fixed period, and not an indefinite period. So the order was vacated.
35. The application of this authority to the present case will be considered below. It is first necessary to turn to some other aspects of the law of contempt, which are well and uncontroversially established in Irish law.
36. The most recent Irish authority is the decision of this Court in Dublin City Council v. Thomas McFeely [2012] IESC 45. There, Fennelly J. quoted Order 44 Rule 3 of the Rules of the Superior Courts as follows:
“Save in respect of committal for contempt in the face of the Court or committal under Rule 4, no Order of Attachment or Committal shall be issued except by leave of the Court to be applied for by Motion on Notice to the party against whom the attachment or committal is to be directed”.
37. He continued, at para. 10 of the judgment:
“The object of these rules is to comply with the obvious need to respect fair procedures where a person is at risk of being imprisoned, that is to respect the rule of audi alteram partem. It is inherent in this system that the person be put on notice of the nature of the contempt alleged against him. In a case where the charge is that he is in breach of a court order, he should be told what the order is and how he is alleged to be in breach. It seems to me axiomatic that these procedures must be observed before the Court makes a finding that the person is in breach of the Order. That is what the contempt consists of.” (Emphasis supplied)
38. In my judgment in McFeely, I asserted the importance of the contempt jurisdiction and continued, at para. 8:
“But the exercise of this power must, in my opinion, always be a matter of last resort, embarked on with manifest caution and great reluctance. This is because the contempt of court procedures have the potential to deprive a citizen of his or her liberty, not to mention property, without their being accorded the elaborate but very necessary protections normally provided by the procedures of a criminal trial.”
39. There then followed this significant passage, which I wish to reiterate in the present case:
“If a citizen could be summarily imprisoned, or fined a huge sum of money, without all proper meticulous attention being paid to the procedures which exist for his protection, then the liberties of citizens generally would be undermined. Everyone threatened with imprisonment for contempt, whether protestor, picketer or property developer is entitled in the public interest, to a meticulous observation of procedural justice, all the more so since the nature of the procedures involved deprive him of the right to trial by jury. It is important that the Court Order allegedly breached should be indicated with absolute clarity and precision in the Motion for attachment and committal and that the evidence alleged to establish breach of that Order should be led in proper form after due and timely service of the Motion for attachment and committal. This Motion will normally be issued by a party and adjudicated upon, quite independently, by a judge.”
40. These passages are of vital importance to the resolution of the present case. In my view, they are merely an exposition of the law as it stood and by no means a new departure. One could find legal authority for the proposition that an application to commit for contempt has to be approached with great caution, over a period of many centuries. This is because it is a procedure which allows a person to be locked up, sometimes “without limit of time”, without the procedures and protection which normally apply when a person is on risk of his liberty. It is therefore essential, in the public interest (and not simply to protect the rights of an individual), that there be a “meticulous observation of procedural justice” in such a case. The most important aspect of procedural justice is, as Fennelly J. put it “In a case where the charge is that he is in breach of a court order, he should be told what the order is and how he is alleged to be in breach. It seems to me axiomatic that these procedures must be observed before the Court makes a finding that the person is in breach of the order”. The nature of this obligation to notify the person whose imprisonment is sought is that “the order allegedly breached should be indicated with absolute clarity and precision in the Motion for Attachment and Committal and the evidence alleged to establish breach of that order should be led in proper form after due and timely service of the motion.”.
The Bank seeks the imprisonment of Sean Quinn Junior.
41. The Notice of Motion seeking the attachment and committal of the appellant was in a particular form, and that form is also of great importance to the issues on this appeal. The appellant was one of three people against whom orders for attachment and committal were sought. The other two, Sean Quinn Senior and Peter Quinn were alleged to have committed breaches of Court Orders in six different ways. A single allegation only was made against the appellant, Sean Quinn Junior. This was in relation to the payment of $500,000 in the Ukraine. The appellant was not alleged to have participated in a wider conspiracy or to be responsible, vicariously or otherwise, for the other actions alleged against the other respondents. If it were intended to make such an allegation, that would have to be explicitly stated.
Nature of the proceedings.
42. The proceedings against the appellant are contained in para. 3 of the Notice of Motion dated the 13th February, 2012. There it is stated that his attachment and “if necessary” committal is sought for his contempt in failing to comply with the interim and interlocutory Orders of this Honourable Court made on various dates between the 27th June, 2011 and the 20th July, 2011 by:
“directing or participating in a process whereby on the 30 August, 2011 U.S. $500,000 cash at Bank of an IPG subsidiary company was paid into the personal Bank account of the General Director of that Company contrary to the interests of the plaintiff and other than in the ordinary course of business, immediately prior to the defendant losing control of the subsidiary company on 31 August, 2011.”
43. This was the allegation against the appellant. There is no other. The remedy sought was his attachment and committal i.e. his imprisonment. He was in fact imprisoned on foot of this application, it appears, for a fixed period of three months.
44. The conclusion which I draw from the foregoing facts is that the proceedings in the High Court on foot of the Notice of Motion which led to an Order for the appellant’s imprisonment were a summary criminal trial in the High Court. I say this for the following reasons:
(1) The proceedings were expressly directed at securing the imprisonment of the appellant, and they succeeded.
(2) The appellant was therefore imprisoned on foot of the proceedings, and this imprisonment was for a fixed, definite period. This is the effect of the first and third orders, above.
(3) The proceedings were, accordingly, proceedings for the offence of criminal contempt, a Common Law misdemeanour.
(4) The proceedings were summary proceedings. They were not conducted on indictment and were not conducted with a jury. The appellant was not furnished with Statements of Evidence and was given no particulars at any time of any specific acts he was alleged to have performed to bring about the transfer in question. It could not be contended, and was not contended that his presence or participation was necessary in order to bring about that transfer. The case against him was entirely circumstantial.
(5) The Supreme Court in Keegan v. De Burca referred to In Re Haughey [1971] IR 217 for the proposition that “criminal contempt is a Common Law misdemeanour and, as such, is punishable by both imprisonment and fine at discretion, that is without statutory limit, its object is punitive.” In the judgment of the Court in Haughey the Supreme Court identified two cases which it considered to establish that “the High Court tried charges of contempt without a jury, i.e. summarily” pp 252/3.
45. The significance of the foregoing is that the assessment of the conduct of the proceedings in the High Court, and of the appellant’s complaints about them, must proceed on the basis that those proceedings were in the nature of a summary criminal trial conducted by a judge sitting alone.
46. The classic Irish authority on the conduct of an appeal to this Court from the decision of a judge sitting alone is the very well known case of Hay v. O’Grady [1992] IR 210. This decision was given not long after the passing of the Courts Act 1988 which provided that actions of certain kinds would be tried by a judge sitting alone rather than, as theretofore, by a judge and jury. This development required the Supreme Court in turn to consider the proper conduct of an appeal from a decision reached by a judge alone. The principles to be applied are set out in four numbered paragraphs on p.217 of the Report. They emphasise the great deference to be accorded to clear findings of primary fact made by a trial judge (which findings can rarely be overturned on appeal), and the much greater scope for an appellate court to draw its own conclusions “from the combination of primary fact and proper inference”.
47. Having set out the principles referred to, McCarthy J. speaking for a unanimous Court, went on to make a finding of great significance for the present case, at numbered para. 5:
“These views emphasise the importance of a clear statement by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that follows.”
48. In my view the approach mandated to the conduct of an appeal of the decision of a judge sitting alone in a negligence action, as Hay v. O’Grady was, are also relevant to an appeal against the decision of a judge conducting a summary criminal trial in the High Court. Because it is a criminal trial it must, to comply with the Constitution, be conducted “in due course of law” (see Article 38.1 of the Constitution). The procedures to be applied and the obligations of the trial judge are not less onerous in such a trial than in a civil action for damages for negligence. Those obligations relate both to the conduct of the trial, the admission or rejection of disputed evidence and other decisions incidental to the conduct of a criminal trial where the defendant disputes the allegation, and also to the obligation to make at the conclusion a clear statement, firstly, of the findings of primary fact; secondly, of the inferences to be drawn from those findings of fact and thirdly of the conclusions that follow.
49. Hay v. O’Grady has now held sway unchallenged for twenty years. It is possibly the most frequently cited decision on the hearing of appeals in this Court. It would be an understatement to say that it is an extremely well known case. It was cited by counsel for the appellants in the present case. It was not specifically addressed by the Bank.
50. Summary criminal trials for contempt are not a common form of litigation and when they do arise, they do not often take the form that this one did. That is because, as the reported cases show, the factual issues that arise in practice on an application for attachment and committal are usually very simple. Of the three modern Irish cases cited above, two related to a refusal to answer a question before a court or a tribunal: the scope for dispute on the basis facts was very limited. Other contempt applications relate to circumstances where the facts are not disputed, or where there is very limited scope to dispute, such as refusal to obey orders to leave premises, or to convey premises to another party, or to abstain from picketing or protesting in a particular way.
51. The present case is of quite a different nature. The appellant was alleged to be in contempt of court by reason of “directing or participating in a process” whereby a sum of money in a foreign Bank account was paid into another foreign Bank account. This was very hotly disputed in evidence over fifteen days and several days of argument. There was no direct evidence of an act found to be an act of direction or participation. The issues were complex, went on over a very long period, were the subject of most extensive legal submissions and were fought tooth and nail on either side. In those circumstances there was a manifest need for a clear statement of the primary facts found, the inferences that were drawn from them, and the conclusions that followed.
52. Having read the judgment of the learned trial judge, it appears to me that there are only two specific findings of primary fact made in relation to Sean Quinn Junior. These are, firstly, that he travelled to Kiev in time to be present there on the 30th August, 2011 and, secondly, that while there he attended a meeting with, inter alia, Ms. Puga. There is no specific statements on the part of any inferences can be drawn from those two facts. They appear to me to be manifestly incapable of grounding an inference that Mr. Sean Quinn Junior himself either directed or participated in the alleged payment to Ms. Puga. No such inference was set out in the judgment. There were, of course, other findings about that payment but none that involved Mr. Quinn Junior.
An omnibus approach.
53. The appellant has put forward various discrete critiques of the decision in the High Court, both in relation to the decision to convict him of criminal contempt and in relation to the sentence imposed. It appears to me that most of these criticisms are aspects of a more general critique: that the learned trial judge failed to focus on the specific case made against the appellant, as opposed to the other two respondents or those respondents together with other persons not before the Court and therefore:
(1) Failed to give any or any proper attention to the fact that there was no evidence against the appellant of any one specific action done by him by way of directing or participating in the payment of U.S.$500,000 to Ms. Puga, but only of the two facts mentioned above.
(2) Took into account in the case against the appellant all of the evidence, including evidence of statements and actions which were admittedly not those of the appellant, but of other defendants.
(3) Took into account against the appellant on the general issue of guilty or not guilty evidence which she herself admitted into evidence only for specific purposes i.e. as to credibility or “to show a state of mind”.
(4) Found the appellant guilty, not only of the single charge which the Bank had brought against him but of participation in a larger conspiracy the other respondents which not even the Bank had alleged against him. Thus, when counsel submitted that the appellant had been the subject of only one allegation, the learned trial judge stated that all the respondents “were involved in a conspiracy to deprive Anglo of access to assets”. She further said that although the appellant was involved in one aspect only, he “was involved in the overall strategy”.
54. That was certainly the Bank’s view but it was not the allegation it had brought against Mr. Quinn Junior.
55. This is perhaps the most thorough going of the complaints made. It suggests that, in the course of a summary criminal trial (as I have found the proceedings to be) in which there was no evidence of any action by the appellant which either directed or facilitated the payment of $500,000 to Ms. Puga, the Bank fell back on a more general allegation that he was involved in a conspiracy, and that he was involved in an “overall strategy”, on the basis of which he was liable to be convicted despite the absence of specific evidence.
56. It is hardly necessary to say how foreign to the basic principles of a trial conducted in due course of law these things are. It is simply not permissible to bring a citizen before a court with the object of having him locked up on one charge only and then to fall back on the proposition that, (though there is no direct evidence on that charge), there is evidence of a more general nature that he was up to no good, or involved in an “overall strategy”, whether or not it involved the allegation originally made against him.
57. It is, of course trite law that where co-defendants are tried together, that is for the purpose for administrative convenience and the saving of expense. It does not mean that the acts, statements, or admissions of one co-accused is admissible against another, any more than the acts, statements or admissions of a person who is not party to the proceedings at all are admissible. The only general exception to this rule is in relation to conspiracy. Thus, in the well known Irish text book, Criminal Law by Charlton, McDermott and Bolger (Dublin 1999) it is said at para. 4.122:
“It is a rule of the law of evidence that the actions and statements of a conspirator done or made in pursuance of the conspiracy are admissible against his co-conspirators. This is an exception to the general rule that an act or statement by an accused is only admissible against his co-excused if done or said in his presence, in other words that the same rule applies in respect of what any person said or did in the presence of the accused. The conspiracy rule would appear to work to the advantage of the prosecution. Joinder of a conspiracy count, where two or more accused are being charged with the substantive offence, would appear therefore to operate gravely to the detriment of the accused”.
58. An even more basic rule is stated in the same work at para. 4.189 (p.300):
“Joint trials occur for administrative convenience and require an express instruction to the jury that each accused is to be tried only on the evidence admissible against that accused, separately from the trial of any other accused”.
59. In the present case, there was no allegation, in terms or in substance, of a conspiracy. On the contrary, the Notice of Motion is careful to distinguish between the activities attributed to each individual and particularly careful to distinguish between the single matter alleged against the appellant and the multiple matters alleged against the others also accused of contempt.
60. But in the section of the judgment dealing with the sole allegation against the appellant (pages 12 to 22), no attempt is made to distinguish the evidence against him from the evidence against the others allegedly involved. It is said, perhaps correctly, that the issue in relation to Ms. Puga focuses on two documents, that lady’s “labour contract” and the document referred to as “Minute No. 21”. Neither of these documents can be connected to the appellant, though there is evidence connecting them with one or both of the others accused of contempt. Minute No. 21, indeed, purports to record the Minutes of a meeting in Kiev attended by Sean Quinn Senior and Peter Quinn, but not the appellant. The signatures on the document appear to be those of Peter Quinn and Sean Quinn Senior. Alterations to the labour contract of Ms. Puga are not in any way linked to the appellant.
61. It is notable that the learned trial judge expresses her conclusions in this matter at p.22 in the following way:
“I have come to the conclusion that Anglo has produced compelling evidence to establish beyond reasonable doubt that the attempted payment to Ms. Puga was brought about by the respondents. The signature of Sean Quinn Senior and Peter Quinn are on Minute No. 21. The signature of Sean Quinn Senior is on Ms. Puga’s labour contract. The main events which led to the transfer of that money occurred (by coincidence, one is asked to believe) on the 30th August, 2011 the day on which Peter Quinn and Sean Quinn Junior attended a meeting in Kiev with Ms. Puga.” (Emphasis added)
62. It will be observed that this is an omnibus finding against the three respondents jointly and not against Sean Quinn (Junior) specifically. The only specific mention of Sean Quinn (Junior) is as having attended a meeting in Kiev with Ms. Puga on the 30th August, 2011. Other observations about him are negative: the judge did not believe his evidence that he and Peter Quinn did not discuss the purpose of their journey on the “long flight to the Ukraine”. Disbelief on this point in no way adds to the capacity of the only two positive findings of fact made about Sean Quinn Junior to give rise to an inference that he directed or participated in the relevant payment.
63. It is very noteworthy that the judgment
64. It is clear from the passage of the judgment to which I have referred that evidence exclusively referable to the two co-accused (such as the creation of the labour contract) are part of the factual matrix which led to the finding against the appellant. This, in my view, is wrong, inadmissible, and grossly prejudicial to the appellant. It would have been quite possible, if it had been thought necessary, to bring against Mr. Quinn Junior an allegation that he had breached the relevant orders by acting in concert with others. But this was not done. The same effect cannot be wordlessly achieved in the judgment, without notice of any kind to the appellant, any more than acts or statements of co-accused are admissible without a charge of conspiracy.
65. When the appellant was cross-examined in relation to the actions of the other two accused, his counsel naturally objected and emphasised that there was but one single allegation against the appellant. The matter was extensively canvassed in argument but in the end the cross-examination was permitted to proceed on the basis that it went to “credibility” “to show a state of mind”. Answers in relation to collateral questions raised as to credibility are final: the questioner is not allowed to contradict the witness.
66. But even apart from that consideration, it is trite law, quite as trite as that relating to evidence against co-accuseds, that evidence admitted for one or more specific purpose does not thereby become admissible on the general issue. This is a central point and was the subject of extremely forthright argument on the hearing of this appeal, because it is central to the capacity to justify the finding made against the appellant.
67. At the appeal Mr. Paul Gallagher S.C. for the Bank contended baldly that “once it’s in it’s in” and “no matter what the basis of admission, it’s in now and cannot be ignored”. I do not believe this position to be correct in law. A leading Irish text book, McGrath on Evidence puts it in this way, at p.13:
“Sometimes, the evidence may be admissible for a specific and limited purpose only. For example, under the hearsay rule, out of Court statements are generally inadmissible to prove the truth of their contents. However, such a statement is admissible to prove the fact that it was made. Where such evidence is admitted the trial judge should warn the jury of the limited purpose for which the evidence had been admitted”.
68. Speaking of evidence admitted as to credibility another leading Irish text, Healy and Irish Laws of Evidence (2004) says, at p.12:
“the statement may only be considered by the jury as evidence bearing upon the witness’s lack of credibility or consistency, but not as evidence probative of any of the facts at issue in the trial. The failure of the trial judge to explain that the witness’s pre-trial account may not be considered when determining proof of the accused’s guilt has led to the overturning of convictions on numerous occasions.”.
69. It will thus be seen that the point of view summed up in the phrase, (no matter what the ground of admission), “it’s in now”, was a crude one and unrepresentative of the law. But it appears to me, on a perusal of the judgment, to be part of the basis on which the finding against the appellant proceeded. Certainly, there is no indication whatever of the exclusion from consideration on the general issue of evidence admitted for a limited purpose only.
Critiques of sentence.
70. Quite separately from the above matters, which relate to the circumstances in which the appellant was convicted of a common law misdemeanour, contempt of court, the appellant trenchantly criticises the approach to determining the proper sentence to be imposed on him. Again, not to put a tooth in it, it is alleged that the learned trial judge, on the express proposal of the Bank, imposed an immediate custodial sentence on the appellant not for the purpose of appropriate punishment but for the principle purpose of putting pressure on his father, who was one of the other respondents, to comply with the course of orders which had been made against him. I regret to say that this criticism appears to me to be substantiated.
71. The appellant submits that on the 18th day of the hearing, the 20th July, 2012, the judge was invited by the Bank, and actually did, imprison the appellant in order to produce a coercive effect on his father. The Bank submitted to the Court that it should consider on whom a punitive sanction - immediate imprisonment - should be imposed. The Bank suggested that such a sanction should be imposed on the appellant, and Mr. Peter Quinn, but that the first-defendant “should not go to prison immediately, that he be there [i.e. at liberty]” to take steps to ensure compliance with the order because it is certainly within his power to do so. (Day 18, p.11).
72. The appellant protested at this, on the basis that it made him a sort of hostage, which was an improper purpose of incarceration, and “rather medieval” as counsel put it.
73. The learned trial judge then went on, in the course of her ruling, to say:
“And what I propose to do, therefore, is to deal with matters by making an Order of Committal as requested by the Bank at this stage. Far from being a medieval suggestion, as suggested by Mr. O’Moore, I think that this is a practical way of trying to encourage the situation in relation to compliance with the orders. I am equally mindful of the fact that the position in relation to a punitive element is something that remains strongly in my mind as to how this matter ultimately will be dealt with”. (Emphasis added)
74. Thus, the learned trial judge held that the sentence imposed was “a practical way of trying to encourage the situation”. This “practical way” of doing this was adopted at the suggestion of the Bank. In real life, of course, one does not “encourage” a situation, but only a person. The only conceivably relevant person to be “encouraged” was Sean Quinn Senior. He was to be “encouraged” by locking up his son. That is not a legally recognised basis of a just sentence. But there is no other realistic construction of the Bank’s proposals and the sentencing remarks.
75. It might be said that the aspect of what the Court did that was in practice coercive of Mr. Sean Quinn Senior was not so much the incarceration of Sean Quinn Junior but the deferment of a decision as to what sentence be imposed on him (the father). But this is quite inadequate as a theory to explain what happened when counsel for the appellant sought a stay on the order for the jailing of the appellant, pending appeal.
76. Although a summary criminal trial is unusual in the High Court it is in fact the commonest mode of criminal trial in the State, usually conducted in the District Court. When a person is convicted of a criminal charge in that forum he is prima facie entitled to a deferment of the sentence pending appeal. This reflects the fact that he has been deprived of the normal protections of a criminal trial on indictment and in particular of the right to trial by jury. But in this case the Bank insisted that the sentence be served immediately, notwithstanding the appellant’s intention to appeal and the reasons they gave for doing so are most instructive. It was that a deferred sentence would be less practical and effective as an encouragement to resolve the situation than an immediate sentence, commencing that very day.
Form of judgment.
77. Apart from the foregoing there is an overarching criticism advanced by the appellant. This is that the form of the judgment of the learned trial judge does not remotely comply with what is required by the ruling in Hay v. O’Grady, cited above. That is, there is no statement of the Court’s findings of primary fact, no statement of the inferences drawn from them nor of the conclusions which follow.
78. In a case such as the present, an omission clearly to set out the findings of primary fact, the inferences drawn from them and the conclusions, is not a mere technical deficiency. I have already set out what appears from a perusal of the judgment to be the only two express findings in relation to Sean Quinn Junior. Though there are not described as findings of primary fact they appear to me to be in this category. There is no statement of what inference is to be drawn from them and (still more significant in a case like the present), no statement of any other findings of fact from which inferences against the appellant was drawn.
79. These are significant matters because it makes quite impossible to determine, other than by speculation, what facts were taken into account and what inferences were drawn from them.
80. Mr. Gallagher S.C. admitted that, insofar as there was a non-compliance with the strict requirements laid down in McFeely, they should be excused on the basis that “the Court has a discretion in light of the evidence now available not to exercise its discretion in favour of the appellant”.
81. I do not consider an appeal against a sentence of imprisonment summarily imposed to be an occasion for an exercise of a discretion. I consider it to be an occasion for the strict observance of the established principles of the criminal law.
Conclusion.
82. I would allow the appeal and set aside the finding of contempt.