Gaeilge

Title:	Reilly -v- Director of Public Prosecutions & anor
Neutral Citation:	[2016] IESC 59
Supreme Court Record Number:	441/08
High Court Record Number:	2007 1442 JR
Date of Delivery:	10/17/2016
Court:	Supreme Court
Composition of Court:	Laffoy J., Dunne J., Charleton J.
Judgment by:	Dunne J.
Status:	Approved
Result:	Appeal dismissed
Judgments by Link to Judgment Concurring Dunne J. Link Laffoy J., Charleton J.

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Laffoy J.

Dunne J.

Charleton J.

BETWEEN

Judgment of Ms. Justice Dunne delivered the 17th day of October, 2016

This appeal concerns the interpretation of the provisions of s. 38 and s. 39 of the Criminal Justice Act 1994 as amended by the Proceeds of Crime (Amendment) Act 2005 and what is meant by the use of the words “application made” in s. 39(1) of the Criminal Justice Act 1994 as amended (hereinafter referred to as “the 1994 Act”).

Background
The background to this matter is set out in full in the judgment of Clark J. ([2008] IEHC 461) delivered on the 31st July, 2008. Nevertheless it would be useful to set out that background here for the purpose of explaining the nature of the application that was made to the High Court. The applicant’s car was stopped by Customs & Excise officers as it was about to enter a car ferry travelling to France on the 19th July, 2005 at Rosslare Port. The car was searched and the sum of £69,880.00 Sterling was found concealed in multiple packages under the back seat of the car. This money was seized pursuant to s. 38(1) of the 1994 Act (as amended) on suspicion that the money was the proceeds of criminal activity.

On the 21st July, 2005, an application was made to Judge Ó Buachalla at Rathdrum District Court in the County of Wicklow for the detention of the said monies seized pursuant to s. 38(2) of the 1994 Act pending inquiries as to the source of the cash. An order was made in the District Court pursuant to s. 38(2) of the 1994 Act whereby the said monies were detained for a period as prescribed under the statute of no longer than three months.

Thereafter, applications were made by the State authorities for the detention of the money at regular three month intervals the last such period of detention expiring on the 18th July, 2007.

At no stage did the applicant/appellant (hereinafter referred to as the Appellant) seek the return of the money seized as could have been done by him under the provisions of s. 38(5) of the 1994 Act on the basis that there were no longer any grounds for the continued detention of the money.

On the 17th July, 2007, the Director of Public Prosecutions issued a notice of motion pursuant to s. 39 of the 1994 Act seeking the forfeiture of £69,888.00 Sterling seized from the Appellant on the 19th July, 2005. The motion was in compliance with Order 69 of the Circuit Court Rules as provided for in the Circuit Court Rules (No. 2) (Section 39 Criminal Justice Act, 1994), 2004 (S.I. No 448 of 2004) which set out the procedures to be followed when seeking an order from the Circuit Court directing that any sum seized be forfeit to the Exchequer. The motion was returnable to 2nd October, 2007. It is accepted by the Appellant that the notice of motion was issued and served within the two year period specified in s. 38(3)(b) of the 1994 Act which sets out the total period of detention during which the money may be retained. Once an application is made for an order under s. 39(1) of the 1994 Act it is provided in s. 38(3A) that the cash shall, notwithstanding subs. (3), continue to be so detained until the application is finally determined.

On the 2nd October, 2007 the Appellant sought an adjournment of the matter but that was refused. He further served a notice of intention to cross-examine on the affidavits filed. However, due to volume of work in the Court that day, the case was not reached and had to be adjourned.

On the 5th November, 2007 the Appellant obtained leave from the High Court to apply for judicial review in the following terms ( as set out at para. 1 of the judgment of Clark J.):

“(1) An injunction prohibiting the first named respondent from making any application in purported reliance on s. 39 of the Criminal Justice Act, 1994 as amended by s. 20 of the Proceeds of Crime Act, 2005, now pending before Circuit Court Judge of the South Eastern Circuit.

(2) An order returning a sum of €100,604.66 seized by the second respondent.

(3) An order of certiorari quashing the order made by the third respondent on the 21st July, 2005, on grounds that it failed to show jurisdiction on its face.”

When the matter came before the High Court, the third ground was abandoned at the hearing on the 21st April, 2008.

The essence of the Appellant’s case before the High Court was that in considering the interpretation of the 1994 Act and in particular s. 39(1) that for an application to be made, it was necessary for the DPP or his representative to stand up in court and make the request for the money to be forfeited. It was contended that anything less did not amount to an application. On that basis it was argued that no application had been made to the Circuit Court within the two year time period limited by the legislation and in those circumstances the monies were unlawfully held and must be returned to the Appellant. The learned High Court judge in a written judgment refused the Appellant’s application for judicial review. The Appellant has now appealed that decision on the basis that the learned trial judge was wrong in concluding that the first named respondent had made an application for a forfeiture order within the two year period prescribed by the legislation.

The relevant legislation and Rules of Court
At this point, it would be useful to set out the provisions of the 1994 Act and the Rules of the Circuit Court which have a bearing on this appeal.

Section 38:

“(1) A member of the Garda Síochána or an officer of customs and excise may search a person if the member or officer has reasonable grounds for suspecting that –

(a) the person is importing or exporting, or intends or is about to import or export, an amount of cash which is not less than the prescribed sum, and

(b) the cash directly or indirectly represents the proceeds of crime or is intended by any person for use in connection with any criminal conduct.


(1A) A member of the Garda Síochána or an officer of the Revenue Commissioners may seize and in accordance with this section detain any cash (including cash found during a search under subsection (1)) if –

(a) its amount is not less than the prescribed sum, and

(b) he or she has reasonable grounds for suspecting that it directly or indirectly represents the proceeds of crime or is intended by any person for use in any criminal conduct.


(2) Cash seized by virtue of this section shall not be detained for more than forty-eight hours unless its detention beyond forty-eight hours is authorised by an order made by a judge of the District Court and no such order shall be made unless the judge is satisfied –

(a) that there are reasonable grounds for the suspicion mentioned in subsection (1) of this section, and

(b) that detention of the cash beyond forty-eight hours is justified while it origin or derivation is further investigated or consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.


(3) Any order under subsection (2) of this section shall authorise the continued detention of the cash to which it relates for such period, not exceeding three months beginning with the date of the order, as may be specified in the order, and a judge of the District Court, if satisfied as to the matters mentioned in that subsection, may thereafter from time to time by order authorise the further detention of the cash but so that –

(a) no period of detention specified in such an order, shall exceed three months beginning with the date of the order; and

(b) the total period of detention shall not exceed two years from the date of the order under subsection (2) of this section.


(3A) Where an application is made under s. 39(1) for an order for the forfeiture of cash detained under this section, the cash shall, notwithstanding subsection (3) continue to be so detained until the application is fully determined.

(4) Any application for an order under subsection (2) or (3) of this section may be made by a member of the Garda Síochána or an officer of customs and excise.

(5) At any time while cash is detained by virtue of the foregoing provisions of this section a judge of the District Court may direct its release if satisfied –


(a) on an application made by the person from whom it was seized or a person by or on whose behalf it was being imported or exported, that there are no, or are no longer, any such grounds for its detention as are mentioned in subsection (2) of this section, or

(b) on an application made by any other person, that detention of the cash is not for that or any other reason justified.


(6) If at a time when any cash is being detained by virtue of the foregoing provisions of this section –

(a) an application for its forfeiture is made under section 39 of this Act; or

(b) proceedings are instituted (whether in the State or elsewhere) against any person for an offence with which the cash is connected,


the cash shall not be released until any proceedings pursuant to the application or, as the case may be, the proceedings for that offence have been concluded.”

Section 39:

(1) A judge of the Circuit Court may order the forfeiture of any cash which has been seized under section 38 of this Act if satisfied, on an application made while the cash is detained under that section, that the cash directly or indirectly represents any person's proceeds of, or is intended by any person for use in connection with any criminal conduct.

(2) Any application under this section shall be made, or caused to be made, by the Director of Public Prosecutions.

(3) The standard of proof in proceedings on an application under this section shall be that applicable to civil proceedings; and an order may be made under this section whether or not proceedings are brought against any person for an offence with which the cash in question is connected.”

The relevant Circuit Court Rules are those provided for by S.I. 448 of 2004 which introduced new rules under Order 69 of the Rules of the Circuit Court and provide for the procedure for an application under s. 39 of the Criminal Justice Act 1994. The relevant rules are in the following terms:

“Order 69, Rule Three:

3. An application pursuant to this Order shall be made by originating Motion on Notice in accordance with the form annexed hereto. The Affidavit grounding such application shall contain the following information:


(a) details of the seizure and detention of cash the subject-matter of the application;

(b) details of the amount and currency of the cash seized;

(c) the date and time of the seizure and detention concerned;

(d) details of any person who claims an interest in the cash;

(e) the grounds on which an order for forfeiture of the cash in pursuance of section 39 of the Act is sought and

(f) any other information relevant to the application;


and shall exhibit the order or orders of a judge of the District Court made in pursuance of section 38 of the Act authorising the continued detention of the cash.

Rule Four:

4. The application shall be made to a Judge of the Circuit Court for the circuit in which the seizure was made or in accordance with Order 2(g) of the Rules of the Circuit Court 2001.

Rule Five:

5. The application shall be made on notice to any person from whom the cash was seized and to any person who claims an interest in the cash. The Court may direct that notice of the application be served on such other person or persons, in addition to the respondent(s), as it shall think fit.”

Discussion
At the outset, it should be noted that a number of matters are not in dispute. First of all there is no dispute as to the entitlement of the Collector-General, his servants and agents, to seize the money in the first place. Nor is there any dispute as to the validity of the orders made to detain the money from time to time. It is the fact as noted by the learned trial judge that no application was made by the Appellant for the return of the money as is provided for under s. 38(5) of the 1994 Act. Finally, it is not in dispute that an originating notice of motion pursuant to s. 39 of the 1994 Act was issued on the 17th July, 2007 and served on the applicant before the two year period provided for in s. 38(3)(b) of the 1994 Act expired. Thus, as the notice of motion was issued and served within the two year period, as provided in s. 38(3A) of the 1994 Act, where an application is made under s. 39 of the Act for an order for the forfeiture of the cash, the cash shall continue to be so detained until the application is finally determined.

When the notice of motion in this case was issued pursuant to the provisions of Order 69 of the Rules of the Circuit Court, it was made returnable for the 2nd October, 2007 and was then subsequently adjourned to the 5th November, 2007 as previously explained. An application was then made for judicial review on the 5th November, 2007. Therefore the sole question before this Court is whether or not the application for forfeiture was made by the first named respondent within the two year period prescribed by statute.

At the heart of the Appellant’s case is the contention that the service of the notice of motion is simply a notice of intention to apply for an order and that as such, it was not made within the two year period. Accordingly, on the return date of the application to return the monies, the 2nd October, 2007, the period of detention for the monies had expired and there was no lawful right to detain the monies. Therefore the Circuit Court would have no jurisdiction at that stage to make an order under s. 39 of the 1994 Act. This interpretation of the legislative regime is contested by the Respondents who rely very much on the judgment of the High Court and the reasons of the learned trial judge for concluding that the application was made before the expiry of the two year period specified in the legislation.

The judgment of the High Court
In the course of the arguments of the Appellant before the High Court it was contended that the legislation at issue was penal in nature and it was therefore argued that any ambiguity should be exercised in favour of the Appellant and that a narrow interpretation should be accorded to the wording “where an application is made”. By contrast, counsel on behalf of the DPP argued that the 1994 Act as amended was not a penal statute. The legislation created no crime and imposed no sanction as such and the section which the Appellant sought to have construed strictly was a procedural section which gave rise to the relevant Circuit Court Rules. It was further contended on behalf of the Respondents that the law was replete with examples where a notice of motion prevented time from running and commences proceedings and that there was no authority for the concept that a statutory period was calculated or to be calculated from when an applicant stood up in court or when proceedings were commenced by an application to the court in person. By way of example, the judicial review process was described where time stops when an originating notice of motion is served.

At paragraph 20 of the judgment of the learned trial judge she concluded that:

“A perusal of the statute and in particular this section, will reveal that while extensive new powers are given to the garda and revenue authorities in relation to the proceeds of crime and suspect cash, no offences or penalties are actually created.”

She went on to find that s. 38, 39 and 42 of the 1994 Act were not provisions of a penal statute. At para. 22 she continued as follows:

“While the Criminal Justice Act of 1994 and the Proceeds of Crime [(Amendment)] Act 2005 are far reaching and extensive in purpose, I do not believe that the particular procedural section in question calls for the narrow and strict interpretation of the wording ‘where an application is made’ sought by the applicant. The applicant is in effect asking the court to give a literal interpretation which would fail to reflect the plain intention of the Oireachtas in relation to the two year time period during which the application had to be made. It would be quite extraordinary in the context of that time limit to introduce a procedure whose lawfulness and compliance could only be assessed when the court is actually addressed by the applicant. Such an interpretation would introduce uncertainty or vagueness in the assessment of those stated time limits which would be neither desirable nor necessary and serve no useful purpose. Such an assessment of a time limit would be imprecise and subject to the vicissitudes and vagaries of Court calendars and work loads and cannot have been intended by s. 39(1).” (emphasis in original)

The learned trial judge continued at paragraph 24 as follows:

“24. The term ‘application is made’ is familiar court language with a specific meaning and not a phrase which requires to be construed for being obscure or ambiguous or where a literal interpretation would be absurd or where it would fail to reflect the plain intention of the Oireachtas. The meaning of an application to the Court is well understood to mean a formal request of the Court for orders, directions or reliefs and subject to rules of procedure which determine how the application is to be made and the notice which must be given to the Court or the respondent and the time limits in which the application is to be made. The particular procedure used in this case was made in accordance with O. 69 of the Circuit Court Rules pursuant to s. 42(2) of the Criminal Justice Act 1994. The rule was complied with regarding notice to the Court and to the applicant. It would be extraordinary if the validity of such a motion for forfeiture could only be assessed at the time the application was moved.

25. The procedure in the statute consists of two steps, the application and the proceedings. The application must be brought within 2 years of the first detention order and the proceedings follow the application. The Rules of Court provided for an application under s. 39(1) to be made by originating motion on notice which is a well recognised method for initiating proceedings without pleadings and generally supported by affidavit.”

In the course of the submissions, the Appellant places reliance on a number of decisions including KSK Enterprises Limited v. An Bord Pleanála [1994] 2 I.R. 128 and in particular on the decision in the case of DPP v. David Anthony England [2011] IESC 16. In the judgment of the learned trial judge she referred to the decision in the case of McK. v. F. and Others [2005] IESC 6 which held that proceedings would be deemed to be brought when the originating notice of motion has issued. Geoghegan J. in that case cited the earlier decision of KSK Enterprises Limited v. An Bord Pleanála saying as follows (at p. 15):

“I am quite satisfied that the application for the making of the Section 3 Order was ‘brought’ during the statutory twenty-one day period. I do not think that there is any significant difference between this case and the case of KSK Enterprises Limited v. An Bord Pleanála [1994] 2 I.R. 128 where Flood J. rejected an argument that the word ‘made’ involved the actual moving of a judicial review application. Dr. Forde tries to make a relevant distinction between the word ‘made’ and the word ‘brought’ but I believe that no such distinction can be made. Given the uncertainties of the availability of courts and judges at any given time and the systems of listing, a statute which creates a time limit for the bringing or making of an application or uses any such cognate words should be interpreted as meaning the date of issuing if the proceedings require a summons or filing or possibly in some cases filing and serving if what is involved is a motion but unless there are express words in the statute that require it, it should not be interpreted as meaning the actual moving of the application in open court.”

That case considered the question as to whether an application brought pursuant to the Proceeds of Crime Act 1996 under s. 3, had been brought within the period of twenty one days from the making of an order pursuant to s. 2 of the Act and whether the issue of a motion was enough to stop the period of time running.

Much reliance was placed by the Appellant on the decision of this Court in the case of DPP v. David Anthony England [2011] IESC 16, a judgment of Hardiman J. That case was of course decided some three years after the judgment of the learned trial judge in this case. The facts of that case are not dissimilar from the facts of this case. The applicant in that case was found at Dublin Airport in possession of a large sum of cash. The money was seized. Thereafter a number of applications were made to the District Court to detain the cash. The last such order was made on the 5th February, 1999 and expired on the 5th May, 1999. Subsequently a notice of motion bearing the date the 23rd April, 1999 but served under cover of a letter dated 2nd June, 1999 was issued by the Director of Public Prosecutions seeking the forfeiture of the cash concerned. Thus the question that was raised by the trial judge in that case by way of case stated was as follows (at p. 6):

“Am I correct in determining that where an initial detention order in respect of the sum of £IR79,960 seized on the 15th May, 1998, which was authorised later that day pursuant to s. 38(1) of the Criminal Justice Act, 1994 and which detention order was subsequently extended on the 13th August, 12th November 1998, and the 5th February, 1999 (which order expired on the 5th May, 1999), was lawfully ‘detained’ within the meaning of s. 38 of the Criminal Justice Act, 1994 so as to ground a jurisdiction for an order for forfeiture under s. 39 of the Criminal Justice Act, 1994 being made when an application came before the learned Circuit Court Judge on 29th June, 1999 on foot of a Notice of Motion dated and filed the 23rd day of April, 1999?”

I pause for a moment to observe that in that case the notice of motion was issued within the period while the money was detained but the notice of motion was not served until after that time had expired. In that case it had been contended on behalf of the Director of Public Prosecutions that the phrase “application made” is broad enough to include the act of the issuance of the notice of motion of the 23rd April, 1999. This was disputed by the appellant in that case pointing out that the notice of motion was “merely a notice” of an application and that it specifically stated that counsel “will apply to this Honourable Court on the 29th June 1999”. It was contended that that was the date on which the application was to be “made”. The form of service effected in that case was authorised by an order of the Circuit Court judge and was effected after the expiration of the District Court order. At the time of the England case, there were no relevant Circuit Court Rules. Reference was made in the course of the judgment of the Supreme Court to the provisions of Order 136 of the Rules of the Superior Courts and in particular Order 136, rule 2 which provides:

“(1) Subject to sub-rule (2), an application by a member, an authorised officer or the Bureau for an order under section 2(1) of the Principal Act shall be made by originating motion ex parte. The said originating motion shall be entitled [the form of entitlement is set out] and shall, in the body thereof, specify the relief sought under section 2(1) of the Principal Act.”

The Principal Act was the “Proceeds of Crime Act 1996”. Hardiman J. having referred to the provisions of the rule commented as follows (at p. 13):

“The relevance of this provision, oblique though it is, is that it provides an example of the ‘making’ of an ‘application’ by ‘originating motion’. If an originating motion of the kind envisaged by Order 136 were in question in this case, then the ‘making’ of the application would indeed be accomplished by the making of the motion. But that would be by reason of the specific provisions of Order 136, which are absent from the Act of 1994.”

Hardiman J. went on to refer also to the decision in the case of KSK Enterprises Limited v. An Bord Pleanála referred to above. In that case, it was conceded on behalf of counsel for the DPP that in the circumstances of the case, in which the person appearing to be interested (i.e. the person from whom the money was taken) had actively corresponded from a specific address and had laid claim to the money, that it was necessary to serve that person. Hardiman J. then commented (at p. 16):

“This concession is sufficient to establish that, at least in the circumstances of the present case, the motion seeking forfeiture required to be a motion on notice. The relevance of this, in turn, is that it makes the case more directly analogous to that of KSK Enterprises, although, of course it is not wholly analogous.”

Hardiman J. concluded (at p. 16):

“I would add that, in my view, something quite extraordinary would require to be established in evidence before it would be possible to proceed with an application under s.38 without putting the person appearing to be interested on notice. That is not, however, to exclude the possibility that, in circumstances of urgency, an ex parte application might first be made on which the Court, for example, could take any necessary steps to preserve the status quo.”

In the circumstances, in view of the fact that notice of the proposed making of the application in early June 1999 was not an application made while the money to which it related “was detained under s. 38”. Accordingly the question posed in that case was answered in the negative.

Decision
The judgment of Hardiman J. was concerned with a situation in which there were at the relevant time no rules in being providing for the procedures to be followed in making an application pursuant to s. 39(1) of the Act. The relevant Circuit Court Rules were made pursuant to s. 42 of the 1994 Act by means of Statutory Instrument No. 448 of 2004 and have already been set out above. As provided for therein, an application “shall be made by originating motion on notice . . .” In this case the originating notice of motion was issued and served on the Appellant within two years of the original detention of the monies concerned.

I find it difficult to see any basis for disagreeing with the conclusion of Hardiman J. in his judgment in David Anthony England to the effect that the words of s. 38 did not appear to be either obscure or ambiguous and thus no case has been made for the application of any rule or canon of construction other than the usual one, namely: “that the words used, one presumes advisedly, by the Oireachtas, will be interpreted in the ordinary and natural meaning of those words.” Thus he concluded in that case relying on the decision in KSK Enterprises Limited v. An Bord Pleanála that on the facts of that case it was necessary in circumstances where there was an individual who laid claim to the money that the motion seeking forfeiture required to be a motion on notice, as is now expressly provided for in Order 69. At this point it is worth recalling what was said by Finlay C.J. at page 136 of his judgment in KSK Enterprises Limited v. An Bord Pleanála:

“Under O. 84 providing for the judicial review procedure, an application for leave to apply for judicial review was to be made by a motion ex parte. The provision for a motion on notice is inserted in the Act of 1992 in regard to planning decisions. There can be no doubt in my mind that an application to the Court by a motion ex parte cannot be said to be made until it is actually moved in court. In the case of a motion on notice which is what is provided for in this subsection, I am quite satisfied that it could not be said to have been made under any circumstances until notice of it had been given to the parties concerned . . .

I have considered carefully whether the filing of a motion on notice to all the parties concerned . . . is sufficient and whether there are any good grounds for differentiating in the interpretation of this Section between the making of an application for leave to apply for judicial review by a motion ex parte, and by a motion on notice.

I am satisfied that as a matter of general construction, where a restriction is being imposed upon the exercise of a right in a statute such as this subsection involves, that it is desirable to the extent of being almost imperative that it should be capable of being construed and should be construed in a clear and definite fashion.”

There is obviously a clear distinction being made in the passage set out above between an application by way of origination motion made ex parte and an application made by an originating motion on notice. The nature of an application being made by motion ex parte is such that it cannot be made until it is actually moved in court. That is not the case in relation to a motion on notice. As Finlay C.J. pointed out in the passage referred to above in the case of a motion on notice it could not be said to have been made until notice of it had been given to the parties concerned. In this case there is no doubt but that the notice, having issued within the two year time period, was also served within the two year time period. In those circumstances I am satisfied that the application is made pursuant to s. 39(1) once the motion has been issued and served on the parties requiring to be notified within the relevant time period. I do not accept the contention that in order for the application to be made it is necessary that an application be made in open court as suggested. As the learned trial judge succinctly stated : “Such an assessment of a time limit would be imprecise and subject to the vicissitudes and vagaries of Court calendars and work loads and cannot have been intended by s. 39(1).” (at para. 22) The crucial point is that the notice of motion must be issued and served on those entitled to notice within the relevant two year period.

It is interesting to note that in the case of DPP v. Gerard Alphonsus Humphreys & Ors. [2014] IEHC 539, O’Malley J. came to a similar view having considered the case of DPP v. David Anthony England concluding (at para. 67):

“[I]t seems to me that the statements of principle by the Supreme Court in KSK Enterprises and DPP v England are broad enough to bind this court to find that, where a statutory time limit requires that an application be brought by way of motion on notice, the notice must be served on all necessary parties within that time limit. Neither the subsequent High Court decisions, nor the introduction of 0.69 of the Circuit Court Rules, have altered that position.”

I am satisfied that on the facts of this case an application was made pursuant to s. 39(1) of the 1994 Act once the originating notice of motion was issued and served within the two year time limit. Section 39(1) permits a judge of the Circuit Court to order the forfeiture of cash detained under s. 38 of the 1994 Act, “on an application made while the cash is detained..” S.39(2) provides that “any application shall be made… by the Director of Public Prosecutions”. An application for the forfeiture of money seized from an individual pursuant to the 1994 Act could hardly be made in the absence of notice being given to the individual concerned. Order 69 of the Rules of the Circuit Court expressly provides that “The application shall be made on notice to any person from whom the cash was seized…” That being so, it seems clear to me that the critical factor in calculating the time period is when notice is served on the person concerned. In this case, that occurred before the two year time period had expired.

In those circumstances I am satisfied that the conclusions of the learned trial judge were correct and I would dismiss this appeal.