District Court dismisses claimant's request for property delivery under Police Property Act 1897 due to lack of proven ownership.

THE DISTRICT COURT DUBLIN METROPOLITAN DISTRICT

In the Matter of the Police Property Act 1897, the Criminal Justice Act 1951 and an Application for the Delivery of Property in the Possession of An Garda Síochána VYTANTAS AGANAUSKAS CLAIMANT

- AND - GARDA FINTAN CORCORAN RESPONDENT Judgment delivered by Judge Brian O’Shea at Dublin District Court on the 3rd day of April 2018

1. Pursuant to a warrant issued by a judge of the District Court the respondent seized money comprising €23,220 and £1,750 sterling. The claimant seeks delivery of that property to him on the basis that he is the owner thereof within the meaning of the Police Property Act 1897.

2. Subsection 1(1) of the 1897 Act provides: “Where any property has come into the possession of the police in connexion with any criminal charge … a court of summary jurisdiction may, on application, either by an officer of police or by a claimant of the property, make an order for the delivery of the property to the person appearing to the … court to be the owner thereof, or, if the owner cannot be ascertained, make such order with respect to the property as to the … court may seem meet.” Section 25 of the Criminal Justice Act 1951 provides that such order may be made in the absence of any related charges.

3. The respondent gave testimony that on 28 October 2017 he witnessed a transaction that occurred between the claimant and a third party. This involved controlled drugs and an unspecified sum of cash. The drugs were placed in the boot of a car and driven from the scene by the third party. Gardai followed the car, stopped it, and seized €5,000 worth of controlled drugs.

4. Following the aforementioned transaction, a garda followed the claimant to his home address. A search warrant for that address was obtained. The property was searched and €5,000 worth of cannabis was seized. The cannabis was in similar packaging to that located in the car. Pursuant to section 7 of the Criminal Justice Act 2006 the gardai also seized €23,220 cash and £1,750 sterling. The sums were in small denominations. That property is the subject of this application.

5. Arising from the foregoing two suspects were charged with possession of drugs for the purpose of sale or supply contrary to section 15 of the Misuse of Drugs Act 1977 as amended. These were the third party who was the driver of the car and a woman who presented at Store Street garda station on 30 October 2017. Following utterances she made she was arrested and questioned in relation to the cash and drugs found at the claimant’s home. The claimant was not charged. The exhibits, including the two separate quantities of drugs and the money, were put to all of the suspects but nothing of probative value arose from so doing. The woman who presented at Store Street was charged with a criminal offence and entered a guilty plea. The third party car driver was sent forward for trial but on 24 January 2018 he failed to appear in accordance with his bail. The judge of the Circuit Court issued a warrant for his arrest.

6. When asked to explain how he came to have possession of the property in issue the claimant informed the respondent that he obtained a loan of €15,000 from a friend and that the remainder was profit from his business, which involves the sale and repair of motor vehicles. The name of the friend, but not his address, was provided by the claimant to the respondent but an investigation into that person or their whereabouts yielded nothing. It is accepted that there is no competing claim of ownership of the property in issue.

7. In short, the respondent argues that the claimant has not produced any documentation to support his claim of ownership of the particular money seized. More significantly he argues that the property forms part of the garda investigation and is evidence in the case that must be retained until the conclusion of the trial.

8. The claimant testified during the application. He spent some time setting out the history of his business and the monies he received from various persons including family and his in-laws. He stated in particular that he received €40,000 from a friend and €40,000 or €50,000 from his wife’s parents. He testified that he received a lot of money but he could not isolate any transaction in relation to the money in issue. He said the money was “all euro”. He gave no evidence in relation to sterling tender. He testified that the respondent had lied to the court on two occasions, but in particular in relation to evidence surrounding the impugned transaction. This was not put to the respondent during crossexamination.

9. The claimant’s wife testified that she gave large sums of money to her husband for the motor business and that he retained it and that the money she gave him is part of the money the subject of the application. She did not provide any clarity in respect of the sum of money found during the search of the house.

10. The claimant submits to the court that it should not draw any adverse inference from the small denominations in which the money was found. He also submits that there is sufficient evidence of substantial sums of money available to him through his business, thereby accounting for the money located pursuant to the warrant. Finally he submits that there is no competing right of ownership and no connection between the money seized at the claimant’s home and the trial of the third party.

11. The respondent submits that the money was lawfully seized, is evidence in an ongoing criminal investigation, and that there is no evidence to show ownership by the claimant.

12. Having assessed the evidence and the witnesses in the application this court has come to the following conclusions:

a) The property in issue is in the lawful possession of the respondent.

b) The respondent personally saw the claimant involved in a transaction with a man who has not answered his bail for trial on indictment in respect of the sale on supply of drugs.

c) The drugs relating to the trial were in similar packaging to those found at the claimant’s home address.

d) The money in issue was found during the same search of the claimant’s home, pursuant to the same warrant.

e) The explanation the claimant gave to the respondent concerning the money in issue is inconsistent with the explanation he gave to the court under oath, in particular as to amounts.

f) The court has heard no evidence that satisfies it that the claimant owns the money in issue.

g) The court has heard no evidence at all that the claimant owns the sterling tender.

h) Even if the court was satisfied that the claimant owns some or all of the money, which it is not, there is a sufficient nexus between the money in issue and the trial of the third party.

13. A remarkable feature of the evidence is that the money in issue was concealed in a child’s bedroom for a period of five months, in circumstances where both the claimant and his wife had apparently legitimate bank accounts, one such account specifically set up in the company name to deal with the car sales and repair business. Additionally, the small denominations of the money seized are not consistent with the large sums moving between the accounts in accordance with the testimony of both witnesses.

14. The version of events relating to the claimant’s purported friend who loaned him €15,000 (according to what he told the garda) and €40,000 (according to what he told the court)

is not credible. He also stated that he received somewhere between €40,000 and €50,000 from his in-laws. That testimony is not credible. It is not unreasonable for the court to infer that an astute business man would know precisely how much was loaned from his in-laws. It is not unreasonable to expect that the claimant to know the name and address of a person from whom he loaned a substantial sum of money, in particular a friend. This lack of credibility must be viewed in the context of the court’s earlier finding that there is a significant inconsistency between the explanation the claimant gave to the respondent and the one it gave to the court.

15. At pages 9 and 10 of his judgment in Donoghue v O’Donoghue and Others [2018] IECA

26 Ryan P adopted that which Widgery CJ opined in Lyons & Co Ltd v Metropolitan Police Commissioner [1975] 1 QB 321, namely that “owner” in the context of the 1897 Act should be given its ordinary meaning as “a person who is entitled to the goods in question, a person whose goods they are, not simply the person who happens to have them in his hands at any given moment.” Ryan P went on to opine, at page 10 of the judgment, that proof of ownership, as opposed to possession, on the balance of probabilities is what section 1 of the 1897 Act requires.

16. In the opinion of this court the claimant has shown no more than that he was in possession of the property in issue until the time it was seized pursuant to the warrant.

He has certainly come nowhere near to establishing ownership of the property. It is true to say that there is no competing right of ownership, and that is undoubtedly a matter that the court must consider, but it is not determinative, and certainly not so in the particular circumstances of this case.

17. In light of the finding that there is a sufficient nexus between the property and trial of the third party the court considers it appropriate that the property be retained until the

conclusion of that trial. The fact that the trial is of a third party cannot work to the advantage of the claimant when one considers what Cherry LCJ said in The King (Patrick Curtis) v The Justices of County Louth [1916] KB 616 at 619 regarding the applicability of section 1 of the 1897 Act: “It [section 1 of the 1897 Act] applies whenever the property is in the possession of the police for the purpose of criminal prosecutions, no matter from whom or in what way it comes into their hands.”

18. In light of the finding that there is insufficient evidence before the court to indicate ownership by the claimant of the euro amount of the property, and no evidence before the court to indicate ownership by the claimant of the sterling amount of the property the court refuses the order sought by the claimant and makes an order for the retention of the property to the State following the trial of the third party and the forfeiture same thereafter.

19. The court grants liberty to apply in the event that the property becomes part of the evidence in any further proceedings.