IEDC 9 · District Court

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 Return of Property in the Possession of An Garda Siochana NOLEEN COAKLEY APPLICANT

- AND - GARDA BRENDAN EDDERY RESPONDENT Judgment delivered by Judge Brian O’Shea at Dublin District Court on the 30th day of January 2018

1. The Applicant seeks the return of a Breitling watch with an agreed value of €3,500 that was seized by the Respondent from her son, Nathan Coakley.

2. Subsection 1(1) of the Police Property Act 1897 provides that “Where 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 or by a claimant of the property, make an order for the delivery of the property to the person appearing to the magistrate or court to be owner thereof, or, if the owner cannot be ascertained, make such order with respect to the property as to the magistrate or the court may seem meet.”

3. Section 25 of the Criminal Justice Act 1951 provides: “An order may be made under section 1 of the Police Property Act, 1897, for the disposal of property in the possession of the Garda Síochána although no person has been charged with an offence in connection with it.”

4. The Respondent testified that he had reason to arrest Mr Coakley. He was brought to Finglas garda station. He was wearing an expensive Breitling watch that the Respondent did not believe belonged to him, so he seized it. No issue was taken with the lawfulness of the arrest or seizure. No owner has come forward to claim the watch. The Respondent testified that Mr Coakley initially told him that the watch was an heirloom but later asserted that he had won it. He also testified that after a court appearance at Blanchardstown District Court Mr Coakley appeared to him to be vexed that the watch was not being returned to him immediately, and followed him around Blanchardstown.

He further stated that Mr Coakley stayed at some distance behind him and was on the telephone at the time. The Respondent informed the court that at no stage did he approach Mr Coakley. On two subsequent occasions he asked Mr Coakley to provide him with some proof that he inherited or won the watch, or had the means to purchase it. Mr Coakley did not do any of those things.

5. Under cross-examination the Respondent confirmed that there was no evidence that he could present to the court to prove a competing claim of ownership, or that the watch was the proceeds of crime. It was put to him that the watch, and another similar watch, were left to the Applicant by her late husband to give to their sons, and that the Applicant was “keeping” the watches but her sons “had the use of them”. It was put to the Respondent that there was only one way in and out of the shopping centre where Mr Coakley was allegedly pursuing the Respondent and that Mr Coakley had no choice only to take the route that he did. Thereafter the Respondent expanded on the circumstances of his earlier assertion and stated that Mr Coakley had intentionally followed him into a café, a post office, and Dunne Stores shopping centre.

6. The Applicant gave testimony that the watch was left by her late husband to Mr Coakley to allow him to wear it. Under cross-examination, she confirmed that there was no probate in relation to the watch. She also stated that it was insured under her house policy but was not itemised. She confirmed that her late husband was a car dealer and had four watches of the same type. She did not give a clear answer to the court concerning its inquiry as to how her late husband afforded the watches. She initially stated that they could have been gifts but then stated that the only gift of a watch to him that she could substantiate was a watch that she gave him. She later testified that the specific instruction given to her by her late husband was that she was not to let anything happen to the watches and that they were to be “left to the boys”. When they reached the age of 21 the watches were to be “handed over” to them. The instructions specified that the watches were to be “kept in the family and not passed on”. She confirmed that she never had the watch valued or repaired.

7. Nathan Coakley gave testimony that the watch was in his possession when he was stopped. He stated that it was his father’s watch and that the Applicant would give it to him from time to time. He considers that the Applicant owns the watch. Under crossexamination he stated that the Applicant always had the watches. He stated that he was on drugs at the time when the garda stopped him wearing the watch. He accepted that he told the Respondent that it was an heirloom. He stated it was neither insured nor documented. He agreed that he stated to the Respondent: “I want my watch back” and “where’s my watch”. He specifically stated: “I did not follow anybody around the shops.

That’s lies. I didn’t follow him.” This assertion had not been put to the Respondent during cross-examination. Neither was the opportunity to do so availed of despite the court directing attention to the potential unfairness. Mr Coakley agreed that he was previously arrested in possession of watches but, in the face of objection by counsel, did not answer whether they were “currency” used by criminals having the advantage of obviating the need to carry cash.

8. In submissions, Counsel for the Applicant relies on the decision in Mitchell v. Farrelly (Unreported, High Court, 24 October 1997, Shanley J). In essence the Applicant contends that: (1) possession by the Applicant gives rise to a presumption of ownership;

(2) there is no evidence of a competing claim of ownership; (3) there is no evidence that the watch is the proceeds of crime; (4) there has been no report of a theft; (5) the Respondent relies on speculation as regards the origin of the watch; and (6) there is no evidence of anything suspicious as to the original ownership of the watch. Counsel also referred the court to the decision of Barrett J in Donoghue v. Judge O’Donoghue and the AG [2016] IEHC 7.

9. In reply, the Respondent suggested that he had outlined his suspicion to the court during the course of presenting his case. He relied on the fact that there was no documentation whatsoever for the watch, which it was agreed was an expensive item. In particular he referred the court to the lack of any documentation regarding servicing or repairs to the watch. Most of all he relied on the assertion that Mr Coakley had “lied about where he got it”, and that the lie was given for no good reason. In this regard he relied on the

decision of Groarke P in O’Neill v. Roe (unrep., Circuit Court, 8 November 2012).

10. Turning to the decision in Mitchell. It arises from a case stated to the High Court. The facts in Mitchell were that the gardaí stopped and searched a car in which two women, including Mrs Mitchell, were travelling. They found drugs, drugs paraphernalia, and two amounts of cash, £275 and £1,640. The garda received two explanations for the money:

one that it was “for shopping” and another that it related to the sale of a car. Under cross-examination the garda accepted that the two different explanations may have related to the two different sums separately. There is nothing in the decision to suggest that the garda had made this inquiry during the investigation. The copy of the decision handed in to court consists of an outline of the facts established on the evidence in the District Court, followed by the questions posed by the judge of the District Court.

Attached thereto is the order of the High Court signed by the Registrar thereof. There is nothing to indicate how the High Court engaged with the evidence or arrived at its determination.

11. The facts in Mitchell are completely different to the facts of the present case. Mitchell involved two sums of money with testimony of detailed and specific reasons for each.

Those reasons were plausible and there was no contradiction in Mrs Mitchell’s testimony or that of two other witnesses called on her behalf. In the instant case, two different reasons have been given in relation to a single item. There is a distinct lack of precision to the account given by the Applicant and there are inconsistencies and opaqueness throughout.

12. A further distinguishing feature relates to possession and ownership. In Mitchell it was held that the Judge of the District Court was incorrect in ordering forfeiture where (1)

there was no competing claim as to ownership, (2) there was no evidence as to the origin of the item, and (3) the gardaí had no more than a suspicion in relation to it. In that case, the requirement of a competing claim as to ownership arose in circumstances where there could be no doubt but the Mrs Mitchell was in possession of the item of which forfeiture was sought. Counsel for the Applicant is correct when he submits that “possession gives rise to a presumption of ownership”. The foundation upon which this argument rests however is that the Applicant was in possession of the watch. The Applicant in this case is Noleen Coakley, not Nathan Coakley. He, not the Applicant, was wearing the watch that was seized by the garda. Despite the apparent preciousness of the watch and the contention that it was being held in trust by the Applicant, Mr Coakley was (by his own admission) on drugs at the time of its seizure.

13. Donoghue is a decision of Barrett J delivered on 13 January 2016. The item in issue was a Range Rover jeep which had been seized directly from Mr Donoghue. The jeep was believed to be the subject of a hire-purchase agreement and it was reported stolen. There was no suggestion that Mr Donoghue had been involved in the theft as he came into possession of it through “a semi-retired car dealer who dabbles in the trade”. The

decision in Donoghue addresses the issue of ownership in the context of subsection 1(1)

of the 1897 Act. Barrett J referred to Lyons & Co Ltd v Metropolitan Police Commissioner [1975] 1 QB 321 where Widgery CJ determined that “owner” 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.” Barrett J alluded to the fact that Widgery CJ drew a distinction between ownership and possession but Barrett J concluded that on the facts of the particular case before him possession and ownership amounted to the same thing, and the lower court had erred in drawing a distinction between them. He concluded that as Mr Donoghue’s possession was lawful and legitimate it could be equated with ownership. Barrett J held that Mr Donoghue satisfied the criteria for claiming ownership of the stolen jeep as he purchased the vehicle for consideration, maintained registration papers and his title had not been bested by any other person and thus, he had “a valid ownership against the world except the true owner.” The fundamental flaw in this logic however is that in Lyons Widgery CJ was engaging in a statutory interpretation of the word “owner” and therefore Barrett J’s conclusion that possession is sufficient to establish ownership within the meaning of section 1 of the 1897 Act must be erroneous. However this court is bound by the decision of a higher court. In real terms it makes no difference to this court’s finding as there are so many distinctions of fact between Donoghue and the instant case that it is of almost no value whatsoever in terms of the determination of the latter.

14. In Roe, Groarke P ruled that Mr Roe had given false testimony to the court in relation to two Rolex watches that were seized during a search of a house. Mr Roe stated that he received one watch in lieu of money that was owned to him by an acquaintance, and that he bought the second watch from a dealer in Sheffield, England. He testified that he asked his mother to look after the watches as he feared that he might be robbed of them in circumstances where he was “on the drink and having lots of parties at the time.” He provided valuation certificates for the watches which he alleged he had obtained from a reputable jeweller. It was argued that this documentation was falsified. When the watches were initially seized the occupant of the house told the gardaí that they “got the watches in America” and that they were worth just $10 and $20. Groarke P concluded that the real question was whether he believed Mr Roe owned the two watches and he determined that he did not.

15. The Applicant in the instant case initially told the court that the watch was left by her late husband to Nathan Coakley to allow him to wear it. She later stated that there were two watches left to both Nathan Coakley and his brother which they had the use of. Later again, she told the Court that the watches were to become the property of both “boys”

once they reach the age of 21, but did not specify which person was to receive which watch. Further, the Applicant rather flippantly testified that the watches might have been a gift to her late husband but when this was queried by the court she testified that the only time she could state he received a gift of a watch was one that she had gifted to him. The court finds it incredible, in the true sense, that these expensive watches could be in the long term possession and/or ownership of the Applicant and that she knows so little about them and has no idea where her late husband purportedly came into possession of them and was willing to speculate that they may have been gifts.

16. The court accepts as a fact that Nathan Coakley initially told the Respondent that the watch was an heirloom and later told him that he won it. On this point Nathan Coakley is at best mistaken and at worst lying. The court also accepts that Nathan Coakley unnecessarily pursued the Respondent to several venues following the court sitting at Blanchardstown in the manner described by the Respondent. Although nothing of probative value in the issue turns on this point, it goes to credibility.

17. There is inconsistency in the testimony of the Applicant as regards ownership of the watch. There is a distinct lack of clarity in an account that, were it true, should not give rise to any contradiction. So too there is inconsistency in the evidence of the Applicant’s son in relation to ownership of the watch. There is also inconsistency in the testimony of both when compared to each other.

18. If these watches were genuinely legitimate expensive heirlooms then it is highly unlikely that they would have no associated paperwork, no services or repairs ever carried out and receipted, be unprotected to the extent that they were worn by a person taking drugs at the time, and be in the long term possession and/or ownership of a person who has no idea where they originated.

19. Given the level of inconsistency in the evidence of the Applicant, coupled with the lies told by her son, this court is not satisfied as a matter of fact that the Applicant had either actual or constructive possession of the watch. In those circumstances there is no presumption of ownership insofar as the Applicant is concerned. There is nothing on the facts of this case that rises to the level present in the binding Donoghue case that entitles the court to equate possession with ownership. The Applicant therefore has no more entitlement to the watch than the Respondent or anyone else, other than the true owner, who cannot be identified.

20. Having reached that determination the court must then, in accordance with Roe, ask itself whether, absent the presumption, it is probable that the Applicant owns the watch. In light of all of the evidence, and having had the unique opportunity to view the manner in which the testimony was delivered, and in the absence of any paperwork relating to ownership, service, repair, insurance, anything at all that one would typically expect in relation to such an item, the court is driven to the inescapable conclusion that the Applicant does not in fact own the watch.

21. Accordingly, the court refuses the order sought by the Applicant and further orders the disposal of the property in accordance with the provisions of the 1897 Act.