High Court dismisses POCA application to freeze property as it is deemed a personal injury settlement, not crime proceeds.

THE HIGH COURT

[2026] IEHC 20

[Record No. 2025 19 CAB]

IN THE MATTER OF THE PROCEEDS OF CRIME ACTS 1996-2016

IN THE MATTER OF AN APPLICATION AFFECTING PROPERTY ALLEGED TO

BE IN THE POSSESSION OR CONTROL OF THOMAS HUMPHREYS ON THE

APPLICATION OF THE CRIMINAL ASSETS BUREAU

JUDGMENT of Mr. Justice Kennedy delivered on 21 January 2026.

1. This is an application under s.3(1) of the Proceeds of Crime Act 1996, as amended, (“POCA”) for orders, inter alia, prohibiting the respondent and others from disposing of or otherwise dealing with or diminishing the value of a property, 1 Coast Guard Cottages, Strand Street, Youghal, in County Cork (“the Property”). An order was previously made pursuant to s.2 by Owens J on 25 June 2025. The respondent does not deny his involvement in criminality and money laundering, both personally and in conjunction with his extended family. Nor does he deny that the latter constitutes an organised crime grouping (“OCG”) involved in criminality including fraud and money laundering in Ireland and Australia. Gardaí investigations of the OCG have identified more than 20 individuals, concluding that the fruits of crime were laundered through their accounts. The evidence suggests that the respondent and his wife (Linda Humphreys née O’Brien) participated, benefitting from frauds committed by other OCG members, including her brother, Patrick “Pizza Face” O’Brien (“Mr O’Brien Junior”) and father, Patrick “the Receiver” O’Brien, (“Mr O’Brien Senior”). The controversy concerns the extent to which, as the applicant says, the Property represents the proceeds of crime or whether, as the respondent says, it largely represents the proceeds of a personal injury settlement (“the Settlement”).

The Background

2. Undisputed evidence contained in seven affidavits for the applicant (excluding affidavits as to service) and two on behalf of the respondent confirmed: a. The respondent, a UK national, was born on 13 September 1988. Ignoring driving and road traffic offences, his Irish convictions include robbery, handling stolen property, possession of knives and other articles, threatening to kill and cause serious harm. Between 2010 and 2019 he associated with individuals involved in the controlled drugs trade. Although he has no convictions in that context, the Gardaí were satisfied of his high-level association or involvement in that illicit trade. He has not denied those claims. b. More recently, he aligned himself with the O’Brien inter-familial Organised Crime Group ("OCG") which was involved in deception and theft. He was “a pivotal member of this OCG, who most recently have been operating in Australia”. The OCG has a history of involvement in serious crimes. The respondent was convicted in Australia for frauds undertaken in conjunction with Mr O’Brien Junior, his brother-in-law. c. The respondent does not deny that his wife facilitated her brother's and her husband's criminality, laundering proceeds of their crimes through her accounts; the applicant claims that such monies helped pay for the Property. d. In 2018, Mr O’Brien Junior fled to Australia with his family, breaking bail in Ireland to avoid trial for a serious romance fraud at the expense of Pauline Fitzpatrick. The respondent (likewise accompanied by his family) joined them in Australia for the purposes of making gains by fraudulent activity. He partnered Mr O’Brien Junior in a series of bogus works frauds. Many of their victims were elderly women. The respondent was arrested and charged whilst attempting to flee Australia following Mr O’Brien Junior’s arrest. Having received bail, he absconded and was convicted in absentia for various frauds. He has not returned to Ireland.

The Property

3. It is common ground that; (a) the purchase was completed on 29 July 2015, with registration finalised in 2016 as there was a need to split the folio between the Property and an adjoining property bought by the respondent’s father). The respondent bought his Property at a total cost of €26,620; (b) his Kanturk Credit Union account (the Kanturk Account) appears to have been the source of a €5,000 deposit paid to his solicitor on 10 November 2014 - a withdrawal on the same date aligns with the payment; other payments to fund the purchase were made to his solicitor on 10 April, 15 May, 7 July, 13 October 2015 and 19 April 2016 but their provenance is controversial; (c) the funds in the Kanturk account at the time of the first payment largely originated from the Settlement proceeds (€16,245). The monies used to pay the deposit (at least) were thus partly derived from the Settlement; (d) apart from brief, isolated, taxed employment, the respondent and his wife depended on Irish Social Welfare payments over the years. The Settlement is the only other significant legitimate income source which has been identified.

4. The respondent has not sought to directly refute the applicant’s affidavits and exhibits or to cross examine their deponents. However, in the light of the divergence between submissions and affidavits, I will highlight certain evidence.

The Respondent’s Evidence

5. The respondent’s affidavit stated:

“2. … I am one and the same Thomas Humphreys as the designator registered owner of the property which is contained in Folio CK167789F. … this Affidavit relates to the source of the funds relating to the said purchase.

3. The said purchase was completed on or about the 30th day of July 2015. I say that the amount of the purchase money attributable to No. 1 Coast Guard Cottages, Youghal, Co. Cork was the sum of €25,000.

4. I say that I did not require a loan to finance the said purchase.

5. Primarily, the funds to purchase the said property came from an account that I had at Kanturk Credit Union Limited, Kanturk, Co. Cork which is account reference 9563. I beg to refer to the relevant portions of the statements as relating to Kanturk Credit Union Limited which is referred to at Tab 14 In the Affidavit of [bureau officer] dated the 12th of June 2025.

6. Specifically, I beg to refer to a significant lodgement made to the said account on the 21st day of August 2014, I say that the said sum of €16,245 was the net settlement proceeds of an accident that I, Thomas Humphreys, brought against Margaret (Margarite) O'Driscoll and Damien Jewitt. I say that I retained the services of Padraig O'Connell, Solicitor, Killarney, Co. Kerry to pursue the said claim on my behalf and on or about the 2lst of August 2014 I received a cheque from the said Padraig O'Connell for the said sum of €16,245.

7. I say that I retained the services of Denis Linehan Solicitor to enquire of Padraig O'Connell Solicitor concerning the case in question and he received an email from Padraig O'Connell dated the 9th day of October 2025 enclosing a draft receipt and covering note which, specifically, refers to me...

8. At the time the lodgement of the amount of €16,245 there was a balance in the account of €220.33. Subsequently, lodgements were made to the account in the sum of €4,500. I accept that the source of the funds is as already averred in the Affidavit of [Bureau Officer] and, specifically, referred to in paragraph 44 thereof.

9. I say that withdrawals totalling €20,000 in cash were made from the account at Kanturk Credit Union Limited on the 9th of October 2014, 10th of October 2014, 15th of October 2014 and 10th of November 2014. I say that all subsequent lodgements to the client account of Mary Anne Jones and in particular the lodgements of €9,500, €6,860 and €4,000 were, in effect, funded by the €20,000 in cash that I had withdrawn from the account held at Kanturk Credit Union Limited.

10. I beg to refer to the averment of [Bureau Officer] at paragraph 45 of her Affidavit relating to the sum of €9,500. Reference is made to a withdrawal of €9,350 cash from an account of one Linda O'Brien Mongan (my wife). I say that the said withdrawal related to a vehicle purchased by Linda O'Brien Mongan or Patrick O'Brien and the said vehicle was purchased from O'Callaghan's Garage, Kanturk, Co. Cork”.

6. A short, uncontroversial solicitor’s affidavit confirmed the details of the Settlement which resulted in the lodgement of €16,245 to the Kanturk account on 21 August 2014.

The Chief Bureau Officer’s Belief

7. The Chief Bureau Officer (“CBO”)’s affidavit confirmed his belief as to the respondent’s involvement (and that of the OCG) in criminality in Ireland and Australia, including fraud and money laundering, and as to whether the Property represented the proceeds of crime. He endorsed the conclusions reached by his team which comprised investigating Gardaí, a forensic accountant and other deponents and agreed with the conclusions of the forensic analysis of the financial affairs of the respondent and his wife, including that €21,620 used to buy the Property came from unknown or unlawful sources.

The Applicant’s Forensic Evidence

8. The forensic accountant’s affidavit (“the Accountant”) details the analysis of relevant documents, including bank accounts of the respondent and his wife, her brother, father and other OCG members and the conveyancing file for the acquisition. It notes that the respondent made six payments to his then solicitor to effect the transaction. Their conclusions as to the source of those funds were, inter alia, as follows: a. the respondent made the first (€5,000) payment, on 10 November 2014. The conveyancing file records the payment as being by cheque. He held an account with Kanturk Credit Union (the Kanturk account) to which he had lodged the Settlement proceeds on 21 August 2014. b. The Kanturk account file records that he attempted to withdraw €20,000 in cash on

9 October 2014, but there was a €5,000 daily limit. He was offered a draft but required cash. Instead, he withdrew the maximum that day and returned on 10 and

15 October and on 10 November 2014, to withdraw three further €5,000 tranches. The last coincided with his payment of the deposit. The Accountant accepts that that day’s withdrawal was probably the source of the deposit and that payment accordingly largely originated from the €16,245 Settlement, but they also note the lodgement of €1,300 from the respondent’s late mother's account and a €2,900 cash lodgement to the Kanturk account. c. As for the second payment (€9,500) towards the transaction cost (paragraph 25), the solicitor’s client ledger shows that the respondent paid €9,500 on 10 April 2015.

The conveyancing file contains a Killarney Credit Union receipt dated 7 April 2015 showing a cash withdrawal of €9,350 from an account in the respondent’s wife’s name. The Accountant’s analysis of the respondent’s wife’s Killarney Credit Union account confirms withdrawal details broadly matching the receipt on the conveyancing file and demonstrates, inter alia, the lodgement into that account of a €10,000 Permanent TSB draft on 12 March 2015 drawn on her father’s PTSB account. The Accountant demonstrates that this was ultimately derived from the funds fraudulently extracted from Pauline Fitzpatrick in the romance fraud.

On that basis, the Accountant concluded that funds originating from the romance fraud were the source of the respondent’s second payment towards the purchase. (The respondent denies this). d. As for the third Property payment (paragraph 29), the client ledger suggests that the respondent paid €6,860 on 15 May 2015– the source is not identified in the conveyance file or identifiable in the respondent’s bank accounts (or his wife’s). There were significant cash withdrawals in their credit union accounts, including €15,000 withdrawn from the Kanturk account 9563 in October 2014 but the Accountant doubted that such cash was accumulated and reflected in the payment seven months later.

The Accountant noted that a cash withdrawal of €3,000 on 18 May 2015 from the respondent’s Credit Union account postdated the €6,860 payment and concluded that that figure originated from cash lodgements totalling €6,264.25 demonstrating the respondent’s access to cash from unknown sources. e. As regards Property payment 4 (€4,000) (paragraph 30), the client ledger confirms that the respondent paid €4,000 on 7 July 2015. A Bank of Ireland withdrawal docket on the conveyancing file dated 14 July 2015 shows the withdrawal of that amount from an account in the respondent’s name which later received transfers totalling €9,589 from Australia between July and October 2018.

That account shows a cash lodgement of €4,500 on 14 July 2015 and a cash withdrawal of €4,000 on the same day which may represent the €4,000 paid to the solicitors. There is no further information in the conveyancing file that clarifies whether the €4,000 was paid on

7 or 14 July 2015. f. As regards Property payments 5 and 6 (€500 and €760) (paragraphs 32 -33); (i) the client ledger shows that the Respondent paid €500 on 13 October 2015 but the conveyance file does not record how this was paid; (ii) There was a withdrawal of €800 from the Kanturk account 9563 on 5 October 2015; (iii) The client ledger shows that the respondent paid €760 on 19 April 2016. There were two cash withdrawals of €500 and €300 on the same date originating from cash lodgements to that account.

9. At paragraph 34, the Accountant summarises the funds used to buy the Property

• The sale price was €25,000, including the €5,000 deposit. The respondent paid €26,620 in total (including costs).

• €9,500 (35.7%) can be traced to the Pauline Fitzpatrick deception.

• €4,760 (21.6%) originated from cash lodgements from unknown sources.

• €7,360 (33.5%) has not been identified in the respondent’s bank accounts and those of his wife - it is unknown how it was paid.

• €5,000 (22.7%) originated from the Settlement cheque.

10. The Accountant analysed known sources of income and expenditure for the respondent and his wife including their Irish bank accounts: a. In particular, they traced the lodgement of the Settlement monies to the Kanturk account together with numerous other lodgements (mostly cash) in September 2014,

20 July 2015. September 2015, October 2015, November 2015 and May 2016. The source of such lodgements is unknown.

b. As noted above, €20,000 was withdrawn between October and November 2014 in four €5,000 transactions. c. €4,300 was withdrawn in August 2015, €1,300 in September 2015, €1,000 in October 2015 and €2,200 in November 2015. There were withdrawals of €5,000 in January 2016, €5,000 in June 2016 and €5,000 in July 2016. There has been no activity in the account since 2016 with the balance at €268.

11. The Accountant analysed the respondent’s wife’s accounts including: a. her current account for general income and expenditure, including while in Australia and for Irish social welfare payments and rents from the Property. b. Her Killarney Credit Union Account 18205 which recorded the lodgement of a €10,000 cheque on 12 March 2015 drawn on her father’s PTSB account which ultimately originated from Pauline Fitzpatrick, the romance fraud victim. The Accountant traces the movement of the fraud proceeds through the respondent’s father in law’s accounts in detail at paragraphs 121 to 124 of their affidavit.

The Respondent’s Criminal Record

12. Paragraphs 13-15 of the investigating Detective Inspector’s affidavit detail the respondent’s history of criminality, including 40 convictions in Ireland between 2009 and 2017. An early conviction was for a Post Office robbery in May 2008 when he was 19. He and an accomplice threatened staff and took cash. His other convictions were as follows1:

I have disregarded references to a robbery in respect of which the respondent was interviewed but not prosecuted.

Number Type of Conviction

24 Road Traffic Act 1961

8 Criminal Justice (Theft and Fraud Offences) Act 2001

3 Criminal Justice (Public Order) Act 1994

2 Non-Fatal Offences Against the Person Act 1997 (Section 3 & Section 5)

2 Firearms and Offensive Weapons Act 1990

The OCG

13. Paragraph 19 of the investigating Detective Inspector’s, and paragraph 13 of the Bureau’s Officer’s affidavits detail the OCG’s involvement in criminality in Ireland and Australia, noting that: a. Mr O’Brien Senior had nine children including Mr O’Brien Junior and the respondent’s wife, Linda, who facilitated her brother and her husband by laundering the proceeds of their crimes through her accounts. b. Among other examples of the Australian criminality, paragraph 13 of the Bureau Officer’s affidavit noted that the respondent defrauded an elderly woman of AUD$100,500 (€61,695) in 2019. The money was not recovered. c. Paragraphs 19 and 20 of the Bureau Officer’s affidavit reference the conclusions of New South Wales investigations of the large-scale roofing frauds perpetuated by Mr O’Brien Junior and the respondent. They were both arrested and charged but, having received bail, the respondent failed to appear in court, and was convicted in absentia.

The OCG’s Modus Operandi & Structure

14. The investigating Detective Inspector’s affidavit (at paragraph 17) confirmed that the O'Brien family is a semi-structured OCG, generally but not exclusively operating on an extended familial basis. Its focus is bogus tradesperson operations, deceiving (often elderly) victims into paying exorbitant sums for property repairs. Often no work is undertaken, and the victim is left significantly out of pocket, and sometimes losing their life savings. Such criminality has a severe effect on its vulnerable victims. In many instances they are elderly females, residing alone, easy targets for the OCG. The crimes take place at their home and leave victims feeling vulnerable and invaded.

15. The Bureau Officer’s affidavit gives further detail of the investigations which resulted in the evidence analysed by the Accountant, supporting the conclusion as to source of funds, noting that: a. on 11 March 2025, Robert Hyde, the respondent’s father, transferred €33,769.25 to the purchaser’s solicitors, towards the cost of buying no 2 Coast Guard Cottage. b. the respondent paid €26,620 for the Property (1 Coast Guard Cottages). According to Bureau forensic evidence, €12,120 was from unknown sources and €9,500 was “directly sourced from” the Pauline Fitzpatrick fraud. The Bureau Officer concluded that such “syphoning off” of proceeds of frauds evidenced the organised nature of the activity and the Property purchase:

“was funded, in whole or in part, using the proceeds of crime accumulated through crimes committed by the O'Brien Family and more specifically the crimes carried out by Thomas Humphreys as a part of this group”. c. The affidavit concluded that the respondent was the Property’s owner, and its acquisition was funded through his and the OCG’s criminal activity.

The Applicant’s Submissions

16. The applicant submitted that: a. The case arose from the respondent’s involvement in criminality in Ireland and Australia, including drug trafficking, deception and robbery. He was a member of an OCG, convicted in Australia for fraudulently targeting elderly and vulnerable people. He was also a previous beneficiary of similar crimes by Mr O’Brien Junior. He had not denied his involvement in (or the fact that he benefitted from) criminality, or his ownership of the Property and he accepted the Bureau's case regarding the movement of monies. b. Perhaps the most sinister fraud was the romance fraud perpetrated by Mr O’Brien Junior on the late Ms. Fitzpatrick. It involved a pretended relationship with a vulnerable lady, resulting in her paying huge sums, some of which went to buy the Property, routed through the Respondent’s wife’s account by Mr O’Brien Junior and their father. Tragically, after Mr O’Brien Junior absconded while on bail and fled to Australia, Ms. Fitzpatrick died of a heart attack, so he escaped justice. c. The sole issue was the source of the purchase monies. It is common ground that some came from the Settlement and some from the proceeds of the Pauline Fitzpatrick frauds, so at least part of the property represented proceeds of crime. While €5,000 or less from the Settlement went towards the purchase, the question was how much went into the purchase cost. The respondent’s affidavit confirms that on 21 August 2014 he received €16,245 in the Settlement. The Bureau's analysis suggests that, at best, €5,000 went to buy the Property. d. The respondent confirmed his acceptance of the Bureau's case as to the source of funds, referring to paragraph 44 of the Bureau Officer’s affidavit. That paragraph referenced the Accountant’s conclusion based on bank and other records that:

"the €5,000 payment to (the conveyancing solicitor on the purchase of the Property), the subject of these proceedings, were sourced in part from a lodgement of €1,300 from his late mother's account, in part from €2,900 from a cash lodgement, and in part €16,245 from Padraig O'Connell Solicitors". e. The applicant accepted that, at most, €5,000 could relate to the settlement but noted other possible sources. At the height of the respondent's own case, €5,000 came from the settlement. If the property was partly purchased with the proceeds of crime, then the Court could make a s.3 order in respect of the whole property. f. The Accountant’s affidavit confirmed that monies taken from Ms. Fitzpatrick, were directly used for the purchase of the Property. g. Other monies in the account came from unknown sources. The authorities emphasise that individuals should know the source of their wealth, which is why there is a statutory power to take the money from unknown sources where there is sufficient evidence of criminality. It is presumed that money is derived from crime, unless the individual can show a legitimate source. There is none in this case because the respondent has no legitimate earnings. Aside from historic social welfare, his entire income was from fraud. h. The only issue was whether in the circumstances the Court would make an order in respect of the entire property or direct the Bureau, when it sold the property, to return some of the €5,000 to the respondent.

17. When asked whether the Court could confiscate a property which only partly represented proceeds of crime, the applicant’s counsel cited s.3. She did not identify any specific judicial authority on its application to assets only partly derived from proceeds of crime. She said that in the Bureau’s experience, the courts’ approach depended on the circumstances. On some occasions they seized entire assets which may not have represented the proceeds of crime in their totality. On others, they might release some of the value of the asset if satisfied of a legitimate source. In this case, the respondent had earned rent at about €6,000 a year, profiting from a property substantially purchased with the proceeds of crime. It was an issue for the Court as to whether to remit some of the €5,000 to the respondent.

The Respondent’s Submissions

18. The respondent’s submissions emphasised the lodgement of the Settlement monies in the Kanturk account, noting the €220 previous balance and the subsequent deposits in the sum of €4,500. The respondent had averred that all his payments to the solicitor’s client account, and in particular the lodgements of €9,000, €6,000 and €4,000 were funded by the €20,000 in cash withdrawn from his Kanturk account in four transactions in October and November 2014. Noting that he didn’t understand his client’s acceptance of the Bureau Officer’s averments as to the source of the funds, the respondent’s Counsel submitted that: a. the Bureau’s evidence confirmed four €5,000 withdrawals. The respondent’s evidence was that those monies were used to buy the Property for €25,000. Even if, as the Bureau maintains, only €5,000 of the price of the Property came from a legitimate source, then that represented one fifth of its value. Its current value is circa €120,000. Accordingly, an equitable order should at least award the respondent one fifth of the sale price. b. However, greater allowance should be made in view of the respondent’s evidence that €20,000 of the purchase monies came from the Kanturk account which largely comprised the Settlement proceeds. The evidence shows the movements in and out of the account and confirms that he withdrew at least €20,000, of which €16,245 was derived from the Settlement. The account statements confirm the withdrawals. Accordingly, on the balance of probability, he paid €20,000, or 80% of its price.

Attributing a contribution of the €16,245 that was clearly from a legitimate source, the Settlement, would represent 64% of the price. c. If an order was made, which counsel acknowledged as inevitable, it should be as equitable as possible, having regard to the evidence that on the balance of probabilities the funds or a substantial portion of them, were traceable to a legal origin unconnected with crime, particularly the Settlement. Also, the documents showed some record of work, so he was not entirely without other income. d. The applicant was essentially claiming that the property represented the proceeds of crime because of the respondent’s association with the O'Briens, including with Mr O’Brien Junior in Australia in 2019 when the latter received a substantial sentence, but that was after the Property was bought. The Australian criminality was in 2018, four years after the acquisition, so it cannot represent the proceeds of the Australian crimes. e. The respondent’s record is that of a petty criminal - the sentences suggested minor offences. Furthermore, he had never been charged with some offences alleged. His record comprised the sort of crimes committed everyday by people of a certain disposition rather than serious criminality. f. If making an order, the Court should consider the equity of the situation. It has a discretion if the property was obtained either in whole or in part as a result of the proceeds of the crime. There were a number of approaches: i. one was to conclude that one fifth of the purchase price was funded by the respondent from legitimate sources, so he should be entitled to one fifth of the sale price or at least it should inform the decision. ii. If the Court accepted that the entirety of the Settlement monies went towards the purchase, that would represent 64% of the cost.

iii. Alternatively, based on the respondent’s uncontradicted evidence of withdrawing €20,000 from the Credit Union account to fund the purchase, those payments would represent 80% of the cost and this should be reflected in the order.

Applicant’s Replying Submissions

19. In response the applicant submitted that; (a) it is only the €5,000 deposit which was in question; (b) the income from paid employment shown in the Revenue Bureau Officer’s affidavit was not at a relevant level. The respondent had not been in gainful employment for consistent periods in this jurisdiction and paying tax to the Exchequer. Nor has any connection been made, including in the respondent’s affidavit, between that very limited income and the purchase of the Property; (c) the submissions in respect of the respondent’s convictions had not addressed his conviction in Australia for the fraud offences; (d) nor had the respondent addressed the evidence that he had benefitted, and therefore laundered, the proceeds of the romance fraud, as his wife received money from that fraud which was used in the transaction;

(e) the applicant need not establish that the money came from a particular crime once sufficient evidence of criminality is adduced. However, in this case, the evidence did show that a significant part of purchase price came directly from that romance fraud. The respondent had not disputed that; (f) the Australian crimes are referenced as further evidence of criminality, the tendency to commit crime, and the facts of other crimes beyond those recorded on the Irish PULSE system, such as the Australian convictions.

Legal Principles

20. S.3(1) provides:

“Where, on application to it in that behalf of the applicant, it appears to the Court, on evidence tendered by the applicant, consisting of or including evidence admissible by virtue of section 8-

(a) that person is in possession or control of –

(i) specified property and that the property constitutes, directly or indirectly, proceeds of crime, or

(ii) specified property that was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime, and

(b) that the value of the property or, as the case may be, the total value of the property referred to in both subparagraphs (i) and (ii) of paragraph (a) is not less than £10,000, the Court shall make an order (“an interlocutory order”) prohibiting the respondent or any other specified person or any other person having notice of the order from disposing of or otherwise dealing with the whole or, if appropriate, a specified part of the property or diminishing its value, unless, it is shown to the satisfaction of the Court, on evidence tendered by the respondent or any other person— (I) that that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime, or (II) that the value of all the property to which the order would relate is less than £10,000: Provided, however, that the Court shall not make the order if it is satisfied that there would be a serious risk of injustice.”

21. There was no controversy as to the principles governing the application. They are well settled by authorities such as M v D [1998] 3 IR 175, 178, Gilligan v CAB [1998] 3 IR 185, 224-225, Murphy v GM [2001] 4 IR 113, 130, McK v F & F [2003] IEHC 631, F McK v GWD [2004] 2 IR 470, 491-492, FMcK v AF, FMcK v EH [2005] 2 IR 163, FMcK v TH & JH [2007]

4 IR 186, FMcK v TH and JH (17 October 2008, High Court, Unreported), Feeney J, CAB v H (T) & H (J) [2011] IESC 10, CAB v Kelly & TT [2012] IESC 64 and CAB v Murphy [2016] IECA 40. In summary: a. to paraphrase Moriarty J in M v D, the legislation enables the lower probative requirements of civil law to be utilised in appropriate cases, not to impose penal sanctions, but to effectively deprive persons who engage as principals in lucrative professional crime of “such illicit financial fruits of their labours as can be shown to be proceeds of crime." b. The civil standard of proof is applied under s.8(2) to any question arising under the Act. In Gilligan v CAB, McGuinness J noted the applicable standard at page 237, and the State’s legitimate interest in the forfeiture of proceeds of crime while observing that the respondent may intervene to show good title. c. S.8(1) (as amended) of the Criminal Assets Bureau Act, 1996 permits testimony by the Chief Bureau Officer (CBO) on POCA applications. Where the CBO testifies as to his belief that the respondent is in possession or control of specified property which constitutes, directly or indirectly, the proceeds of crime or that it was acquired, in whole or in part, with or in connection with property, that, directly or indirectly, constitutes the proceeds of crime, then, if the Court is satisfied that there are reasonable grounds for the belief, the statement shall be evidence of such matters, including the property value. d. As Peart J noted at paragraph 65 of his decision in CAB v Murphy [2016] IECA 40, hearsay evidence can be relied on to support such a belief:

“It is clearly in the contemplation of the Oireachtas and is within the scheme of the Act that the evidence which the Court is given for its consideration for the purposes of an application under s. 2 or s. 3 of the Act of 1996 'may consist of or include' the belief evidence provided for in s. 8 thereof provided 'there are reasonable grounds for the belief'. Reasonable grounds is a different concept to proof, even to the civil standard which is the appropriate standard in these cases." By contrast, as the Supreme Court noted in FMcK v TH [2007] 4 IR 186, given that a respondent in an interlocutory application is the person in possession or control of the particular property, he should be in a position to give evidence as to its origins without requiring belief evidence.

Belief evidence in and of itself is not conclusive and can be contradicted by evidence called by a respondent. If not undermined in cross-examination, belief evidence creates a prima facie case which might be answered if the respondent could establish in evidence a credible explanation as to how he lawfully came into possession or control of the property”. e. In F McK v GWD, at pages 491-492, McCracken J confirmed the approach to such applications; his summary informs analysis below. f. The applicant need not establish that the respondent has a criminal conviction or link the assets to particular crimes.

In Murphy v GM, the Supreme Court rejected the proposition that the applicant was obliged to identify specific crimes and when, where and by whom they were committed. It was sufficient that the Court had accepted the plaintiff’s “detailed evidence as to the nature of the criminal activities allegedly committed by the first defendant which were the source of the property sought to be frozen. (This evidence was undoubtedly hearsay, but, as already noted, such evidence is admissible under s8.)” g. In Murphy, it was held that s.3 orders could be made even in the absence of mens rea on the part of the person in possession or control of the property.

Even if such a person might not have been involved in any criminal activity and might not have been aware that the property constituted the proceeds of crime, that does not prevent such an order freezing the property. h. "Proceeds of crime" is defined in s.1 POCA as meaning “any property obtained or received at any time … by, or as a result of, or in connection with the commission of an offence”. i. In McK v F& F, having considered Murphy v GM, Finnegan P noted that the plaintiff:

"… does not make the case that the property the subject matter thereof is the proceeds of a specific crime or crimes. These proceedings are civil proceedings and the onus rests upon the Plaintiff. In order to discharge that onus the Plaintiff may rely upon opinion evidence pursuant to the provisions of section 8 of the Act. As 'Criminal conduct' means any conduct-(a) which constitutes an offence or more than one offence, or (b) which occurs outside the State and which would constitute an offence or more than one offence-(i) if it occurred within the State,

(ii) if it constituted an offence under the law of the state or territory concerned, and (iii) if, at the time when an application is being made for an interim order or interlocutory order, any property obtained or received at any time (whether before or after the passing of this Act) by or as a result of or in connection with the conduct is situated within the State. As noted by the Supreme Court the Defendant should be in a position to give evidence to the court as to the provenance of any property sought to be attached. However the Act applies not alone to the person alleged to have been involved in the crime but to a person in possession or control of the property. This may make more difficult the task of the Defendant. However it is provided in section 3 of the Act that the court shall not make an order under that section if it is satisfied that there would be a serious risk of injustice and this provision represents an appropriate and sufficient protection for such a Defendant ... I am satisfied that it is unnecessary for the Plaintiff to rely upon specific crimes or to relate items of property sought to be attached by an order under section 3 of the Proceeds of Crime Act 1996 to the commission of specific crimes and that the Plaintiff can make a sufficient case by relying on opinion evidence that the property in question constitutes directly or indirectly the proceeds of crime or that the property was acquired in whole or in part with or in connection with property that directly or indirectly constitutes the proceeds of crime pursuant to section 8(1) of the Proceeds of Crime Act 1996." j. Finnegan P further noted the legislative intention that the Act should apply even if the plaintiff was unable to show a relationship between the property alleged to be the proceeds of crime and particular crimes. k. There is no constitutional right to property derived from the proceeds of crime, even a home. A party in possession does not have good title. See FMcK v TH & JH.

Analysis

22. Since both sides acknowledged that the Property represents a mixture of the proceeds of crime and legitimate resources, it is important to consider my jurisdiction in respect of “mixed” assets. I am satisfied that the plain words of s.3 empower me to make an order in respect of an entire asset which is even partly derived from the proceeds of crime. There is a compelling logic to such an interpretation consistent with the objectives of the legislation, particularly as any unfairness can be addressed by the statutory discretions vested in the Court. An alternative policy might have been to limit each asset seizure to the proportion of the asset deemed to represent the proceeds of crime, excluding assets in whole or part to the extent that they could be shown to be honestly earned. The first approach allows the Court to seize assets derived even in part from the proceeds of crime but to exercise a discretion reflecting the equities of the situation by, for example, remitting a share of the proceeds when the asset is ultimately realised. The Bureau submitted, without citing specific cases, that the latter approach was correct and was followed in practice. The respondent did not demur and stressed that the court should have regard to the equity of the situation when dealing with an asset, such as the Property, which was only partly derived from the proceeds of crime.

23. I believe that the approach urged on me by both sides is a correct interpretation of the plain words of s.3 and is also consistent with the evident intention of the legislature, particularly having regard to the constitutional issues. The exercise of the Court’s powers will necessarily reflect individual circumstances. For example, there may be cases where individuals who had no direct or indirect involvement of criminality or laundering may benefit to the extent that they live in a house acquired, at least in part, with ill-gotten gains. However, if an entirely innocent party has in good faith contributed significant personal resources to an asset, then, depending on the circumstances, the Court may decide that some or all of the value of the asset should be remitted to them on the realisation of the asset. The equities would reflect the circumstances.

24. My conclusion on this point is reinforced by the respondent’s submission, with which I agree, that guidance on this point may be taken from neighbouring sections. S.4, which deals with disposal orders, empowers the Court to direct the whole or, if appropriate, a specific part of the property be transferred, subject to such terms and conditions as the Court may specify to the Minister or to other persons that the Court may determine. I agree that a holistic interpretation is appropriate – s.4 clearly empowers the Court to have regard to the equities of the situation when making a disposal order. Of course, s.3(1) allows the Court to decline to make an order or to make a nuanced order if it satisfied there is a serious risk of injustice. It would be illogical if the Court did not have such a jurisdiction under s.3. Accordingly, if there was a serious risk of injustice involved in making a s.3 order in respect of the entirety of a “mixed” asset, it follows that a modified order could address any such concern. I will return below to whether any such modification may be required here. I will first determine whether the applicant has established a prima facie case and, if so, whether the respondent has discharged the consequent onus to refute the allegations.

Prima Facie Case

25. In summary, the applicant’s evidence was that: a. The respondent had no sustained history of employment or other legitimate income which could plausibly have left him with sufficient disposable income to buy even the modestly priced Property. b. The romance fraud proceeds were transmitted to bank accounts associated with OCG members, including the respondent’s wife. The investigation has thus directly linked the Property purchase with the crimes against Pauline Fitzpatrick. Mr O’Brien Junior was charged with those crimes but was granted bail and permission to travel with his son with the Make A Wish Foundation. He absconded to Australia and never faced trial (Ms Fitzpatrick having died). c. In Australia Mr O’Brien Junior and the respondent committed further frauds, deceiving several people of substantial sums; Mr O’Brien Junior was convicted and sentenced to five and a half years jail; the respondent fled.

26. The crucial allegation that the Property was acquired by use of the proceeds of crime was set out in the applicant’s affidavits, including the CBO’s at paragraphs 5 to 7. For example, he notes that considerable criminality can be linked to the Respondent and observes at paragraph 7(c) that funds used to buy the Property can be attributed directly to the €260,950 romance fraud in 2012 – 2015 at the expense of Pauline Fitzpatrick. The investigating Bureau Officer testifies to similar effect. Having dealt with the respondent’s involvement in criminality, the Officer notes the fate of the proceeds of the romance fraud, observing at paragraph 8 that “… the funds were transmitted to bank accounts belonging to various family members, one being … the wife of the Respondent…. the funds derived from this particular crime directly funded the purchase of (the Property)”.

27. Paragraph 23 of the Bureau Officer’s affidavit likewise summarises the evidence, reiterating that some of the proceeds of the romance fraud were “directly linked to the purchase (of the Property)”.

28. The absence of legitimate sources of income (other than the Settlement) which might have funded the acquisition is confirmed by the applicant’s unchallenged affidavits. The CBO observes at paragraph 7(d) that the primary source of income for the respondent and his wife comprised social welfare payments and that their declared income was nominal.

29. Following McK v GWD, and having considered the CBO’s affidavit as well as the other affidavits and exhibits tendered by the applicant, I conclude that the CBO believes –on reasonable grounds - all matters deposed to in his affidavit, including the respondent’s involvement (along with his wife) in criminality and in laundering the proceeds of criminality, and that the Property represents the proceeds of crime. I accept his belief as prima facie (and thus rebuttable) evidence of such facts. Accordingly, the onus shifts to the respondent.

Respondent’s attempt to refute prima facie case

30. It has been noted that the respondent has not contested the criminality alleged against him and his family, including his wife and her brother and father. He has not sought to crossexamine the Bureau deponents. The only real issue concerns the extent to which legitimate income derived from the Settlement proceeds was used to buy the property. I am satisfied that on the balance of probabilities the respondent’s first payment to his solicitors, the 14 August 2014 payment of €5,000 for the deposit, was derived from the Settlement monies. The respondent has not established that the other payments to the solicitor were funded in whole or in part from legitimate sources.

31. The applicant was legally represented when his affidavit was prepared and was familiar with the applicant’s case, as is demonstrated by the evidence of service, from his own references to the investigating Bureau Officer’s affidavit, and to an important exhibit thereto. I have the following observations on his affidavit: a. Save as is noted below, the respondent did not challenge the evidence of serious criminality on his and the OCG’s part. Indeed, his affidavit is most remarkable for what it does not say. He does not deny or explain his criminal convictions or his involvement in criminality (the controlled drugs trade, frauds in Ireland and Australia, money laundering), or the criminality, including money laundering in Ireland and/or Australia alleged against his wife, her brother, her father and other OCG members. Nor does he engage with the detailed evidence as to the source of funds used to buy the Property, including the forensic analysis of the conveyancing file, the respondent’s bank accounts and those of his wife and other OCG members, and other documents. Nor does he take issue with the applicant’s evidence about the limited resources available to him and his wife when the Property was acquired, with no meaningful legitimate resources identified other than the Settlement proceeds. He does refer to cash deposits and the Kanturk account as funding the purchase but without doing enough to discharge the onus by credibly demonstrating the legitimate origins of such cash.

32. The respondent accepts that he owns the Property and that the purchase was completed on or about 30 July 2015. He says that the amount of the purchase money “attributable to the Property” was €25,000. His phraseology may reflect the fact that, as the affidavits furnished by the applicant noted, two adjoining apartments were simultaneously bought by the applicant and his father, one being the Property. While there is no dispute as to the price, the respondent’s averment ignores the purchase costs and expenses which are detailed in the applicant’s affidavits and which confirm that the full cost was €26,620.

33. At paragraphs 4 - 8, the respondent states that he did not require a loan to buy the purchase and that “primarily” the funds came from his Kanturk account. Apart from his vagueness (“primarily”), he specifically refers to the lodgement of the Settlement monies (€16,245) on 21 August 2014, prior to which the account balance was €220.33. He makes no attempt to explain the circa €10,000 shortfall between the Settlement figure and the transaction cost or to suggest that that shortfall was met by lawfully acquired funds.

34. The respondent also noted in paragraph 8 that lodgements were subsequently made to the account in the sum of €4,500 without explaining their source. He does say that “I accept that the source of the funds is as already averred in the Affidavit of the [Bureau Officer] and, specifically, referred to in paragraph 44 thereof”. The applicant interprets this paragraph as an admission of its evidence as to the source of funding for the purchase, a concession that the Property represented the proceeds of crime. The respondent’s counsel candidly acknowledged that he did not understand what was meant by this paragraph. I share the latter’s difficulty in interpreting the paragraph. I doubt that the expansive meaning for which the applicant contends was intended as that would contradict other parts of the same short affidavit. When the affidavit is read holistically, it seems to me that the respondent cannot have intended to adopt the applicant’s affidavits generally. His apparent broader concession must have been a mistake on his part. I suspect he simply intended to adopt paragraph 44’s confirmation that the funds in the Kanturk account (which, he says, he used to fund the purchase generally, not just the first payment on 14 August 2014) "were sourced in part from a lodgement of €1,300 from his late mother's account, in part from €2,900 from a cash lodgement, and in part €16,245 from Padraig O'Connell Solicitors". Although this stretches the words of the affidavit, I will adopt this interpretation which favours the respondent, rather than concluding that he made an admission in the broad terms for which the applicant contends. However, even on the basis of such a charitable interpretation of the affidavit, the respondent’s affidavit fails to answer the applicant’s detailed and evidence except by high-level, broad-brush assertions. Such mere assertions, unsupported by documentary or other credible evidence, are insufficient to discharge the onus of proof or to displace the prima facie conclusion as to the source of funds based on the applicant’s evidence.

35. Paragraph 9 of the respondent’s affidavit notes the undisputed fact that withdrawals totalling €20,000 in cash were made from the Kanturk account on 9, 10 and 15 October 2014 and 10 November 2014, stating that “all subsequent lodgements to the client account … and in particular the lodgements of €9,500, €6,860 and €4,000 were, in effect, funded by the €20,000 in cash that I had withdrawn from the account held at Kanturk Credit Union Limited”.

36. Finally, paragraph 10 of the respondent’s affidavit responded to comments in paragraph

45 of the Bureau Officer’s affidavit relating to a cash withdrawal of €9,350 cash from one of the respondent’s wife’s account which, according to the applicant, represented the proceeds of crime and was used to fund the purchase of the Property. The respondent explained that the withdrawal related to a vehicle bough by his wife or by Patrick O'Brien from O'Callaghan's Garage, Kanturk, Co. Cork. The peculiarities of this explanation include the failure to furnish particulars of the vehicle and the vagueness of the identification of the purchaser. Was it his wife or Patrick O’Brien and, if the latter, was it Mr O’Brien Junior, his brother-in-law, or Mr O’Brien Senior, his father-in-law? No logbook or insurance documentations were exhibited. Nor does the respondent volunteer details of the vehicle’s fate or its whereabouts, which would itself appear to potentially represent the proceeds of crime.

37. The respondent’s affidavit scarcely responded to the applicant’s affidavits and exhibits save in two limited respects. He suggested an alternative explanation for the source of the €9,500 payment to the solicitors which the applicant had previously attributed to €9,350 withdrawn in cash from his wife’s account (funds derived from the proceeds of the romance fraud). More generally, he ignores the Accountant’s evidence to assert that the purchase price was largely met by his withdrawal of €20,000 in cash in October 2014 and on 14 November 2014 and thus the purchase was largely based on the Settlement.

38. The applicant’s evidence is a more credible explanation of the source of the various payments in respect (other than the first one, which is common ground). While the respondent’s

14 November 2014 withdrawal tallies with the first payment, he has made no attempt to explain his reluctance to accept a €20,000 bank draft on 11 October 2014 if his attempted withdrawal on that date was intended to fund the transaction which completed in July 2015. There would have been no difficulty with his solicitor accepting a bank draft and lodging it to the client account, a more secure arrangement than holding large sums in cash from October 2015 until they were progressively paid to the conveyancing solicitor in April, May, July and October 2015 and finally in April 2016. The dates do not tally and there is no credible evidence that the respondent kept the €20,000 segregated in cash with a view to buying the Property. If the €20,000 cash had indeed been withdrawn to that end, then there would have been no reason for piecemeal payments to the solicitor. It beggars belief that the €15,000 withdrawn in three equal tranches in October 2014 funded the later payments to his solicitors in view of the dates of each of those payments and the contemporaneous evidence which I have summarised above and which the respondent has ignored. The applicant’s evidence as to the source of the funds used to purchase the Property is more plausible. Accordingly, the respondent has not discharged his onus. I also consider that, in the absence of supporting documentation or credible detail regarding the purchase of a motor vehicle, he has failed to disprove the contention (supported by prima facie evidence) that the second payment of €9,350 came from his wife’s account and represented the proceeds of crime.

39. Accordingly, on the basis of the applicant’s detailed and well documented case and having considered the inadequacies of the response, I am satisfied that the second and subsequent payments in relation to the acquisition of the Property came from unknown sources or actually represented the proceeds of crime. Presumably the October withdrawals from the Kanturk account were intended to meet the respondent’s then cash requirements. If the money had been destined for the purchase of the Property, then it would have been prudent to leave it in the account until it was required, rather than having it burning a hole in his pocket or stuffed under his mattress for many months, at risk of loss, theft or dissipation. If, for whatever reason, the respondent tended to handle all his financial affairs in cash, then that would undermine his case that the cash used in the course of 2015 to buy the Property was the cash withdrawn in October 2014. Cash is inherently fungible and the conversion of the Settlement proceeds into cash meant that it is not credible for the respondent to assert that the later payments to his solicitors represented cash withdrawn from his Kanturk account the previous October, or that they represented the Settlement proceeds as opposed to other monies which, on a credible basis which is not disputed by the respondent, he is believed to have received from unidentified or unlawful sources.

40. For completeness I note that the respondent’s account contradicts information apparently given to his solicitor at the time. For example, he does not explain why the conveyancing file contains a receipt showing his wife's withdrawal from the Killarney credit union account. If the affidavit was correct, that document was not related to the conveyance and there was no reason to share it with the solicitor. It would suggest that false information was given to the solicitor. If that was the respondent’s contention, then he would need to say so, explaining how such misunderstandings arose.

41. I reject the applicant’s submission that the respondent’s legitimate contribution was less than €5,000, noting unexplained funds in the Kanturk account. It suggested that apart from the Settlement, the account benefitted from €1,300 from the respondent’s mother and cash deposits of €2,900. While the latter figure was unexplained there was little focus on the legitimacy of the €1,300. I am not satisfied that the applicant has established a prima facie case that that figure also represented the proceeds of crime.

42. For completeness, I should note minor discrepancies in the evidence, such as the reference in the conveyancing file to the first payment to the solicitor being made "by cheque" whereas it seems to have been in cash. There was also confusion about the date of the second payment – 7 or 14 July 2015. I do not think that such details, which may be simply matters of clerical errors on the file, affect the overall conclusions.

43. Turning to the respondent’s submissions: a. they diverge from the affidavit evidence. b. The mathematics are dubious, assuming a purchase cost of €25,000 rather than €26,620. Even if the entirety of the Settlement monies had gone towards the purchase, that would still have left more than €10,000 of the cost unaccounted for. c. I accept that the events in Australia postdate the acquisition and therefore do not go to the proceeds of crime issue. However, they show criminality and are relevant to the equity of the situation and the exercise of my discretion if I determine that the Property is derived from the proceeds of crime in part. d. I do not agree that the application as an attempt to punish the Respondent for family connections. Crimes committed by parties such as Mr O’Brien Junior’s romance fraud are relevant to the extent that there is evidence to suggest that the Property was acquired by virtue of the proceeds of such crimes. e. I disagree with the submission that the respondent’s record is that of a petty criminal. He accumulated numerous convictions from a young age and his conduct in Australia led to even more serious convictions. f. I agree that if I was to order that part of the value of the asset should be remitted to the respondent on realisation then, depending on the equities of the situation, it might need to reflect a share of the value of the asset when realised, rather than the figure contributed by the respondent at the time of the acquisition. Although the figure cited by the respondent’s counsel as the current value of the asset was not in evidence, the value of the Property will have increased since 2014.

44. In the light of the evidence of the respondent’s Irish and Australian criminality including the evidence of his involvement and of the Property representing the proceeds of crime, I do not consider that the order sought would pose a serious risk of injustice.

45. I accept that the respondent has proved on the balance of probabilities that €5,000, but only €5,000 of the acquisition cost (18.78%), came from a legitimate source, the Settlement. As noted above, I agree that in dealing with such “mixed” assets, the Court has a discretion to make a declaration in respect of the entire asset (irrespective of legitimate contributions) or a direction reflecting the equities of the situation. For example, where an innocent party, who had not even passively benefitted from proceeds of crime, had contributed to an acquisition in good faith, it would be equitable to direct the applicant to pay such a party an appropriate proportion of the value of the asset once realised.

46. I do not consider that equity requires or justifies an adjustment, whether of €5,000 or otherwise. The acquisition was mainly funded by the proceeds of crime or funds from unknown sources and there is no suggestion that the applicant was unaware of the fact. On the balance of probabilities, it appears that he and/or his wife helped to launder the proceeds of the romance fraud at least, and that those monies helped to meet the acquisition cost in 2015. If he mixed honestly obtained monies with ill-gotten gains (itself a classic form of money laundering), then he should bear the consequences.

47. Furthermore, when Mr O’Brien Junior fled Ireland to evade trial for the romance fraud, the respondent followed him to Australia, to support him in a succession of other frauds, ruthlessly exploiting the elderly and the vulnerable. His Australian convictions are relevant to the equities of the situation as is the fact that he broke bail in Australia to avoid trial (showing the same contempt for Australian courts shown by his brother-in-law in respect of Irish courts in a similar situation). Also relevant are substantial rents received over the years, as evidenced by the applicant, which counterbalance the respondent’s modest legitimate contribution. However, I would have reached the same conclusion irrespective of the respondent’s actions after the acquisition.

48. Accordingly, I propose to grant the application in the terms sought. The proceedings will be listed at 10:30am on 3 February 2025 for final orders.

Adjournment Application

49. Finally, if only to discourage similar applications being brought in future without good cause, I will note my reasons for declining an adjournment sought by the respondent’s Counsel at the start of the hearing, on the basis that, having just been instructed he was not ready to proceed. He noted that an affidavit had been filed that morning and that the matter required greater scrutiny on the respondent’s behalf. The applicant opposed the application (having rejected a similar request in correspondence). It submitted that: (a) the matter was ready for hearing; the respondent having filed his replying affidavit on 11 November 2025; (b) the respondent’s then solicitor and counsel were present when the date was set. The applicant alone was directed to file submissions and duly did so; (c) a further short affidavit sworn by the respondent’s solicitor in certain personal injury proceedings had recently been served on the respondent’s behalf (being the affidavit referenced by his counsel). It didn't change the facts. The applicant neither objected to it, nor needed to respond; (d) there was no basis for an adjournment since the respondent had already engaged, filing his affidavit and the case had been listed for hearing. As the affidavits had closed, the applicant was at a loss to understand what the respondent could add to the affidavits submitted. No explanation had been given.

50. Counsel for the respondent enlarged on his original submissions, arguing that: (a) he had not had a face-to-face consultation with his instructing solicitor or client and needed time to ensure that the respondent was reasonably represented; (b) the question was the provenance of the monies used to buy the Property. There was some indication that a substantial part of the monies came from the Settlement. Even the applicant conceded that the deposit came from the Settlement; such matters needed to be explored a little bit more “to see if there's any reality in the proposition that these funds are from a lawful source” and such matters should be fairly put before the Court; (c) the requirements of justice entitled the respondent to a reasonable hearing but Counsel couldn’t represent the respondent at the moment on the basis of his lack of knowledge, having just got and read the file the previous Saturday; (d) unless he had the materials to put before Court, then the Court would not be in a position to give the matter the scrutiny which it deserved.

51. The applicant observed that: (a) the respondent had been legally represented since July, including in November when hearing directions were made; (b) a comprehensive Forensic Accountant’s affidavit detailed the genesis of the funds; if the respondent’s present counsel was only instructed the previous Saturday, that was the respondent’s responsibility and should not prejudice the applicant which was ready to proceed. The respondent replied that the applicant’s affidavits acknowledged ambiguity as to whether the money came from criminal or unknown sources; that was the issue.

52. For, inter alia, the reasons identified by the applicant, I did not consider that an adjournment was appropriate, noting that: (a) it was extraordinary to seek an adjournment on the morning of a hearing, doing so "in fairness" and "in the interests of justice" without a clear explanation as to why an adjournment was required; (b) I appreciated that, having just been instructed, new counsel had personally been placed in a difficult position, but there was no explanation as to how that situation arose; (c) the matter had been set down for hearing, directions were given, any issue was down to the respondent. He had ample opportunity to prepare; (d) when new counsel was instructed on Saturday and concluded that an adjournment application was necessary, he should not have waited until the morning of the hearing. There should have been an adjournment application on the Monday. Parties cannot turn up and ask for an adjournment on the day of a hearing save in exceptional circumstances.

53. In short, I did not consider that the respondent had advanced a sufficient reason for an adjournment. Given the brevity and uncontroversial nature of the final affidavit (which was, after all, filed on the respondent’s behalf), it did not necessitate an adjournment. Although Counsel submitted that the matter required greater scrutiny, he also volunteered that it was a very short matter. The affidavits were closed, the applicant’s written submissions had been received, and the respondent was not required to file written submissions. There was no suggestion of any need to file additional affidavit evidence on any specific issue, only vague references to exploring matters a little more. While (in replying submissions) counsel indicated that he wished to investigate the provenance of the funds used to buy the property, that issue was addressed in the applicant’s detailed affidavits and the respondent had responded. No new issue had been identified to necessitate an adjournment. Accordingly, given the confined nature of the issue and the modest volume of affidavits and exhibits (one lever arch), I considered that, having been briefed the previous Saturday, counsel should have been in a position to proceed with the hearing on the Wednesday. Although he may not have met his client in person (and such a consultation may have been complicated by the fact that his client never returned to Ireland after abruptly quitting Australia), his client was on notice of the proceedings and his predecessors must have taken instructions for the purposes of the affidavit sworn by the respondent himself. Accordingly, he had ample opportunity to prepare for the hearing and there was no basis for an adjournment. No circumstances outside his control had been identified.

54. Although I declined to adjourn, I directed that I would deal with the application at the end of the day to allow respondent’s counsel a further opportunity to review the papers (a lever arch file) and to take instructions2. Accordingly, I delayed the hearing until approximately 3:20 pm. At the end of the hearing, I also offered the respondent the opportunity to file additional written submissions to deal with any further points that he might wish to address but he declined, confirming that all points which could be made on the respondent’s behalf had been sufficiently covered in his oral submissions.

REPRESENTATION

Ms. Shelley Horan SC, instructed by Chief State Solicitor’s Office, for the Applicant Mr. Peter Maguire BL, instructed by Denis A. Linehan & Co Solicitors, for the Respondent.

In the course of the hearing, the respondent’s counsel complained that he did not have all exhibits, but they had been served so that was between him and his instructing solicitor. The respondent himself evidently received the papers including the exhibit in question because his affidavit referred to that exhibit. In any event, having been instructed on the Saturday there was ample opportunity for the new counsel to address any deficiency before the hearing or, indeed, in the hours which elapsed because the hearing was put to the end of the list.