Supreme Court dismisses appeal on new forensic evidence, upholding High Court's finality on proceeds of crime findings.

THE SUPREME COURT

[Appeal Nos: 275, 276, 277,

278, 279 and 280/2012 ]

Denham C.J.

Murray J.

Clarke J.

MacMenamin J.

Dunne J.

Between/

Michael F. Murphy

Plaintiff/Respondent

and

John Gilligan, Geraldine Gilligan, Darren Gilligan and Tracy Gilligan

Defendants/Appellants

Judgment of Mr. Justice Clarke delivered the 9th July, 2014.

1. Introduction

1.1 There has been protracted litigation between the Criminal Assets Bureau and members of the Gilligan family. The

plaintiff/respondent represents the Bureau in these proceedings and will be referred to as the Bureau for that reason. Very many

hearings, judgments and orders have been made by the High Court. This Court has already had to deal with important issues arising

out of that litigation in a way which might, on one view, be said to have brought finality to at least many of the issues which have

arisen (see Murphy v Gilligan [2009] 2 I.R. 271). A series of further appeals are currently before this Court arising out of subsequent

orders made by the High Court. It will be necessary to say a little about some of those appeals in due course.

1.2 In the context of those appeals a number of applications by motion were brought before this Court by the defendants/appellants

(collectively "the Gilligans"). Some of those motions have now been heard and are the subject of this judgment. In order to

understand the precise issues which arise it is necessary to say something about the background to these appeals and, indeed, these

proceedings generally.

2. The Background

2.1 These proceedings were issued on the 21st November 1996 and sought orders under s.2, and thereafter under s.3, of the

Proceeds of Crime Act 1996 (the “1996 Act”) freezing certain property alleged to be the proceeds of crime, together with an order

under s.7 of the same Act appointing a receiver to take possession of that property.

2.2 S.3(1) of the 1996 Act provided that an application can be made to the High Court for an order preventing the respondent to the

application from disposing of or otherwise dealing with property or diminishing its value.

2.3 S.3(3) of the 1996 Act then provided that, where an order under s.3 is in place, the court can discharge or vary such order

where, on an application by the respondent to the proceedings, or any other person claiming ownership of the property in question, it

is shown to the satisfaction of the court 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 that the order causes any other injustice.

2.4 Where an order made under s.3 of the 1996 Act has been in force for not less than seven years, the court, on application to it

under s.4 of the 1996 Act, can grant a disposal order in relation to the property “directing that the whole or, if appropriate, a

specified part of the property be transferred, subject to such terms and conditions as the Court may specify, to the Minister or to

such other person as the Court may determine.” S.4 is once again subject to the clause, provided here in the form of subsection 2,

that the order shall be granted, “unless it is shown to its satisfaction 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.”

2.5 Persons the subject of an order under s.3 have, through a separate application under s.3(3), or, at the stage of the s.4 hearing,

the opportunity to present the court with evidence challenging the basis of the making of the order or providing the court with

evidence of injustice caused by the making of the order.

2.6 An Order was made on the 5th December, 1996 under s.3 of the 1996 Act, restraining the Gilligans from disposing of, or dealing

with, the relevant property until the 19th December, 1996. On the 19th December, Costello P. ordered, on foot of the earlier motion,

that the Gilligans be restrained from disposing of, or dealing with, that property until further order under s.3 and the motion was

adjourned generally with liberty to re-enter. On the 16th July, 1997, Moriarty J. made an order under s.3 of the 1996 Act to similar

effect.

2.7 In the interim, the first named defendant/appellant ("John Gilligan") brought proceedings against the Bureau and others seeking

declarations that some or all of the provisions of the 1996 Act were invalid having regard to the provisions of the Constitution. On

appeal to this Court (in a decision reported as Murphy v. G.M. [2001] 4 I.R. 113), the constitutionality of the 1996 Act was upheld.

2.8 A Special Summons was then issued on the 22nd December, 2004 by the Bureau seeking a disposal order under s.4 of the 1996

Act on the basis that seven years had elapsed since the making of the s.3 order in the case. The Gilligans issued a motion seeking an

order to dismiss that Special Summons on 8th February, 2005. The Gilligans also sought to discharge the orders previously made under

s.3 of the 1996 Act and an extension of time within which to seek so to do. In an order made on the 30th January 2006 by Finnegan

P., the Gilligans' motion was dismissed. That decision was appealed to this court and a motion was brought seeking an extension of

time within which to appeal the earlier s.3(1) order of Moriarty J. of the 16th July, 1997, should the appeal against the decision of

Finnegan P. fail. Judgment was delivered on the 19th December, 2008, upholding the High Court decision (Murphy v. Gilligan [2009] 2

I.R. 271). This court noted that an appropriate avenue for relief where an order under s.3(1) is in place, is an application to vary or

discharge that order under s.3(3).

2.9 Proceedings were then brought by John Gilligan, bearing the record number 2006/1118P, again seeking declarations that all or

parts of s.3 of the 1996 Act were repugnant to the Constitution. There was also a claim seeking a declaration that the 1996 Act was

incompatible with the European Convention on Human Rights (“ECHR”) (brought under s. 5 of the European Convention on Human

Rights Act 2003 (“the ECHR Act”)). In these proceedings, John Gilligan applied for legal aid in the High Court. That application was

refused in part because of the fact that the constitutional issues raised had already been determined by this Court in Murphy v. G.M.

[2001] 4 I.R. 113. The refusal of legal aid was appealed to this Court and, in an ex tempore decision of Fennelly J. dated 7th April

2010, it was held that the ad hoc legal aid scheme (CAB) dated November 1999 did not apply to a claim such as the claim sought to

be pursued. On remittal to the High Court, it was agreed between the parties, due to the fact that the second named appellant

(“Geraldine Gilligan”) had very similar proceedings in being, that both John Gilligan and Geraldine Gilligan would have the benefit of the

ad hoc legal aid scheme extended to the “Convention issues” in addition to the s.3(3) application then underway, in order to facilitate

a full and complete hearing of all issues. In substance each of the Gilligans had the benefit of legal aid for all of the High Court

proceedings which are currently the subject of the appeals before this Court.

2.10 The application under s.3(3) of the 1996 Act, was refused in a decision of Feeney J. dated 27th January 2011(Murphy v. Gilligan

[2011] IEHC 62). Feeney J. was satisfied that, on the balance of probabilities, the relevant properties were purchased with the

proceeds of crime and that no injustice was caused by the s.3 order remaining in place.

2.11 Thereafter a s.4 hearing occurred. In preparation for that hearing, the Gilligans, in the context of presenting evidence to the

court in defence of the s.4 application, sought that they be given legal aid to procure and then admit a report of a forensic

accountant on the question of whether the relevant properties had been purchased with the proceeds of crime or, as they asserted,

gambling winnings. The trial judge ruled against the Gilligans on that issue on the 31st May, 2011, finding that it would be an abuse of

process for the Gilligans to seek to revisit the proceeds of crime/proceeds of successful gambling issue which had been resolved

against them at the s.3(3) hearing.

2.12 The challenge based on the ECHR was determined in a judgment dated 20th December, 2011 (Gilligan v. Ireland, the Attorney

General and the Criminal Assets Bureau [2011] IEHC 465), in which Feeney J. ruled that the Gilligans had not established that the s.

3(1) proceedings, the order made, or the section itself are in breach of the Gilligans’ rights as guaranteed by the ECHR.

2.13 A full hearing also took place on the s.4 application and that judgment was also delivered on the 20th December, 2011 by

Feeney J. (Murphy v Gilligan [2011] IEHC 464), in which disposal orders were made.

2.14 The appeals which the Gilligans now pursue involve the decisions of Feeney J. to dismiss the s.3(3) application, the making of

the disposal orders under s.4 and the dismissal of the claims for relief under the ECHR Act. The Gilligans have also issued a Notice of

Motion requesting this Court to re-visit its judgment in Murphy v. Gilligan [2009] 2 I.R. 271, in accordance with the principles set out

in the decision of this court in Re Greendale Developments Ltd (No. 3) [2000] 2 I.R. 514. The two motions brought by the Gilligans

before this Court which are the subject of this judgment are a motion requesting the appointment a forensic accountant and a motion

seeking disclosure of documentation.

2.15 On the morning of the hearing an adjournment was sought in respect of the motion seeking disclosure of documents. The reason

for that adjournment was said to derive from the fact that documents had been sent on behalf of the Bureau to the solicitors now

representing the Gilligans in the immediate run-up to the hearing date. The Bureau drew attention to the fact that all of the

documents in question had been made available, in the past, to solicitors who had previously acted, at the time in question, for those

same persons. To the extent that it was said that the new team of lawyers acting for the Gilligans had not themselves had sight of

the documents in question it can, in my view properly, be commented that the Court and parties to litigation are entitled to assume

that documents, which have been supplied to a solicitor acting on behalf of a party or parties to such litigation, are and remain within

the power and possession of the party concerned and do not require to be sent again, to either the party or new lawyers who may be

appointed at some later stage to represent the party concerned in the same litigation. If documents were supplied, at any material

time, to lawyers then on record for the Gilligans, then it cannot be said to be the fault of the Bureau that those documents are not

within the possession of the legal team now acting for those parties.

2.16 While the matter of disclosure has been adjourned, it is my view that those comments should be taken on board in respect of

any further requests for documentation. In addition, I am satisfied that, in the light of the fact that a hearing on the merits of any

entitlement to documentation which the Gilligans may have could have been conducted on the occasion in question (and was not so

conducted only because of a failing within the Gilligan side), any further request for documentation should not in any way delay these

appeals from being finally disposed of. Be that as it may, the only matter which remains for consideration is the application to have

funding provided under the relevant ad hoc legal aid scheme for the production of a forensic accountant’s report. I, therefore, turn to

a consideration of the basis on which it is said that such funding should be provided.

3. The Proposed Forensic Accountant’s Report

3.1. As has already been noted and as is clear from the judgment of Feeney J. on the s.3(3) application (Murphy v Gilligan [2011]

IEHC 62), one of the key arguments previously put forward on behalf of John Gilligan in the High Court was to suggest that certain

funds which the Bureau asserted were the proceeds of crime were, in fact, gambling winnings. In the context of the s.3(3) hearing

then before Feeney J., the Bureau had placed before the court affidavit evidence of a forensic accountant, which sought to analyse

the net result of gambling transactions carried out by John Gilligan with a number of specified bookmakers. The forensic accountant

concerned was subjected to cross-examination on behalf of the Gilligans at the hearing before Feeney J. On the facts, Feeney J.

rejected the contention put forward on behalf of the Gilligans that the relevant monies were the proceeds of successful gambling,

rather than the proceeds of crime. One of the matters which is sought to be appealed to this Court is that finding.

3.2. It is said, in that context, that it is now considered desirable to seek to place before this Court an alternative view (if one can be

secured) of the materials relating to those gambling transactions and it is to that end that it is sought to have funding for the

production of the relevant forensic accountant report. In that context, it does need to be noted that, as has been earlier pointed

out, each of the members of the Gilligan family have been given legal aid pursuant to the Criminal Assets Bureau ad-hoc legal aid

scheme. It follows that, if there was a proper basis on which evidence of the type sought to be procured from a forensic accountant

was required for the purposes of this appeal, it would be likely that it would be appropriate to permit funding to be made available to

that end. The issue before the Court is not, therefore, truly as to whether funding should be made available but rather as to whether

there is any legitimate purpose in securing a forensic accountant’s report in the first place. Counsel for the Gilligans quite properly

accepted that the only purpose of securing such a report would be to seek to have same admitted as new evidence for the purposes

of the hearing of these appeals. A forensic report, in the context of these proceedings, could perform no other useful function.

3.3 Thus, in reality, the true question which arose on this motion was as to whether such a report should be admitted in evidence if it

could be procured. If it should be admitted in evidence then it would be reasonable that it be procured and that funding be made

available to allow for that eventuality. If it should not be permitted to be admitted in evidence then there clearly would be no

justification for providing funding to produce it. The real issue, therefore, comes down to one as to whether such a report should be

permitted to be admitted in evidence. In that context two different bases were put forward for suggesting that such a report would

be material to the issues which arise on these appeals and should, notwithstanding that the relevant evidence was not placed before

the High Court, nonetheless be permitted to be placed before this Court and considered in the context of the appeals. I, therefore,

turn to the bases put forward.

4. The Bases Put Forward

4.1 First, it is of the utmost importance to emphasise that, in the ordinary way, the default position is that a party is not entitled to

place new evidence before this Court on appeal in respect of matters which occurred prior to the hearing in the High Court. The

reason for this is obvious. A party to any litigation is required to make its full case at the court of trial. While it is acknowledged in the

jurisprudence that there may be circumstances where the justice of a case requires that new evidence be permitted to be considered

by an appellate court, it would be a recipe for procedural chaos and great injustice across a whole range of cases, if parties could

easily run their case and, having lost it, seek to introduce new evidence on appeal. It is for that reason that the case law is clear.

4.2 The test for leave to admit further evidence on appeal is set out in Lynagh v Mackin [1970] I.R. 180. According to the test an

appellant is normally required to satisfy three conditions: first, to show that the further evidence could not have been obtained with

reasonable diligence for use at the trial; second, to show that the further evidence was such as would probably have an important

influence on the result of the case; and third, to show that such evidence was apparently credible.

4.3 The test was affirmed and re-stated by Finlay C.J. in Murphy v Minister for Defence [1991] 2 I.R. 161 at 164 in the following

terms:-

1. "The evidence sought to be adduced must have been in existence at the time of the trial and must have been

such that it could not have been obtained with reasonable diligence for use at the trial;

2. The evidence must be such that if given it would probably have an important influence on the result of the

case, though it need not be decisive;

3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible,

though it need not be incontrovertible.”

4.4 In a recent consideration of that test by this Court, in Emerald Meats Ltd v. Minister for Agriculture & Ors [2012] IESC 48

para.37, O’Donnell J. stated:

"In my view, the test that the relevant evidence could not with reasonable diligence have been available for the trial is a

reasonably flexible test. I would not wish to rule out the possibility that where a trial takes an unexpected turn, the

mere fact that some information was available and could have been obtained for the trial, should not mean that it

should be excluded on an appeal, particularly when the issue may be decisive, the evidence cogent, and its potential

relevance could not have been known in advance of the trial."

4.5 It is against the background of that jurisprudence that the grounds or bases put forward for suggesting that a forensic

accountant’s report ought to be admitted need to be assessed.

4.6 At paragraph 42 of Feeney J.’s judgment concerning the s.3(3) application (Murphy v. Gilligan [2011] IEHC 62), the finding is made

that “John Gilligan’s evidence in relation to profits from gambling and other economic activities in the period up to and including 1990

is so vague and his actions so contradictory that the Court cannot accept John Gilligan’s evidence on this matter.” The court found

on the balance of probabilities that the funding for the relevant properties was sourced from the proceeds of crime. That decision is,

as has been pointed out, one of those challenged as part of these appeals. In his decision on the s.4 application (Murphy v Gilligan

[2011] IEHC 464), regarding the disposal of assets, Feeney J. held that the findings made in the s.3(3) decision could not be re-

opened. In that context Feeney J. said:-

"The s. 3(3) judgment dealt with each of the properties the subject matter of the s. 3 order and the issue as to

whether or not such property constituted directly or indirectly the proceeds of crime or was acquired in whole or in part

or in connection with property that, directly or indirectly, constitutes the proceeds of crime. The findings in that

judgment cannot be reviewed or revisited in this s. 4 judgment."

That decision is also challenged as part of these appeals.

4.7 It is argued that a forensic accountant’s report is both necessary and appropriate to enable the grounds of appeal in respect of

those two findings to be properly pursued. It is in the context of that argument that it is necessary to analyse the merits of the case

put forward.

5. Analysis

5.1 I propose to deal with the argument raised in respect of the s.4 hearing first. The argument put forward is that Feeney J. was

wrong in law to exclude a re-opening with new evidence of the proceeds of crime/proceeds of gambling issue at the s.4 hearing. I find

it difficult to understand how a forensic accountant’s report could be of any assistance, one way or the other, in respect of such an

argument. Either Feeney J. was correct in law or, as the Gilligans assert, wrongly prevented a re-opening of the issue at the s.4

hearing. If he was correct in law in not allowing the issue to be re-opened then the existence of a forensic accountant’s report, no

matter what it said, could not avail the Gilligans. If Feeney J. was wrong in law to exclude a re-opening of the proceeds of

crime/proceeds of gambling issue on the s.4 hearing, then it seems inevitable that at least that aspect of the appeals before this

Court would have to be allowed with the matter being remitted back to the High Court to reconsider that aspect of the s.4 hearing, in

the light of whatever evidence might then be tendered. At that point in time, and in that eventuality, it might indeed be relevant to

have the benefit of a forensic accountant’s report. However, the content of any such report could have no bearing on the purely

legal decision which this Court will have to make on these appeals as to whether, in the circumstances of this case, Feeney J.’s

refusal to allow the matter to be re-opened was correct. I am not, therefore, satisfied that any arguable basis has been put forward

for suggesting that a forensic accountant’s report is necessary to properly argue the appeal in respect of that aspect of the s.4

hearing.

5.2 So far as the s.3(3) hearing is concerned different considerations apply. Clearly a forensic accountant’s report might well have

been relevant to the decision on the merits taken by Feeney J. in respect of the question of fact as to whether the relevant assets

derived from proceeds of crime or proceeds of successful gambling. There can be no doubt but that, if a conflicting forensic

accountant’s report had been put before the High Court on behalf of the Gilligans, that court would have to have considered that

evidence in conjunction with all of the other evidence and come to whatever conclusion was appropriate on the facts. However, no

such report was, it would appear, ultimately sought and it is clear that no such evidence was sought to be placed before the High

Court.

5.3 In substance, therefore, what is now sought on behalf of the Gilligans is that evidence which clearly could have been procured

and placed before the High Court should now be placed before this Court on appeal. It is said that some discussion took place

between John Gilligan and his Solicitors in relation to acquiring the services of a forensic accountant but that, due to a lack of time, it

was not possible to arrange for such an accountant to give evidence (Affidavit of John Gilligan sworn on the 24th October 2013,

para.9 and 10; Supplemental Affidavit of John Gilligan sworn on 4th December 2013, para.14 and 15.). Be that as it may it is

abundantly clear that there was more than ample opportunity to mount whatever defence was considered appropriate to the case

which the Bureau was proposing to make to the High Court, on the facts, on the issue in question. The forensic accountant’s report

on the Criminal Assets Bureau side was put in evidence through an affidavit sworn on the 30th September, 2009. That was some nine

months before the hearing on the s.3(3) application commenced. Notwithstanding that no replying affidavit was filed although the

relevant accounting witness was subjected to significant cross-examination.

5.4 It should be noted that counsel for the Bureau did make reference, in the course of argument, to the fact that a number of the

criteria identified in jurisprudence already cited had not been met. It was said, correctly so far as it goes, that the precise evidence

now sought to be admitted had not been identified. That is obviously so because the forensic accountant’s report has not yet been

procured. It follows, it is said, that it has not been established that the relevant report would be sufficiently material to the case or,

indeed, credible so as to meet the requirements in that regard as specified in that jurisprudence. That again is obviously so because

without knowing what would be in the report it would not be possible to tell how credible, or material, it might be.

5.5 However, in the unusual circumstances of this case, I am not convinced that those points are particularly relevant no matter how

important they may be in the vast majority of cases. This is a case where someone is seeking public funding to assist them in

defending a claim brought by the Bureau. If it were otherwise appropriate to admit new evidence then the fact that funding was

needed to procure that evidence would, it seems to me, provide an explanation as to why it was not possible to place the evidence

before the court on an application to admit new evidence and to provide for funding to procure same and would, thus, provide an

explanation as to why it was not possible to assess the materiality and credibility of the evidence. If such evidence was, prima facie,

to be properly admitted on an appeal and if there was a credible basis for suggesting that it could be procured and might be material,

then the fact that it was not yet available would not, it seems to me, provide a proper basis for refusing funding to allow it to be

procured. But all of that begs the question as to whether it would, even if the evidence was procured, be appropriate to admit it.

5.6 In that context, it is important to note that counsel for the Gilligans suggested at the hearing of this application that it would be

argued on the appeal that Feeney J. was incorrect to make the finding which he did on the basis of the evidence before him. That

argument can, of course, be pursued without the benefit of any additional evidence. If it is a good argument then it will succeed. If it

is a bad argument, and there was sufficient evidence to justify the findings of the High Court, then it will fail.

5.7 But the only relevance of a new forensic accountant’s report could be to suggest that, even if the High Court was correct to

conclude as it did on the evidence before it, this Court should now reach a different conclusion because of new evidence. That must

be so because, in the event that there was not enough evidence to justify the relevant finding in the first place, the appeal will

necessarily succeed. It will do so without any new evidence. It is only if there was sufficient evidence before the High Court to justify

its finding that any new evidence could be material at all.

5.8 In substance, therefore, what is sought is to re-open an issue which was fully fought before the High Court, on full notice to the

Gilligans, on the basis of seeking to procure new evidence which could and should have been available, if desired, at that High Court

hearing. It would be a manifest injustice to allow that course of action to be adopted. Apart from making complaints about his

lawyers, no proper explanation is given as to how, if such a report was as important as is now asserted, it was not properly sought,

not obtained and, if necessary, an adjournment of the hearing sought to allow it to be obtained (if there were any delay) but that,

rather, the hearing went ahead with the forensic accountant for the Bureau being subjected to lengthy cross-examination. To allow

new evidence to now be put before this Court would be to do the very thing which the jurisprudence is designed to prevent. It would

be to allow a party to have a dry run in the High Court and then try and mend its hand on the evidence in the event that its case

failed on the facts. I can see no justification whatsoever for permitting that course of action to be adopted.

5.9 It seems to me, therefore, that it would be wholly inappropriate to permit a forensic accountant’s report to be admitted in

evidence so far as the appeal in respect of the s.3(3) order is concerned.

6. Conclusions

6.1 For the reasons which I have sought to analyse I am, therefore, satisfied that a forensic accountant’s report of the type sought

to be admitted on these appeals would not be relevant to the appeal in respect of the s.4 hearing. For the reasons also set out, I am

satisfied that it would be wholly inappropriate to allow the issue of whether relevant monies were the proceeds of crime or the

proceeds of gambling to be re-litigated before this Court on the facts, on the basis of the introduction of new evidence, which could

and should, if it was considered important, have been placed before the High Court. It follows that, in my view, such a report should

not be admitted. It follows in turn that there would be no point in providing funding for its production. I would, therefore, dismiss the

motion relating to the forensic accountant’s report.

6.2 I would also comment that, in the light of the adjournment of the second motion seeking disclosure of documents, it is of the

utmost importance that, if any documentary issues remain in dispute, same are either resolved between the parties or placed before

the Court in a timely fashion such as will not delay the substantive appeals coming on for hearing.

_____________________

Note: See also Ruling delivered on 9th July in relation to this matter.