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Cite as:  IESC 64
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Judgment Title: CAB v Kelly & anor
Neutral Citation:  IESC 64
Supreme Court Record Number: 364/07
High Court Record Number: 2006 No 8 CAB
Date of Delivery: 29/11/2012
Court: Supreme Court
Composition of Court: Denham C.J., Hardiman J., MacMenamin J.
Judgment by: MacMenamin J.
Status of Judgment: Approved
THE SUPREME COURT
[Appeal No. 364/2007]
IN THE MATTER OF AN APPLICATION PURSUANT TO THE PROCEEDS OF CRIME ACT 1996 AND 2005
CRIMINAL ASSETS BUREAU
JOHN KELLY AND T.T.
1. The central issue arising for consideration in this appeal relates to the factors to which a court must have regard, in the balance of justice, in making an order for the disposal of property under section 4 of the Proceeds of Crime Act 1996 to 2005. This judgment reiterates principles which have already been decided by this Court in proceedings of this type, so as to clearly identify issues which are subject to precedent.
2. On the 3rd October, 2007, the High Court, (Feeney J.) delivered a judgment and made an order, the effect of which was, in summary that:-
(ii) pursuant to Section 4 of the said Act, sums of money standing in the name of the first respondent, in the EBS Building Society and Irish Permanent plc be transferred to the Minister for Finance for the benefit of the Central Fund; and
(iii) a house where the second named respondent and her children live together with the fixtures and fittings therein, be transferred to the Minister for Finance, pursuant to the provisions of s. 4 of the Act, subject to the condition that the second named respondent, T.T. (Ms. T) and her two children be permitted to reside in the family home identified in that folio until 30th June, 2008.
4. At the time of the High Court application herein, Ms. T was residing in the family home, which is in a suburb of Dublin. Her adult daughter and her teenage son were also living in the same property. Her daughter was in third level education and had an income of €300 per week. Her son was still in second level education. It was not disputed in the High Court that the properties had been bought by John Kelly and were the proceeds of crime. Therefore, the only issue was whether an order of confiscation would constitute an “injustice” under s. 4(8) of the Act, the provisions of which are set out below.
5. It was submitted on behalf of the appellant that the High Court had erred in making such an order in circumstances where, at the time of the making of the order, there were a number of special circumstances, which would have rendered the making of a s. 4 order an injustice. As will be explained, the facts in this case, in a number of aspects, bear close resemblance to those which gave rise to the judgment of this court in Criminal Assets Bureau v H.  IESC 10. This point is particularly relevant in light of the fact that counsel for the respondent (“CAB”) in this appeal has contended that these proceedings constitute an abuse of court process by reason of the fact that they constitute an attempt to relitigate issues which are subject to binding precedent. This judgment will consider the principles which have already been outlined in the case law, and thereafter apply those principles to the facts of the instant case.
The appellant’s case
6. The factors on which Ms. T, relies in seeking to make out grounds of injustice are as follows:-
(2) the stated a lack of awareness on her part that the family home had been purchased from the proceeds of crime;
(3) the fact that she was not a “dependent spouse” living off a drug dealer’s earnings but rather was a self-supporting public service employee;
(4) that she had brought family law proceedings against her husband and had been awarded 50% of the beneficial interest in the family home;
(5) that John Kelly, her husband, had, since the High Court hearing, been apparently acquitted of the criminal charges outstanding against him;
(6) the alleged delay by the Criminal Assets Bureau in seeking her removal from the family home;
(7) the policy of the State in favour of a mother’s position in the home as expressed through Article 41.2 of the Constitution of Ireland
(8) the policy of the State against homelessness as given expression in the Housing Acts.
The matters not dealt with in evidence
8. The history of the criminal charges is outlined below. Both the husband and Ms. T ultimately accepted that the property had actually been acquired by the proceeds of crime. There was no evidence that Ms T or her children would be rendered homeless as the result of the making of the s. 4 order; as to any efforts which she had made to place herself on a local authority housing list; as to the impact which the making of an order might actually have upon her or her children; nor as to whether alternative accommodation might still be available to the appellant and the children in the event of the order being made. These could have been relevant considerations. The fact that these issues are not addressed in evidence, and the lack of explanation for this, precludes the court from giving these assertions any consideration or weight.
The legal provisions engaged
9. Section 4 of the Proceeds of Crime Act 1996 (as amended by section 6 of the Proceeds of Crime (Amendment) Act 2005 provides:-
(2) Subject to subsections (6) and (8), the Court shall make a disposal order in relation to any property the subject of an application under subsection (1) 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.
11. The proceedings were commenced on the 9th May, 1997, when CAB made an ex parte application to the High Court (O’Sullivan J.) for an order pursuant to s. 2 of the Act prohibiting the first named respondent from disposing or diminishing the value of the properties pending further order. Ms. T., the second named appellant, was joined as a notice party by order of the High Court (Moriarty J.), dated the 14th July, 1997.
12. On the 27th March, 1998, the High Court (Shanley J.), made an order pursuant to s. 3 of the Act of 1996, prohibiting both respondents from disposing of, or otherwise dealing with, or diminishing the value of the property. This order was made, that court having been satisfied that the property was directly or indirectly the proceeds of crime or was connected with property that, directly or indirectly constituted such proceeds (see s. 3 of the Act). Just as in the case of s. 4(8), s. 3 of the Act also provides that an order shall not be made if the court was satisfied that there would be a serious risk of injustice. The order of the High Court in 1998 was on consent. The two respondents did, however, reserve the right to bring an application pursuant to s. 3(3) of the Act seeking to satisfy the court that the property in fact did not constitute the proceeds of crime. In December 1998, they brought such a motion, seeking to set aside the s. 3 order, but this application was never pursued. An application at that time world, obviously, have had the advantage of having been made closer to the events giving rise to the invocation of the provisions of the Act, and would have allowed both parties to adduce evidence while it was more readily obtainable or disprovable.
13. While the appellant’s objections to the making of the order arise under a number of headings, the central focus of the appellant’s case can be seen as the question as to whether a family home being occupied by a spouse (be it husband or wife), may lawfully and constitutionally be the subject matter of a s. 4 order. It is said that such an order impacts acutely on the appellant, in circumstances where she herself had made an application to the Circuit Court in matrimonial proceedings and, there, had obtained a declaration that she was entitled to 50% of the beneficial interest in the home. As will be explained later, this constitutional point has already been decided.
14. In light of the concessions made by the respondents, it is unnecessary to engage in any substantive analysis of the evidence which was before the High Court. The only issue is whether the making of an order would constitute an injustice on the appellant.
15. I pause here to mention two points. First, that independently of the proceedings herein, the Criminal Assets Bureau in October 1998 had also issued other summary proceedings against the husband claiming the sum of €378,522.076 as being income tax due and owing by him on foot of certain assessments for income tax. The High Court granted judgment in the full amount, and an appeal was rejected by the Supreme Court in a reserved judgment, delivered on 11th October 2002.
16. Second, that when the matter was before the High Court, there were outstanding criminal charges against the husband relating to drug dealing. He had been convicted by Circuit Criminal Court of drug offences in July 2000. The charges were quashed by the Court of Criminal Appeal on 21st March, 2002, on technical grounds. He then issued High Court proceedings seeking to restrain any further prosecution on the grounds of delay. These were rejected. However the court has been informed that, subsequently he was acquitted of any outstanding charges. This can only be seen as being of limited weight in light of the concession already made by both respondents regarding the origins of the property in question.
17. More telling is the fact that the husband bought the family home on the 17th July, 1990, for the sum of £63,500. He paid an initial booking deposit of £1,000. Subsequently, his solicitor paid over a bank draft in the sum of £4,200 on the 16th May, 1990. On the 30th August, 1990, the husband paid over the balance of the purchase price of the dwellinghouse. This payment, of £58,300, was made in cash. This was an extraordinarily large sum to have in cash. There was no indication that Ms. T, made any enquiry as to why the payment was made in cash. It is not said that she was ignorant of the fact that the payment was in cash, although she claimed to be unaware of the source of the funds.
18. In an affidavit placed before Feeney J. in the High Court, the husband said that he was, by the time of the application, a full time carer for his parents. He claimed he had acquired these very large sums of money by street trading and that he had been engaged in selling cigarette lighters, sweets, wrapping paper either himself or through others. He asserted that he had made money through the selling of sporting accessories. He denied he had ever been involved in drug related activities. He deposed that he had been “very remiss” in not keeping any receipts of these transactions, as his had been primarily, what he described, as a “cash flow business”. Ms. T. set out that she was a cleaner in a Dublin hospital, and not dependent on her husband’s earnings; that her son was in second level education; and that her daughter, in her early twenties, was in third level education and bringing home €300 per week. Evidence sworn by a number of members of An Garda Síochána was to the effect that all their assets had been acquired as a result of the husband’s criminal activities as a drugs dealer.
The Family Law Proceedings
19. Three months prior to the High Court hearing, the appellant initiated family law proceedings in the Circuit Court. On the 18th June, 2007, the Circuit Court made an order pursuant to s. 36 of the Family Law Act 1996 to the effect that the family home was held jointly between Ms T. and her husband. The husband did not contest this, although the order had a significant financial impact on his interest. There was no evidence before the High Court that there had been any history of family breakdown prior to the initiation of the Circuit Court proceedings. The CAB was not put on notice prior to the family law proceedings. It was claimed in this appeal that this arose from a concern relating to the fact that family law cases are held in camera. It is difficult to accept this assertion in the light of the fact that financial institutions of various types are put on notice of various types of family law proceedings. The fact that a notice party is put on notice of the proceedings, and, insofar as is necessary, allowed the opportunity to participate therein, does not affect the in camera nature of those proceedings. It is difficult, therefore, to accept the bona fides of this assertion. However, it is right to point out that the appellant’s grounding affidavit before the Family Circuit Court did set out that the Criminal Assets Bureau had initiated proceedings against her and her husband. This was the only basis given for the Circuit Court application. It was not suggested that there had been a marital breakdown. It was said the family law hearing was “urgent” because of the High Court CAB proceedings. The Bureau was subsequently placed on notice of the declaration as to the appellant’s interest in the home. However, this was some three months after the making of the Circuit Court order. The Criminal Assets Bureau could, and should, have been placed on notice of the making of the application.
The application made before Finnegan P.
20. As mentioned earlier, the appellant contends the issue has already been determined. It is necessary to explain the basis of this submission. Some years after the inception of the proceeds of crime legislation, an issue arose as to whether a s. 3 proceeding was interlocutory in nature. This issue was subsequently decided by the judgment of this Court in F. McK. v A.F.  1 I.R. 242, where this court held that such an application was not interlocutory, despite being so identified in the Act; but rather was to been seen as the substantive trial. This court held, therefore, that the normal plenary procedure should be followed in respect of s. 3 applications.
21. However, in this case, CAB erroneously brought an application for a s. 4 order within the same set of proceedings (namely the s. 3 proceedings). That application came before the President of the High Court, (Finnegan P.) on the 3rd May, 2006. The proceedings before the court were misconceived; as the law had by then been clarified, and Finnegan P. simply struck out the application. The appellant now contends that as a result of this simple order, the original s. 3 interlocutory order, made on the 27th March 1998, was no longer in effect, and that what had transpired before Finnegan P. constituted a “judicial determination” of the s. 4 application. What is necessary for jurisdiction is that a s. 3 order be “in force” for seven years at the time of the s. 4 application for disposal.
22. This court has been referred to a transcript of the brief hearing before Finnegan P. The transcript clearly demonstrates that there was no judicial determination in relation to the merits of the matter. The then President simply struck out the matter before him, and directed “the applicant should issue an originating notice of motion”, so as to bring proceedings under s. 4. A strike out of this type is not a judicial determination on the merits, and is not a bar to reconstituting the proceedings (see Rowan v Byrne, (Unreported, High Court, Barr J, 17th December, 1990); Royal Bank of Ireland v O’Rourke  I.R. 159; Director of Public Prosecutions v Gill  1 I.R. 263; Murray v McArdle (Unreported, High Court, Morris J., 11th May, 1998); The State (Clarke) v Roche  I.R. 619 at p.627). The s. 3 order remained “in force” therefore.
23. Prior to a further consideration of the case law, it is necessary to point out that as a consequence of the seven year time elapse which occurred, the onus of proof to demonstrate an injustice unequivocally falls on the appellants (see Murphy v M.C. and others, (Unreported, Supreme Court, Keane C.J., 8th March, 2004). With this in mind, the legal principles and their application can now be analysed.
The decision of this court in CAB v H.
24. In 2011, this Court delivered judgment in an appeal entitled CAB v H.  IESC 10. The judgment was delivered by Denham J., speaking for the court. The Court expressly concluded that the High Court judge (Feeney J.) in that case, “had not erred” in his reasoning on the issues before him. That judgment was upheld in its entirety. In order to establish the impact of that judgment on this appeal, it is necessary to consider the facts and the principles laid down in CAB v H.
25. The respondents there were a husband and his wife, Ms. H., who was resident in the family home and who had four children aged between five and twelve, together with a stepdaughter. Together with her husband, they were living in a house owned by Mrs. H.’s father-in-law who was the registered owner. In separate proceedings, the High Court had made a declaration that Mrs H. had an interest in the family home valued in the sum of €6,348.69 or £5,000.
26. In his judgment, the High Court judge referred to Murphy v. G.M.  4 IR 113, where this Court had dealt with a constitutional challenge to the Proceeds of Crime Act 1996. In rejecting an assertion of repugnancy to the Constitution, Keane C.J. had stated at p.153:-
The legal principles applicable in a case of this type
32. In each case, the courts must be sensitive to the actual property and other rights of citizens which arise. But, as has been pointed out, repeatedly, a person directly or indirectly in possession of the proceeds of crime can have no constitutional grievance if deprived of their use. The Proceeds of Crime Acts 1996-2005 are identified as being legislation “to enable the High Court, as respects the proceeds of crime, to make orders for the preservation and, where appropriate, the disposal of property concerned and to provide for related matters”. There is a strong public policy dimension to this legislation. That policy is to ensure that persons do not benefit from assets which were obtained with the proceeds of crime irrespective of whether the person benefiting actually knew how such property was obtained with the proceeds of crime but subject to whether or not such person may have been a bona fide purchaser for value, where different considerations may arise.
33. The Act provides for fair procedures to be observed. It cannot be seen as arbitrary. It is designed to achieve a desirable social objective and be proportionate. It cannot be said to impinge on a right to private property, as the property was acquired unlawfully. One of the facts to be borne in mind is the extent to which, as a result of the commission of crime, persons may directly or indirectly benefit in a way not open to other members of the community, such as living without the requirements of payments of tax, mortgage repayments or rent. These activities are profoundly anti-social and contrary to the common good. The interference with the rights of private property embodied in Article 40.3.2 and Article 43 of the Constitution and Article 8 of the European Convention on Human Rights are, therefore, proportionate and in accordance with law.
34. I would summarise the factors to be weighed in the balance in assessing the risk of injustice in this case as follows:-
(b) A court must, however, take into account the circumstances of each case and will therefore ensure that (especially in the case of a family home) proportionate means are adopted in the making of an order, and so as to take into account how, in what manner, and within what period orders will take effect.
(c) The constitutional protection of women in the home (Article 41.2 of the Constitution), although a consideration, will not be a bar to the making of an order (CAB v. H.).
(d) The rights to private property identified in Article 40.3.2 and Article 43 of the Constitution, and the respect for privacy, family life, and the home in Article 8 ECHR do not prevent the making of an order, even in the case of a family home. In Gilligan v Criminal Assets Bureau  3 IR 185, the question as to the plaintiffs right to private property under Article 40.3.2 and Article 43 of the Constitution also arose. McGuinness J. at p.237 discussed the safeguards provided for in the Act and the purpose of the disposal powers as follows:-
“…the State has a legitimate interest in the forfeiture of the proceeds of crime. …
While the proceeds provisions of the Act may, indeed, affect the property rights of the respondent it does not appear to this court that they constitute an “unjust attack” under Article 40.3.2 given the fact that the State must in the first place show to the satisfaction of the court that the property in question is the proceeds of crime and thus, prima facie, the respondent has no good title to it, and also given the balancing provisions built into ss. 3 and 4 as set out above.
This court would also accept that the exigencies of the common good would certainly include measures designed to prevent the accumulation and use of assets which directly or indirectly derive from criminal activities. The right to private ownership cannot hold a place so high in the hierarchy of rights that it protects the position of assets illegally acquired and held.”
(e) A court will have regard to the extent of a person’s knowledge or notice (either express or implied) that property was acquired by or through the proceeds of crime. Actual knowledge of criminal wrongdoing will be a substantial factor in the balance. Evidence of bona fides must also be assessed. A court may decline to make an order, if it is shown, in accordance with the evidential onus necessary, that a person in possession or control of the property is in a position to establish that he or she had purchased the property in good faith, or for valuable consideration. (See Murphy v G.M., per Keane C.J.)
(f) A court may have due regard to whether there has been a legal determination as to the legal or beneficial rights in a home. A court may also give due weight to evidence as to contributions to the value, or the enhancement in value of property. The circumstances of such a determination are relevant however.
(g) The legal and evidential onus of proof falls upon a party seeking to contend that the making of an order would render an injustice. The onus falls on such party to prove their case as a matter of probability on the evidence adduced.
(h) The fact that a party was not personally involved in the commission of crime will not, in itself, be a bar to the making of an order adverse to that party.
(i) The fact that an applicant was allegedly unaware of the source of funds for the acquisition of property does not act as a bar to the making of an order under the Act.
36. Each of the factors (a) to (j) above, were decided in CAB v. H. As can been seen by comparison with the outline of the appellant’s case, counsel for the appellant has in fact sought to reopen a range of matters which were very recently decided by this Court. These are respectively numbers 1, 2, 6, 7 and 8 in the summary of the appellant’s case, as referenced earlier in the judgment. It has not been submitted that there are any exceptional circumstances here, which would permit him to do so. When an application was made for the parties to avail of the ad hoc legal aid scheme in this case, it was contended that there would be a full challenge made under s. 4 of the Act. On that basis, the learned High Court judge, correctly, assigned senior and junior counsel. In fact, the challenge is now on very narrow grounds and was so in the High Court. One can see there are few distinctions in principle between the instant appeal and those applied in the H. case. However, personal family circumstances will always vary. The question which arises is the extent to which a genuine distinction can be made between the two cases. This hinges on the facts.
Application of the principles to the material facts
37. Having outlined the principles, the task then is to examine whether they were correctly applied by the High Court judge. The weight to be given to each factor will be dependent on the circumstances of each case.
38. The High Court judge took account of Ms T.’s contention that she was unaware that property was acquired from the proceeds of crime. But here, the appellant made a simple bald assertion to that effect which could not carry much weight. For any weight to be given to such an assertion, verifiable evidence would be required to which a court, properly directing itself on the law, could attach real weight. The High Court judge took account, as one of the factors, that there has been a declaration as to Ms. T.’s interest but the weight to be given to this was limited, in light of the fact that this order was on consent and the CAB were not placed on notice of the application in the Circuit Court. It was not suggested that Mrs. T had nowhere to live or had been compelled to take any steps to be placed on a housing list.
39. The appellant here was not a good faith purchaser. By way of distinction with the CAB v. H. case, it was not contended, either, that she made any direct financial contribution to the purchase of the property herself at any time. Ms. T deposed simply that she is in receipt of €2,140 per month in respect of her employment. She stated she has debts to the Bank of Ireland, the credit union and the social welfare authorities and that she pays approximately €900 per month in discharging those debts. The reason for these debts owed to the Department of Social Protection was not given. There was no clear evidence that the appellant actually made a direct contribution to the value, or the enhancement of the value, of the house.
40. There are other weighty countervailing factors however. First, there is the policy consideration and the objective of the legislation. On the facts as proved or admitted, this is a weighty factor. This consideration has many aspects in this case. These include, first, that there was no mortgage or rent payable on the family home. There never was. One cannot lose sight of the fact that, for some 22 years since 1990, and as distinct from many in the community, the appellant has had the benefit of living rent and mortgage free in the property which was acquired by the proceeds of crime, and has not had to deal with the normal liabilities which fall on other persons who acquire property. The fact that persons can benefit from the proceeds of crime cannot be accordance with sound justice or the common good. Counsel in this case did not suggest that the appellant would make any financial offer for a right of residence in the home or for residence enjoyed in the past. This is not to say that such an offer would be determinative or conclusive.
41. It was said, but only in submissions, that the appellant may face difficulties in obtaining alternative accommodation. No evidence was adduced before the High Court judge on this issue. The evidential onus falls on the appellant. There was no material before the High Court as to what steps, if any, the appellant had taken in order to obtain alternative accommodation; whether alternative accommodation was available to her in any case, or that there had been a breakdown in relationship between herself and her husband. This court cannot, therefore, attach any significance to this submission in the absence of evidence. The husband is stated to be living with his parents at a separate address, not far from the subject property. It is of course true that in a range of circumstances individuals may be entitled to housing on the basis of a statutory provision. Such an issue can only arise when there is evidence that such an entitlement arises. There is no such evidence in this case.
Contributions to enhancement in value
42. I turn next to the contention that the appellant was a “non-dependent spouse”. This Court has already recognised in the H. case that the contribution of a spouse in a home may, in certain circumstances, amount to consideration sufficient be a factor in an order for disposal. In the H. case, the wife had separately brought an application to the High Court establishing and fixing the extent of her interest. This quantified figure was taken into account by the High Court judge in the disposal proceedings. There was no direct financial contribution here. There was no evidence to show that the wife made any contribution which enhanced the value of the home.
Family law proceedings and declarations of beneficial interest
43. A court may attach weight to a declaration of beneficial interest in a family home, but much will depend on the circumstances. Here, the Circuit Court order was not opposed. There was no legitimus contradictor to the wife’s case. There was no evidence that she made any direct quantifiable contribution to the home. Moreover, the outcome of their family proceedings and the circumstances of the application must be weighed against the policy objectives of the legislation. There are serious policy considerations engaged. The courts, including family courts, should properly have regard not only to the interests of spouses in the outcome of proceedings, but also to the contingent interests of other parties which may assert an interest in the property. On the face of things, the proceedings were brought only with the CAB proceedings in mind. Property purchased with the proceeds of crime cannot be transferred to a spouse through family law proceedings simply as a means to defeat the legitimate objectives of the legislation. To allow for such a situation would be to negate the purpose and policy of the Acts. Here, the High Court judge clearly attached some significance to the fact that the Folio continues to be registered solely in the husband’s name. All dealings with the Folio have remained inhibited since the making of the s. 3 order. The property was purchased exclusively with the proceeds of crime. Applying due weight to the factors involved, I think the High Court judge was correct in concluding that the appellant’s claims did not outweigh the other factors involved as to be worthy of allowance. An order for the disposal of the home is not an unlawful or disproportionate incursion into any right which the appellant lawfully acquired. Had the same order been made, and had the Criminal Assets Bureau been placed on notice of the family law proceedings prior to the order being made, different considerations might have arisen. However, the courts must look closely at any collateral proceedings to ensure that they are not collusive or an attempt to defeat the interests of statutory bodies such as the applicant herein.
Arguments based on the Constitution and legal policy against homelessness
44. These have already been addressed and are points which have already been decided. In my view, the High Court judge correctly identified and applied the principles engaged. I do not consider that there is any basis for interfering with the order of the learned High Court judge under these headings.
Other submissions made to this Court
45. On behalf of the appellant, counsel urged that in the event that the court is not persuaded to reverse the High Court order there are other considerations upon which he would rely as a “fall back”. First, he contended that there had been a substantial delay on the part of the applicant. This does not assist the appellant at all. The true situation is that a period of seven years elapsed between the time of the interlocutory order and the final order. A further period of five years elapsed between the making of the High Court order and the ultimate disposal of the appeal in this court. This latter delay arises from circumstances outside this court’s control. In sum, the appellant has had the benefit of a total of 12 extra years of residence both rent and mortgage free in a house that was bought with the proceeds of crime. The delay point actually tells against the appellant, not in her favour.
Social welfare repayments
46. It has further been suggested that the court should have regard to proceedings which were apparently brought against the appellant by the Department of Social Protection and on foot of which, she is making repayments which have not been sufficiently itemised. First, this argument was not made in the High Court. The Court will not have regard to the point. The circumstances are unexplained. There is no explanation either of why the point was not raised in the High Court. In any case, there is no evidence to suggest that any payments made by the appellant to the social welfare authorities overlapped with any liability which arises in this context. There is nothing to suggest that any assessment to which she was subject was relevant to the questions in issue in this case. There has been no basis put before the court which would allow for a set-off. For all these reasons, the point cannot be considered and cannot carry any weight in this case.
47. I would emphasise that, in all this, the appellant bears the onus of proof. If there were matters which were relevant, the onus lay upon the appellant to raise them in the High Court on the basis of sworn evidence. In circumstances where there is such an onus of proof upon a party, it is highly unlikely that a court will ever determine that that onus has been discharged purely by bare assertions which have not been tested or which are not verifiable. A bare assertion in an affidavit is unlikely to discharge the evidential onus.
48. There is, next, the issue of anonymity. The appellant contends that the High Court judge should have granted a more extensive order protecting the anonymity of Ms. T. It will be recollected that the order made was actually that the identity of the second named respondent and her two children not be revealed in the prosecution of these proceedings (see s. 8(4) of the Act).
49. Section 8(4) provides that:-
51. It is true that the trial judge took note of the fact that there may be some effect to the reputation of the wife in relation to publication of the husband’s name but this is to be counterbalanced by the benefit to society. An argument is now made that the effect of the decision is that while the children will not be directly identified, there is a risk that they will be identified, which could undermine the policy of the Act in terms of protecting innocent parties and minors. It is submitted that the court should make orders protecting the anonymity of all the parties, as being the only means by which the anonymity of the children can be adequately protected. Thus, it is said that the anonymity order ought to have included the husband.
52. This is both a significant and unattractive argument. It raises the issue as to the extent to which the wife and the husband are at arm’s length or now represent separate interests at all. It raises the principle against ius tertii – no person may assert the legal right of another. It is clear that the husband did not oppose the proceedings seeking a declaration of interests in the family home. But now, the claim to anonymity actually raised (without evidence as to the import of publicity) is that of the husband. I do not think it lies with the appellant to raise this argument, specifically in circumstances where the husband, himself, was a party to the High Court proceedings and did not appeal. No evidence was adduced before the High Court concerning the effect of publication on the children. It has not been said, even in submissions, that there was any detrimental effect on the children, who are now both of full age. At the time of the High Court application, there was only one minor child of the family that is the son. The other child was not a minor and was of full age. It is an unfortunate fact that persons, who engage in crime, run the risk of attracting adverse publicity. It is not denied that the first named respondent was involved in criminal activities which are detrimental to the common good. The order protects the rights of the appellant in a proportionate and sufficient way. An argument has been advanced on behalf of the husband under the guise of making a case on behalf of a “minor” child, who is not represented, whose views have not been obtained and concerning whom there is no evidence of detriment. In fact, that child is no longer a minor at all. Even if the argument had been supported by an averment in affidavit, which it was not, it could have no weight.
Abuse of Process
53. The preponderance of the constitutional and legal principles that arose in this case had already been settled by this Court at the time they were raised. It is of course legitimate to identify facts which distinguish one case from another. But to seek to reargue points of legal principle, that have already and recently been decided, is not open to the appellant, absent exceptional circumstances. In the instant case, however, I would take into account that, in oral argument, counsel for the appellant did not seek to press or prolong the submissions on those points already decided. In these exceptional circumstances, therefore, I do not consider there has been an abuse of court process in this case. But it is not open to a party to seek to recast an issue which has already been decided and thereby seek to re-litigate a principle already decided. A repetition of this conduct in another case would raise the issue of abuse of process in a very substantial way with potentially serious consequences either in costs or under the ad hoc legal aid scheme.