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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Attorney General -v- Rafferty trading as Carhill Car Sales [2008] IEHC 396 (12 December 2008) URL: http://www.bailii.org/ie/cases/IEHC/2008/H396.html Cite as: [2008] IEHC 396 |
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Judgment Title: Attorney General -v- Rafferty trading as Carhill Car Sales Composition of Court: Judgment by: Mac Menamin J. Status of Judgment: Approved |
Neutral Citation Number: [2008] IEHC 396 THE HIGH COURT 2006 No. 883 P BETWEEN/ ATTORNEY GENERAL PLAINTIFF AND
LIAM RAFFERTY T/A CARHILL CAR SALES DEFENDANT JUDGMENT of Mr. Justice John MacMenamin delivered on the 12th day of December, 2008. 1. In these proceedings the plaintiff claims an order pursuant to s. 127 of the Finance Act 2001, for the forfeiture and condemnation of a total of six vehicles by reason of non payment of vehicle registration tax. Five of these vehicles were detained from garage premises at Barrack Street, Granard, Co. Longford, on 9th December, 2004. These were a Nissan Tirano; a Range Rover HSE; a Mitsubishi L200; a BMW X5, and a new (Nissan) X Trail. All of these are identified either by vehicle registration numbers, or the chassis number of the vehicles. The identity of the vehicles is not in dispute. 2. The plaintiff seeks a similar order in relation to a 01 Amazon 42 VX, which vehicle was detained from 1, Laurels Terrace, Granard, County Longford on the same date. 3. As a result of a further determination made by the Revenue Commissioners on 6th January, 2005, it was decided that these vehicles be seized pursuant to the provisions of ss. 140(1) and 140(4) of the Finance Act 2001, and s. 139(6) of the Finance Act 1992. The basis upon which this claim was brought is that the vehicles in question were unregistered for VRT purposes, an offence contrary to s. 139(3)(a) of the Finance Act 1992. The applicable procedure is outlined more fully in a judgment delivered on the same date as the judgment herein; L.C. Autolink Ltd & Anor v. Feehily & Ors., High Court, MacMenamin J., 2008, No. 348 JR. The cases were heard separately and relate to entirely different events and parties. 4. In these condemnation proceedings, the Court heard evidence from a number of Revenue officials including John Heffernan, Padraig O’Laochdha, and Deirdre Martin. 5. On 7th December, 2004, the Revenue applied for search warrants in relation to the two premises in question in Granard, Co. Longford. On 9th December, 2004, officials visited both these premises. The first was a garage at Barrack Street, Granard, Co. Longford. The five identified vehicles were among the cars found there. Mr. Padraig Keane operated the garage business. A check was carried out on the register of cars maintained for VRT purposes. Imported vehicles are to be recorded in this register maintained by the Revenue, generally, within one day. The vehicles in question had not been so registered. Consequently, a determination was made to detain the vehicles by Mr. John Heffernan, Revenue official. 6. On the same day, a further vehicle was detained at No. 1, Laurels Terrace, Granard, Co. Longford, the home of John Keane, the brother of Padraig Keane. The evidence disclosed that this vehicle was part of the stock of the garage business. It too, was unregistered. 7. On 23rd December, 2004, a meeting took place between Revenue officials and Mr. Padraig Keane. He was asked a number of questions about the first five vehicles identified. He indicated that they were owned by a company which operated in Northern Ireland, named Carhill Car Sales, of which Liam Rafferty (the respondent) was the principal. It is not in dispute that these vehicles had been imported into the State for the purpose of sale to Keane’s Garage at Granard, Co. Longford. It has been agreed by the parties that ownership does not arise as an issue. 8. Further interviews subsequently took place between Revenue officials, and Padraig Keane, John Keane, and on one occasion their solicitor. The first such interview was on 23rd December, 2004, when, only Padraig Keane attended. A number of questions were put to him as to the provenance of the cars. He responded that they had been placed for sale in his garage by Carhill Car Sales. 9. On 6th January, 2005, the Revenue determined that they would seize the vehicles pursuant to s. 141 of the Finance Act 2001. No point is taken in relation to the form of the notices of detention and seizure. In response to cross examination, two of the Revenue officials, Mr. Heffernan and Mr. O’Laochdha, stated that, in carrying out the search of the garage premises, they executed a search warrant which had been sought on 7th December, 2004, on application to the District Court. 10. As of 23rd December, 2004, the Revenue officials had before them information to the effect that the vehicles in question were owned, not by John and Padraig Keane but by Liam Rafferty, trading as Carhill Car Sales. This information was given to them by the Keanes. On 24th January, 2005, a meeting took place between the Revenue officials and Mr. Rafferty. He accepted that he had given the vehicles to the Keanes to sell and that no VRT or VAT had been paid on them. He told the officials that he had no written agreement with the Keanes and all the dealings between them were by word of mouth. 11. At a further meeting which took place on 14th February, 2005, between Revenue officials and John Keane, the latter accepted that he was in possession of the Amazon vehicle, but stated it had been given to Padraig Keane for the purposes of sale. He accepted it had not been registered for VRT either. 12. The defence raised a wide range of matters including the constitutionality of the legislation, and its compatibility with the European Convention on Human Rights. Ultimately however, the only issues to be determined by the Court are those which are now considered. No other issue was pursued by the defendant. The defence did not go into evidence.
I. Locus standii
13. The first issue raised was whether the Attorney General any longer had locus standii in order to maintain proceedings of this type. Counsel for the defendant submitted not. He relied on the provisions of s. 127(2) of the Finance Act 2001, which deals generally with the procedural step of condemnation, the court process whereby the thing seized is condemned as forfeited by a court. That subsection provides:-
“(1) It shall not be lawful to commence proceedings against any person for the recovery of any fine, penalty, or forfeiture under any Act relating to Inland Revenue, or for the condemnation of any goods seized as forfeited under any such Act, except in the name of an officer or in the name of the Attorney General or in the name of the Director of Public Prosecutions."
II. A requirement for conviction prior to proceedings? 16. The next point is as to whether condemnation proceedings may be brought in the absence of a conviction for an offence under the Act. 17. It is necessary to refer to s. 126 of the Act of 2001. In the side margin note to the text the following rubric or explanation is contained as to the content of the section:-
“126.—(1) This section is concerned with proceedings in relation to any offence under or by virtue of the statutes which relate to the duties of excise or to the management of such duties or under any instrument relating to the management of such duties made under statute. (2) Where there is evidence that an offence has been committed by several persons jointly— (a) proceedings may be instituted against such persons, jointly or severally, for the recovery of a fine or penalty, and (b) on conviction, such persons shall jointly and severally incur every such fine or penalty….” 18. Section 126 should be read then with reference to s. 127 of the Act (which provides for condemnation procedures) cited above. The latter provides that if the court finds that the thing was at the time of seizure liable to forfeiture it shall “condemn it as forfeited and in any other case order its release”. 19. In reliance on these provisions it is contended that, for condemnation under the Act to take effect it is necessary that “the offence” be demonstrated to have been committed and that this, in turn requires that the defendant must have been convicted of that offence. It is suggested that in the absence of such conviction, it cannot be contended that there is an offence at all. 20. I am not persuaded by this submission. The precise provisions of s. 126(1) relate to proceedings in relation to an offence under the statutes. But by virtue of subsection 2(a) it specifically envisages that where an offence has been committed by several persons jointly, proceedings may be instituted, and that thereafter, (as provided by s. 126(2)(b)), “on conviction such persons shall jointly and severally incur every such fine or penalty”. 21. There is no requirement whatever for there to be a conviction in order to establish that there has been an offence. Section 126 outlines the form of proceedings which are to be taken in relation to offences. It envisages, logically, that these will be initiated prior to conviction. The commentary in the side margin of the Act refers to proceedings in relation to offences. It does not say “proceedings subsequent to conviction”. 22. None of the other provisions of the Act of 2001, support this argument although there are ample references to the term “offence” in the Act without any necessary statutory linkage to “conviction”. 23. I am fortified in this conclusion by the authority of Attorney General & Southern Industrial Trust Ltd. v. Simons [1957] I.L.T.R.Vol. at p. 162. 24. The case concerned a car purchased in Ireland on foot of a hire purchase agreement. It was subsequently brought by a purchaser to Northern Ireland, thereafter to Great Britain. Thereafter the purchaser was advised that the car in question had been wrongfully imported there and it was reconsigned to Ireland, and seized by a Customs officer on the grounds of suspicion that it had been unlawfully exported from Ireland in the first instance. 25. The defendants, Southern Industrial Trust were the owners of the car. They claimed its return. In the course of proceedings brought by the Attorney General for condemnation of the car it was held by Davitt P. and affirmed by the Supreme Court, that while the facts established showed that Mr. Simons, the purchaser, had committed a criminal offence, that did not make the condemnation proceedings criminal proceedings. There was no question of a “conviction” therein. They were in fact, civil proceedings. Davitt P. observed at first instance:-
26. The instant case too, is a civil proceeding. In the course of it, it is necessary to prove that an offence has been committed. The fact has not been contested that the cars in question were not registered for VRT. The fact has not been contested that they were so liable. On such facts one is inexorably driven to the conclusion that facts constituting an offence have been committed. This is one prerequisite for the triggering of these condemnation proceedings – not a conviction in a criminal case. I do not consider that any of the statutory provisions to which I have referred, support the interpretation urged by the defendant in this case. I consider the defendant’s case fails on this point also. There is no need for a conviction prior to bringing condemnation proceedings.
III. The procedure subsequent to the obtaining of the search warrants The warrant procedure
(a) anything liable to forfeiture under the law relating to excise, or (b) any records relating to transactions in contravention of the laws relating to excise, are kept or concealed on or at any premises or place, issue a search warrant….”
28. Section 140 of the Finance Act 2001, also outlines powers of the Revenue in relation to detention without warrant of goods and vehicles. It provides at subsection 3:-
(a) that a vehicle has not been registered in any of the registers established and maintained under Chapter IV of Part II of the Finance Act, 1992, … (c) that vehicle registration tax has not been paid in respect of a vehicle,
(i) such vehicle has been registered, (ii) such declaration has been made, or (iii) such vehicle registration tax has been paid.”
29. Section 141 deals with the power of seizure. It provides, insofar as relevant:-
(2) A notice under subsection (1) shall specify the name and address of the claimant and, in the case of a claimant who is outside the State, the name and address of a solicitor in the State who is authorised to accept service of any document required to be served on the claimant and to act on behalf of the claimant. 31. There is no issue that lawful search warrants were obtained for both premises where the motor cars were seized. There has been no challenge to the content of the warrants. A warrant obtained by John Heffernan on 7th December, 2004, empowered him and other authorised officers of the Revenue to enter the premises of Padraig Keane of Granard Motors at Barrack Street. Similarly the warrant obtained by Padraig O’Laochdha empowered him to enter the premises of John Keane at 1 Farrell’s Terrace. 32. I am unable to find any support for the proposition that the invocation of the warrant procedure in any way negates or derogates, from the operation of the provisions of the remainder of the Act of 2001. There is no incompatibility between the powers of detention and seizure under s. 136 and ss. 140 and 141. They are the same powers. The evidence of the Revenue officials was that they had proceeded on foot of the search warrants. But they also testified that the vehicles were detained and seized under the Act, that is, by virtue of the powers vested in the Revenue Commissioners under ss. 140 and 141 of the Finance Act 2001. I find no inconsistency between the invocation of a warrant procedure and reliance upon the provisions of s. 140 of the Act which provides that (without warrant) an officer with reasonable suspicion:-
IV. Has there been delay? 34. There is no doubt that this claim could have been processed with greater alacrity. The detention took place in 2004. These proceedings were heard in November, 2008. A significant elapse of time between detention and seizure might have the effect of allowing the inference that the seizure power had been elided with that of detention and as a consequence giving rise to statutory obligations in relation to the detention procedure. But this is not the case here. The delay was after seizure. 35. The determination to seize the goods took place with relative punctuality, that is to say on 6th January, 2005, the goods having been detained on 9th December, 2004. There was significant correspondence after that time. Letters were written between 8th April and 23rd November on behalf of the defendants seeking to elicit information from the Revenue Commissioners as to their intentions. Ultimately the elapse of time was such that the defendant initiated judicial review proceedings on 5th December, 2005. These proceedings were ultimately stayed on the initiation of the condemnation proceedings on 24th February, 2006. 36. On the date of initiation of the condemnation proceedings, both plenary summons and statement of claim were served. There the plaintiff’s case was set out in full. But the defence was not filed for more than eight months, until 1st November, 2006. Thereafter a reply and defence to the counterclaim was punctually delivered by the plaintiff on 7th December, 2006. If there was a delay during the year 2006, such delay lay far more at the door of the defendant. I do not consider that there is evidence of any delay subsequent to that time. I have been informed that the matter was previously listed for hearing and was unable to proceed due to other court business. The defendant did not proceed with the judicial review proceedings which complained of delay. No prejudice
V. Proportionality 38. It is contended finally that there is disproportionality on the basis that the defendant in these proceedings was unable to avail of the ordinary compromise procedure which might have allowed for the release of the vehicles in the event of his being found to be an innocent party. First it must be reiterated that there is no challenge brought to the constitutionality of the provisions invoked and relied on. There is no evidence on which the Court might make any determination on a proportionality issue however invoked. It is not a doctrine which can be invoked on some principle of res ipsa loquitur. 39. It was accepted in evidence that there is a concession which may be applied by the Revenue to an innocent party in these circumstances. But that concession is discretionary and provisional on circumstances not met here. An evidential onus shifts once the evidence has been adduced on behalf of the plaintiff. For proportionality argument to succeed there would have to be evidence that the concession would and should have operated in favour of the defendant. There was no such evidence from the defendant. 40. It is said that the defendant is entitled to the presumption of innocence. In submissions counsel has sought to portray him as being an innocent participant in the events in question. He is entitled to this presumption. But this would by no means establish that the determinations of the Revenue and their effects are disproportionate. This is so even if those procedures had the effect that the Revenue did not offer a standard concession which would have been available to an innocent party. The rights of the community, public interest and the common good in issues of this kind may supervene, over the property rights or the interests even of innocent parties. The interest and rights identified necessitate that the effectiveness of the remedy of forfeiture be not nullified. 41. Simons cited earlier, was in fact a case where there was an entirely innocent owner. Nonetheless it was held that in the interests of the common good the Trust’s claim could not succeed. Davitt P. in the High Court observed at p. 172 of the Report:-
43. For the reasons outlined herein therefore I consider that the plaintiff is entitled to the relief sought. I will condemn the vehicles in accordance with the relief sought in the proceedings.
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