CAB v Power (AKA Boylan) & anor [2019] IEHC 753 (25 October 2019)

JUDGMENT of Ms. Justice Stewart delivered on the 25th day of October, 2019.

1. The first four proceedings in the above named title are brought by the Applicant

(hereinafter referred to as “the Bureau”) whereby they seek orders pursuant to s. 3 of the

Proceeds of Crime Act, 1996 (as amended) (hereinafter referred to as “the Act of 1996”)

over items specified in the schedules attached to the originating notices of motion in the

respective proceedings.

2. The assets which are the subject matter of the s. 3 application before this Court are

1. A Mercedes Benz E Class motor vehicle bearing registration no. 131 D 28923.

2. The racehorse “Labaik” currently registered with Horse Racing Ireland as

being under the ownership of Aidan O’Ryan and Anthony O’Sullivan,

registered and dated the 29th March, 2017 with passport no. UELN:2500FR

11476337U with microchip no. 250259805648871.

3. Account no. 20EH3 held with Horse Racing Ireland in respect of the horse

4. The “Willaby” Aspen Mac7 Mobile Home, Chassis No. WH4336/005.

5. The property known as 73 Forest Hill, Rathcoole, Co. Dublin, contained in

folio 83774F Co. Dublin.

3. All the above named cases were consolidated and came on for hearing together on the

4. Following the commencement of the first set of proceedings i.e. 2017 No. 6 CAB, the race

horse the subject matter of a s. 2 freezing order made by this Court on the 19th April,

2017 pursuant to the Act of 1996 was entered into the Punchestown Grade 1 Champion

Hurdle race on 28th April, 2017 in the course of which, and as was widely reported in the

media at the time, it suffered an injury.

5. At the time of the making of the s. 2 freezing order on 19th April, 2017 the Bureau

sought an order pursuant to s. 9 of the Act of 1996 directing the Respondents to file an

affidavit setting out their income and the source of that income in respect of the period

between the 1st January, 2013 to the date of the order. It further sought that those

affidavits be filed and delivered on the solicitors for the applicant by close of business on

4th May, 2017. The Court on that date also granted an order pursuant to s. 7 of the Act

of 1996 appointing Declan O’Reilly solicitor and Bureau Legal Officer as receiver over the

property specified in no. 1 in the schedule to the notice of motion. The effect of this

appointment was that it thereby enabled Declan O’Reilly to take possession and manage

the asset, namely the Mercedes Benz E Class motor vehicle bearing the registration no.

131 D 28923. No application to the court was made on that date in respect of the

appointment of a receiver in respect of the race horse “Labaik”.

6. On the 3rd May, 2017, the Bureau commenced a second set of proceedings named in the

title thereof for orders pursuant to ss. 3 and 7 of the Act of 1996 over the Horse Racing

Ireland account no. 20EH3 held in respect of “Labaik”. It further sought the appointment

of the solicitor and Bureau Legal Officer Declan O’Reilly as receiver over the said account.

On the application of the Bureau the Court directed that the receiver was entitled to (i)

make such disbursement necessary to pay fees to allow “Labaik” to compete in races; (ii)

to make any other necessary disbursements in respect of “Labaik” and (iii) to receive any

winnings that might accrue into the account. The Court was not advised on the date of

the application on 3rd May, 2017 that in the intervening period that the horse “Labaik”

had been entered into a race at Punchestown on 28th April, 2017 and had sustained an

injury as set out above.

7. In the circumstances where the horses had allegedly sustained an injury as a result of

running in the race at Punchestown the Respondent to the Bureau’s proceedings, John

Boylan, commenced the plenary proceedings named in the title hereof as against the

Bureau. He claims damages for negligence and/or breach of duty, damages for breach of

statutory duty, damages for misfeasance in a public office and, finally, aggravated and/or

exemplary damages arising from the decision to race “Labaik” on the 28th April, 2017.

The Respondent/Plaintiff pleads therein that he was the beneficial owner of 90% of the

race horse but that he had no part in a decision to enter the horse in the race on 28th

April, 2017. On the contrary, he pleads that shortly after the horse won the Novice

Hurdle in Cheltenham in March, 2017 that it was his, Mr. Boylan’s intention, to sell the

horse. He further pleads that this sale was prevented by the actions of the Bureau

through preventing his dealing with the horse pursuant to s. 2 of the Act of 1996, and

through the seizure of the passport which accompanies and validates the horse from the

then trainer of the horse, Gordon Elliott. Further Mr. Boylan pleads that prior to the race

on the 28th April, 2017 that he had been visited by two officers acting for and on behalf

of the Bureau who informed him that the horse was going to run on that date and that he

was not to attend at the racecourse.

8. The Bureau filed a defence to the plenary proceedings which was delivered on 11th July,

2018 and contrary to the entire basis of its application in the Proceeds of Crime

proceedings whereby it was alleged that Mr. Boylan was the 90% beneficial owner of the

race horse, the Bureau made no admission as to the beneficial ownership of the said race

horse. Further, Mr. Boylan was put on proof of various matters including the search of his

premises by the Bureau, the seizure of the horse’s passport from Mr. Elliott, and of

whether he told officers that he intended to sell the horse. The Bureau also took issue

with the legal basis of the claim for the reliefs sought. In light of the nature of the

defence delivered on behalf of the Bureau, the Plaintiff in the plenary proceedings and the

Respondent in the Bureau proceedings served a notice to admit certain facts on 7th

March, 2019. The facts which were sought to have admitted were as follows:

(i) That on 3rd of April, 2017, officers acting on behalf of the Bureau seized the

equine passport no. UELN:2500FR 11476337U for the race horse “Labaik”

from Mr. Gordon Elliott;

(ii) This passport was required to sell, transport, or to enter “Labaik” in a race;

(iii) That it was the decision of the Bureau to enter “Labaik” in the Punchestown

Grade 1 Champion Hurdle on 28th April, 2017;

(iv) That “Labaik” suffered an injury in the course of that race as a result of which

he has been, and will be, unable to race again.

9. Rather than file a substantive reply to this notice, by letter dated 20th March, 2019 the

Bureau pointed to the fact that it had a motion to dismiss the plenary proceedings

outstanding and that, as no replying affidavit had been received to that motion, the issue

of a notice to admit facts did not arise at that stage.

10. The matter came on for hearing on the 1st April, 2019. The hearing continued on the 2nd

April, 2019, 3rd April, 2019 and concluded on the 11th April, 2019 when the Court

reserved its judgment in the matter.

11. It was determined that the Bureau would proceed with its s. 3 applications and that any

cross-examination required in respect of affidavits filed in those proceedings would also

serve as oral evidence with respect to the plenary proceedings. A similar approach was

adopted in respect of the witnesses called by and on behalf of the Plaintiff in the plenary

proceedings. There are substantial affidavits put before the Court on behalf of the Bureau

in respect of the s. 3 applications.

12. Detective Chief Superintendent Patrick Clavin, Chief Bureau Officer of the Criminal Assets

Bureau swore affidavits in all four s. 3 applications wherein he set out the grounds for his

belief that the assets, the subject matter of the s. 3 applications, were acquired directly

and/or indirectly through the proceeds of crime and constituted directly and/or indirectly

the proceeds of crime. Those beliefs are set out in para. 9, subparas. (a) to (k) of the

first affidavit sworn on the 18th April, 2017, The grounds set out provide as follows:

“(a) My personal experience in and knowledge of the trade in drugs and controlled

substances both in Dublin and elsewhere in the country and the persons

engaged in such trade;

(b) My familiarity with the generation of proceeds from the crime of possessing

and selling controlled substances;

standing role in the trade in the controlled substances in Ronanstown, Dublin;

(d) The presence of documentation in the home of John Power and Leonie

Kinsella which can be reconciled to other persons engaged in the illegal trade

in controlled substances, as noted by Marcus Roantree [details of which are

out in the affidavit of Garda Marcus Roantree sworn herein on 18th April,

(e) Neither Mr. Power nor his partner, Leonie Kinsella, have identified income

from legitimate sources which is consistent with their lifestyle and in

particular, the acquisition of assets such as the vehicle and horse which are

the subject of the proceedings herein;

(f) The motor vehicle at issue in the application is of a type not ordinarily

associated with persons of modest means and/or recently (in the case of

Leonie Kinsella) in receipt of social protection payments and was apparently

(g) The inconsistent explanation furnished by Mr. Power to Detective Garda

McGeown in relation to the acquisition of the vehicle) (“the Mercedes”) which

is the subject matter of these proceedings [details of which are out in the

affidavit of Garda Oisin McGeown sworn herein on 18th April, 2017];

(h) The payment of a significant amount of money (in excess of 25,000 euro) on

a horse is not a purchase ordinarily associated with persons of modest means

and/or recently (in the case of Leonie Kinsella) in receipt of social protection

(i) The fact that the horse which is the subject of the instant application has

been kept registered in the name of someone other than Mr. Power,

notwithstanding the fact that he provided 90% of the purchase price;

(j) My general experience of the concealment of monies generated by criminal

activity. This may take a number of forms, including holding such proceeds

in the names of persons other than the person generating such monies

and/or to deny ownership of monies; and

(k) The available records do not show the proposed respondent to have enjoyed

such a level of legitimate income as would provide a credible explanation of

the acquisition of the property set out in the schedule [to the notice of

13. In addition to the evidence proffered on behalf of the Bureau in their first application and

subsequent applications, i.e. in Cases B, C and D, these applications were supported by,

inter alia, not only the belief evidence of the Chief Bureau Officer but also the grounds for

those beliefs in each respective application. In respect of Case B, the Chief Bureau Officer

relied on, inter alia, the affidavit of Garda Lisa McHugh which was sworn on the 2nd May,

2017 in respect of the HRI account. In Case C, in respect of the “Willaby” Aspen Mac7

Mobile Home an affidavit from the Chief Bureau Officer and, inter alia, Detective Garda

McHugh sworn on the 14th December, 2017 in support of the said application. Finally, on

the 12th December 2018, the Chief Bureau Officer and, inter alia, Detective Garda Lisa

McHugh swore affidavits in respect of the property at 73 Forest Hill, Rathcoole, Co.

Dublin. Exhibit “LMcH 3” of the latter affidavit contained a detailed report from the

architect retained by the Bureau, and which calculated the total cost of the works carried

out at the property in Forest Hill as €629,911.13. It is worth noting at this point that no

response was put before the Court in respect of Cases C and D, nor there was any

evidence proffered to refute the Bureau’s evidence.

14. Garda Lisa McHugh, a member of An Garda Síochána and a Bureau Officer duly appointed

pursuant to s. 8 of the Criminal Assets Bureau Act, 1996 to 2005, set out in an extensive

affidavit sworn on the 18th April, 2017 details of her knowledge of John Power and his

income generating ability. She states that John Power was born on 26th October, 1986

and that he lives at 73 Forest Hill, Rathcoole, Co. Dublin with his partner Leonie Kinsella

who is the second named Respondent in the Bureau proceedings. She states that John

Power has 67 previous convictions, two of which relate to offences contrary to s. 15 of the

Misuse of Drugs Act. She stated her shared belief that John Power was involved in the

trading of controlled substances in the Foxdene and Neilstown areas of Dublin in

particular. She also states her belief that he started as a street dealer in such substances

and had progressed to recruiting and directing persons who were engaged in such trade

by approximately the year 2008. Garda McHugh set out that the Mercedes Motor Vehicle

was purchased for approximately €28,000 and the purchase price was paid in two

amounts of cash. The vehicle when seized displayed an insurance disk showing the

vehicle was insured with Liberty Insurance. Inquiries with Liberty Insurance established

that on 27th May, 2016 Leonie Kinsella had added the vehicle namely 131 D 28923 a

Mercedes Benz E Class 250 to her policy and further that Leonie Kinsella declared herself

as the registered owner of the vehicle and declared the value of it as €32,000. The

premium for the insurance policy on the said vehicle was €1,639.79.

15. The race horse “Labaik” is a thoroughbred race horse. At the time of the commencement

of the first set of Bureau proceedings the Bureau believed Mr. Power to be the beneficial

owner thereof in the amount of 90% of the value of the said race horse. The balance of

the purchase monies required to purchase the horse was paid from a joint account held in

the name of John Power and Leonie Kinsella via Mr. Aidan O’Ryan. Further, Goffs (UK)

issued an invoice to Forest Hill Animal Feeds Limited in respect of the purchase price of

the horse and that, as is set out in the affidavit of Detective Garda Nigel Petrie sworn in

the within proceedings on the 18th April, 2017, the said company was established by John

Power albeit that it does not appear to have carried out any significant trade and/or

16. Notwithstanding that John Power made the payments for the upkeep and training of the

horse, the horse was registered in the name of a Mr. Anthony O’Sullivan. Anthony

O’Sullivan during the currency of these proceedings and prior to the matter coming on for

hearing brought a notice of motion before the Court seeking and claiming a payment

owed to him of 50% of the value standing in the account no. 20EH3 in respect of the

horse “Labaik”. However, on the final day of the hearing namely the 11th April, 2019, Mr.

Dara Robinson, Solicitor of Sheehan Solicitors on record on behalf of Mr. O’Sullivan

advised the Court that his client was no longer pursing this application and that the

motion could be struck out. The Court indicated that it would strike out the motion at the

conclusion of these proceedings. That being the case Mr. Power otherwise (Boylan)

remains the alleged sole beneficiary owner of the race horse “Labaik” and of the amount

outstanding in the Horse Racing Ireland Account associated with “Labaik”.

17. At the conclusion of the opening of the Bureau applications by counsel on behalf of the

Bureau, the cross-examination of the Bureau witnesses took place as follows: Detective

Garda McHugh, Detective Garda Nigel Petrie and Chief Superintendent Patrick Clavin were

cross-examined by counsel on behalf of John Boylan (Power). John Boylan (Power) then

gave evidence and was cross-examined by counsel on behalf of the Bureau, as did Leonie

Kinsella who was also cross-examined by counsel on behalf of the Bureau. Finally, Gordon

Elliott was called by the Bureau and was cross-examined by counsel on behalf of the

Respondent with the re-examination by counsel on behalf of the Bureau.

18. The Court also notes at this stage that aside from the affidavit sworn in respect of the

intention to inspect “Labaik” (which did not proceed) that the only affidavit evidence filed

by John Power in respect of these proceedings was the s. 9 affidavit on foot of the order

of this Court. This affidavit was ultimately filed in the name of John Power and was sworn

on the 19th September, 2017, bearing the record number 2017 No. 6 CAB. Leonie

Kinsella swore a replying affidavit on the 19th September, 2017 in respect of the same

proceedings. He sets out his past work and earning history stating that he left school

aged fifteen and that he had worked for his father who was a self-employed carpenter. In

2013 he states that he started working by laying floors for a Mr. Robert Heenan. He

states that he was initially employed on a casual basis and paid in or around €500 per

week in cash. He states that from January, 2014 he was paid directly into his bank

account every fortnight in the sum of €1,339. He also refers to the affidavit of the

Revenue Bureau Officer No. 65 which shows that his total income from Mr. Heenan for

2014 was €34,814. At para. 6 he states that he was paid a sum of €710.33 on a weekly

basis in 2015 by the same Mr. Heenan. He left the employment of Mr. Heenan at the end

of October 2015 and set up Forest Hill Animal Feeds Limited in June, 2016. He said that

he still works for this company and he earns €419.56 per week. At para. 9 of his affidavit

he states that in reference to an “unknown” source of income identified by Detective

Garda Nigel Petrie in his grounding affidavit that throughout the period in question that he

had an account with Paddy Power Bookmakers and that he earned considerable sums

from gambling. He further states that he had attempted to obtain details from the area

manager of Paddy Power in Rathcoole for the purposes of swearing the affidavit before

the Court but that he had been unsuccessful. He further exhibits a cheque in the sum of

€15,840.91 which was paid by Paddy Power Bookmakers on the 11th February, 2016. In

addition, he states that he was in receipt of other income from the sale of two piebald

horses to a Mr. Sean Hanley on 5th January, 2016 and he refers to a bank draft in the

sum of €25,000 in respect thereof. He concludes by saying that the only large sums

which were lodged to his account are the sums of €13,000 from his mother, €10,000 from

his partner and €17,500 from his godmother which he used to fund the deposit on his

family home. He cross references those sums with the sums referred to at para. 12 of

the affidavit of Detective Garda Nigel Petrie. He finally states that the only other assets

that he owns is a 2015 Volkswagen Golf which he purchased for €19,450 four weeks

previously i.e. mid-August, 2017.

19. Ms. Kinsella states in her affidavit that for most of her relationship with the first named

Respondent that he has been the main earner and has looked after their finances. This

extended to Mr. Power making a number of lodgements into her account to assist with

their household expenses. Ms. Kinsella said that her income since January, 2013 accrued

from her work as a hairdresser for Revive Hair and Beauty Clinic where she initially

worked two days a week earning €140 per week but from August, 2014 she worked three

days a week earning €210 per week. She was on maternity leave following the birth of

her son for a period of time and when she returned she resumed two days per week. Her

weekly wage was in the sum of €140 and in September, 2016 her weekly wage was

increased to €160 per week. She stated that she had from time to time throughout her

career as a hairdresser she carried on casual work for which she received cash payments.

She said that she finally set up her own hairstyling business in May, 2016 and that she

had registered a business name. She concludes by saying that from January, 2013 to

date that her only income had been either from hairdressing or from her partner John

20. In relation to the oral evidence adduced at the hearing the first witness to be cross

examined was Detective Garda Lisa McHugh and she was cross-examined on behalf of the

Respondents by Mr. John Fitzgerald S.C. in respect of her affidavit sworn on the 18th

April, 2017. She described her work as supporting the application of the Chief Bureau

Officer. She indicated that she would have started profiling and looking at John Power

(otherwise Boylan) after “Labaik” won a race at Cheltenham and she spoke to some

colleagues about him. She stated that she learned of the income of John Power and in

her view that everything pointed to him being the owner of the racehorse “Labaik”. The

cross-examination concentrated on the question of the returning of the passport to the

trainer Gordon Elliott for the purpose of entering the horse in the race at Punchestown on

the 28th April, 2017. She stated that Gordon Elliott told her colleague that he needed the

passport in order to race the horse. She confirmed that she did not seek permission from

the Court to return the passport, and that she arranged that the passport would be

brought to Punchestown for the purposes of the race meeting. She confirmed that the

horse ran at Punchestown on two occasions namely on the 25th April, 2017 and on the

28th April, 2017. She confirmed that the passport was given to the trainer before the

race and was retrieved afterwards. She confirmed that her colleague Detective Garda

Martin Harrington had served the notice of the s. 2 order on Mr. Elliott and that it was at

that time that Mr. Elliott had requested that the passport be made available for the

purposes of entering and racing “Labaik” in a future race.

21. Detective Garda Nigel Petrie was then cross-examined in relation to his calculations on

the financial analysis which is set out in his affidavit in respect of the income, expenditure

and earning capacity of the Respondents.

22. The Chief Bureau Officer Chief Superintendent Patrick Clavin was then proffered for cross-

examination by counsel on behalf of the Respondents in the plenary proceedings. He

confirmed that he had been in court when Detective Garda McHugh gave her evidence

and that he was aware of the matters that she had outlined to the Court at the time that

they occurred. He also confirmed that he had been present in court for the s. 2 hearing.

He said that the passport had been placed into an administrative safe at the headquarters

of the Bureau and that when the request in respect of returning the passport for the

purposes of entering the horse in a race was relayed, and having first looked at precedent

in relation to a previous case, that he made a decision not to seek receivership of the

horse at the initial stage i.e. at the date of s. 2 hearing. In his view he states that the

horse was in the care and custody of Gordon Elliott at that stage. He said that

intelligence had been relayed to him that there was a proposal to remove the horse from

the jurisdiction where it could be sold. He stated that the decision in respect of racing the

horse came to his attention in his capacity as the Chief Bureau Officer. He said he had to

weigh up the security of the horse as against being accused of devaluing the horse i.e. by

not allowing it to race. He stated that his understanding was that the decision to race the

horse was that of Gordon Elliott the trainer and that no receivership was in place. He said

that he made the decision that the best place the horse could be left would be with the

trainer Gordon Elliott. He confirmed that he was aware that the race horse was injured

during the course of that race however he stated that the horse was still alive and was

still in training. When asked as to whether he had considered advising this Court of the

decision to allow the horse to race his response was that he did not consider the racing of

the horse to be his decision, but rather that it was Mr. Elliot’s decision which he

facilitated. He stated that it was his decision to allow the passport to be taken to the

racecourse, and that it would at all times be under the supervision of Bureau Officers. He

accepted that it was his decision to authorise the release of the passport to Gordon Elliott

to enable the horse to run in the race. He proffered a view that he still thinks the horse

23. The Respondent to the Bureau proceedings and the Plaintiff in the plenary proceedings

John Power (otherwise Boylan) then gave evidence. It was confirmed at the outset by his

counsel that Mr. Power was dealing only with the plenary proceedings. He stated that he

was entitled to 90% of the ownership of “Labaik”. He described that his friend Anthony

O’Sullivan bought the horse through Gordon Elliott and asked Mr. Power if he wanted to

buy into the horse a few weeks later. He said that Mr. O’Sullivan had come into the shop

and asked him if he was interested. He said he had been involved with horses since he

was three to four years with his father. He said they would have had both piebald and

trotting horses. He said “Labaik” was the first thoroughbred that he had ever owned. He

described having owned fifteen to twenty horses over the course of his life. He stated

that he got his first horse when he was four to five years old. He said he raced with

trotting horses in places like Portmarnock. He described the piebald horses as being more

show horses and the emphasis being upon how they looked. Mr. Power described that he

had gambled since he was approximately eight years of age. He stated that he could tell

stories, that it was up and down and at one stage he would have gambled every day. He

described how he would receive information out of big yards. When asked what amount

he would have gambled he said it would depend on how strong the information was and

how reliable it was. He described how he had people in different yards in the UK and he

had people in yards in Ireland. He said he had an understanding with Anthony O’Sullivan

that he was buying half the horse and would pay all the price. He said he had been told

that this horse was a real special one. He described his only difficulty being with his

partner Leonie Kinsella and stated that it took a bit of time to convince her to proceed

with the purchase. He said he put away €500 per week into joint savings on behalf of

both himself and Leonie Kinsella. He maintains that he didn’t see much paperwork in

relation to the horse, he just simply got an invoice. He describes that Anthony O’Sullivan,

whom he referred to as Anto, knew Aidan O’Ryan at the time and the Mr. Power was just

happy to have the horse because he knew that he was a good one. On 25th April, 2017

he stated that the horse refused to run, but that the horse then took off after the horses

had left so therefore it wasn’t marked down as a refusal by and on behalf of the

authorities as he was listed as having come last in the race.

24. At this point, it is worth noting that the examination by counsel and the answers from Mr.

Power state that the race in which “Labaik” was injured took place on the 27th April 2017.

At para. 4 of Mr. Power’s (otherwise Boylan) affidavit dated the 7th March, 2018 (sworn

in support of the application to inspect “Labaik”) Mr. Power relies on media coverage of

the injury to “Labaik” and exhibits a newspaper report from the Irish Times dated the

29th April, 2017. This report clearly makes reference to the Punchestown Champion

Hurdle having taken place on Friday, which was the 28th April 2017, and this is consistent

with previous evidence proffered before the Court. As such, I believe that both Mr. Power

and his counsel were simply mistaken in their reference to the 27th, April 2017 and I will

refer to the correct date.

25. On 28th April, he said it was a race for four-year-old novices. It was decided to run him

in the Champion Hurdle on 28th April, 2017 and that Mr Power stated that he only

became aware that the horse was running in Punchestown when he saw the race

advertised on a betting app. The horse was ridden by Davy Russell who gave an

interview straight after the race. Mr. Power was certain on the date that “Labaik” would

never race again. He said that if asked for his opinion he would say that the horse was

worth buttons. In his view if the horse had been sold after its first win at Cheltenham

that it could have fetched £250,000 and upwards. In his view the horse was now worth

approximately €500 to €1,500. On cross-examination Mr. Power accepted that he put up

90% of the monies to purchase “Labaik”. He also stated that in his view it was a “no

brainer” as to who would train him. He said he didn’t know Gordon Elliott personally but

that he knew of him and he confirmed that he had no difficulties with how Mr. Elliott dealt

with the horse. He confirmed that the horse had run in a novice hurdle in December

when the going was soft or heavy, and that it had again run at Naas in January when the

going was soft or heavy. He confirmed that the horse had failed to start at Naas and had

run in Punchestown and Navan. He confirmed that when the horse had run in the Novice

Hurdle at Cheltenham that the going was good to soft and the horse won that race. He

stated that in his view Gordon Elliott and Aidan O’Ryan were not in agreement with selling

“Labaik” after the win at Cheltenham. He stated that he was not aware that Gordon

Elliott intended to run the horse in Punchestown and that he had come upon it when

tracking it on his betting app. He stated that the Bureau came to his house and told him

that the horse was going to run at Punchestown and not to go near Punchestown and/or

the horse. He stated that the horse ran in Punchestown on 25th but he had no

knowledge as to who had entered the horse in the race. He stated that the ground was

good to yielding but that he wasn’t at the race and instead watched it on TV. He stated

that in his view the horse was a novice horse and was up against seven to nine year olds

in that race whom he described as experienced horses. In relation to the content of the

affidavit of Nigel Petrie, Mr. Power when asked about the €25,000 that he stated he had

been paid for two piebald horses he replied that he couldn’t recall what it was used for

and thinks it was lodged into an account. He agreed that his expenditure was even

greater than what Detective Garda Petrie had identified in his affidavit.

26. On the final day of the hearing the Court heard evidence from Gordon Elliott, race horse

trainer. He confirmed that he trains horses for a living and that he had made two

statements to the Bureau for the purposes of these proceedings. He stated that he and

Aidan O’Ryan had put up 10% and as far as he was concerned Anthony O’Sullivan owned

the other 90%. He said that he made the decision on every race entry, he states that the

owner gives him the authority to act and he makes the decision about where to enter and

race a horse. He said he has a software system in his office and they check for races. In

relation to the horse “Labaik” he described him as having a “quirk in him”, he said

sometimes he didn’t like to jump off, he described him (Labaik) as a bit a “boyo” but he

said when the horse was bought that there was two to three previous occasions in France

that he hadn’t come out of the starting stalls so they “bought him then to take a chance

going jumping”. He further stated that “[w]hen he jumped off he was very good and very

fast but he obviously was a bit of a boyo and he could stand at the start as well”. He

states that after the win in Cheltenham that he took him to Punchestown the following

week and that he didn’t jump off. He said then the Bureau came to his yard on a Sunday

and it came as a bit of surprise to him. He said he gave a statement on Sunday and on

the Monday and the passport was handed over to the Bureau Officers on the Monday. He

confirmed that the horse can’t travel without a passport and therefore “Labaik” couldn’t

be moved out of the yard. He said the horse didn’t start during the first race that he had

been entered in Punchestown after the making of the s. 2 order (25th April, 2017). He

said that he ran again on Friday in the Champions Hurdle (28th April, 2017). He was

asked to comment or to give his view as to whether the race was an unsuitable race or

not and his response was no. He disagreed that anyone should express concern in

relation to the nature of the race. He said the horse was the second or third favourite

and if he had not hurt himself that day he thinks he would have won the race.

27. He described the injury as a suspensory tendon issue and that he had to have time off

since then in order to recover from this injury. He described it as a common injury for

race horses, and that is could have happened at home on the gallop or on a racecourse.

He described the horse as being in light work. He stated that he couldn’t guarantee that

he would ever come back 100% but he said it is just a day by day recovery. On cross-

examination he confirmed that he made every decision to enter the horse into a race. He

said he discussed the entries with Anthony O’Sullivan and Aidan O’Ryan and he said he

had no conversation with John Power (otherwise Boylan). With regard to the day in

Cheltenham, he said on that particular day he wasn’t as keen as the owners to race the

horse. He said that Anthony O’Sullivan was very keen for the horse to run and then

within days the horse had been entered in a sale in Aintree but that he was not as keen

for the horse to go to the sales. He confirmed that the horse was not brought to Aintree

for the sale because of the CAB intervention. He explained this was because a horse is

not allowed or supposed to travel without the passport.

28. He stated that at the time he asked for the passport to be returned to him for the

purposes of racing the horse (the horse having been entered in the race(s) some weeks

previously) and that he got the passport on both mornings. The horse took part in both

races. He stated that a Bureau Officer called to him and furnished him with the passport

and they then collected the passport afterwards. He stated that he was almost certain

that they followed the horse to the race. He confirmed that he doesn’t normally travel

with the horses, that he drives himself and that the passport would have been with the

girls who were in the horsebox with the horse. He again stated that it was his decision to

enter the horse and to run the horse in the race. He stated that he had spoken to Aidan

O’Ryan before the race but he was not certain if he spoke to Anthony O’Sullivan. On re-

examination he stated that if the horse was to come back from his injury and was to run

a race again and win, that it could potentially be very valuable again.

29. Both the Applicants and the Respondents filed written submissions in support of their

respective applications by way of response to the other five applications.

30. With regard to the s. 3 proceedings which are before the Court there was no substantial

effort or engagement with the substance of the proceedings. The affidavit pursuant to

the s. 9 Order which was sworn and filed by John Power (otherwise Boylan) on 19th

September, 2017 and the short affidavit supporting an application for the inspection of

the horse (which said application never proceeded) contained nothing by way of financial

information or documentary evidence to rebut the claims made on behalf of the Bureau.

Albeit, that in the affidavit of 19th September, 2017 Mr. Power indicated that he had won

substantial monies on gambling and that a request was pending from Paddy Power

Bookmakers in respect of documentation to support this claim. At the hearing and during

the course of cross-examination Mr. Power admitted that he would have lost more than

he had won over the years. The result of this is that in fact his financial position is even

more bleak on the earnings side than that described by Detective Garda Nigel Petrie. The

Court notes that Detective Garda Nigel Petrie in his analysis of the period 2013 to 2017

noted that the identifiable or legitimate income of Mr. Power (otherwise Boylan) was

€204,166. The expenditure for this period was identified as €195,149 (excluding the

assets which forms the subject of these applications). The analysis did not include a

complete figure for day to day expenses and Leonie Kinsella was unclear as to the

amounts spent on such expenses. The second named Respondent estimated it at €7,800

per annum which would add a figure of approximately €39,000 to the expenditure

identified by Detective Garda Petrie leaving a shortfall of income of an extent of almost

€30,000. Added to this shortfall there is a sum of €629,911 expended by the

Respondents in or around March, 2015 on the refurbishment of the Forest Hill property.

This figure was identified by Mr. Doran in a report exhibited in the affidavit of Lisa

McHugh which was sworn on 12th December, 2018. It is noteworthy that no affidavit has

been filed during the currency of these proceedings by either Mr. Power (otherwise

Boylan) and/or Ms. Kinsella contradicting or even responding to the findings of Mr. Doran.

Mr. Power (otherwise Boylan) in the course of the proceedings in oral evidence effectively

accepted the figures proffered in respect of expenditure on the house in which he resides

31. Regarding the affidavits filed by the Bureau before the Court, the affidavit of the Chief

Bureau Officer in particular included a lengthy statement of his direct personal experience

of the first named Respondent’s involvement in lucrative criminality. He was not cross-

examined on these averments. Detective Garda Petrie made averments that Mr. Boylan

was involved in criminality. He was not cross-examined on this averment. Garda Marcus

Roantree swore an affidavit providing evidence of links between the first named

respondent and named identified criminals. He was not the subject of cross-examination.

The sole engagement by and on behalf of the first named Respondent with the entirety of

this evidence was a simple denial, and he confirmed in oral evidence that he was not

saying anything in relation to any of the specifics of the allegations and assertions made

against him in the affidavits filed by and on behalf of the Bureau.

32. It seems to me therefore that the grounds for belief evidence set out in the affidavit of

the Chief Bureau Officer, as cited in detail at the outset of this judgment are reasonably

held. I am satisfied that pursuant to the terms of s. 8 of the Act of 1996 and in

accordance with the test laid down by the Supreme Court and in particular by McCracken

J. in McK v. D. [2004] IESC 31, that there are reasonable grounds for the holding of that

belief by the Chief Bureau Officer. I am satisfied that this belief evidence constitutes

evidence for the purpose of the Bureau’s applications. I say that I am satisfied that this

belief evidence taken in conjunction with the first hand evidence put forward by the

Bureau Officers and their agents in support of this application constitute a prima facie

case pursuant to the provision of s. 3 of the Act of 1996.

33. This being the case, the burden of proof under the applicable test shifts to the

Respondents. There has been limited engagement to the extent that there has been no

substantial engagement with the financial details of this case by and on behalf of the

Respondents. It amounts to little more than a denial. The legitimate income such as it is

had been fully taken account of in the analysis conducted by Detective Garda Nigel Petrie.

There remains a substantial shortfall which leads this Court to the inescapable conclusion

that the assets the subject of these proceedings were acquired, in whole or in part, with

or in connection with property that, directly or indirectly, constitutes the proceeds of

crime and further that the property constitutes directly or indirectly the proceeds of

crime. I am not satisfied that the Respondents have discharged the burden of proof

which rests upon them and I am further satisfied that there will be no serious risk of

injustice if the Court was to make the orders as sought by the Bureau.

34. As set out earlier in this judgment Mr. Anthony O’Sullivan through his solicitor indicated at

the commencement of the final day of the proceedings that he was withdrawing his

application and not proceeding with same. In the circumstances I dismiss that application

and strike out the motion of Anthony O’Sullivan in respect of 50% of the proceeds of the

HRI account in respect of the race horse “Labaik”.

35. With regards to the plenary proceedings the Court observes at this juncture that perhaps

if information with regard to the decision to enter “Labaik” in a race meeting at

Punchestown on the 28th April, 2017 had been forthcoming at an earlier stage that this

matter may not have proceeded in the manner and to extent to which it did. It was not

until, and during, cross-examination of the witnesses called on behalf of the Bureau that it

was established in evidence before this Court that the decision to enter the horse in the

race was effectively taken by the trainer Mr. Elliott and that this decision was then

facilitated by members of the Bureau, from Detective Garda McHugh’s discussion with her

colleagues in the team room to the Chief Bureau Officer’s involvement. I found Mr. Elliott

to be a truthful witness and a candid witness. He stated in his evidence that as the

trainer of a horse, which was placed with him for the purpose of being so trained, that he

would make the decision in relation to the selection of a suitable race meeting. The 28th

April, 2017 was in his view such a suitable race. I also accept the evidence of the Chief

Bureau Officer in relation to the balancing exercise with which he was required to engage

in order to decide whether or not the passport should be returned to Mr. Elliott for the

purpose of allowing the horse to be run in a race at the meeting at Punchestown.

36. I would note in passing that it came as a surprise to the Court and, it would appear, to

the legal practitioners when it emerged that the horse had in fact run on two occasions

that week. Albeit that on the first race in which he had been entered he had failed to

jump off properly with the rest of the field. It was a matter of concern to the Court that

at the time of the moving of the s. 2 application in respect of the HRI account on 3rd May,

2017 that no reference was made to, and no information put before the Court in relation

to, the fact that the horse had in fact been run in the preceding week and had suffered an

injury. However, I am satisfied with the explanation that has been proffered by and on

behalf of the Bureau in that regard. I am satisfied that no disrespect towards this Court

was intended. I am satisfied that the officers and in particular the Chief Bureau Officer at

all times acted in the best interest of the Bureau and in the best interest of protecting and

preserving the value of the asset with which it was charged pursuant to the s. 2 order. It

is apparent, and the Court is satisfied from the evidence which the Court heard on foot of

the plenary proceedings, that there was no mala fides on behalf of the Chief Bureau

Officer and/or his officers. I am not satisfied that there was any act of negligence and/or

failure to exercise due care in respect of the horse “Labaik”. On the contrary it seems

that the extent of the injuries suffered by the horse was exaggerated and that the

negligible worth attributed to the horse by Mr. Power during the course of his evidence is

equally exaggerated and at a minimum speculative. It was suggested by Mr. Power that

the horse would have sold for a substantial sum of monies if offered for sale at the sales

at Aintree following his win at Cheltenham. However, it is equally also clear that the

horse had a chequered history in relation to previous failures to start or jump off in

various races and that the trainer Mr. Elliott was concerned in respect of the risk that a

third failure might have resulted in the loss of the horse’s entitlement to run at all i.e.

that it would be disqualified by the horse racing authorities.

37. In light of the above I am satisfied on the balance of probabilities that there is no

substance to the claim brought by John Power (otherwise Boylan) in respect of the

alleged damage and/or injury caused to the horse “Labaik” nor is any claim for

negligence, misfeasance in public office or otherwise made out.

38. To conclude, I propose to make the s. 3 orders sought by the Bureau in respect of the

items scheduled to the notices of motion as set out above. I will make the usual

anonymity orders in respect of Revenue Bureau Officer 65 and Social Welfare Bureau

39. For the reasons set out above I also propose to dismiss the plenary proceedings.

Result: Judgment in favour of the Applicant. Judgment in favour of the Defendant

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> CAB v Power (AKA Boylan) & anor [2019] IEHC 753 (25 October 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_753.html Cite as: [2019] IEHC 753

High Court of Ireland Decisions