Supreme Court orders another hearing of challenge over fraudulent online email account scheme
Supreme Court
has ruled there should be another hearing of a
Swedish
man's
High Court
challenge over a finding that $651,000 (€557,000) held in an Irish bank account represented the proceeds of a fraudulent online email account scheme.
An appeal by Harry Zeman, a director of Swedish firm Routeback Media AB, to the Court of Appeal (CoA) over the High Court decision was dismissed in 2022.
A five-judge Supreme Court heard a further appeal last April and in a unanimous decision on Tuesday, with one judge dissenting in part, it allowed the appeal and ordered the case go back to the High Court so that fresh evidence could be considered.
The original High Court application to have the money declared the proceeds of crime was brought by the
Criminal Assets Bureau
(Cab).
READ MORE
That court heard the money was collected by Routeback, trading as Local Mart, over just four days as part of a scam primarily targeting card holders in the United States.
The Cab claimed Swedish police sent information regarding Mr Zeman's alleged ties to organised crime, the court also heard.
The High Court ordered in 2011 that Routeback and Mr Zeman could not dispose of or deal in the asset pending further order, under Section 3.1 of the Proceeds of Crime Act 1996.
That decision was not appealed in time and seven years later, in 2018, the Cab sought a final disposal order of the money, forfeiting it to the State, under Section 4 of the 1996 Act.
At this final disposal hearing, Mr Zeman claimed procedural unfairness and that he had new evidence. The High Court ultimately made a final disposal order in 2022.
The Supreme Court ruled that while a non disposal/non dealing Section 3.1 order was final in nature, there remained scope under the legislation for the respondent to raise fresh evidence but only in strictly limited and justified circumstances. It did not change the fact that litigants must present their full case at the earliest possible opportunity, it said.
It said it was allowing the appeal for the case to be remitted to the High Court for a limited hearing focused solely on genuinely new evidence. The burden is on Mr Zeman to prove the assets did not derive from criminal activity or that making a disposal order would be unjust, it said.
In a judgment with which Justices Gerard Hogan, Séamus Woulfe and Maurice Collins agreed, Mr Justice Peter Charleton said an unjust order should not be made where there may be claims that an uninvolved party's assets have been mixed with criminal property.
Alternatively, if a respondent failed to contest the original non disposal/non dealing order due to, for instance, illness, duress or lack of awareness, but now presents tenable evidence, then such a case may raise interests of justice, he said.
He also said there is no automatic right to cross-examine deponents in proceeds of crime cases. Cross-examination is under the court's oversight and is limited to issues where new evidence, with factual disputes, require it and with the focus remaining on what is necessary for an efficient and just resolution, he said.
Mr Justice Collins also gave a judgment in which he agreed with Mr Justice Charleton and disposition of the appeal.
Mr Justice Brian Murray agreed the appeal should be allowed, but dissented in part in a separate judgment. He outlined in nine points the proper relationship between applications made under the relevant Section 3 and 4 of the Proceeds of Crime Act.
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