Hanafin v Minister for the Environment

JurisdictionIreland
CourtSupreme Court
Judgment Date12 June 1996
Date12 June 1996
Docket Number[1995 No. 72 M.C.A.; S.C. Nos. 48 and 86 of 1996]

High Court

High Court

Supreme Court

Supreme Court

[1995 No. 72 M.C.A.; S.C. Nos. 48 and 86 of 1996]
Hanafin v. Minister for the Environment
In the matter of the 15th Amendment to the Constitution Bill, 1995, and in the matter of an application pursuant to section 42 of The Referendum Act, 1994: Desmond Hanafin
Petitioner
and
The Minister for the Environment, The Government of Ireland, The Attorney General and The Referendum Returning Officer
Respondents
The Director of Public Prosecutions, Notice Party

Cases referred to in this report:—

In re Article 26 and the Matrimonial Home BillIRDLRM, 1993 [1994] 1 I.R. 305; [1994] 1 I.L.R.M. 241.

In re Article 26 and the Offences Against the State (Amendment) Bill, 1940IR [1940] I.R. 470.

In re Article 26 and the School Attendance Bill, 1942IRDLTR [1943] I.R. 334; (1943) 77 I.L.T.R. 96.

The Attorney General v. X.IRDLRM [1992] 1 I.R. 1; [1992] I.L.R.M. 401.

Banco Ambrosiano s.p.a. v. Ansbacher & Co. Ltd.DLRM [1987] I.L.R.M. 669.

Beecham Group Ltd. v. Bristol MyersIRDLRM [1983] I.R. 325; [1983] I.L.R.M. 500.

Board of Liquidation of State Debt of Louisiana v. Whitney-Central Trust and Savings Bank (1929) 122 So. 850.

Boland v. An TaoiseachIR [1974] I.R. 338.

Buckley v. The Attorney GeneralIR [1950] I.R. 67.

Byrne v. IrelandIR [1972] I.R. 241.

Campus Oil Ltd. v. The Minister for Industry (No.1)IR [1983] I.R. 82.

Crotty v. An TaoiseachIRDLRM [1987] I.R. 713; [1987] I.L.R.M. 400.

Customglass Boats Ltd. v. Salthouse Brothers Ltd.UNK [1976] R.P.C. 589

Dillon-Leetch v. Calleary (Unreported, Supreme Court, 25th July, 1973)

East Donegal Co-operative Livestock Mart Ltd. v. The Attorney GeneralIRDLTR[1970] I.R. 317; (1970) 104 I.L.T.R. 81.

Educational Company of Ireland Ltd. v. Fitzpatrick (No.2)IRDLTR [1961] I.R. 345; (1961) 97 I.L.T.R. 16.

Finucane v. McMahonIRDLRM [1990] 1 I.R. 165; [1990] I.L.R.M. 505.

Finn v. The Attorney GeneralIR [1983] I.R. 154.

Flutz v. Straker 7 Alberta L.R. 2d. 304.

Glendale, City of, v. Buchanan (1978) 578 P. 2d. 221.

Goodman International Ltd. v. Hamilton (No.1)IRDLRM [1992] 2 I.R. 542; [1992] I.L.R.M. 145.

Gribbin v. Kirker (1873) 7 I.R.C.L. 30.

Harvey v. The Minister for Social WelfareIRDLRM [1990] 2 I.R. 232; [1990] I.L.R.M. 185.

In re HaugheyIR [1971] I.R. 217.

Hay v. O'GradyIRDLRM [1992] 1 I.R. 210; [1992] I.L.R.M. 689.

Hetherington v. Ultra Tyre Service Ltd.IRDLRM [1993] 2 I.R. 535; [1993] I.L.R.M. 353.

Kahelekai v. Nelson Doi 590 P. 2d. 543.

Larkin v. Gronna (1939) 285 N.W. 59.

Lego Systems Aktienelskab v. M. Lemelstrich Ltd.UNK [1983] F.S.R. 155.

McDaid v. SheehyIRDLRM [1991] 1 I.R. 1; [1991] I.L.R.M. 250.

McDonald v. Bord na gCon (No.2)IRDLTR [1965] I.R. 217; (1965) 100 I.L.T.R. 89.

McKenna v. An Taoiseach (No.1)IR [1995] 2 I.R. 1.

McKenna v. An Taoiseach (No.2)IRDLRM [1995] 2 I.R. 10; [1996] 1 I.L.R.M. 81.

McLoughlin v. The Minister for Social WelfareIRDLTR [1958] I.R. 1; (1956) 93 I.L.T.R. 73.

McMahon v. The Attorney GeneralIRDLTR [1972] I.R. 69; (1971) 106 I.L.T.R. 89.

McMahon v. LeahyIRDLRM [1984] I.R. 525; [1985] I.L.R.M. 423.

Maidstone Borough CaseUNK (1906) 5 O'M. & H. 200.

Meskell v. C.I.E.IR [1973] I.R. 121.

Michigan v. LongUNK (1983) 463 U.S. 1032.

The Minister for Justice v. Wang Zhu JieIRDLRM [1993] 1 I.R. 426; [1991] I.L.R.M. 823.

Murphy and Murphy v. The Attorney GeneralIR [1982] I.R. 241.

O'Donovan v. The Attorney GeneralIRDLTR [1961] I.R. 114; (1961) 96 I.L.T.R. 121.

O'Leary v. The Attorney GeneralIRDLRM [1995] 1 I.R. 254; [1995] 2 I.L.R.M. 269.

O'Toole v. HeaveyIRDLRM [1993] 2 I.R. 544; [1993] I.L.R.M. 343.

The People (Attorney General) v. ConmeyIR [1975] I.R. 341.

The People (Director of Public Prosecutions) v. O'SheaIRDLRM [1982] I.R. 384; [1983] I.L.R.M. 549.

The People (Director of Public Prosecutions) v. ShawIR [1982] I.R. 1.

Prendergast (W.J.) & Sons Ltd. v. Carlow County CouncilIRDLRM [1990] 2 I.R. 482; [1990] I.L.R.M. 749.

R. v. R.IR [1984] I.R. 296.

R. v. Rowe, ex p. MainwaringWLRUNK [1992] 1 W.L.R. 1059; [1992] 4 All E.R. 821.

Renck v. Superior Court of Maricopa County (1947) 187 P. 2d. 656.

Reynolds v. SimsUNK (1964) 377 U.S. 533.

Ritchie v. Richards 14 Utah 345.

Roche v. Ireland (Unreported, High Court, Carroll J., 17th June, 1983).

Russell v. FanningIRDLRM [1988] I.R. 505; [1988] I.L.R.M. 333.

Slattery v. An TaoiseachIR [1993] 1 I.R. 286.

The State (Meads) v. The Governor of Limerick Prison (Unreported, Supreme Court, 26th July, 1972).

The State (Quinn) v. RyanIRDLTR [1965] I.R. 70; (1964) 100 I.L.T.R. 105.

Application of WoodsIR [1970] I.R. 154.

Yick Wo v. HopkinsUNK (1886) 118 U.S. 356.

Referendum - Referendum petition - Government acting unconstitutionally in using public moneys to fund advertising to promote particular result - Whether constituting obstruction, interference, hindrance, mistake or irregularity in conduct of referendum - Whether "conduct of the referendum" relating only to tasks entrusted to statutory officers by legislation - Whether constitutionally permissible for Government to promote particular result if not using public moneys - Referendum Act, 1994 (No. 12), ss. 14 and 43.

Referendum - Referendum petition - Unlawful advertising campaign promoting particular result - Whether result of referendum as a whole affected materially by campaign - Respondents seeking dismissal of petition at conclusion of petitioner's case - What onus of proof resting on petitioner - Whether more appropriate to conduct petition by way of inquiry - Referendum Act, 1994 (No. 12), s. 43.

Referendum - Constitutional integrity of referendum - Whether petition pursuant to statute only method of challenging referendum result - Whether High Court having extra-statutory powers in relation to referendum- Referendum Act, 1994 (No. 12), s. 42, sub-s. 1.

Evidence - Admissibility - Hearsay - Opinion polls - Whether hearsay - Whether admissible as exception to hearsay rule - Whether interpretation of opinion polls by expert witnesses constituting impermissible speculation - Whether secrecy of ballot breached by such evidence.

Supreme Court - Appeal - Petition to High Court questioning provisional referendum certificate - Whether appeal lying to Supreme Court from final order of High Court - Referendum Act, 1994 (No. 12), ss. 55 and 57.

Petition.

The facts and the relevant statutory and constitutional provisions have been summarised in the headnote and are fully set out in the judgments of Murphy J. and Hamilton C.J., infra.

On the 7th December, 1995, the High Court (McCracken J.) gave leave for the presentation of the petition.

The petition was heard by the High Court (Murphy, Lynch and Barr JJ.) between the 11th and 31st January, 1996.

On the 8th February, 1996, the High Court heard submissions as to whether an appeal lay against the judgment and order of the High Court, and as to the granting of a stay in relation to the endorsement of the certificate and its return to the referendum returning officer. The High Court concluded that it should not express any opinion on the jurisdiction of the Supreme Court; and that it was precluded from granting a stay on its order. However, the High Court directed that the certificate should not be endorsed or returned until 2.00 p.m. on the 9th February, 1996, and adjourned the further hearing of the petition until then.

On the 8th February, 1996, the Supreme Court directed the trial of a preliminary issue as to whether an appeal lay to that Court. On the 9th February, 1996, the High Court ordered inter alia that execution of its order relating to the endorsement of the certificate and the return of the endorsed certificate to the referendum returning officer be stayed until further order.

The trial of the preliminary issue was heard by the Supreme Court (Hamilton C.J., O'Flaherty, Blayney, Denham and Barrington JJ.) on the 27th February, 1996.

Notice of appeal was filed by the petitioner on the 8th March, 1996. The appeal was heard by the Supreme Court (Hamilton C.J., O'Flaherty, Blayney, Denham and Barrington JJ.) on the 30th April and the 1st, 2nd and 3rd May, 1996.

Article 47 of the Constitution of Ireland, 1937, provides inter alia:—

"1. Every proposal for an amendment of this Constitution which is submitted by Referendum to the decision of the people shall, for the purpose of Article 46 of this Constitution, be held to have been approved by the people, if, upon having been so submitted, a majority of the votes cast at such Referendum shall have been cast in favour of its enactment into law . . .

4. Subject as aforesaid, the Referendum shall be regulated by law."

By s. 8 of the Referendum Act, 1994, a person who has voted at a referendum "shall not in any legal proceedings be required to state how he voted."

By s. 14 of the Act of 1994, the Minister for the Environment shall appoint a referendum returning officer, whose duty it shall be to "conduct the referendum." Among the duties of such officer is the preparation of a provisional referendum certificate, stating inter alia whether a majority of the votes recorded at the referendum was or was not recorded in favour of the proposal. Such a certificate becomes "final and incapable of being challenged" unless it is successfully questioned by means of a referendum petition.

By s. 42, sub-s. 1 of the Act of 1994, "the validity of a provisional referendum certificate may, and may only, be questioned by a petition to the High Court . . . in accordance with this Act."

Section 43, sub-s. 1 of the Act of 1994 provides as follows:—

"A referendum petition may question a provisional referendum certificate on the grounds that the result of the referendum as a whole was affected materially by:— "

  1. (a) the commission of an offence referred to in Part XXII of the [Electoral Act, 1992],

  2. (b) obstruction of or interference with or other hindrance to the conduct of the referendum,

  3. (c) failure to complete or otherwise conduct the referendum in...

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