Hanafin v Minister for the Environment

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 12 June 1996
• Date: 12 June 1996
• Docket Number: [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

[1995 No. 72 M.C.A.; S.C. Nos. 48 and 86 of 1996]

High Court

High Court

Supreme Court

Supreme Court

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.

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:— "

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

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

• (c) failure to complete or otherwise conduct the referendum in accordance with this Act, or

• (d) mistake or other irregularity in the conduct of the referendum or in the particulars stated in the provisional referendum certificate."

By s. 47, the High Court may order the recounting of votes; and by s. 48 it may order that the referendum be taken again in a particular constituency.

By s. 55, the High Court may "at any stage of the trial of a referendum petition" state a case for the opinion of the Supreme Court on any question of law arising at the trial.

By s. 57, sub-s. 1 of the Act of 1994, the "final order" of the High Court may confirm without alteration a provisional referendum certificate or direct that the certificate be amended in accordance with the findings of the Court; and by sub-ss. 3 and 4, the certificate shall be endorsed accordingly. By sub-s. 5, the certificate shall,

"when it is received by the referendum returning officer from the High Court, forthwith become and be, in the form in which it was confirmed by the court, final and incapable of being further questioned in any court and shall, in that form, be conclusive evidence of the voting at the referendum to which it relates and of the result of such referendum."

The 15th Amendment to the Constitution Bill (No. 2) was passed by both Houses of the Oireachtas on the 18th October, 1995. This was a proposal to amend Article 41 of the Constitution to permit divorce in certain circumstances.

In June, 1994, Dáil Éireann éireann had voted a sum of £500,000 in respect of "the information campaign in the run up to the Divorce referendum." The Government retained an advertising agency to prepare and implement a print-based advertising campaign urging a "Yes" vote in the referendum. In June, 1992, in McKenna v. An Taoiseach (No. 1), the High Court had refused to grant a declaration that the expenditure of public funds to encourage a particular vote in a referendum was unconstitutional. In October, 1995, in McKenna v. An Taoiseach (No.2), the High Court again refused such a declaration; however, on appeal, the Supreme Court declared on the 17th November, 1995, that the Government, in expending public moneys in the promotion of a particular result, was acting in breach of the Constitution. The advertising campaign was ended, although it was too late to prevent the publication of one advertisement.

The poll in the referendum was taken on the 24th November, 1995. The provisional referendum certificate recorded that a majority of votes had been recorded in favour of the proposal, the figures being 818,842 for and 809,728 against.

The petitioner contended that the unconstitutional action of the Government in funding a campaign promoting a particular result constituted an obstruction of or interference with or irregularity in the conduct of the referendum, within the meaning of s. 43, sub-s. 1 (b) and (d), which had materially affected the result of the referendum as a whole. It was further contended that not only the funding of the campaign rendered it unconstitutional, but also the fact that it was conducted by the members of the Government qua Government. The petitioner contended that the phrase "conduct of the referendum" must be given as wide a meaning as was necessary to vindicate his constitutional rights. The petitioner sought to adduce evidence of opinion polls taken at various dates in order to establish the voting intentions of the people at various times, and to adduce expert evidence as to what factors had influenced those intentions.

The respondents objected to the admissibility of the opinion polls as hearsay. It was also contended that any conclusions drawn by expert witnesses from the opinion polls amounted to impermissible speculation; and further, that the admission of evidence as to how voters intended to vote, or had actually voted, offended the secrecy of the ballot protected by s. 8 of the Act of 1994.

Held by the High Court (Murphy, Lynch and Barr JJ.), in admitting evidence of the opinion polls, 1, that evidence obtained by a properly conducted research survey was a legitimate proof of the fact that the opinions obtained had in fact existed, and so was not hearsay.

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

2. That even if the opinion polls did constitute hearsay, they would still be admissible by way of exception to the hearsay rule as exhibiting a state of mind shared in common by a designated class of persons.

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

3. That the inferences to be drawn from the opinion polls would not necessarily involve impermissible speculation.

4. That the principle that a voter could not be compelled to disclose his ballot was not jeopardised by the admission of evidence that some part of the electorate, unnamed and unidentified, changed their mind in relation to their voting intentions.

McMahon v. The Attorney General [1972] I.R. 69 and Ritchie v. Richards 14 Utah 345 considered.

At the conclusion of the petitioner's evidence the respondents applied to dismiss the petition on the grounds that the Court had no power to interfere with the result of a referendum conducted in accordance with law. It was further contended that the phrase "conduct of the referendum" in s.43 of the Act of 1994 referred only to the procedures laid down elsewhere in that Act; and that in any case the evidence called by the petitioner had not established that the unconstitutionally funded campaign had materially affected the result of the referendum as a whole.

Held by the High Court (Murphy, Lynch and Barr JJ.), in dismissing the petition and confirming the provisional referendum certificate, 1, that the will of the people properly ascertained and freely expressed in a referendum on the amendment of the Constitution conducted in accordance with law was supreme and beyond review by the judicial or any other organ of State...