McNulty v Ireland and the Attorney General & Ors,  IESC 2 (2015)
THE SUPREME COURTAppeal No. 268/13
IRELAND AND THE ATTORNEY GENERALRespondentsand
THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE IRISH HUMAN RIGHTS COMMISSION Notice Parties
Judgment delivered on the 21st January, 2015 by Denham C.J.
This appeal raises an issue of statutory interpretation.
At issue is the meaning of s. 41(3) of the Criminal Justice Act, 1999, as amended, which Act is referred to as “the Act of 1999”.
Section 41 of the Act of 1999, provides:-
“(1) Without prejudice to any provision made by any other enactment or rule of law, a person—
(a) who (whether inside or outside the State) harms or threatens, menaces or in any other way intimidates or puts in fear another person who is assisting in the investigation by the Garda Síochána of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence, or a member of his or her family, or his or her civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010,
(b) with the intention thereby of causing the investigation or the course of justice to be obstructed, perverted or interfered with, a member of his or her family,
shall be guilty of an offence.
(3) In proceedings for an offence under this section, proof to the satisfaction of the court or jury, as the case may be, that the accused did an act referred to in subsection (1)(a) shall be evidence that the act was done with the intention required by subsection (1)(b).”
(5) A person guilty of an offence under this section shall be liable –
(a) on summary conviction, to a fine not exceeding €2,500 or imprisonment for a term not exceeding 12 months or both, and
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 15 years or both.”
Persons identified in s. 41(1), i.e. a person assisting in the investigation by the Garda Síochána of an offence, or a witness or potential witness or a juror or potential juror, or a member of his or her family, or his or her civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010, are referred to in this judgment as a “classified person”.
This is an appeal by Mr. McNulty, the plaintiff/appellant, referred to as “the appellant”, from the judgment of the High Court (Gilligan J.) delivered on the 31st May, 2013,  IEHC 357, which rejected the claim that s. 41(3) of the Act of 1999 is repugnant to the provisions of the Constitution or incompatible with the provisions of the European Convention on Human Rights.
The appellant is charged that on the 20th November, 2011, in Tallaght, in the District Court area Dublin Metropolitan District, he threatened, menaced, intimidated, put in fear, Edward Jones, a witness in proceedings for an offence with the intention of causing the course of justice to be obstructed, perverted or interfered with, contrary to s. 41(1) and s. 41(5) of the Act of 1999.
Edward Jones has been in a relationship with Michelle McNulty, who was married to the appellant for five years from 2004 to 2009.
At the time of the alleged offence there was a prosecution pending against the appellant arising out of an assault allegedly perpetrated on Edward Jones on the 17th October, 2010, about which Edward Jones made a complaint to the Garda Síochána. The first charge in respect of this offence was struck out on the 6th November, 2011, and the appellant was re-charged with the offence on the 23rd November, 2011.
The appellant brought plenary proceedings seeking a declaration that s. 41 of the Act of 1999 was invalid having regard to Article 38 of the Constitution of Ireland, or that s. 41(3) was invalid having regard to Article 38 of the Constitution. In the alternative, he seeks a declaration pursuant to s. 5 of the European Convention on Human Rights Act, 2003, that s. 41(3) of the Act of 1999 is incompatible with Article 6 of the European Convention on human rights. The appellant also sought a number of ancillary orders.
In paragraph 10 of the Statement of Claim the alleged facts are described as follows:-
“The [appellant] was prosecuted for an alleged assault against his former partner’s current partner, Mr. Edward Jones. This charge was struck out on the 6th November, 2011. The allegation against the [appellant] said to Mr. Jones ‘Come out here and I’ll give you a proper hiding. I didn’t give you enough the last time’. There is no allegation of any intention to pervert the course of justice by such comments. The [appellant] was subsequently recharged and ultimately convicted of the alleged assault, which case is currently under appeal before Dublin Circuit Court.”
The respondents, Ireland and the Attorney General, and the first named Notice Party, the Director of Public Prosecutions, in written submissions to this Court, stated that they do not accept that the appellant did not intend to interfere with the course of justice or that threat, menace or words of intimidation are not capable of evidencing such an intention.
The High Court
The High Court (Gilligan J.) upheld the constitutionality of the provisions, stating at paras. 38 – 45 that:-
“38. Section 41(3) of the 1999 Act does not provide, as submitted by the [appellant], that the evidence is conclusive; all it does is provide that the act of harming, threatening, menacing or putting in fear ‘shall be evidence’ that the act was done with the intention required. There is no onus on any court to accept that evidence. There is no reference in the section to the burden of proof altering or the presumption of innocence being set aside. There is nothing in the section that provides for a conclusive situation or that it is incumbent on the judge or jury to accept the evidence.
Further s. 41(3) does not oblige the court to draw any inferences but the court has discretion to do so. As the section stands, it provides for the court to evaluate and assess the significance of the evidence before it. It does not infringe on the accused’s right to the presumption of innocence.
Similarly the Supreme Court in Hardy in dismissing the appeal held:-
‘…in the course of a trial for an offence under s. 4, sub-s. 1 of the Explosive Substances Act, 1883, the prosecution remained under an obligation to prove all the elements of the offence beyond a reasonable doubt; the principle that an accused must be tried in due course of law was not infringed by a statutory provision which permitted the drawing of inferences from facts proved beyond a reasonable doubt by the prosecution’.
I accept the submission of Mr. Callanan that the burden of proving, beyond reasonable doubt, remains on the prosecution throughout any action taken under the legislation and s. 41(3) of the 1999 Act merely provides that an accused may have an evidentiary burden to displace where prima facie there is evidence pointing to his guilt.
Section 41(3) of the Criminal Justice Act, 1999 does not discharge the prosecution of the onus to prove the act alleged beyond reasonable doubt. Further, nothing in the section invalidates the right to a trial in due course of law. Hederman J. in Hardy stated:-
‘…this analysis complies with our well-established criminal law jurisprudence in regard to having trials in due course of law. That constitutional requirement applies whether the offence is made an offence under a pre or post constitutional enactment. It protects the presumption of innocence; it requires that the prosecution should prove its case beyond all reasonable doubt; but it does not prohibit that, in the course of the case, once certain facts are established, inferences may not be drawn from those facts and I include in that the entitlement to do this by way of documentary evidence. What is kept in place, however, is the essential requirement that at the end of the trial and before a verdict can be entered the prosecution must show that it has proved its case beyond all reasonable doubt.’
It is clear from the decision in Rock that the provisions under s. 41(3) of the Criminal Justice Act, 1999 do not oblige a court to draw inferences – the court retains discretion to do so. The court has an obligation to ensure that no improper or unfair inferences are drawn. I am of the view that there is nothing contained in s. 41(3) of the 1999 Act that would limit this obligation.
Further the court has an inherent obligation to conduct a trial in a manner consistent with the plaintiff’s constitutional rights, which would include allowing him to rebut any evidence offered against him.
On the basis of the contentions submitted on the plaintiff’s behalf, I am not ‘satisfied that s. 41 of the Criminal Justice Act 1999 is incompatible with Article 38 of the Constitution.’”
Notice of Appeal
The appellant has brought an appeal against the order and judgment of the High Court, filing eight grounds of appeal, as follows:-
(i) The learned trial judge erred in fact and in law in determining that s. 41(3) of the Criminal Justice Act, 1999, is not...
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