Sam Mcnulty v Ireland and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Paul Gilligan
Judgment Date31 May 2013
Neutral Citation[2013] IEHC 357
Docket Number[No. 5193 P/2013]
Date31 May 2013

[2013] IEHC 357

THE HIGH COURT

[No. 5193 P/2013]
McNulty v Ireland & AG
IN THE MATTER OF SECTION 5(1) OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT, 2003

BETWEEN:

SAM MCNULTY
PLAINTIFF

AND

IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE IRISH HUMAN RIGHTS COMMISSION
NOTICE PARTIES

CRIMINAL JUSTICE ACT 1999 S41(1)

CRIMINAL JUSTICE ACT 1999 S41(5)

CRIMINAL JUSTICE ACT 1999 S41(3)

CRIMINAL JUSTICE ACT 1999 S41

CONSTITUTION ART 38

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(2)

MCGOWAN v CARVILLE 1960 IR 330

C (C) v IRELAND 2006 4 IR 1

CRIMINAL LAW (AMDT) ACT 1935 S1(1)

EMPLOYMENT EQUALITY BILL 1996, IN RE 1997 2 IR 321

R v VAILLANCOURT 1987 2 SCR 636

CANADIAN CRIMINAL CODE S213(D)

R v OAKES 1986 1 SCR 103

O'LEARY v AG 1993 1 IR 102

O'LEARY v AG 1995 1 IR 254

HARDY v IRELAND 1994 2 IR 550

MEADOWS v MIN FOR JUSTICE 2010 2 IR 701

TELFNER v AUSTRIA (APP. 33501/96) 2002 34 EHRR 207

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(2)

SALABIAKU v FRANCE 1988 13 EHRR 379

O'LEARY v AG 1993 1 IR 102

OFFENCES AGAINST THE STATE (AMDT) ACT 1972 S3(2)

OFFENCES AGAINST THE STATE ACT 1939 S24

ROCK v IRELAND 1997 3 IR 484

CRIMINAL JUSTICE ACT 1984 S18

CRIMINAL JUSTICE ACT 1984 S19

EAST DONEGAL COOPERATIVE LIVESTOCK MARTS LTD v AG 1970 IR 317

Intimidation of a witness - Inferences - Evidential burden - Legal burden of proof - Presumption of innocence - Compatibility - Proportionality - Interference with the course of justice

Facts: The plaintiff was charged with assaulting Edward Jones in October 2010. This charge was struck out. In November 2011, the plaintiff allegedly made a statement threatening Edward Jones. Under s 41(3) of the Criminal Justice Act 1999, an act carried out by a person that ‘harms or threatens, menaces or in any other way intimidates’ a person assisting in the investigation of an offence shall be evidence of an intention to interfere with the course of justice. The respondents submitted that at the time of the statement, an investigation into the plaintiff concerning the assault charge was being conducted, and that the incident was therefore evidence of intent to interfere with the course of justice.

The plaintiff sought a declaration that s41 (3) of the1999 Act was in contravention of art 38 of the Constitution and incompatible with art 6 of the European Convention on Human Rights. It was argued that the subsection was contrary to the presumption of innocence as it allowed evidence of the actus reus of an offence to also be evidence of the mens rea, and that, therefore, the prosecution was no longer required to prove their case beyond reasonable doubt. The plaintiff further submitted that the subsection at issue was disproportionate to its purpose. He sought damages; costs; an injunction; and such other orders as the court deemed fit.

The court found that the subsection did not create a situation where the evidence was conclusive. All the subsection did was provide that harming, threatening, menacing or otherwise intimidating was evidence of intention. Moreover, the subsection was held to not oblige the court to draw any inferences, with it merely giving the court discretion to do so; it did not violate the presumption of innocence. Additionally, the court held that the burden of proving beyond reasonable doubt remained on the prosecution even where the subsection was invoked; the Act only imposed an evidentiary burden. The court was not convinced that the subsection was incompatible with art 38 of the Constitution or art 6 of the ECHR; nor was it deemed to be disproportionate.

The court therefore refused to grant the relief sought.

Mr. Justice Paul Gilligan
1

The plaintiff stands charged with an offence contrary to s. 41(1) and (5) of the Criminal Justice Act,1999, namely intimidation of a witness. The charge against the accused is set out as follows:-

"That you the said accused/defendant on 20/11/2011 at Deerpark Downs, Tallaght, Dublin 24 in said District Court area of Dublin Metropolitan District, did threaten, menace, intimidate, put in fear another person, to wit, Edward Jones who is a witness in proceedings for an offence with the intention of causing the course of justice to be obstructed or perverted or interfered with".

2

Section 41(1) of the Criminal Justice Act,1999 provides:-

"Without prejudice to any provision made by any other enactment or rule of law, a person-"

(a) who 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,

a (b) with the intention thereby causing the investigation or the course of justice to be obstructed, perverted or interfered with,

shall be guilty of an offence."
3

Section 41(3) provides:-

"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 (l)(a) shall be evidence that the act was done with the intention required by subsection (l)(b)".

4

The plaintiff, Mr. McNulty, was charged that on the 17th day of October 2010, he assaulted Mr. Edward Jones, the current partner of his former wife. The charge was initially struck out on a technicality on the 6th November 2011. The charge currently against the plaintiff relates to an incident that on 20th November 2011, the applicant allegedly said to Mr. Jones "Come out here and I'll give you a proper hiding. I didn't give you enough the last time". It is submitted by the respondents that at the time of that alleged statement there was an ongoing investigation against the plaintiff relating to the assault charge. The plaintiff was subsequently re-charged, convicted of the assault and given the Probation Act. The respondents submit that the alleged incident of 20th November 2011 amounts to an interference with the course of justice and that the threat, menace and words of intimidation used are evidence of such intent.

5

The plaintiff contends that the alleged incident of 20th November 2011 was not, in any way, intended to intimidate Mr. Jones and maintains that the alleged incident related to a domestic dispute. The plaintiff seeks a declaration that s. 41 of the Criminal Justice Act,1999 is invalid having regard to Article 38 of Bunreacht na hÉireann; in the alternative a declaration that s. 41(3) of the Criminal Justice Act, 1999 is invalid having regard to Article 38 of Bunreacht na hÉireann; a declaration pursuant to s. 5 of the European Convention on Human Rights Act, 2003 that s. 41 of the Criminal Justice Act, 1999 is incompatible with Article 6 of the European Convention on Human Rights and Fundamental Freedoms; in the alternative, a declaration pursuant to s. 5 of the European Convention on Human Rights Act, 2003 that s. 41(3) of the Criminal Justice Act, 1999 is incompatible with Article 6 of the European Convention on Human Rights and Fundamental Freedoms.

6

The plaintiff further seeks damages pursuant to common law and/or s. 3(2) of the European Convention on Human Rights Act,2003 for loss, damage, inconvenience and expense; an interim and/or interlocutory injunction restraining the further prosecution of the charges pending the outcome of the herein proceedings; interest pursuant to the statute; such further or other order as to the court seems fit and the costs of the proceedings.

7

Ms. McDonagh for the plaintiff submits that there is no allegation to suggest any intention to pervert the course of justice by the alleged comments. It is submitted that the likely interpretation of the allegation can be attributed to the fact that both the plaintiff and complainant were allegedly involved in a domestic altercation involving the plaintiff's former partner at a time where the plaintiff's child was being dropped off for an access visit.

8

It is submitted on the plaintiff's behalf that s. 41(3) of the 1999 Act provides that proof of a threat made against a witness shall be evidence that it was done with the intention to pervert the course of justice. It is submitted that there is no provision for the rebuttal of such evidence. It is further contended that the impugned provision, particularly subsection (3), discharges the prosecution of their duty to prove its case beyond reasonable doubt, relieving them of the requirement to provide actual evidence of an intention to pervert the course of justice, meaning they only have to prove a threat was made to a person who is a witness. Therefore, it is argued, the subsection essentially provides that proof of theactus reusof the threat is evidence of the specific mens reaand, without more, is capable of amounting to sufficient evidence for a conviction.

9

Ms. McDonagh submits that the prosecution must prove every element of the alleged offence beyond reasonable doubt. She refers toMcGowan v. Carville [1960] I.R. 330 where Murnaghan J. held:

"…there is no onus on a person charged with an offence to prove his innocence, the onus at all times being on the State to prove his guilt".

10

It is also contended that the presumption of innocence requires that the prosecution must prove some actual evidence in respect of all necessary ingredients of the offence in order to satisfy the onus upon them.

11

Referring toC.C. v. Ireland [2006] 4 I.R. 1, counsel notes that the accused was charged with unlawful carnal knowledge of a minor contrary to section 1(1) of the Criminal Law (Amendment) Act, 1935. The Supreme Court considered whether such an offence was...

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3 cases
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