archive-ie.com » IE » S » SUPREMECOURT.IE

Total: 1020

Choose link from "Titles, links and description words view":

Or switch to "Titles and links view".

  • of the Supreme Court Search Judgments by Year Advanced Search Latest Judgments Important Judgments Article 26 References Search Judgments by Year 2016 02 04 2016 Reynolds v Blanchfield 02 03 2016 Sweetman v Shell E P Ireland Limited ors 01

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/frmSCJudgmentsByYear?OpenForm&Start=1&Count=35&Expand=1&Seq=2 (2016-02-09)
    Open archived version from archive



  • the exceptions unless the exceptions were themselves mandated by the Constitution Most importantly from the perspective of this case he emphasised in the same paragraph that the Constitution does not expressly limit appeals to points argued at trial What the Constitution requires is an appeal which permits the Supreme Court to consider whether the result in the High Court is correct The precise format and procedure of any such appeal is not dictated by the Constitution While that object is often and best achieved by a careful analysis of the argument in the High Court and the High Court s adjudication of said argument it does not follow that the constitutional appeal must always be limited to that process 9 The argument of points on appeal not considered at first instance encompasses circumstances that point to potentially extreme contrasts between the factors which enable the exercise by this Court of what is a broad discretion There is a continuum between lack of merit in bringing in fresh points on appeal simply because they have occurred to the parties or their lawyers late in the day and cases where the discretion should favour an appellant In exercising that discretion the fundamental point is where the balance of fairness lies That however cannot be the only factor Given that the Constitution as Henchy J stated in Movie News Ltd v Galway County Council case contemplates a full hearing of all issues at first instance and an appeal only on such points of law as have been fully ventilated at first instance a party seeking to raise a novel legal issue on appeal must justify that by reference to some special or extraordinary factor In a broad sense it can be possible to describe the circumstances in which that argument might find purchase As O Donnell J said in that judgment at paragraph 28 There is a spectrum of cases in which a new issue is sought to be argued on appeal At one extreme lie cases such as those where argument of the point would necessarily involve new evidence and with a consequent effect on the evidence already given as in K D Otherwise C v M C 1985 I R 697 for example or where a party seeks to make an argument which was actually abandoned in the High Court as in Movie News Ltd v Galway County Council Unreported Supreme Court 25th July 1977 or for example where a party sought to make an argument which was diametrically opposed to that which had been advanced in the High Court and on the basis of which the High Court case had been argued and perhaps evidence adduced In such cases leave would not be granted to argue a new point of appeal At the other end of the continuum lie cases where a new formulation of argument was made in relation to a point advanced in the High Court or where new materials were submitted or perhaps where a new legal argument was sought to be advanced which was closely related to arguments already made in the High Court or a refinement of them and which was not in any way dependent upon the evidence adduced In such cases while a court might impose terms as to costs the court nevertheless retains the power in appropriate cases to permit the argument to be made 10 Of course it is not possible to give any definitive list of factors In addition however to those stated above the urgency or importance of decision on a point of law which affects a multitude of cases and the conduct of the litigation may also be important In Koger Inc Anor v James O Donnell Ors 2013 IESC 28 the argument of a new point on appeal was disallowed where it was completely opposed to the points raised during the trial in the High Court On the other hand in Cussens Ors v Brosnan Inspector of Taxes 2015 IESC 48 a fresh ground which was closely related to the arguments advanced at first instance was allowed it being regarded as arising from the questions already posed in the case In the context of the fundamental obligation of the courts under the Constitution to seek to dispense justice to litigants earlier cases on the exercise of this discretion are of limited assistance see for instance London Chatham and Dover Railway Company v South Eastern Railway Company 1888 40 Ch D 100 and Davis v Galmoyle 1888 39 Ch D 322 Any discretion to enable a new point to be argued on appeal is to be exercised in order to pursue the aim of fundamental fairness within the limitations of the constitutional structure This case 11 The point now sought to be argued is not fact dependant the interest of Kathleen Lynn the nature of the land holding and the fact that this is registered land are all beyond dispute No misconduct or inadvertence in the litigation by either side needs to be taken into consideration since the state of the law at the time of the High Court judgment appeared to be settled Hence each side properly relied on such authorities as were then available to them Nor is this issue one that was not considered at trial At all times the situation of a wife holding an interest in a family home that had been made subject to a judgment mortgage would have been a key question on the issue as to whether the appealed order should be made The fresh point was raised in the notice of appeal at the earliest possible opportunity and incorporated in the written submissions on the appeal so that there has been a fair opportunity to deal with it Most importantly however on the particular facts of this appeal is the issue of this Court being placed in a position of being required to do an injustice Should the point as to jurisdiction not be allowed to be argued this Court would be affirming an order of the High Court where that court did not have the necessary jurisdiction In all the circumstances the Court s discretion should be exercised in favour of Kathleen Lynn as defendant appellant 12 Since the law on the issue is clear the order of the High Court should be overturned on appeal 13 Finally counsel for ACC Bank has sought to make the exercise of the Court s discretion in favour of Kathleen Lynn subject to conditions Prior decisions have resulted in appropriate orders as to costs where such an adjustment is necessary to maintain the balance of fairness between the parties see in particular Lough Swilly Shellfish Growers v Bradley per O Donnell J at paragraph 28 which is quoted above No compelling reason has been advanced in this case why the Court should extend the reasoning in that case in this instance What ACC Bank seek is leave to amend pleadings with a remittal to the High Court to enable the point Part 2 and specifically section 117 of the Land and Conveyancing Law Reform Act 2009 to be used to cure the defect in issue While at times the appeal in this case drifted towards an analysis of whether that provision might cure or improve the position of a judgment mortgage holder in similar circumstances the matter is not now for decision 14 The point sought to be counter argued by ACC Bank is as novel a point as could be imagined The legislation sought in aid was not in existence at the time of the High Court order Whereas ACC Bank might consider that the issue of fresh proceedings in order to pursue that point might be unprofitable in the context of their apparently extant remedy in aid of execution any such proceedings if issued would first have to be considered in the High Court In addition the passage of time is to be noted Whether the age of the judgment mortgage renders it infirm or whether an exception to the limitation period is enabled by the decision of this court in Krops v Irish Forestry Board 1995 2 IR 113 are among the issues that would thereby come into focus 15 Imposing such a condition on Kathleen Lynn would not be right What should not happen on appeal through the raising of novel points is the complete recasting of the litigation Were that to be allowed the measured consideration of points on appeal would be replaced by an appellate court constituting itself a court of first instance and depriving the parties of the remedy of appeal that is inherent in the structure of Article 34 of the Constitution Result 16 In consequence the appeal should be allowed The order of the High Court should be discharged except a the order declaring that the principal moneys secured by the said judgment mortgage created by registration and the interest thereon and the costs of registration stand well charged on the interest of Gerard Lynn in the said lands and premises and b the order acknowledging that there is due to ACC Bank on foot of the judgment a sum of 27 239 87 for principal together with interest at the rate of 8 percent from the 7th day of April 2003 An Chúirt Uachtarach The Supreme Court Record number 2004 477Sp Appeal number 488 2006 Laffoy J Charleton J O Malley J Between ACC Bank plc Plaintiff Respondent and Gerard Lynn Defendant and Kathleen Lynn Defendant Appellant Judgment of Mr Justice Charleton delivered on Monday the 21st December 2015 1 In the special indorsement of claim on the special summons originally returnable for 1st December 2005 the respondent ACC Bank sought from the High Court declarations that a judgement mortgage registered by the bank over Folio 6027F of the Register of Freeholders County Westmeath stood well charged over the interest of Gerard Lynn the 1st named defendant in the said lands A declaration was also sought that this defendant owed the bank the sum of 27 237 87 as of 7th April 2003 as well as seeking an account sale of the lands possession and an enquiry an order was sought providing for the partition of the said land and premises 2 The matter came on for hearing on the ordinary Monday list before McKechnie J on 5th December 2005 He made an order declaring that the principal monies secured by the judgment mortgage stood well charged on the first defendant s interest in the said land and premises and further ordered that in default of payment by the first defendant the said land and premises be sold in lieu of partition at such time and place and subject to such conditions of sale as shall be settled by the Court 3 Gerald Lynn and Kathleen Lynn are husband and wife The relevant land incorporates the family home in Mullingar They are joint tenants of the registered freehold land Kathleen Lynn is the sole appellant though clearly the outcome of the appeal also affects her husband Issue on appeal 4 Kathleen Lynn seeks to argue a new point on the appeal and this point appears in the notice of appeal thus The High Court erred in law in determining that it had jurisdiction to order sale in lieu of partition at the suit of the judgement creditor whose judgement mortgage affect the interest of one only of two joint tenants of registered freehold land This matter is not comprehensible save in the context of a chronology of events It is in accordance with that sequence that the correctness of the judgment of McKechnie J must be analysed The note agreed by counsel of his judgment of 5th December 2005 reads The question of whether a judgement creditor could obtain an order for sale in lieu of partition over registered lands held by joint tenants as is the case here was the subject of some uncertainty for a long period The recent judgement of the High Court in Irwin v Deasy unreported Finlay Geoghegan J 1st March 2004 opened to me by counsel for the bank establishes that he can I rejected the argument that there is an error in the affidavit of Tara Glynn sufficient to withhold the well charging order Even if the matter was dealt with on the basis of section 3 of the Partition Act 1868 as opposed to section 4 an order for sale should be made I will make orders in terms of paragraphs 1 2 3 4 and 6 of the summons together with an order for costs to the plaintiff with an order for taxation I will put a stay on the orders until 31st March 2006 By way of explanation the affidavit of Kathleen Lynn referred to is the affidavit of judgment on foot of which the judgment mortgage was registered on Folio 6027F of County Westmeath Chronology 5 A chronology in this case is best set out in linear form 7th April 2003 ACC Bank obtain judgment against Gerald Glynn in the sum of 23 638 55 in the Circuit Court 25th August 2003 a judgment mortgage is registered as against his interest in the land 1st March 2004 the first judgment in unrelated case of Irwin v Deasy 2004 4 IR 1 is given by Finlay Geoghegan J As a precedent that decision was followed in this case in the High Court This decision was to the effect that where there was more than one co owner of a property that the other co owner should be joined in the special summons proceedings Nonetheless the decision was to the effect that there was a jurisdiction to make an order for sale instead of an order for partition under sections 3 and 4 of the Partition Act 1868 5th December 2005 judgment of McKechnie J in the High Court in this case 31st January 2006 the second judgment in Irwin v Deasy is given by Laffoy J in the High Court This decided that a judgment creditor who had a judgment mortgage registered against the interest of one co owner in registered land did not have any sufficient interest to maintain an action for the partition of such lands and accordingly in the absence of legislative intervention the High Court had no jurisdiction to order a sale instead of ordering partition of the entirety of the co owned registered land to enforce a judgment mortgage registered only against the interests of one co owner 13th December 2006 after over a year had passed from his judgment the order of McKechnie J is perfected 21st December 2006 Kathleen Lynn files a notice of appeal to this Court That notice specifically calls in aid the point of the decision of Laffoy J in Irwin v Deasy 1st December 2009 the Land and Conveyancing Law Reform Act 2009 comes into force 13th May 2011 this Court upholds the judgment of Laffoy J in Irwin v Deasy both the High Court and the Supreme Court judgment are reported at 2011 2 IR 752 24th August 2015 as of midnight on this date 12 years have passed since the registration of the judgement mortgage and without deciding the matter it would appear that any claim to enforce same is statute barred 16th December 2015 this case comes for hearing before this Court with both sides represented by solicitor and counsel No dispute 6 ACC Bank does not contest that in the event that the appellant Kathleen Lynn is entitled to as is sought raise the same point as in Irwin v Deasy 2011 2 IR 752 that the High Court lacked jurisdiction and that the order of McKechnie J cannot stand It must be remembered that a judgment mortgage is purely an order in execution It is subject to particular safeguards that are set down in law over centuries 7 What is in dispute is that ACC Bank opposes the raising of what is described as a new point by Kathleen Lynn The effect of not allowing this point to be argued was responsibly accepted by ACC Bank as meaning that an order of the High Court would be upheld by this Court where the original order was made without jurisdiction In that regard for the avoidance of doubt it should be remembered that the decision of Finlay Geoghegan J in Irwin v Deasy No 1 was correctly opened to the High Court and that as of the date of the judgment of McKechnie J he was required to follow that judgment save in the exceptional circumstances where a judge does not follow a decision of the court at the same level The appellant bank further argues that in the event that the new point is allowed to be argued on appeal that it should be subject to condition whereby the matter is remitted to the High Court with an entitlement to ACC Bank to amend the pleadings to enable a claim for an order for sale of the lands and a distribution of the proceeds of sale be made under Part 2 and specifically section 117 of the Land and Conveyancing Law Reform Act 2009 Any such condition is opposed by counsel on behalf of Kathleen Lynn New point on appeal 8 Movie News Ltd v Galway County Council Supreme Court unreported 25th July 1977 sets out clearly the reasons why points not argued before the High Court should not save in the most exceptional circumstances be argued for the first time on appeal to the Supreme Court As Henchy J stated it would be wrong for the Supreme Court under the guise of an appeal to enter on the trial of a matter as of first instance and thereby deprive the party aggrieved with its decision of the constitutional right of appeal which he would have if that matter had been decided in the High Court Nonetheless this Court retains discretion to enable a point

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/7b292c7fe2a098ca80257f22004a6022?OpenDocument (2016-02-09)
    Open archived version from archive


  • been cited with approval in subsequent decisions such as The People DPP v O Shea 1982 I R 384 Irish Asphalt Limited v An Bord Pleanála 1996 2 I R 179 Hanafin v Minister for Environment 1996 2 I R 231 and A B v Minister for Justice Equality and Law Reform 2002 1 I R 296 As can be seen it has been emphasised time and again that any restriction on the right of appeal contained in legislation must be clear and unambiguous as was also acknowledged by Murray J in the passage cited above The decision in A B v Minister for Justice Equality and Law Reform is an example of a decision in which it was found that there was ambiguity in the legislation in relation to the question of a right of appeal against a refusal to extend time to apply for judicial review and the right to appeal that issue was not restricted by the general policy considerations to be found in s 5 of Illegal Immigrants Trafficking Act 2000 It is undoubtedly the case that in order to restrict a right of appeal the language used in a statute must be clear and unambiguous The interpretation and effect of the statutory provision at issue in this case s 50A 7 of the Act of 2000 was considered in the decision of this Court in the case of Browne v Kerry County Council The judgment of Murray J in that case expressly adopted the dicta of Kearns J set out in Canty v Residential Tenancies Property Board referred to above on the interpretation of the similar terms used in s 50 4 f i of the Act of 2000 Subsequently the decision in Browne was considered again by this Court in the case of McPhilips and McGinley referred to above The Supreme Court in Browne was satisfied that the determination of the question of costs following a decision on the merits of the case in judicial review is an intrinsic and inherent part of the proceedings and that the reference to decision of the Court in s 50A 7 encompasses the decision of the Court on costs and that accordingly the question of costs was not an issue which could be the subject of a separate appeal without the necessity of a certificate from the High Court to that effect Given the decision of this Court in Browne v Kerry County Council a decision which has been applied most recently in the case of McPhilips and M cGinley it follows that this appeal must be struck out in circumstances where there is no certificate of the learned trial judge certifying a point of law unless this Court could be persuaded to depart from its decision in Browne or alternatively can distinguish the decision in Bro wne v Kerry County Council from the circumstances of this case The jurisprudence of this Court in relation to departing from its earlier decisions has been set out in a number of important decisions over the years These include Attorney General and Anor v Ryan s Car Hire Limited 1965 1 I R 642 in which it was made clear that the Supreme Court could depart from an earlier decision where that decision was wrong As Kingmill Moore J stated at pp 653 to 654 But where the Supreme Court is of the opinion that there is a compelling reason why it should not follow an earlier decision of its own or of the Courts of ultimate jurisdiction which preceded it where it appears to be clearly wrong is it to be bound to perpetuate the error In my opinion the rigid rule of stare decisis must in a Court of ultimate resort give place to a more elastic formula Where such a Court is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it at all events in exceptional cases Subsequently in Mogul of Ireland v Tipperary North Riding County Council 1976 I R 260 Henchy J set out the applicable principles which have since been considered on many occasions and applied He stated at p 272 Therefore the primary consideration is whether this Court is clearly of opinion that the decision in Smith s Case was erroneous If the point were res integra one might reach the opposite conclusion but I do not think it is possible to assert a clear opinion that Smith s Case was wrongly decided A decision of the full Supreme Court be it the pre 1961 or the post 1961 Court given in a fully argued case and on a consideration of all the relevant materials should not normally be overruled merely because a later Court inclines to a different conclusion Of course if possible error should not be reinforced by repetition or affirmation and the desirability of achieving certainty stability and predictability should yield to the demands of justice However a balance has to be struck between rigidity and vacillation and to achieve that balance the later Court must at the least be clearly of opinion that the earlier decision was erroneous Even if the later Court is clearly of opinion that the earlier decision was wrong it may decide in the interests of justice not to overrule it if it has become inveterate and if in a widespread or fundamental way people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand In such cases the maxim communis error facit jus applies Thus it is clear that in order to depart from the decision in Browne it would be necessary for this Court to conclude that the decision of the Supreme Court in that case was erroneous or to use the phrase used previously by Kingsmill Moore J clearly wrong In reaching the decision in Browne the Supreme Court had regard to the earlier decision of the Supreme Court in Canty and the decision in Browne itself has subsequently been followed by the Supreme Court in the case of McPhilips and McGinley The core of the decision in Browne is to the effect that per Murray J at p 4 the determination of the question of costs following a decision on the merits of a case in judicial review is an intrinsic and inherent part of the proceedings and consequently the determination of the question of costs cannot be treated as separate from the High Court decision and consequently cannot be the subject of a separate appeal without an appropriate certificate from the High Court pursuant to the provisions of s 50A 7 I can see no basis upon which that decision could be described as clearly wrong Far from being clearly wrong it seems to me to be the correct interpretation of the s 50A 7 Accordingly I see no reason for departing from the decision in Browne v Kerry County Council Counsel on behalf of the appellant in the course of their submissions fairly acknowledged that it would be somewhat difficult to persuade this Court to depart from the decision in Browne v Kerry County Council and consequently sought to distinguish the decision in Browne from the present case Counsel on behalf of the appellant has sought to argue that s 50A 7 should now be construed in the light of the provisions of ss 3 and 4 of the Act of 2011 set out above It was contended that the proceedings initiated herein by the appellant were for the purpose of ensuring compliance with Condition 1 1 of the decision of An Bord Pleanála to grant planning permission to the notice party Condition 1 1 is as follows Development shall not commence until the public road to the south of the site has been realigned to the satisfaction of the planning authority The condition concerned was imposed in the interests of traffic safety Thus it was argued that the condition imposed fell within the provisions of s 4 of the Act of 2011 as the condition was related to s 4 2 g health and safety of persons and conditions of human life and accordingly came within the provisions of s 4 1 of the Act of 2011 This issue was considered by the learned trial judge when he was dealing with the issue of costs In the course of his decision on costs Rowan v Kerry County Council No 2 2012 IEHC 544 Birmingham J made the following observation having referred to Condition 1 1 of the decision to grant permission stating 4 The starting point for consideration of this issue must be the proceedings actually initiated The proceedings do not in themselves on their face purport to seek to secure compliance with the terms of the condition of the planning permission Rather the proceedings were directed at challenging the decision of Kerry County Council of the 7th September 2011 which concluded that realignment had taken place to its satisfaction 5 An examination of the pleadings would not suggest that they fall within the scope of subs of 3 and 4 However that is not the end of the matter because it must be acknowledged that the arguments advanced in support of the challenge saw the applicant contending that in permitting work to commence that the respondent was sanctioning non compliance with the condition a condition which An Bord Pleanála had stated was being imposed in the interests of traffic safety 6 It seems to me that given the structure of the proceedings and the nature of some of the arguments advanced that it is necessary to consider whether as a matter of reality and substance the proceedings were designed to ensure compliance with a condition because of concern that non compliance will result in damage to the environment in the sense of jeopardising the safety of people He then went on to observe at para 7 In that respect it must be appreciated that the junction of the public road private road or lane which already exists would remain active irrespective of the outcome of the proceedings It would continue to be used amongst others by the applicant The actions or omissions of the applicant would continue to impact adversely on sight lines In substance these proceedings were not designed to secure compliance with a condition lest non compliance result in damage to the environment They cannot in my view be said to be proceedings instituted for the purpose of securing compliance but were issued to advance the applicant s private agenda to prevent a neighbouring landowner build a house On that basis the learned trial judge concluded that the proceedings were not ones to which the Act of 2011 applies and in those circumstances concluded that the ordinary rules in relation to costs remained in force It was on that basis that he made the order for costs at issue in these proceedings Notwithstanding that conclusion by the learned trial judge the argument was made on behalf of the appellant that the hearing on costs should be regarded as having been an application under s 7 of the Act of 2011 and as such an application for a determination falling within the scope of s 7 should not be regarded as being the same as an application under s 50 of the Act of 2000 and therefore is not one which requires a certificate for an appeal Section 7 of the Act of 2011 provides as follows 1 A party to proceedings to which section 3 applies may at any time before or during the course of the proceedings apply to the court for a determination that section 3 applies to those proceedings 2 Where an application is made under subsection 1 the court may make a determination that section 3 applies to those proceedings 3 Without prejudice to subsection 1 the parties to proceedings referred to in subsection 1 may at any time agree that section 3 applies to those proceedings 4 Before proceedings referred to in section 3 are instituted the persons who would be the parties to those proceedings if those proceedings were instituted may before the institution of those proceedings and without prejudice to subsection 1 agree that section 3 applies to those proceedings 5 An application under subsection 1 shall be by motion on notice to the parties concerned A few observations may be made in relation to the provisions of s 7 of the Act of 2011 at this point First of all it is apparent that s 7 5 provides that an application for a determination that s 3 of the Act of 2011 applies shall be made by motion on notice to the parties concerned No such motion was brought in this case Notwithstanding the fact that no such motion was issued that was the substance of the application made on behalf of the appellant in the course of the costs hearing and the application was heard notwithstanding any procedural deficit Given that the application was considered and rejected notwithstanding the failure to bring an application for a determination that s 3 applies in accordance with the provisions of s 7 5 it is not necessary to consider the consequences if any for the failure to comply with the provisions of s 7 5 of the Act of 2011 The second point to note is that s 7 1 permits an application under the section to be brought at any time before or during the course of the proceedings Indeed the parties concerned may at any time agree that s 3 applies to the proceedings and such agreement may be made prior to proceedings being instituted see s 7 4 Thus it can be seen that considerable latitude has been given by the legislature in relation to the manner in which s 3 can be applied in respect of proceedings that fall under the umbrella of the Aarhus Convention Could it be said that the approach to costs provided for in the Act of 2011 has a bearing on the interpretation of the provisions of s 50A 7 of the Act of 2000 or indeed could it be said that the fact that s 7 5 provides for the possibility of a determination on foot of a notice of motion in relation to an application for a determination that s 3 applies bring such application outside the scope of s 50A 7 Section 50A 7 has the effect of limiting the right of appeal in planning matters The legislature has provided for similar restrictions in other legislative schemes for example in the area of immigration and the surrendered persons under European Arrest Warrants to name but two The fact that the Act of 2011 makes provision for a different cost regime to apply to proceedings instituted by a person to ensure compliance with or the enforcement of inter alia conditions in planning permissions in order to prevent damage to the environment has in my view no bearing whatsoever on the statutory provisions contained in s 50A 7 restricting the right of appeal The provisions of the Act of 2011 undoubtedly change the landscape in relation to costs in proceedings to which they apply but it is very difficult see how a change in the regime as to the provision of costs in such proceedings of itself changes the interpretation of s 50A 7 Put very simply the rule in relation to costs is to be found in O 99 of the Rules of the Superior Courts which provides that costs follow the event That could be described as the default rule The Act of 2011 provides for a different default position namely that each party shall bear its own costs The default position may be varied by the Court in circumstances provided for in the Act of 2011 Clearly any such decision on costs must be an intrinsic part of the decision in the proceedings Costs orders do not arise as standalone decisions divorced from the proceedings giving rise to the order for costs Notwithstanding the changes brought about by the Act of 2011 I fail to see how a party dissatisfied by a decision on costs under the Act of 2011 in judicial review proceedings brought under the Act of 2000 could appeal the decision in the absence of a certificate from the trial judge There is nothing in the Act of 2011 to give rise to such a possibility If the legislature had intended otherwise no doubt provision would have been made in the Act of 2011 for such a change in the existing regime It should be noted in passing that Murray J in the course of his judgment in Browne observed Reference was made by counsel on behalf of the appellant to a decision of the European Court of Justice interpreting and applying the Aarhus Convention as concerns the question of costs in cases in litigation involving environmental matters It does not in the Court s view appear that that has any material bearing on the issue of the jurisdiction of this Court under s 50A 7 The issue here concerns national law only Conclusion The issue in this case concerns the question as to whether or not it is possible to appeal a decision on costs alone in circumstances where an appeal is not permissible in the absence of a certificate of the High Court that the decision at issue involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken The jurisprudence of this Court as can be seen from decisions such as Canty v Private Residential Tenancies Board Browne v Kerry County Council and more recently the decision in Minister for Justice Equality and Law Reform v McPhilips and McGinley make it plain that the determination on the issue of costs forms part of the decision in the case and thus cannot be appealed in the absence of a certificate The Act of 2011 did not alter amend or vary the application of s 50A 7 of the Act of 2000 Accordingly for the reasons set out above I would dismiss the appeal THE SUPREME COURT Appeal No 346 2012 McKechnie J MacMenamin J Laffoy J Dunne J Charleton J BETWEEN MICHAEL ROWAN APPLICANT APPELLANT AND KERRY COUNTY COUNCIL RESPONDENT AND TIMOTHY MULVIHILL NOTICE PARTY Judgment of Ms Justice Dunne delivered the 18th day of December 2015 The applicant appellant the appellant brought proceedings in the High Court by way of judicial review seeking An order of certiorari quashing the decision made by the respondent on or about the 7th day of September 2011 whereby the respondent purported to confirm that the public road L 4022 to the south of the site at Doolahig Glenbeigh County Kerry had been realigned to its satisfaction in accordance with Condition 1 of planning permission register reference 04 654 appeal reference PL08 218394 together with other ancillary relief The background to this matter is set out in the judgment of the High Court Birmingham J but it would be helpful to set out some details of the background as described by the learned trial judge The notice party is the owner of farmland at Doolahig Glenbeigh County Kerry There is and has long been a private road or laneway running through these lands and joining the public road network at Doolahig The appellant and other members of his family are the owners of a holiday home in Doolahig which is close to the lands owned by the notice party Access to the public road network for the appellant and others using the holiday home is by means of the same private laneway or road The lane in question apart from providing access to the public road network for the occupants of the Rowan holiday dwelling and those visiting or having business at the lands of the notice party is also used by the occupants of another dwelling The owners of that dwelling are foreign nationals and have taken no part in the present proceedings The notice party has erected a structure on his lands which he uses for stabling as one element of his family business is the breeding of Kerry Bog Ponies The notice party for a long period of time was anxious to erect a family home on his lands On the 17th January 2007 An Bord Pleanala decided under s 37 of the Planning and Development Act 2000 as amended the Act of 2000 to grant planning permission to construct a single storey dwelling on his lands at Doolahig Glenbeigh The permission was subject to seven conditions of which one was central to this case The condition was as follows Development shall not commence until the public road to the south of the side has been realigned to the satisfaction of the planning authority Reason In the interest of traffic safety The respondent herein was the planning authority referred to in Condition 1 and subsequently by a decision dated 7th September 2011 confirmed that the public road had been realigned to its satisfaction in accordance with Condition 1 of the planning permission It was that decision that the appellant sought to have quashed The learned trial judge delivered judgment on the 17th February 2012 Rowan v Kerry County Council No 1 2012 IEHC 65 refusing the relief sought by the appellant herein and subsequently on the 12th March 2012 ordered the appellant to pay to the respondent and to the notice party the costs on the motion and the said order when taxed and ascertained Notice of appeal A notice of appeal was lodged by the appellant in respect of the order of the High Court made in these proceedings The appellant in the notice of appeal has sought an order setting aside the order directing that the costs of the High Court proceedings be paid by the appellant to the respondent and notice party and has asked that no order as to costs should be made instead and the appellant applies for an order for costs in relation to the appeal Notices of motion A notice of motion was then filed on behalf of the respondent seeking inter alia the following relief 1 An order striking out the notice of appeal served on behalf of the a pplicant herein as this Honourable Court has no jurisdiction to hear same wherein the High Court has not certified that its decision involves a point of law of exceptional public importance as required by s 50A 7 of the Planning and Development Act 2000 as amended The notice of motion was grounded on an affidavit of Rosemary Cronin solicitor for the respondent and referred to the provisions of s 50A 7 of the Act of 2000 and referred to an ex tempore judgment of this Court in the case of Browne v Kerry County Council Unreported Supreme Court 24th March 2014 Murray J The judgment and order in that case concerned the question as to whether an appeal against a costs order in judicial review proceedings under the Act of 2000 required a certificate from the High Court Judge dealing with the matter certifying that the decision of the High Court involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court The response to that notice of motion was a further notice of motion this time issued by the appellant herein in which the following relief was sought A direction that the issue as to whether or not a certificate of leave to bring the within appeal is required from the learned trial judge be determined as a preliminary issue In turn that notice of motion was grounded on an affidavit sworn by Francis Rowan the solicitor for the appellant The issues The issues in this appeal arising from the respective notices of motion can be summarised as follows 1 Is it necessary to have a certificate for leave to appeal as required by s 50A 7 of Act of 2000 where the order sought to be appealed is in respect of costs only 2 Is the decision in Browne v Kerry County Council in which it was held by this Court that a certificate of leave to appeal from the trial judge was required for the purpose of appealing an order for costs capable of being distinguished by reason of the fact that these proceedings came into existence after the Environment Miscellaneous Provisions 2011 the Act of 2011 became operative while the proceedings in Browne v Kerry County Council pre dated the coming into operation of the Act of 2011 The law Section 50 2 of the Act of 2000 provides as follows A person shall not question the validity of any decision made or other act done by a a planning authority a local authority or the Board in the performance or purported performance of a function under this Act otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts S I No 15 of 1986 the Order Section 50A 7 of the Act of 2000 provides as follows The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves the point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court The Environment Miscellaneous Provisions Act 2011 was enacted for the purpose of inter alia giving effect to certain articles of the Aarhus Convention Section 3 1 of the Act of 2011 provides as follows Notwithstanding anything contained in any other enactment or in a Order 99 of the Rules of the Superior Courts S I No 15 of 1986 b Order 66 of the Circuit Court Rules S I No 510 of 2001 or c Order 51 of the District Court Rules S I No 93 of 1997 and subject to subsections 2 3 and 4 in proceedings to which this section applies each party including any notice party shall bear its own costs Section 3 sub sections 2 3 and 4 provide for other options available to a court in considering the question of costs Thus s 3 4 provides as follows Subsection 1 does not affect the court s entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so Section 4 1 of the Act of 2011 provides as follows Section 3 applies to civil proceedings other than proceedings referred to in subsection 3 instituted by a person a for the purpose of ensuring compliance with or the enforcement of a statutory requirement or condition or other requirement attached to a licence permit permission lease or consent specified in subsection 4 or b in respect of the contravention of or the failure to comply with such licence permit permission lease or consent and where the failure to ensure such compliance with or enforcement of such statutory requirement condition or other requirement referred to in paragraph a or such contravention or failure to comply referred to in paragraph b has caused is causing or is likely to cause damage to the environment Section 4 2 provides Without prejudice to the generality of subsection 1 damage to the environment includes damage to all or any of the following a air and the atmosphere b water including coastal and marine areas c soil d land e landscapes and natural sites f biological diversity including any component of such diversity and genetically modified organisms g health and safety of persons and conditions of human life h cultural sites and built environment i the interaction between all or any of the matters specified in paragraphs a to h Finally section 6 of the Act of 2011 provides inter alia Section 3 applies to a proceedings in the High Court by way of judicial review or of seeking leave to apply for judicial review of proceedings referred to in section 4 or 5 Browne v Kerry County Council The decision in Browne an ex tempore judgment of this Court Murray J is at the heart of this appeal In the course of the judgment in that case reference was made to Canty v Private Residential Tenancies Board 2008 4 I R 592 a decision of this Court in which Kearns J as he then was considered s 123 4 of the Residential Tenancies Act 2004 which provides that The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and conclusive Section 123 provided for the possibility of an appeal on a point of law from a determination of the Tribunal set up under the Residential Tenancies Act 2004 Thus there was permitted an appeal to the High Court on a point of law and by virtue of s 123 4 such determination in relation to the point of law concerned was to be final and conclusive In Canty Kearns J compared the provisions of s 123 4 of the Residential Tenancies Act 2004 with the then provisions of s 50 of the Act of 2000 and in particular s 50 4 f i as follows The determination of the High Court of an application for leave to apply for judicial review or of an application for judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court Kearns J having referred to the provisions of s 50 of the Act of 2000 continued at p 595 para 14 It seems to me without in any way deciding an issue which was not before this court that the word decision of the High Court in s 50 can be taken as including any determination of the issue of costs which forms part of its decision in the case Similarly s 42 8 of the Freedom of Information Act 1997 provides The decision of the High Court on an appeal or reference under this section shall be final and conclusive 15 Section 39 of the Courts of Justice Act 1936 which was re enacted by s 48 of the Courts Supplemental Provisions Act 1961 provided as follows in relation to appeals to the High Court from the Circuit Court The decision of the High Court or of the High Court on Circuit on an appeal under this Part of this Act shall be final and conclusive and not appealable 16 Again I have no difficulty in construing these sections as altogether precluding any further appeal even one confined to costs By contrast however s 123 4 of the Residential Tenancies Act 2004 which if I may say so is unsatisfactorily drafted in a number of respects is much less clear If the relevant sub section simply referred to the determination of the High Court on such an appeal one could well argue that the decision of the High Court in relation to costs was incorporated in the determination However the wording contextualises the determination of the High Court by reference specifically to the point of law concerned 17 The resolution of a point of law may on occasion compel a trial judge to determine a case in a particular way which may be contrary to the factual merits of the case I am not saying any such situation arises in the instant case but it is not difficult to imagine other cases where this could occur In such a situation an appeal confined to the issue of costs might have significant merits 18 For that reason I think any statute which purports to remove altogether even a limited right of appeal on an issue such as costs should be so phrased as to make that intention clear That is not to say that express wording in a statute is a prerequisite for this purpose but rather that the overall intention that no further appeal should lie from any aspect of the decision of the High Court Judge should be obvious from a reading of the provision in question Murray J in the course of his judgment in Browne v Kerry County Council observed as follows This Court has given due consideration to the terms in which the relevant s 50A 7 is expressed and finds that it is substantially to the same effect as the s 50 4 f i in the 2000 Act referred to by Mr Justice Kearns Murray J then went on to make the following observations The Court considers that the determination of the question of costs following a decision on the merits of a case in judicial review is an intrinsic and inherent part of the proceedings and that the determination of the judicial review as referred to in s 50A 7 and in particular the reference to the decision of the Court in that section encompasses the decision of the Court on costs that necessarily follows in one form or the other as part of the determination of the proceedings Therefore the Court considers that the question of costs is not an issue which the legislature intended should be capable of being treated as separate from the High Court decision and the subject of a separate appeal without the necessity of a certificate from the High Court to that effect The Court considers that the dicta of this Court in the Canty case obiter as they were were a correct interpretation of the meaning and effect of a restriction excluding an appeal to this Court from a decision of the High Court unless a certificate has been granted Such restrictions on appeal to this Court do require to be strictly interpreted being an exception to the general right of appeal to this Court by virtue of which litigants are denied an opportunity to review a decision of a court of first instance Having taken account of the principle of strict interpretation the Court nonetheless is satisfied that the meaning and effect of the section in question is to include within the scope of the section the decision of the Court on the application as a whole including the question of costs Accordingly the claimant appellant has no right of appeal to this Court Accordingly the Court in that case was satisfied that it did not have jurisdiction to entertain the appeal of the appellant solely on the question of costs and struck out the appeal The decision in the case of Browne v Kerry County Council was recently considered in the judgment of the Supreme Court in respect of two appeals heard together Minister for Justice Equality and Law Reform v Noel McPhilips and Minister for Justice Equality and Law Reform v Gerry McGinley 2015 IESC 47 An issue arose in those cases as to whether the appellant was entitled to appeal the decisions of the High Court in each of the cases on the question of costs only by virtue of the provisions of

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/5a648355cf92da3e80257f220049733d?OpenDocument (2016-02-09)
    Open archived version from archive


  • normally implies a third preference The Memorandum for Guidance of Local Authority Returning Officers at the Local Elections Friday the 23rd of May 2014 issued by the Department of Environment Community and Local Government made the practical suggestion that in such circumstances the returning officer should discuss the matter with agents This might resolve the matter one way or another on a practical basis but it is at a minimum indicative that the matter is open to doubt I also doubt that it is in fact a matter for individual agreement if it is the case that such a sequence might be taken as indicating a first preference but might not then it is difficult to say that it indicates such a preference clearly Counsel other than counsel for the Minster seemed to take the position that in such circumstances while the number 3 in a sequence 3 4 5 etc might suggest a first preference and even indicate such a preference it could not be said to clearly indicate a first preference and such a vote would be invalid If this was the position they inclined to I think they were correct to do so 8 Accordingly in my view the case narrows to the point where it must be argued that the fact of another election being held on the same day which would give a plausible reason for the existence of ballots in the local election where the highest preference on the ballot paper was a number such as 3 is sufficient to satisfy the statutory test and clearly indicate a first preference In my view this is not sufficient to satisfy the statutory requirement Once it is accepted that it is possible to have the sequence 3 4 5 on a ballot paper without the number 3 indicating the voter s first preference then it does not seem to me to be sufficient that it can be said that it is more likely than not that the candidate with the 3 marked beside them was in fact the voter s first preference Nor is it sufficient that it can be said that the vast majority marked in such a way are ballots in which the candidate with 3 marked beside them is in fact the voters first preference Each ballot paper must be taken on its own If some of them could have been marked in this way in circumstances where the voter intended by the number 3 to indicate that that candidate was his or her third preference then to determine in all cases that the number clearly indicated a first preference would be simply wrong As McKechnie J points out the terms of the Memorandum for Guidance which advises that such votes should be admitted does so on the basis that the sequence suggests that voters followed on from preferences recorded on ballot papers with another election held on the same day There is however a significant difference between a suggestion and a clear indication 9 It is I think important that this is what might be described as a mechanical case the question for the Court is the correct way to determine the outcome of the poll held on Friday the 23rd of May 2014 There is no question therefore of the difficulties discussed in Jordan which may arise if the remedy sought is the holding of a fresh poll Subject to the qualification that the proportionate representation system has an inbuilt and perhaps unavoidable element of randomness at the point of distribution of surplus the issue here is merely the proper counting of the votes cast and can be readily ascertained by carrying out that exercise now Where real doubt exists as to the outcome which can be dispelled definitively by the recounting of the votes which are kept after the election to facilitate that very exercise it seems to me that the values of certainty and confidence in the outcome tip in favour of dispelling doubt 10 In the judgment he delivers Charleton J considers that the evidence does not go so far as establishing however that the mistake in relation to these votes is one which is likely to have affected the result of the election As I understand it he considers that the evidence goes so far as to show that there may be more invalid votes included than the margin in this case but that the evidence does not establish that those votes affected the result in the sense that it is in theory at least possible that all of the invalid votes cast should be treated as first preferences for the petitioner or some other candidate which if removed would only have the result of increasing the margin by which the petitioner lost He considers that the petitioner ought to have sought inspection of the ballot papers under article 93 of the Regulations as part of the preparation for the petition and would then have been in a position to go further on the evidence In future petitions should an issue such as this arise it may indeed be prudent to seek to inspect but I am not convinced that failure to do so is a bar to the petition in this case First in a simple case the identification and removal of invalid votes may make it clear what the correct outcome was For such a case the impact on the election will not be likely it will be certain one way or the other I am not convinced that a petitioner has to demonstrate certainty in order to succeed In other circumstances the consequences of the removal of the invalid votes may indeed be more complex Proportional representation is a notoriously sensitive system and the outcome of an election may depend not just on the numbers the votes and the preferences but also on the sequence in which they are distributed Even if on their face the removal of invalid votes might appear broadly neutral their removal may have an impact on the distribution of votes the elimination of candidates and therefore the election of others In such a case it is not possible to be certain as to the outcome without rerunning the entire count I am not satisfied that it is necessary to do so in order to seek relief on the petition or indeed that inspection under article 93 would necessarily permit such an exercise Inspection therefore might have made it more or less likely that the inclusion of these votes had an impact on the result but that does not mean that the present limited evidence does not indicate that effect on the outcome was likely This was an extremely close election and in the circumstances of this case I am satisfied that the evidence limited as it was is sufficient for the petitioner to succeed 11 I am influenced in this regard by analogy with the test applied in Jordan Once this Court has found that there was a mistake with the sequence which did not commence with the number 1 and given the fact that the election was so close then the point has been reached where it can be said that a reasonable person could be in doubt about and no longer trust the outcome of the election That doubt can be readily resolved by having the ballots already cast counted afresh If the Circuit Court judge had considered that the view of the law that the Court has taken was even possible then I have little doubt that he would have ordered the counting of the votes in the same way as occurred in in the Matter of Election to European Parliament for Constituency of Leinster held on June 15 1989 Petition of Micheal Bell Unreported High Court Hamilton P 24th November 1989 if only to eliminate the possibility that the arguably invalid votes had affected the outcome That would have been a sensible approach to the case and I see no reason why it should not be taken now The position has been reached where all participants in the election and indeed the relevant electorate are entitled to know rather than speculate about the ballots cast 12 I agree with my colleagues that the consequence of an order that the votes be counted afresh means that the process should be restarted under the supervision of the Court from the point of the opening of the ballot boxes Because there is an inherent element of randomness in the functioning of the proportional representation system this may mean that other variables are introduced which may have an impact on the outcome There may be nothing inherently wrong in this it is a feature of the system for elections which is used in Ireland However I agree with the observations of Clarke J that it may be possible if considered desirable to seek to provide a remedy which would ensure that on an order that the votes be counted afresh the only variable involved would be the removal of the factor which the Court had found to constitute a mistake That however is a matter of policy and practicality and may be the subject of dispute in future litigation On the view I take of the statute it does not arise here THE SUPREME COURT Appeal No 366 of 2014 Denham C J O Donnell J McKechnie J Clarke J Charleton J In the Matter of the Local Elections Petitioners and Disqualifications Act 1974 and In the Matter of the Local Elections for Listowel held on the 23rd Day of May 2014 Between Dan Kiely Appellant and Kerry County Council Respondent and John Brassil Jimmy Moloney Mike Kennelly Michael O Gorman Robert Beasley Aoife Thornton Kate Carmody Brian Finucane Tom Walsh Katie Lucid McCabe Pat Leahy Dianne Nolan Liam Purtill and Tim Buckley Notice Parties Judgment of O Donnell J delivered on the 17th day of December 2015 1 I agree with my colleagues McKechnie Clarke and Charleton JJ on the principal ground of appeal namely that in this case a number other than 1 or one in a numerical sequence on a ballot paper is not a mark clearly indicating a first preference within the meaning of article 80 2 b of the Local Election Regulations 1995 S I No 297 of 1995 the Regulations I wish to add some brief observations to explain why I consider the petitioner here is entitled to relief notwithstanding the significant weight that I consider should be attached to the certainty of outcome in elections and which was identified admittedly in the context of constitutional referenda in the judgments of the members of this Court in Jordan v Minister for Children and Youth Affairs 2015 I E S C 33 I also wish to explain why I respectfully differ from Charleton J and consider that it has been established that the issue identified here is likely to have affected the result of the election within the meaning of s 5 of the Local Elections Petitions and Disqualifications Act 1974 such as to entitle the appellant to relief under s 8 1 a of the same Act namely that the votes cast in the election shall be counted afresh 2 This is an appeal by case stated pursuant to s 7 3 of the 1974 Act which provides that where a petition challenging the outcome of a local election has been tried in the relevant Circuit Court a party to the petition may appeal on a question of law to the Supreme Court In simple terms the question is whether an individual ballot paper conforms to the requirement of the Regulations Article 80 2 of the Regulations which is contained in Part XIII of those Regulations headed Rules for the Counting of the Votes is in fact expressed in negative terms It states Any ballot paper a which does not bear the official mark or b on which the figure 1 standing alone or the word one or any other mark which in the opinion of the returning officer clearly indicates a first preference is not placed at all or is not so placed as to indicate a first preference for some candidate or c on which the figure 1 standing alone indicating a first preference or the word one or any other mark which in the opinion of the returning officer clearly indicates a first preference is set opposite the name of more than one candidate or d on which anything is written or marked which in the opinion of the returning officer is calculated to identify the elector shall be invalid and not counted but the ballot paper shall not be invalid by reason only of carrying the words one two three and so on or any mark which in the opinion of the returning officer clearly indicates a preference or preferences The question therefore is whether when a ballot paper such as those referred to in this case contains a sequence of numbers such 3 4 5 or any other numerical sequence commencing with a number other than 1 beside candidates names the highest number in that sequence 3 in the example taken is a mark which in the opinion of the returning officer clearly indicates a first preference I accept that this may be a question of fact or of mixed fact and law However here the question facing the Circuit Court judge was one of mixed fact and law The relevant facts were that the ballot papers concerned were marked in an election which took place on the same day as another election The issue of law is not simply whether for example the number 3 in a sequence such as 3 4 5 can represent a first preference but rather and more precisely whether in circumstances where two elections are held on the same day and polling is carried out in the same location the number 3 in a sequence such as 3 4 5 is a mark clearly indicating a first preference If so it follows that the numbers 4 and 5 in that sequence would in turn constitute second and third preferences within the meaning of the regulations As so expressed this is a pure issue of law indeed if it were not it could not be appealed to this Court and cannot therefore be addressed by relying on the discretion of the returning officer I agree that a substantial margin of appreciation must be allowed for returning officers when considering how to adjudicate on individual ballot papers but a returning officer has no discretion in relation to the true interpretation of the law That is a matter for a court 3 Since the time of the great Reform Act it has been the case that disputes about elections are brought to an electoral court While in principle it might have been possible to provide that a returning officer could allocate votes according to his or her best estimate of the likely intentions of the voter the legislation does not do so Instead it requires the exclusion of any ballot paper which does not carry the figure 1 the word one or a mark clearly indicating a first preference The fact that the Regulations are framed negatively in this way is significant A ballot is invalid unless it satisfies one of only three criteria in this case the only possible one is that it contains a mark constituting a clear indication of first preference 4 For the reasons set out by my colleagues with which I agree the sequence 3 4 5 or any similar sequence does not satisfy the statutory requirement of clearly indicating a first preference In this regard it is important firstly that the voter has failed to comply with the instruction to place a 1 whether in numeral or word on the ballot paper Secondly it is significant that what is alleged to be a mark in this case indicating a first preference is itself a numeral other than 1 The number 3 only makes sense in the context of other numerals To that extent the number 3 implies the existence of a number 1 and also that they are different and that they are mutually exclusive In the same way third implies the existence of first and that they are by definition different things Normally to say that something is third means that is not and cannot be first 5 This however is only a starting point It might be thought of as the default position There are a number of circumstances where the context might lead to a different conclusion In simple terms if a person explains that every time they say three they mean one then the default position might be overridden Similarly if it is known that a person has an irrational fear of the numbers 1and 2 or has a computer where the striking the key 1 always produces the number 3 then once again the default position might be overcome The question of interpretation of any communication depends firstly on the words used but also on the context in which they were used and finally on the degree of certainty required 6 Here however it is a requirement of the process that the decision maker and therefore interpreter be unaware of the identity of the person completing the ballot paper and furthermore know nothing about them The method of communication is deliberately reduced to one of the most simple and normally unambiguous forms known in a first past the post election an X in the appropriate box will suffice in a proportional representation election the use of numbers indicating preference Furthermore the returning officer or the court must consider that the mark clearly indicates a first preference 7 It was accepted that a numeric sequence like 3 4 5 or 4 5 6 might occur on a ballot paper in a single election held on

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/7703684927f9cf9b80257f1e004245c0?OpenDocument (2016-02-09)
    Open archived version from archive


  • have already referred it would not be unrealistic to regard it as possible that the result could have been different had those votes not been included 6 8 To use the terminology adopted by O Donnell J in Jordan it is reasonably possible that the inclusion or exclusion of the contested votes might have affected the result Likewise the point was reached where a reasonable person would be in doubt about and no longer trust the result as declared on being told that the returning officer had by a mistake included in the count votes which ought properly to have been excluded 6 9 The fact that it might have been possible for Mr Kiely to present better evidence in that regard does not take away from the fact that the evidence which was before the trial judge gives rise to an inference that there was a realistic possibility that the result might have been different had the votes in question been excluded In my view Mr Kiely met the onus of proof which rested upon him Any other party could of course have also sought the examination of the contested ballot papers If such an examination had taken place during the hearing of the Petition and if as in Bell it had thereby become clear that the exclusion of the ballots in question would not have availed Mr Kiely then the fact that he had met the prima facie burden of proof would nonetheless not have availed him But no other party chose to present such evidence either 6 10 Indeed it seems to me that the very fact that one of the orders which a court can make in the course of an election petition is to direct that the ballots be counted afresh means that it cannot be the case that there is an absolute onus in all cases on a petitioner to present evidence of what is contained in the ballot papers If such an onus rested on a petitioner then the Court would have that evidence at the hearing and it is very difficult to see what point would be served by requiring the votes to be counted afresh That is not to say that there may be cases where it would be impossible for the petitioner to discharge the onus of proof to the appropriate standard without presenting some evidence as to what was contained in the ballot papers However for the reasons which I have sought to analyse I am not satisfied that this was such a case for the evidence which Mr Kiely presented to the trial judge was in my judgment sufficient to discharge the onus of proof that rested on him 6 11 In my view therefore it follows that not only has Mr Kiely demonstrated that there was an error in the conduct of the count but also that that error meets the threshold of materiality identified by this Court in Jordan Before going on to consider the consequences of those findings I wish to make a number of brief observations 7 Some Observations 7 1 First I should say that in the light of those findings it is unnecessary to consider whether the failure to reassess the admissibility of contested ballot papers on a recount amounts to a mistake or irregularity There was in any event a mistake which is sufficient to meet the statutory test under s 5 1 a of the 1974 Act 7 2 Next it is necessary to say something about what is sometimes referred to as the sanctity of the bundles There is a certain degree of randomness in the conduct of a multi seat proportional representation count under our system The reason for that randomness stems from the way in which physical ballot papers are transferred when the surplus of a candidate who exceeds the quota is being distributed In general terms all relevant ballot papers being all ballot papers in favour of a candidate who is elected on the first count or all of the ballot papers which were transferred to the candidate concerned on a subsequent count where the transfer in question had the effect of bringing the candidate over the quota are examined and the surplus is distributed proportionately Thus far there is no element of randomness 7 3 However when it has been determined that a particular number of votes is to be transferred as a result of a surplus the physical ballot papers being the relevant proportion required to be transferred are taken from the top of the bundle in question and physically transferred to the candidate who is entitled to the relevant votes as part of the relevant surplus transfer If that candidate in turn is either eliminated or is elected as a result of the transfer of the surplus in question then the ballot papers physically transferred to that candidate can have an effect on where the votes in question ultimately end up It would be unlikely that there would be any very significant difference but it equally cannot be ruled out that there might be a marginal difference resulting from the way in which the ballots which are the subject of a surplus are actually stacked up in their bundles Thus it follows that if all the votes in a count which was conducted with complete accuracy were mixed again and recounted again also with complete accuracy there might be a marginal difference in the result If the count is very close then that marginal difference might be material It is for that reason that the rules for the conduct of counts require that the ballot papers be kept in the same sequence at all times because if that were not to be the case the result could become truly random see for example article 87 3 b of the Regulations cited earlier which requires that the same order of ballots be kept during a recount With the bundles kept in the same sequence whatever randomness there may be crystallises when the votes are put in a particular order at the beginning of the count 7 4 Obviously if there were to be a remixing of the ballot papers then whatever randomness had crystallised by the original ordering of the ballot papers in question when the count began would be recreated by the very act of remixing the ballot papers It will be necessary to consider that undoubted fact in the context of the final issue to which I now turn which concerns the order which the Court should make 8 What Order should the Court make 8 1 The starting point has to be the finding which I have already indicated should be made to the effect that the count in this case was affected by a mistake and that it has been established that it is reasonably possible that the result of the election was affected by that mistake It is against that background that the Court must decide what the consequences of those findings should be 8 2 Section 8 of the 1974 Act provides that the Court may for the purposes of the trial of a petition if it thinks fit order amongst other things that all the votes cast at the election shall be counted afresh See s 8 1 a 8 3 Section 8 4 provides that the Court shall have power to reverse any decision of a returning officer at the original count Given my view that the original count was conducted in error in a manner which met the threshold of likelihood of affecting the result it seems to me to necessarily follow that the Court should direct the counting afresh of the ballot papers and should in that context reverse the decision of the retuning officer concerning the admissibility in that count of the ballot papers which contained a sequence of numbers not starting with 1 8 4 However an issue arises as to what is meant by the term counting afresh in the sense in which it is used in s 8 of the 1974 Act First it should be noted that this is not a case in which a question arises as to ordering or directing the counting afresh of all the votes in a particular electoral area or all the votes contained in a particular parcel in accordance with ss 8 1 b or c The mistake identified is not confined to any particular electoral area or any particular parcel or parcels of ballots Therefore what is required is the counting afresh of all the votes cast at the election Clearly in so doing the Court must direct that the returning officer exclude the ballot papers identified in this judgment However the further question arises as to just how far back in the process of conducting the count it is necessary to go in accordance with the requirement that all the votes cast at the election shall be counted afresh 8 5 There are three possibilities They are a That one must go back to the very beginning so that in counting afresh the question of the admissibility or validity of those votes previously ruled on with the exception of the votes whose admissibility are specifically dealt with in this judgment can be reopened or b That one goes back to the point immediately after the validity or otherwise of votes has been determined but conducts all stages thereafter including a complete remixing of the ballot papers or c That the counting afresh complies with the obligations contained in the Regulations concerning a recount and thus retains in accordance with article 87 3 b the number or order of ballot papers in any parcel 8 6 Given the sanctity of the bundles point which I have already addressed there is an argument to the effect that the Court should direct that during any counting afresh the ballots should be retained in the same order as they were originally placed in bundles subject only to removing those ballots which for the reasons addressed in this judgment were wrongfully included The alternative course of action could lead to a situation where the ultimate result after the counting afresh might because of the randomness element which I have identified actually be different to the result which would have occurred had the count been properly conducted in the first place Indeed paradoxically if one were to conduct a counting afresh in any other way then there would be a possibility that Mr Kiely might find himself in a situation where it would become apparent that he should have won the election had it been properly conducted with the ballots in the order into which they were placed during the original count but might still lose the election after a counting afresh because a remixing of the ballots and a reintroduction of a different random element to the count might work against him 8 7 Indeed the circumstances of this case demonstrate a further difficulty For the reasons set out earlier in this judgment I am unable to agree with the view expressed by Charleton J to the effect that Mr Kiely has failed to discharge the onus of proof which undoubtedly rests on him in bringing a petition such as this However it is clear that it would at least have been possible for Mr Kiely or indeed any other party to the petition to have sought an order from the trial judge to enable them to inspect the votes and to have presented whatever evidence might have been forthcoming from such an inspection at the hearing of the petition before the Circuit Court In essence the difference of view between myself and Charleton J stems from whether the presentation of such evidence is required as opposed to being merely permissible However the one thing that is clear on either view is that the evidence concerned could have been presented 8 8 In that context it is worth considering what course of action it might have been appropriate for the Circuit Court judge to adopt in the event that such evidence was presented and was such that it indicated that had the contested votes not been included in the count proper Mr Kiely would have succeeded and some other identified candidate would have lost I appreciate that the evidence might or might not have been capable of dealing with that question in a clear fashion If for example exclusion of the contested votes would have led to a different order of exclusion of candidates or the like then it might not really be possible short of conducting a very elaborate exercise to attempt to work out what would have happened had the contested votes not been included But equally it might be possible that the relevant votes could be identified their effect on the various counts calculated and the effect of the exclusion of those votes on the position of the continuing candidates on the final count determined as a matter of real certainty If that had happened and if it had transpired that Mr Kiely would not suffer significantly by the exclusion of the contested votes but other candidates would so that Mr Kiely should have won what then should the Circuit Court judge do Should he simply correct the result and declare that Mr Kiely should have been elected instead of whichever candidate was found to have only been elected by virtue of the inclusion of the contested votes or should he order a full counting afresh if that is to mean going back and remixing the votes from the beginning 8 9 Given the random element already identified it is as I have already noted entirely possible that a counting afresh involving a remixing of the ballots might lead to a different result again That analysis raises the possibility which is undoubtedly unattractive that the result of an election petition might depend on whether a judge prior to or in the course of hearing the petition gave liberty to one or other party to inspect the votes and present evidence at the hearing on the one hand or simply heard sufficient evidence to be satisfied that there was a realistic possibility that the count had been affected by error and ordered a counting afresh on the other hand But unattractive as that proposition may appear it is necessary to consider whether that anomaly is what the legislation requires 8 10 The question turns on whether the phrase all the votes cast at the election shall be counted afresh as used in s 8 1 a of the 1974 Act requires a remixing of the votes in question It is important to emphasise that the term counting afresh is used in s 8 of the 1974 Act whereas the term used in the Regulations for what is to occur during the count itself when a candidate wishes to have votes re examined is a recount As noted earlier the Regulations which by virtue of s 20 1 of the Electoral Amendment Act 2009 have statutory effect as if they were an Act of the Oireachtas themselves expressly provide that in the event of a recount the order of the ballots is to be kept the same However the actual legislation does not use the term recount but rather uses a different term being counting afresh for what is to occur if directed during an election petition The legislation could have provided that the Court might direct a further recount and in so doing might require that certain decisions which the Court found to be mistaken would be corrected But that is not what the legislation does The term counting afresh is applied expressly to all the votes That phrase seems to carry with it a necessity to go back to the beginning and thus consider first the validity of any questionable votes other than those which are expressly the subject of the ruling in this judgment and thereafter to remix the votes and count them entirely afresh I recognise that this will reintroduce a random element which had crystallised but it seems to me that the clear wording of s 8 requires just that 8 11 There is no reason in principle why should it be considered desirable and practical for the sort of reasons identified in this judgment or indeed any other reasons to change the law so that the Court might direct something analogous to the form of recount in which the order of ballots is retained legislation could not provide for this However if such a change in the legislation is considered appropriate same is a matter for the Oireachtas rather than for the courts All the courts can do is interpret the legislation as it is The legislation requires that all the votes be counted afresh and that it seems to me requires that the process go right back to the beginning 9 Conclusions 9 1 I have therefore come to the conclusion that the inclusion by the returning officer of votes containing a sequence of numbers not including 1 amounted to a mistake for the purposes of s 5 1 a of the 1974 Act I am also satisfied that Mr Kiely produced sufficient evidence to discharge the burden of proof upon him to establish that it was reasonably possible that the mistake in question could have affected the result of the election as per the decision of this Court in Jordan 9 2 It follows that the Court should in my view direct under s 8 1 a of the 1974 Act that the votes be counted afresh In that context I would propose that the Court should give a direction under s 8 4 that in the context of counting the votes afresh the decision of the returning officer in respect of votes containing a sequence of numbers not commencing with 1 or one should be reversed and that those votes be excluded from being allocated to candidates as part of the counting afresh In all other respects I would direct that there be conducted a full count from the beginning including a re examination of the validity of all ballots and a re mixing of the ballot papers THE SUPREME COURT Appeal No 366 of 2014 Denham C J O Donnell J McKechnie J Clarke J Charleton J In the Matter of the Local Elections Petitions and Disqualifications Act 1974 And In the Matter of the Local Elections for Listowel Held On the 23rd Day of May 2014 Between Dan Kiely Appellant And Kerry County Council Respondent And John Brassil Jimmy Moloney Mike Kennelly Michael O Gorman Robert Beasley Aoife Thornton Kate Carmody Brian Finucane Tom Walsh Katie Lucid McCabe Pat Leahy Dianne Nolan Liam Purtill and Tim Buckley Notice Parties Judgment of Mr Justice Clarke delivered the 17th December 2015 1 Introduction 1 1 For over two decades now elections to the European Parliament and Local Elections in Ireland have frequently taken place on the same day A phenomenon has been observed by those involved in counting the votes at such elections that a number of ballot papers turn up which have a sequence of numbers not beginning with 1 and often involving a sequence starting with a 3 4 or 5 The inference that is drawn is that voters have started on one ballot paper and written for example 1 2 and 3 and have then continued on to the other ballot paper and written for example 4 5 and 6 As far back as an election petition brought in respect of the European Parliamentary election in 1989 in the Matter of Election to European Parliament for Constituency of Leinster held on June 15 1989 Petition of Micheal Bell Unreported High Court Hamilton P 24th November 1989 Bell there has been a debate about whether ballot papers which have a sequence of numbers not starting with 1 are or can be regarded as valid and thus properly included in the count For reasons which I will record later the issue was not decided in Bell It will be necessary to address the issue in the context of this appeal 1 2 The election last year to Kerry County Council involving the Listowel District proved to be extremely close On the final count there was little to choose between a number of candidates In particular the petitioner Mr Kiely lost out on the final seat by just two votes In circumstances which it will be necessary to set out in a little more detail those votes which contained a sequence of numbers not starting with 1 were included by the returning officer in the count Mr Kiely suggests that the returning officer was wrong so to do He also suggests that it is realistic to consider given the closeness of the election that excluding those votes as he suggests the returning officer was obliged to do might have made a difference to the result 1 3 Against that background Mr Kiely brought a petition to the Circuit Court in accordance with s 2 1 of the Local Elections Petitions and Disqualifications Act 1974 the 1974 Act The respondent county council was responsible for the conduct of the election and sought to stand over the decision taken by the returning officer to include the questioned votes The various other candidates were named as notice parties Some but not all of those other candidates participated both before the Circuit Court and in the appeal before this Court 1 4 In addition to the underlying question as to whether the relevant votes should have been included in the count a number of other issues concerning the scope of an election petition under s 5 of the 1974 Act and questions concerning what ought properly to arise on a recount when requested were raised in the course of the hearing of this appeal 1 5 In order to fully understand the issues it is necessary to start by identifying the procedural history insofar as it is now relevant to the issues which have to be decided and also to set out the relevant legislation 2 The Procedural History 2 1 There has already been a hearing before this Court in this matter The issues which arose at that hearing and the judgment of this Court in that regard are set out in Kiely v Kerry County Council 2015 I E S C 65 2 2 For the reasons set out in that judgment the ultimate determination of the Court was that what is properly described as an appeal came to be before this Court It is that appeal which was the subject of an oral hearing in October giving rise to this judgment 2 3 On the day of the October hearing only two of the notice parties appeared before this Court to make submissions through counsel namely the third named notice party Mr Kennelly and the fourth named notice party Mr O Gorman Counsel for the Minister for the Environment also appeared for the purposes of assisting the Court and offering submissions on the points of principle raised although it was made clear that the Minister took no part in any specific issues which arose between the parties 2 4 I next turn to the legislation 3 The Legislation 3 1 Section 5 of the 1974 Act provides for the grounds on which an election petition can be brought and is in the following terms 1 Subject to section 82 6 of the Act of 1963 a local election may be questioned on the grounds of want of qualification obstruction of or interference with or other hindrance to the conduct of the election or mistake or other irregularity which if established are likely to have affected the result of the election and without prejudice to the generality of the foregoing any of the following grounds may be specified in a petition a a local election was affected by error or was not completed or was otherwise not conducted by the returning officer in accordance with law b a local election was affected by electoral offences c a person at a local election was on the date of his nomination not qualified for membership of the relevant local authority 1A A local election shall not be declared invalid because of a non compliance with any provision of the Local Elections Disclosure of Donations and Expenditure Act 1999 or mistake in the use of forms provided for in regulations made under that Act where it appears to the court that a candidate national agent designated person within the meaning of that Act or person to whom section 6 7 of that Act applies as the case may be complied with the principles laid down in that Act taken as a whole and that such non compliance or mistake did not materially affect the result of the election 2 Notwithstanding any other provision of this Act a petition shall not be dismissed on account of an informality in its contents which does not materially affect its substance 3 2 As part of that process the Court has the powers set out in s 8 of the 1974 Act as follows 8 1 The court may for the purposes of the trial of a petition if it thinks fit order a that all the votes cast at the election shall be counted afresh b that all the votes so cast in a particular local electoral area shall be so counted or c that all the votes so cast and recorded on the ballot papers contained in a particular parcel shall be so counted and where the court so orders the provisions of the following subsections shall have effect 2 Votes to which an order under this section relates shall be counted afresh under the direction of the court and subject to subsections 3 and 4 of this section and to such modifications if any as the court considers necessary the provisions of any regulations made by the Minister under section 82 of the Act of 1963 relating to the counting of votes at a local election shall apply to such counting 3 Where votes are counted afresh pursuant to an order under this section the court shall cause the following to be ignored a preferences recorded on ballot papers which are invalid by virtue of regulations made by the Minister pursuant to section 82 of the Act of 1963 b preferences recorded on forged or counterfeited ballot papers and c preferences recorded for any person who with respect to the relevant election is found by the court not to have been qualified for membership of the local authority 4 The court shall have power to reverse any decision of a returning officer at the original count 3 3 Provision for a recount is set out in article 87 of the Local Election Regulations 1995 S I no 297 1995 the Regulations which were made under the powers conferred on the Minister for the Environment by s 22 of the Local Government Act 1994 and which provides 87 1 Any candidate or any agent of a candidate may at the conclusion of any count request the returning officer to re examine and recount all or any of the papers dealt with during that count and the returning officer shall re examine and recount such papers accordingly without making any alterations in the arrangement of the papers in the various parcels save where such alterations may be necessary in consequence of any error discovered in the recount Nothing in this sub article shall make it obligatory on the returning officer to re examine or recount the same parcel of papers more than once 2 The returning officer may at his or her discretion recount papers either once or more often in any case in which the officer is not satisfied as to the accuracy of any count The power under this sub article of a returning officer to recount papers shall extend to papers dealt with at an earlier count than the immediately preceding one 3 a One request and not more may be made by each candidate for a complete re examination and recount of all parcels of ballot papers and the returning officer shall re examine and recount the parcels of ballot papers accordingly b In the re examination and recount the number or order of ballot papers in any parcel shall not be disturbed c Nothing in the provisions of this sub article shall make it obligatory on the returning officer to re examine or recount the same parcel of papers more than once but if an error is discovered which is in the opinion of the returning officer a significant error likely to affect the result of the election the returning officer shall count all the papers afresh from the point at which the error occurred d Nothing in this sub article shall make it obligatory on the returning officer to comply with a request by a candidate which in the opinion of the returning officer is frivolous or vexatious e A request under this sub article may be made only at the conclusion of a count 4 Where an error is discovered the returning officer shall where necessary amend any results previously announced by the officer 5 Where a request made under sub article 3 is withdrawn by the candidate as respects whom it is made it shall be open to the returning officer not to proceed or proceed further with the re examination and recount 3 4 In addition provision is made for the scrutinising of votes to determine their validity by the Returning Officer under article 78 of the Regulations as follows The returning officer shall cause the ballot papers to be scrutinised for the purpose of discovering any papers liable to be rejected as invalid and shall in accordance with Part XIII ascertain and record the number of votes given to each candidate 3 5 A question therefore potentially arises as to what exactly is to happen in the event of a recount being called about a reassessment of the rulings made by the returning officer as to the invalidity or otherwise of ballot papers 3 6 In accordance with the legislation ballot boxes are emptied and all ballot papers are checked for the purposes of ascertaining whether a valid vote has been cast Where a question mark arises as to the validity of any ballot the relevant paper is normally placed to one side so that a decision can be taken by the returning officer as to whether a valid vote has been cast It is normal practice to permit the candidates or their representatives to be present so that they can express views on whether a particular ballot paper ought or ought not properly to be included In any event those ballots which are deemed admissible are stamped to that effect and are returned for counting in the ordinary way The other ballots are excluded from any further counting although the returning officer does record the number of excluded ballots 3 7 The issue which arose was as to whether in the event that a recount is called it is open to the parties to seek to revisit decisions previously made on the admissibility of ballots That is an issue to which it may be necessary to return 3 8 So far as the main issue is concerned the relevant provisions of the legislation are as follows Article 80 2 of the Regulations sets out what constitutes a valid or invalid vote in the following terms 2 Any ballot paper a which does not bear the official mark or b on which the figure 1 standing alone or the word one or any other mark which in the opinion of the returning officer clearly indicates a first preference is not placed at all or is not so placed as to indicate a first preference for some candidate or c on which the figure 1 standing alone indicating a first preference or the word one or any other mark which in the opinion of the returning officer clearly indicates a first preference is set opposite the name of more than one candidate or d on which anything is written or marked which in the opinion of the returning officer is calculated to identify the elector shall be invalid and not counted but the ballot paper shall not be invalid by reason only of carrying the words one two three and so on or any other mark which in the opinion of the returning officer clearly indicates a preference or preferences 3 9 In addition it is necessary to note the statutory definition of a first preference which is set out in article 80 1 of the Regulations as follows a first preference means any mark which in the opinion of the returning officer clearly indicates a first preference 3 10 In like manner article 80 1 also sets out the definitions for other preferences as follows second preference means any mark which in the opinion of the returning officer clearly indicates a second preference standing in succession to a first preference third preference means any mark which in the opinion of the returning officer clearly indicates a third preference standing in succession to a second preference and so on b next available preference means a preference which in the opinion of the returning officer is a second or subsequent preference recorded in consecutive order for a continuing candidate the preferences next in order on the ballot paper for candidates already deemed to be elected or excluded being disregarded 3 11 The principal substantive issue comes down to a question of whether it was open to the returning officer to form a lawful opinion that ballots containing a sequence of numbers not starting with 1 could be said to have clearly indicate d a first preference 3 12 It is also of some relevance to note that guidance was issued to returning officers as to a range of questions which might arise in the context of conducting the count That guidance is contained in a document entitled Memorandum for the Guidance of Local Authority Returning Officers at the Local Elections Friday 23rd May 2014 the Guidance 3 13 In the context of the votes which are contested in this case the Guidance says the following at pp 52 53 A sequence which starts with the number other than 1 e g 3 4 5 6 discuss with agents see below In this connection and for the purpose of consistency returning officers should accept as valid individual ballot papers which include a sequence of preferences e g 4 5 6 or 6 7 which suggest that voters followed on from preferences recorded on the ballot papers at another election held on the same day 3 14 While there was broad agreement on all sides that the Guidance did not have any legal effect nonetheless it does need to be recorded that the decision taken by the returning officer was in accordance with the Guidance which seems to suggest that votes with a sequence of numbers not starting with 1 should be included 3 15 Finally so far as the legislation is concerned it is important to note that in order for an election petition to be successful it is necessary that any error identified must have been likely to have affected the result of the election see s 5 1 of the 1974 Act This Court in its recent judgments in Jordan v Minister for Children and Youth Affairs 2015 I E S C 33 made clear that when used in electoral legislation Jordan was of course concerned with a referendum the term affected in that context means an effect on the actual outcome rather than simply

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/72877b7d293428d380257f1e004203ff?OpenDocument (2016-02-09)
    Open archived version from archive


  • of doubtful ballots and there is no reason to conclude that the returning officer would have or should have altered any decision by reason of the presence of the petitioner or by reason of any representation made by the petitioner or anyone on his behalf 7 While the above describes a consensus among the candidates present at the doubtful ballot examination in favour of admitting ballot papers commencing within an apparent first preference beyond 1 it remains a matter of speculation where physical proof was possible that the exclusion of 57 ballot papers from the thousands cast would have resulted in a different election outcome Of course that is possible but the onus is on the petitioner to establish a different outcome That outcome can be for or against Dan Kiely or for or against another candidate but probable proof that the complained irregularity would lead to a different result is required Hence the dissent on this point 8 On the main issue of 3 4 5 etc becoming 1 2 3 and so on it is difficult not to feel sympathy for the returning officer Experience in prior elections had shown two distinctive approaches taken by the Irish electorate One was a form of expression which was by demonstrating a first preference with a tick or an X and continuing with the next preferences as 2 3 4 That process demonstrates a clear choice and one which on any reasonable analysis is unambiguous There is nothing to indicate that the admission of such ballots falls foul of the relevant legislation The other however demonstrates a dangerous ambiguity Certainly it is the case that the evidence before Judge Moran was that where a European election was coupled with a local election a not insignificant group of people continued on their preferences from one ballot paper and into the other as if the choices were amalgamated Where people had chosen 1 2 3 4 etc on the European ballot they expressed their first and following preferences on the local ballot paper by a 5 6 7 and so on This resulted in the flaw demonstrated in the 57 local election papers in question here 9 While returning officers are understandably keen not to disenfranchise people as Clarke J states in his judgment the problem is in the ambiguity of apparent choice Perhaps some people decide who is the candidate whom they like the least and then work backwards Possibly others decide that there are certain candidates they definitely will not vote for consequently if they start with their last preference it will not necessarily be the number 15 that marks that choice even though there are in fact 15 names on the ballot paper How does one know that a person has not promised a third or fourth choice to a particular candidate and decides to mark a 3 or 4 beside their name and then go back to the others but forgets to fill in their 1 and 2 These certainly are speculations and admittedly unlikely ones But statistically unlikely things happen within a sample of thousands If the discretion of returning officers was unlimited and if the legislative rule allowed for any form of choice by a voter no matter how expressed provided it was sequential the decision made by the returning officer in this case would have been possible 10 The problem with such an unfettered discretion is that it makes matters uncertain Even where that not so it is beside the point The legislation governs this situation The Local Elections Regulations 1995 make it clear that no ballot paper is valid unless the preference begins with the figure 1 standing alone or the word one or any other mark which in the opinion of the returning officer clearly indicates a first preference Thus an X or a or an duine seo or this person or some other indication followed by a 2 3 and so on is possible as the expression of a valid choice under the Regulations What that naturally says in that particular context is this is the woman I want to vote for and here are my second and third preferences Should such a single mark be followed not by a 2 but by a 3 or any lower number then there is a problem Similarly commencing a numerical sequence at any random number beyond 1 cannot be within the legislation Since Article 80 1 gives a definition of a first preference as any mark which in the opinion of the returning officer clearly indicates a first preference a clear choice of a candidate in unambiguous terms as the one most preferred for election is not invalidated by a mark on its own or a mark followed sequentially by 2 and 3 etc By requiring however either a 1 or a one or a mark which in its context states that this is the start of a sequence perhaps a b c the Oireachtas has excluded numerical sequences randomly beginning beyond an unambiguous first choice Regrettably therefore since the mistake amounts to the elector disenfranchising themselves in error the 57 ballot papers having that defect were not within the range of discretion open to the returning officer for inclusion in the vote 11 Insofar as confusion has arisen in the past where two elections to different representative bodies are run together and may be predicted as likely to return in the future clearly different colours as to ballot papers an education campaign through the media or a simple instruction and giving out each ballot paper by the returning officer would surely correct the error A suggested wording might be Now mark this one here 1 2 3 and so on in order of your choice and this other ballot paper you do exactly the same thing marking it 1 2 3 in order of your choice they are separate 12 Much of the evidence before Judge Moran was taken up with the issue of the exclusion of the 173 rejected ballot papers and as to why when a recount might be called these were not also subject to reassessment for possible inclusion in the bundles The transcript makes it clear that these rejected ballots were ruled out from any form of counting in accordance with the legislation The time to raise any query in relation to that process was in the early stages of scrutiny The duty is on the candidate to be present as opposed to placing an impossible burden on the returning officer to require their attendance Article 78 of the Regulations makes it clear that it is the duty of the returning officer to scrutinise the ballot papers with the purpose of discovering any papers liable to be rejected as invalid The invalidity may arise from for instance a voter not voting at all or registering a protest through the ballot paper without also filling in a preference or deciding to identify themselves by for instance signing their choice or otherwise writing some identifying matter or by mistake or mischief spoiling their vote Once rejected such ballots are not thereafter made part of the count The count is defined in Article 80 1 of the Regulations as all of the operations involved in counting the first preferences for candidates all the operations involved in the transfer of the surplus of candidate deemed to be elected all operations involved in the transfer of the votes of an excluded candidate or all operations involved in the transfer of the votes of two or more candidates excluded together 13 Section 8 1 of the Local Elections Petition and Disqualifications Act 1974 enables a court for the purposes of the trial of a petition to order that all the votes cast as the election shall be counted afresh Spoilt votes are not part of the total valid poll The view is here taken that Judge Moran properly relied on Article 81 and interpreted the legislation correctly by giving to that wording its plain meaning It is unambiguous This requires the returning officer to reject the ballot papers that are invalid following mixing On the legislation after that point the count begins The wording makes suggests that there cannot be a recount which involves the reconsideration of rejected ballots Article 81 2 specifies that it is at that point that the returning officer shall then count the number of papers in each parcel and credit each candidate with the number of votes equal to the number of valid papers on which a first preference has been recorded for such candidate That in itself is unambiguous but it is plain that as with the familiar announcements over the radio and television the calculation of the quota is on the basis of the total valid poll Hence the obligation is on the returning officer to ascertain the number of all ballot papers If an invalid vote somehow slips through it may be later excluded on it being found in the bundles It is on this that the proportional representation system of election proceeds 14 In the result while an error has been demonstrated the burden of proof has not been met by the petitioner In consequence the petitioner is not entitled on this analysis to a remedy on this appeal An Chúirt Uachtarach The Supreme Court Record number 2014 303 Appeal number 366 2014 Denham CJ O Donnell J McKechnie J Clarke J Charleton J In the matter of the Local Elections Petitions and Disqualifications Act 1974 and In the matter of the Local Elections held for Listowel County Kerry held on the 23rd of May 2014 Between Dan Kiely Petitioner Appellant and Kerry County Council Respondent Respondent and John Brassil Jimmy Moloney Mike Kennelly Michael O Gorman Robert Beasley Aoife Thornton Kate Carmody Brian Finucane Tom Walsh Kate Lucid McCabe Pat Leahy Dianne Nolan Liam Purtill and Tim Buckley Notice Parties Judgment of Mr Justice Charleton delivered on Thursday the 17th day of December 2015 1 There are three issues on this election petition firstly is a choice valid that begins beyond the number 1 or a mark which in its context indicates a clear first preference by being followed by 2 and 3 etc secondly are ballot papers rejected by a returning officer before the count begins as invalid and thus not counted as part of the total valid poll ever to be included in a recount and thirdly has the burden of proof been met by the petitioner to enable a remedy on this appeal should error in the counting of votes have been demonstrated That remedy is considered by the majority as a total recount 2 Proof is the most important issue as it is central to the remedy sought which is to upset the result of this election It is the point of this dissent Arguably this petition would not have been necessary had the questioned ballot papers been discovered to and then checked by the petitioner Each of these were both stamped and marked with a green pen by the returning officer so that the numbers 3 4 5 etc were replaced by the numbers 1 2 3 etc Of itself this illustrates the error which appears to have been collective to a number of returning officers in consequence of prior experience where local and European Parliament were run together a not insubstantial number of voters thought that by starting on the European ballot and expressing a preference in numerical sequence starting with one or 1 that they had to continue through that numerical choice on the local election ballot resulting in their first preference becoming a 3 or whatever and then being continued sequentially The difference between the last 3 candidates being less than 2 votes and 5 votes on the proportional representation system it is considered by the majority that the error of including ballot papers where preferences started numerically with other than a 1 is in the words of section 5 of the Local Elections Petitions and Disqualifications Act 1974 likely to have affected the result of the election 3 While it is thus clear that the majority view on this election petition is based on that statutory imperative this dissent is predicated on the basis that the section requires that relief is only available under the Act of 1974 where affect on the result of the election is established Every plaintiff in every ordinary contract or tort case has to demonstrate the probability of the case they make in the absence of establishing that their evidence is more likely to be correct than any countervailing evidence or possibility the plaintiff fails An electoral case should not be different There is also the question of the means of proof In an electoral case with physical ballot papers which are preserved the ones said by a petitioner to be wrongly counted and leading to an incorrect result can be physically taken out and scrutinised That is the advantage the paper ballot system has over electronic voting machines the evidence is there In this case by the simple expedient of identifying and taking out for judicial scrutiny the 57 ballots both stamped and corrected by the returning officer in a green biro pen and calculating the effect of any the error of their inclusion on the result whether the result would have been different or not thereby could have been established That was not done by the petitioner That is what has happened on prior election petitions There is thus no proof whether the now to be discarded 57 ballot papers favoured Dan Kiely Elections are the expression of the people s reposing of trust in representatives chosen under conditions of high scrutiny and subject to legal form There should be no questioning of an election result unless the test as set out in the Act of 1974 is met as a probability by any petitioner whereby not just error in the running of an election is demonstrated but also a probable affect on the result of that election is also established What the legislation requires is that the petitioner demonstrates as likely not merely possible that an impermissible method has produced a false outcome That has not happened here 4 In the light of the precise wording of the legislation it is to be doubted if the citation of the prior cases on electoral petitions is of assistance Of most relevance is Boyle v Allen 1979 ILRM 281 at 330 where Sheridan J pointed out that the onus of proof is on the petitioner to show by evidence that a an incorrect adjudication took place and b that such an adjudication was likely to affected the outcome of the election The test is not whether the result could or would have been affected Were that so the petitioner must succeed simply because the numbers are so close But it is not the test Mathematical proof of probable effect is possible by the extraction and counting of the 57 ballots clearly marked by the returning officer In that context nothing less than a demonstration of why these inclusions go either against the petitioner or in his favour and do not cancel each other out is required by law Proof on the balance of probabilities is required The petitioner is required to establish a false result As the relevant excluded ballots are capable of identification mathematical calculation is not only feasible but is open It is to be noted that the helpful submissions of the Minister for the Environment Community and Local Government on this appeal include a reference to a 1999 petition Larry Kavanagh v Laois County Council noted in an article by Louis Brennan in Counts Recount and Petition Laois County Council Election 1999 published by the Institute of Public Administration 2000 where Judge Moran considered 21 different disputed ballot papers in issuing his decision That work has been made available to the Court and it includes a facsimile of the disputed ballot papers Similarly the Minister s submissions note the case before Hamilton P on the petition challenging European election In the Matter of the European Parliament Elections for the Constituency of Leinster 1989 The Petition of Michael Bell in November 1989 where the judge examined the relevant ballot papers and established to the satisfaction of all sides that even if these ballot papers had been included the petitioner would not have been elected either way referenced in Whelan Politics Elections and the Law Dublin 2000 The transcript of that decision of 24 November 1989 has been furnished Hamilton P considered all the relevant ballot papers it appears with assistance from an expert and did a count which established that the election result would have been the same There was no reason not to do the same on this election petition Here as there were 57 ballot papers to be excluded it is not beyond proof to show the probable effect of that on the outcome of this election These precedents while not binding this Court indicate that only by producing the disputed ballots to a judge can a candidate on an election petition establish that the result of the election would have been different 5 The figures recorded as primary fact by the trial judge His Honour Judge Moran of the South Western Circuit are that there were 230 doubtful ballots The returning officer rejected 173 of these and admitted 57 as valid Turning shortly to whether a recount involves a reconsideration of all 230 ballot papers it is the 57 admitted that are here of importance The transcript of the hearing elucidates that the extraction and calculation of the effect of these renders it possible to demonstrate the probable outcome of their exclusion from the recount Those challenging an election result must do that On 18 June 2014 the second day of the hearing before Judge Moran the deputy returning officer Michael McMahon responsible for the Listowel

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/f0ec4da0418c99a580257f1e00413311?OpenDocument (2016-02-09)
    Open archived version from archive


  • dismissing the action 45 At the outset it is important to note that on an application such as this the Court does not involve itself in an exercise of adjudicating on disputed issues of fact or of resolving rival contentions made by or on behalf of the respective parties It proceeds on the basis of taking the claim as made at its high watermark and as assuming that the factual context pleaded unless demonstrably wrong or self evidently incredulous is correct This particular approach is required by law and should not be taken as being in any way equivalent to a judgment following a full trial wherein the judge sets out his findings and prefers or accepts one version of the story as against and above another version Therefore in the context of this case the conflicting accounts whilst noted are not to be regarded as having been resolved In fact they are not as it is not necessary to do so in order to apply the principles of law above set out It is on such basis that this appeal is being determined 46 Given this approach it is not necessary to deal with the Notice of Motion issued by the appellant in which he seeks to have admitted for the purposes of this application the Exhibit Index so referred to Whilst I note that he has assembled what appears to be an impressive array of affidavits from different individuals which to some greater or lesser degree support his case nonetheless their consideration is not necessary for the reasons given This equally applies to the medico legal report of Dr John A Waldron dated 9th July 2003 to the admission and discharge records from Merlin Park Hospital for the period October 1978 to March 1991 and to a report dated 5th September 1990 signed by the Registrar to Dr O Loughlin from the Mater Hospital all of which relate to the medical condition and prognosis of his mother In other circumstances and in a different context the same could be highly material but for present purposes cannot be so regarded 47 Many issues have been canvassed on the documentation a number of which have been referred to in the High Court judgment The submissions in as helpful a way as possible have addressed these points However having given careful consideration to this matter both in a narrow but also in a wider sense I have come to the conclusion that the application can and given the context of the dispute as a matter of the utmost prudence and necessity must be resolved by way of a simple issue That relates to the asserted time bar contained in the Civil Liability Act 1961 the 1961 Act and perhaps far more pertinently in the Statute of Limitations 1957 the 1957 Act 48 This means that in addition to the Exhibit Index not being essential the merits of the underlying case as such are not highly material The only factors of real note are the events referred to in the earlier part of this judgment coupled with an acknowledgement by Mr Gerard McHugh that he his solicitors obtained a copy of the relevant Folio No 43217 F in February 1998 That folio without doubt showed both respondents as being full owners of one undivided half share each of the subject lands having been registered as such on the 19th February 1991 The referenced delay or the reasons therefor in the appellant obtaining a copy of the Deed of Transfer are not material to the question of knowledge regarding the ownership of these lands if that issue had still been relevant Since 1991 the respondents have been named on the relevant folio The fact that their mother was never registered as such and that the registered owner immediately preceding the entry of Myles and Anthony McHugh was their grandmother is perfectly explainable as a matter of routine conveyancing practice Once the folio was obtainable and certainly once obtained it was clear ex facie who the registered owners were 49 It seems rather obvious given the absence of any caveat being lodged that there may have been no justification for the appellant in his Statement of Claim seeking an order granting him liberty to apply for a Grant of Probate the continuation of that plea however was entirely justified in light of the allegation pleaded in the defence namely that the said Will of the deceased had been procured by undue influence and by the improper exercise of pressure by the appellant on his mother Whilst that plea was formally withdrawn in 2011 I am entirely satisfied that there was never any factual or sustainable basis for its making in the first instance and that it was a highly inappropriate plea to have ever been included in the defence 50 In this context I accept that the Mr McHugh at all times intended to obtain a Grant of Probate but that he was not advised at the earliest possible time that he should have taken steps to apply for such a grant Therefore his delay in so doing cannot be attributed to any inconsistent stance being adopted or ulterior motive being pursued by him the simple explanation being that as given 51 Lest by the approach which I have adopted I should be taken as in any way agreeing that the judge s findings on the issue of non statutory delay were correct I should say this on the point Whilst I agree that the delay was inordinate I would if anything be of the view that it may in fact be capable of being excused even if not I would be inclined to think that on the balance of justice the case should not have been terminated on such basis An important consideration in this regard was the fact that the respondents did not move to amend their defence in such a crucial manner until early 2011 almost four years after filing that document in its original form There are other factors which in my view would also tend against granting the application on such basis However as I have said a conclusive view on this issue is not necessary 52 There is a further matter that ought to be addressed It was entirely surprising to find on a motion the essence of which was to have the plaintiff s claim dismissed on the basis of being bound to fail that the learned trial judge also gave judgment on the Counterclaim This was remarkable for many reasons including the correspondence which had passed between the plaintiff s then solicitors Scarry O Connor and the solicitors representing the defendants Murphy Ballantyne On the 21st April 2011 the latter issued a twenty one day warning letter seeking a reply to the Counterclaim On the 3rd May 2011 Messrs Scarry O Connor indicated their intention to come on record and sought a letter of consent to the late filing of a reply to the amended defence and counterclaim Without apparently any further correspondence the motion issued and even more surprisingly the Counterclaim was dealt with by the trial judge in the manner indicated Irrespective of whatever outcome this appeal should otherwise have I would be strongly of the view that it was inappropriate to proceed in this manner and that in respect of a claim where the special damages as of March 2011 were said to be almost 60 000 00 and continuing to have given a judgment in this context without directing a hearing in the normal way could not be justified In fact I do not understand counsel for the respondents to now dispute this proposition 53 This issue however is no longer one of real agitation In the course of hearing this appeal there were exchanges between counsel representing the defendants respondents and the court regarding the Counterclaim Therefrom I am taking the situation to be that in the event of the respondents being successful and that the appellant s claim cannot go further then it would not be his clients intention to proceed with the Counterclaim Whilst I appreciate that only one of his clients was in court nonetheless that so far as I am concerned was the stated position when this discussion had been finalised 54 Under s 71 of the 1957 Act it is provided that where a cause of action is based on the fraud of the defendant or his agent or that the right of action is concealed by the fraud of any such person s then the appropriate limitation period shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have so discovered it Somewhere amidst the evidence or submissions or arguments made in this case there lingers a suggestion that the respondents as a matter of law may have enabled the appellant by their actions to rely on these provisions I am perfectly satisfied that this is not the case As stated on more than one occasion previously the respondents were registered within a relatively short time of the Deed of Transfer having been executed Thus that information had been available for almost seven years before the death of Mrs Rita McHugh In such circumstances whilst the appellant may well feel aggrieved at a moral social or relationship level that he had not been specifically told of the transfer nonetheless such cannot be said to create a sustainable ground upon which the provisions of s 71 may be invoked 55 The provisions of s 72 of the 1957 Act which deals with the commencement of the limitation period where mistake is in issue do not arise for consideration on the facts of this case 56 Although the discussion travelled far and wide as to what at this point in time the appellant s real case is I think that the answer can again be found in an affidavit sworn by him on 20th February 2015 where at para 13 he says I say and believe and am so advised that the central and core issue of the plaintiff relates to the validity of the said Deed of Transfer and that the plaintiff accepts that he cannot make any case under s 117 of the Succession Act as against the defendants herein and likewise that it is not appropriate to raise a case on estoppel or legitimate expectation against these defendants One can also recite the following in support from an affidavit sworn by his solicitor Michelle Scarry on 28th October 2011 4 I say that the core of the Plaintiff s claim is that he as executor of his late mother s estate under her last Will and Testament made on the 9th July 1987 wishes to proceed with his claim to challenge the validity of a Deed subsequently entered into by his deceased mother and made on the 5th February 1990 13 I say and believe and am so advised that the central and core issue of the Plaintiff relates to the validity of the said Deed of Transfer and that the Plaintiff accepts that he cannot make any case under s 17 of the Succession Act as against the Defendants herein and likewise that it is not appropriate to raise a case on estoppel or legitimate expectation against those Defendants 57 It is thus clear that the legal challenge is no longer one under the provisions of s 117 of the 1965 Act or one based on estoppel or legitimate expectation One can also add in s 121 of the 1965 Act as well as pointing out that the inconsistent claim to adverse possession under s 49 of the Registration of Title Act 1964 though advanced by Mr McHugh in his affidavit of 9th July 1998 is likewise not being pursued Therefore his claim is directly based and solely focused on having the Deed of Transfer invalidated on whatever ground 58 In that context there are two statutory provisions which must be referred to the first is s 9 of the Civil Liability Act 1961 which in its material wording reads as follows 9 1 In this section the relevant period means the period of limitation prescribed by the Statute of Limitations or any limitation enactment 2 No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless either a proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the date of his death or b proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death whichever period first expires 59 Section 13 of the 1957 Act is the other provision subs 2 reads 13 2 The following provision shall apply to an action by a person other than a state authority to recover land a subject to subpara b of the subsection no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it b An action to recover land is defined in s 2 of the 1957 Act as including a an action claiming a declaration of title to land 60 References to other potential sections of either the 1957 Act or the 1961 Act do not add anything further to this discussion Therefore the provisions of ss 14 18 and 46 of the 1957 Act will not be addressed and neither will s 7 of the 1961 Act In addition I cannot see how even if he was not bound by the six year period therein provided for he could hope to invoke s 45 of the 1957 Act as substituted by s 126 of the 1965 Act The decision of the Supreme Court in Gleeson v Feehan No 1 1991 I L R M 783 confirmed the obiter dictum of McMahon J in Drohan v Drohan 1981 I L R M 473 to the effect that s 45 of the 1957 Act does not apply to actions brought by a personal representative to recover land from someone in possession thereof In such circumstances the twelve year limitation period laid down in s 13 2 of the 1957 Act applies 61 At the date of the institution of these proceedings the plaintiff had not obtained a Grant of Probate and his attempted reliance on the provisions of s 10 of the 1965 Act as in essence having the same effect as a Grant is misplaced It is therefore likely that he was acting in a personal capacity in making and pursuing these claims I say likely because there is the possibility that in certain circumstances he could come within the principles as described by Keating at para 33 above Indeed as a matter of fact he did have a Grant when the respondents motion came on for hearing before the High Court in November 2011 62 However when one looks at the underlying reality it will be utterly clear that Mr McHugh s ambition was to obtain ownership of the subject lands Obviously he could not do so unless the registered owners i e his brothers were named as defendants in any such proceedings which he might issue As these lands were not part of the Estate of the deceased at the date of her death it is impossible to see any point in suing the Estate even if all of the other infirmities above described had been resolved Certainly without the Deed of Transfer being set aside and for so long as that remained the position the lands simply stood outside the Estate and thus no possible benefit could be obtained by the plaintiff in suing the Estate given his intended purpose Therefore I cannot agree that it can be said that the instant cause of action was one which fell within the provisions of s 9 of the 1961 Act Consequently it has to follow that the within proceedings could not be statute barred by virtue of these provisions 63 In my view however the correct way of assessing and thus of approaching this case is to consider that the proceedings had been instituted in the plaintiff s personal capacity with the intention of recovering the lands in question for his sole use and benefit Therefore the most pertinent statutory provision must be s 13 of the 1957 Act 64 It will be recalled that the Deed of Transfer was dated the 5th February 1990 and that the respondents became the registered owners on the relevant Folio as of the 19th February 1991 Therefore any such action for the intended purpose even if properly formulated would have to be instituted within twelve years from the date when the right of action accrued Given that the Plenary Summons did not issue until the 4th March 2004 it obviously follows that such proceedings were out of time in respect of the cause of action so construed As there is no applicable provision by which the period may be extended that statutory barrier of itself has the effect of preventing the appellant from continuing with the claim as so framed 65 Even if however I should be incorrect in this regard and that it could be said that the appellant was acting in either an executor capacity or some capacity equivalent or analogous to that then quite evidently he could not as a matter of law act in effect as prosecutor and defender in the same cause of action Furthermore and again notwithstanding what I have said if the claim despite the most unconventional and not altogether clearly understood manner of how it is pleaded is to be regarded as one against the estate of the deceased person then under the provisions of s 9 2 of the 1961 Act it is self evident that the same would be statute barred 66 Therefore whichever way one approaches this case it seems to me that as a matter of a statutory limitation which cannot be extended these proceedings are bound to fail Accordingly for these reasons I would dismiss the appeal THE SUPREME COURT 214 2012 McKechnie J MacMenamin J Laffoy J BETWEEN GERARD MCHUGH PLAINTIFF APPELLANT AND MYLES MCHUGH AND ANTHONY MCHUGH DEFENDANTS RESPONDENTS JUDGMENT of Mr Justice William M McKechnie delivered on the 17th day of December 2015 Introduction 1 The plaintiff is a security officer and part time farmer and resides at 4 Palace Fields Tuam in the County of Galway In addition he the plaintiff a is a brother of the first and second named defendants herein They also had two sisters one now deceased making a total of five siblings b is a lawful son of the late Michael McHugh who died on the 9th May 1976 and the late Rita McHugh who died on the 12th January 1998 and i on the death of his father Gerard inherited the lands comprised in Folio 53169F of the Register of Freeholders of the County of Galway ii prior to her death Mrs McHugh was entitled to be registered as full owner of the property the subject matter of the within proceedings namely the lands and hereditaments comprised in and described on Folio 43217F of the Register of Freeholders of the County of Galway sometimes referred to as the subject lands such entitlement arising from the provisions of a Marriage Settlement executed in 1943 evidently on the marriage of the parents to the parties herein c is a grandson of the late Mary Ellen Dunne mother of Rita McHugh who died on the 23rd June 1985 and who prior to her death was registered as limited owner of the aforesaid lands on Folio 43217F of the Register of Freeholders of the County of Galway 2 These proceedings howsoever formulated and howsoever worded essentially involve a dispute between the three brothers in relation to the subject lands The plaintiff challenges the validity of a Deed of Transfer of such lands made by his late mother to the defendants in 1990 In the circumstances occurring which are more fully described later in this judgment he claims that for the several reasons as pleaded he and not his brothers should be regarded as the rightful owner of these lands The defendants issued a motion to have the proceedings dismissed on the basis that the same were not maintainable against them and were bound to fail Murphy J acceded to such application in a judgment delivered on the 10th February 2012 Mr Gerard McHugh the plaintiff or the appellant has appealed to this Court from the entirety of such judgment and the resulting order dated the 28th February 2012 and perfected on the 3rd May 2012 3 In addition to the headline details set out at para 1 above the following events which took place on the dates specified are important factors in an understanding of this case 9th July 1987 Mrs Rita McHugh the deceased made her last Will and Testament in which having nominated the plaintiff as her sole executor she devised and bequeathed all of her property both real and personal of every kind and nature and wheresoever situate to her son Gerard absolutely 5th February 1990 the deceased executed a Deed of Transfer of the subject lands in favour of the defendants who duly lodged the executed Transfer with the Land Registry for registration 19th February 1991 the defendants became registered as full owners in fee simple of the subject lands 12th January 1998 the deceased as above stated died 26th October 2011 Probate of the last Will and Testament of the deceased was granted to the plaintiff 4 Whatever may be the legal outcome of this appeal it can with both certainty and conviction be said that this is a most tragic case which has created deep and suffering divisions within the McHugh family Not for the first time this Court has witnessed first hand how families can be irreparably divided on issues such as due entitlements property inheritance and the cruelty of real or perceived ingratitude In fact such disputes can be everlasting in memory and affect not simply the immediate members who are personally embattled in conflict but also many members of their extended families It is of enormous regret that some less confrontational forum could not have been settled upon which might have helped to resolve this conflict in a less attritional and harrying manner and at least to have achieved some degree of acceptance for those involved even if that should have fallen short of the harmonious relationship which we all strive for in a family context Alas even that bit of good fortune was beyond the McHughs 5 The best which this Court can hope for now is that irrespective of the decision which I am about to give some measure of finality will be brought to these proceedings so that the parties involved can at least in some respect reposition this dispute and concentrate more fully on their lives and the lives of their loved ones without the ever constant reminder of the underlying hurt which the further continuation of this case would inevitably perpetuate Even though earnestly stated I have no doubt but that the aggrieved party will still feel wronged and will find little comfort in what I have said However having accessed the legal process and having ended up before this particular Court I hope that the expressed sentiments will not be entirely discarded They apply with equal authority to the parties who will feel more satisfied with the outcome but both Myles and Anthony McHugh should not forget that they too have played a significant role in this saga There are to use the awful phrase no ultimate winners in this conflict A Bit More Detail 6 In order to understand more fully the issues raised in this appeal it is necessary to refer to the pleadings and firstly to note that the date of the issue of the Plenary Summons was 4th March 2004 For reasons not entirely clear but fortunately not of real significance at this point in time the exchange of documentation in this case certainly took a leisurely course with the joint defence being delivered only on the 24th January 2007 Ultimately however some movement of substance was achieved by the delivery of an amended defence and counterclaim on the 23rd March 2011 which came about in circumstances which I will outline in a moment First however reference must be made to the claim advanced on behalf of the plaintiff 7 In the Statement of Claim the following reliefs were sought a an Order directing that the purported Deed of Transfer by the said Rita McHugh dated 5th February 1990 of the lands in question to the first and second named defendants be set aside revoked and cancelled b an Order providing that Probate in Solemn Form of the last Will and Testament of the said Rita McHugh made on the 9th July 1987 be granted to the plaintiff c a Declaration pursuant to the provisions of s 117 of the Succession Act 1965 that the said Rita McHugh failed in her moral duty to make proper provision for the plaintiff in accordance with her means d a Declaration that the defendants are estopped from asserting title to the subject lands and a Declaration that they be regarded as holding such lands on trust for the plaintiff in either event a further Order was sought that such lands be conveyed to the plaintiff e an Order that the plaintiff is entitled to be registered as owner of the said lands pursuant to the provisions of the Registration of Title Act 1964 Further consequential orders as would follow from the granting of any of these reliefs were also prayed for Finally damages were sought for the loss and damage including special damages allegedly suffered and sustained by the plaintiff as well as interest thereon and the costs of these proceedings 8 The Defence and Counterclaim in its original form was delivered on the 24th January 2007 It did not contain any plea referable to statutory time bars although it did raise as an issue the matter of delay based on common law equitable principles That was to change however which change had an important bearing on this case Following the issue of a Notice of Motion to that effect the High Court by Order dated the 17th January 2011 permitted the defendants to file an Amended Defence and Counterclaim The significance of this was that for the first time the defendants decided to meet the claim by asserting statutory time barriers they did so under the heading of Preliminary Objections These were pleaded as follows Preliminary Objections I Save to the extent that these proceedings comprise a claim to prove the purported last will and testament of the late Margaret otherwise Rita McHugh the Deceased dated 9th July 1987 they are not maintainable by the Plaintiff against the Defendants and ought to be struck out on the grounds that a insofar as they comprise a claim made pursuant to sections 117 and or 121 of the Succession Act 1965 same are not maintainable as against the Defendants herein who are not the personal representatives of the Deceased b insofar as they comprise an application to set aside the transfer of 5th February 1990 the Plaintiff is neither a party to the said transfer nor the personal representative of a party thereto and as such the plaintiff does not have locus standii sic to maintain such an application c insofar as they comprise a claim based on an alleged agreement made between the Deceased and the Plaintiff and or representations or promises allegedly made by the Deceased to the Plaintiff and or upon the alleged legitimate expectation on the part of the Plaintiff arising as a result of the Deceased s conduct same are not maintainable as against the Defendants neither of whom are the personal representatives of the deceased and d insofar as they comprise a claim for damages any claim for damages even if valid which is denied is a claim against the estate of the deceased and is not maintainable against the Defendants herein II Insofar as the plaintiff seeks to set aside the aforesaid transfer of 5th February 1990 pursuant to s 121 of the Succession Act 1965 such an application is not maintainable in respect of a disposition occurring in excess of three years prior to the death of the disponer and so is not maintainable in respect of the said transfer since the same was executed by the Deceased almost eight years prior to her death 9 Very shortly after filing this Amended Defence and Counterclaim for which a further extension of time was required the defendants energised by the antecedent order of the 17th January 2011 issued a motion dated the 9th June 2011 in which they sought to have the plaintiff s claim dismissed save to the extent that Probate in Solemn Form of the last Will and Testament of the deceased was being claimed They did so on the basis set out in that amending document In addition they sought if appropriate a Declaration that the purported will constitutes the only valid and duly executed will of their mother and they also looked for a default judgment in respect of the counterclaim The application was moved on the grounding affidavit of their solicitor Mr John Murphy With issue having being joined on the factual and evidential matters as averred to the application came on for hearing before Murphy J in November 2011 who delivered his judgment in February 2012 The resulting order which was perfected on the 3rd May 2012 dismissed the plaintiff s claim awarded full costs against him and granted judgment in default on the counterclaim see para 22 infra f or full details It was a complete victory one might say for the defendant brothers It is against both the judgment and the Order that Gerard McHugh has appealed to this Court he has done so on the several grounds set out in his Notice of Appeal dated the 18th May 2012 This is my decision on such appeal Family Background Assertion and Counter Assertion 10 As pleaded the plaintiff says that he was attending Athenry Agricultural College in or about 1974 when his father fell ill He forwent his studies and at the time returned to work and live on the home farm in Tuam in order to support the family as his father was no longer able to do so As stated he became owner or entitled to ownership of the lands contained in Folio 53169 of the Register of the Freeholders of the County of Galway on his father s death On many occasions throughout the years the plaintiff s mother represented to him that the lands in Folio 43217 F would fall to be his upon her death He says that both parcels of land are contiguous and would obviously farm as a unit the defendants deny this In any event the plaintiff claims that he relied on these statements of his mother and in so doing irretrievably altered his position and standing in life all to his long term detriment 11 By working as he did and where he did the plaintiff was able to provide support for his mother father and grandmother until each of their respective deaths His mother became seriously incapacitated in and from 1988 onwards with the plaintiff and his wife caring for her for the following two years In September 1990 Mrs Rita McHugh was admitted to a nursing home and there she was to remain until her death on the 12th January 1998 The plaintiff says that he discharged the entirety of the expenses associated with this care whilst also considerably improving the lands the subject matter of this dispute 12 Mrs McHugh as above noted made a Will on the 9th July 1987 devising all her property including realty to the plaintiff who was also named as sole executor of her Estate However by Deed of Transfer dated the 5th February 1990 the said testatrix purported to convey the said lands to the defendants who were registered as owners in the Land Registry on 19th February 1991 The plaintiff maintains that this Deed of Transfer was obtained by unlawful means including the exercise of improper and undue influence and the application of inappropriate pressure on his mother by the defendants He furthermore asserts that his mother was at the date of the purported Deed of unsound mind and was both physically and mentally incapable of resisting the pressure of which he speaks in addition she received no independent legal advice at the time which if she had might well have seen a revocation clause being included or at least might have ensured that adequate consideration was inserted at an appropriate value Even more astonishing was the absence of any life interest or right of residence despite her illness or any right of maintenance and support Whilst I do not have to explore these issues given the view which I have taken of the case it cannot but be acknowledged that in different circumstances these may well be worthy of serious and critical investigation 13 Gerard McHugh goes on to say that the defendants did not make him aware of their purported ownership of the lands until after their mother s death sometime around May 1998 From that time onwards the defendants have wrongfully sought to exclude him from the use enjoyment and ownership of the subject lands contained in Folio 43217 F of the relevant Register of the County of Galway He has thus suffered serious loss and damage as a result 14 The plaintiff also claims that in making the Deed of Transfer his mother breached agreements promises and representations made to him over the years all to the effect that the lands would be his thus acting in breach of trust and in breach of his legitimate expectation A separate cause of action is also couched within the meaning of s 117 of the Succession Act 1965 in which context he points out that each of the plaintiff s two brothers were provided with a third level education by their parents which enabled them to become established in substantive and remunerative occupations Each of his two sisters was afforded the same support even if for different reasons neither availed of it In any event this leads the plaintiff to say that within the meaning of the said section his mother therefore made proper adequate and appropriate provision in accordance with her means for all of her other children including in particular the defendants 15 Finally the plaintiff claims that it would be unjust unconscionable and inequitable to allow the defendants to disregard the promises so made to him and to insist on their legal rights if any to the said lands He states that the defendants hold the land in trust for him 16 The defendants take issue with much of the detail as asserted by Mr Gerard McHugh they deny that he was ordered or requested to forgo his education in order to support the family on the farm they in fact assert that he returned to the home place of his own volition They also state that the plaintiff was adequately compensated for his work on the farm inter alia by obtaining ownership of the lands in Folio 53169 F comprising 33 4 acres para 1 supra this of itself constituted proper adequate and appropriate provision for him under the Succession Act They take issue with the alleged promises and representations and strongly claim that the plaintiff knew of

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/16bc870cbe9e8f6680257f3b00496ada?OpenDocument (2016-02-09)
    Open archived version from archive


  • of his belief it was also entitled to take into account the fact that the accused made a false statement to the gardaí and the other corroborating evidence of other witnesses which was accepted 34 Indeed it has been commented by this Court in The People DPP v Connolly 2015 IESC 40 at para 37 and by the European Court of Human Rights in the case of Donohoe v Ireland that courts of trial are alert to the need for caution That is their function Individual circumstances will vary but for example in that case before the European Court of Human Rights at para 88 of the decision it was commented T he trial court was alert to the need to approach the Chief Superintendent s evidence with caution having regard to his claim of privilege and was aware of the necessity to counterbalance the restriction imposed on the defence as a result of its decision upholding that claim It proceeded to adopt a number of measures having regard to the rights of the defence Firstly the court reviewed the documentary material upon which the Chief Superintendent s sources were based in order to assess the adequacy and reliability of his belief While the Court does not regard such a review in itself to be sufficient to safeguard the rights of the defence It nevertheless considers that the exercise of judicial control over the question of disclosure in this case provided an important safeguard in that it enabled the trial judges to monitor throughout the trial the fairness or otherwise of upholding the claim of privilege in respect of the non disclosed material Secondly the trial court in considering the claim of privilege was alerted to the importance of the innocent at stake exception to any grant of privilege It confirmed expressly that there was nothing in what it had reviewed that could or might assist the applicant in his defence and that if there had been then its response would have been different Thirdly in coming to its judgement the court stated specifically that it had expressly excluded from its consideration any information it had reviewed when it was weighing the Chief Superintendent evidence in the light of the proceedings as a whole It further confirmed that it would not convicted the applicant on the basis of that evidence alone but that it required his evidence to be corroborated and supported by other evidence This passage acknowledges the safeguards that are inherent in Article 38 1 of the Constitution and which experience indicates are considered by the Special Criminal Court with especial caution in the application of the impugned section of the 1972 Act 35 In prosecutions for membership of an unlawful organisation as in every other case the overall fairness of the trial is within the command of the judges of the court of trial Unfair trials are not acceptable under the Constitution Every trial is subject to an appeal system and in that regard the comments of O Donnell J in the Donnelly case at para 20 are apposite This Court accepts that the statutory provisions in issue are significant alterations to the common law and together with the privilege which normally attaches to the identity of informers and indeed to methods of information gathering make more difficult the task of defending persons accused with the offence of membership of an unlawful organisation in particular However a fair trial whether pursuant to Article 38 of the Constitution or Article 6 of the Convention is not necessarily to be understood as a trial in which a defence is facilitated The question at all times is whether a trial under such conditions is fair Nevertheless the Court accepts that the provisions of s 3 of the Act of 1972 and s 2 of the Act of 1998 require careful scrutiny Even where it is accepted that the statutory provisions whether individually or cumulatively do not offend at the level of principle there remains in any given case an issue as to the fairness of the individual trial 36 In terms of the fairness of belief evidence it was correctly noted by the Court of Criminal Appeal in the Donnelly case that such testimony was being applied not to a single individual act in the past such as murder or sexual violence but only to the kind of continuing state of affairs where such a belief can rationally and securely build up over time As O Donnell J stated at para 26 I t is noteworthy that the evidence pursuant to s 3 2 can only be given in relation to one category of offence that is membership of an unlawful organisation For the reasons set out in Kelly and Redmond those organisations determined to be unlawful organisations pursuant to the Act of 1939 are cell based secretive and violent organisations which invest considerable resources in the enforcement of secrecy about the membership of such organisations and do so by torture death and by the inevitable fear that those methods engender Membership is normally a continuing state of affairs rather than a single activity and is accordingly more susceptible to belief evidence of a senior garda officer based on a variety of sources over a period of time than if such evidence was admissible in respect of a single criminal activity Whatever the justification it is certainly the case that such belief evidence is only admissible in respect of membership of an unlawful organisation Gathering such evidence is as the European Court of Human Rights observed in Donohoe v Ireland at para 90 a complex intelligence gathering and analytical exercise It continues over time and the analysis to which it must be subjected is likely to challenge error Special advocates 37 The concession on behalf of Thomas Redmond that some form of limited role for a special lawyer in examining documents on behalf of the accused would not cure the argued for unconstitutionality of the impugned section means that only a brief comment is required on this issue In some jurisdictions where restrictions are placed on persons in the context of immigration or national security a special advocate may be appointed in order to secretly examine the papers which point to the concerns of the authorities and to make representations on behalf of the restricted person An example is Zaoui v Attorney General No 2 2005 NZSC 38 A case in Canada where a specially authorised lawyer subject to a rigorous background check was similarly engaged was Charkaoui v Canada Citizenship and Immigration 2007 1 SCR 350 Akin to this in relation to what appears to be combatant detention or more properly the suspicion of enemy status certain elaborate procedures have been engaged in the United States of America see Hamdi v Rumsfeld 542 US 507 2004 In our neighbouring jurisdiction other procedures have been applied Secretary of State for the Home Department v MB 2008 1 AC 440 Cases on control orders in that jurisdiction include Secretary of State for the Home Department v MB 2008 AC 440 and Secretary of State for the Home Department v AF 2009 UKHL 28 In the latter the three appellants were subject to control orders involving significant restriction of liberty under s 2 of the Prevention of Terrorism Act 2005 on the ground that the Secretary of State had reasonable grounds for suspecting that the appellant involved in terrorism related activity The decision of the European Court of Human Rights on 19th February 2009 in A and others v United Kingdom Application No 3455 05 was also canvassed extensively All such cases were not in the context of a criminal conviction but rather the placing of administrative restraints on liberty subject to judicial overview The origin of any such cases in the Commonwealth is neither here nor there 38 In the High Court in Director of Public Prosecutions v Special Criminal Court 1999 2 IR 60 Carney J made it clear that it is fundamental to the relationship of accused and defence counsel in the context of representation in a criminal case that open communication be untouched In that case the Special Criminal Court had made an order that documents withheld by the prosecution should be disclosed to the legal representatives of the accused Paul Ward but not to Paul Ward himself This Carney J held at p 75 undermined Article 38 1 of the Constitution because as he said it does not seem to me that there would be a trial in accordance with constitutional justice if any legal representatives did not enjoy the full lawyer client relationship with their client but were under an obligation to keep secrets from him On appeal to this Court that point was accepted O Flaherty J pointing out that such disclosure would destroy informer privilege and would remove from an accused the right to conduct his own defence see p 84 39 It has not been argued that this decision was wrong and should be departed from in accordance with the established test laid down by this Court as a matter of general principle in non constitutional matters that a prior decision of the Supreme Court should be followed by that Court unless it is demonstrably wrong and it is in the interests of justice to depart from the previously held position Mogul v Tipperary North Riding County Council 1976 IR 260 and as to constitutional issues see Jordan v Minister for Children and Youth Affairs ors 2015 IESC 33 O Donnell J at para 63 Real issue 40 All of this argument on behalf of Thomas Redmond has been very much beside the point and speculative A plain reading of the impugned subsection of the Act of 1972 makes it clear that belief evidence is admissible within the safeguards so carefully constructed by the legislature around the operation of the provision Article 38 in guaranteeing that a trial on a criminal charge be in due course of law addresses both substantive and procedural minimum standards and in doing so enforces the fundamental rule that where reasonable people within the community with a complete knowledge of the facts might reasonably doubt that an accused had committed a crime that accused should be acquitted Further it has been acknowledged in several decisions that where a prosecution consists of the bare evidence by a Chief Superintendent that an accused is a member of an unlawful organisation and where the accused counters this by giving contradictory evidence the possibility a conviction in those circumstances would be very much undermined In addition the practice over decades both by the prosecuting authorities and by the Special Criminal Court establishes to a degree the reasoned basis upon which the initiation and condemnation of accused persons on the charge of membership of the self styled IRA is founded Prosecutions are dependent upon the evidence of a Chief Superintendent in order to make the charge of membership of a prescribed organisation viable for prosecution This charge is vital to the maintenance of the democratic polity of this country But over decades now such belief evidence has been supported by some other evidential circumstance whereby analysed together that evidence may be characterised as collectively sufficient to establish the liability of the accused to be convicted whether defence evidence has been given or not The several statements as to the practice within the Special Criminal Court in approaching such belief evidence and the rightful reluctance of that court to convict where belief evidence stands alone supports the constitutionality of the impugned subsection in admitting such belief evidence at trial in the context of the safeguards which the charge attracts Among those safeguard is that the belief evidence should not stand alone but that the charge should otherwise be supported by some other piece of evidence or some admissible circumstance which supports the charge On the current case law that support would be independent of the belief evidence Of course all evidence should be credible as Hardiman J states in his judgment 41 While the categories of evidence calling for a warning to be given to a jury or to be self administered in the case of the District Court or the Special Criminal Court that it is dangerous to convict on particular classes of evidence without corroboration are not closed misstatement of case law in argument on that complex context is a real danger With the necessary backdrop of Article 38 of the Constitution the Oireachtas in enacting subsection 3 2 of the Act of 1972 was merely adding to the categories of evidence which might support a particular charge in a particular context In so doing they were not undermining the Constitutional guarantee of substantive fairness in the ultimate result of a criminal trial Consequently where the belief evidence of a Chief Superintendent that the accused is a member of an unlawful organisation is supported by some other evidence relevant to the charge the constitutional guarantee is supported As to the particular weight to be attached to that belief evidence and the other evidence in the trial that is a matter for the court of trial Such evidence is to be assessed in the context of all of the evidence in the case whether including testimony from the accused or not In some cases evidence other than the belief evidence will be weighed by the Special Criminal Court as very important while in other trials that belief evidence assumes prominence For the avoidance of doubt there is no order in which each such piece of evidence is to be assessed It is in the overall context of the state of admissible evidence at the end of the trial that the Special Criminal Court may convict or may fail to be convinced by an entire body of testimony The judgment at trial in this case indeed while exemplary in its approach in terms of the summary cannot be regarded in any way as setting down any particular methodology The assessment of and weight to be attached to evidence is a matter for the judges at trial There is no legal formula in that regard Comment 42 At the end of his judgment in the High Court McMahon J notes that issues as to declarations as to the rights of the accused before the Special Criminal Court on a charge of membership of an unlawful organisation were not decided by him because of his rejection of the first issue raised on behalf of Thomas Redmond There was some unfortunate confusion in arguing this case for Thomas Redmond as to what might yet be in the case notwithstanding the manner in which it was argued on this appeal 43 Cases can occur where points are so completely insubstantial as to not require individual ruling in the High Court in the context of issues that have been seriously argued It is also correct that issues of damages may be left over where liability is decided against a litigant Where however two or more issues of substance are raised and the first is decided against an applicant or plaintiff it might be borne in mind that it assists the appeal process for the judge that determines to dismiss the case to also give a view as to any other substantial points that were argued in the High Court and which might later be sought to be argued on appeal Naturally given the dismissal of a central point of substance any subsequent ruling on points that were argued in addition may be concise Conclusion 44 There is no presumption of special merit attaching to the evidence of a Chief Superintendent in giving evidence of his or her belief on a trial of membership of an unlawful organisation contrary to s 21 of the Offences Against the State Act 1939 that an accused is such a member There is nothing in the text of s 3 2 of the Offences Against the State Amendment Act 1972 which establishes any element of favouritism towards such evidence or which in any way reverses the ordinary standard and burden of proof Nor does any decision of this Court or any other court Such belief evidence is merely admissible evidence As such it may be rejected contradicted or challenged in the ordinary way Article 38 1 of the Constitution establishes due course of law as a standard of fairness which guarantees that criminal trials are conducted as a rigorous examination of the prosecution proofs and that guilt is not pronounced unless the proof of the accused s guilt is established beyond reasonable doubt within the context of fair procedures The impugned provision does not offend against that constitutional guarantee where such belief evidence is part of a body of evidence That is what happened in this case No guarantee within Article 38 is offended where such belief evidence is supported by some other piece of evidence or circumstance which supports the charge The impugned subsection applies only before the Special Criminal Court where a written ruling is given explaining the reasons for relying on such evidence on an offence of membership of an unlawful organisation where the Government has made a proclamation that the ordinary courts are inadequate to secure the effective administration of justice where the accused may in the ordinary way give evidence where privilege may be claimed as to sources which are confidential as in any other case but which privilege is subject to review by the court of trial where the nature of the offence charged is continuing allowing a belief to build up over time where that belief may be challenged and may be the subject of rebutting evidence by the accused 45 The Oireachtas has chosen to alter the rules of evidence only in respect of a particular offence within a particular legal context and in which both common sense and experience demonstrate would make practical proof otherwise impossible in practical terms It is only within that context that the section should be analysed as meeting the standard of fairness in criminal trials which is guaranteed by Article 38 1 of the Constitution 46 The claim on behalf of Thomas Redmond that s 3 2 of the Offences Against the State Amendment Act 1972 is unconstitutional is therefore dismissed An Chúirt Uachtarach The Supreme Court Record number 2006 5362 P Appeal number 298 2009 Denham CJ Hardiman J McKechnie J MacMenamin J Charleton J Between Thomas Redmond Plaintiff Appellant and Ireland and the Attorney General Defendant Respondent Judgment of Mr Justice Charleton delivered on Thursday the 17th day of December 2015 1 Section 3 2 of the Offences Against the State Amendment Act 1972 renders admissible in evidence the belief of a Chief Superintendent of An Garda Síochána that a person accused of the criminal offence of membership of the self styled Irish Republican Army is a member of that proscribed organisation Testimony of what a witness has seen or heard or evidence from an expert as to opinion is admissible in the ordinary way in criminal trials but not what a witness believes This exception to the rules of evidence is confined solely to that charge of membership The plaintiff appellant Thomas Redmond having been convicted on that charge asserts that this section of the Act of 1972 infringes the Constitution Essentially it has been argued on his behalf that the guarantee of a fair trial on a criminal charge as set out in Article 38 of the Constitution is violated by reason of this evidential exception Particular issues in relation to the substitution of special advocates with a limited brief have been argued on behalf of Thomas Redmond Of more concern is an issue cast aside in the appeal the validity of a conviction on such belief evidence alone This conviction was not on that basis Nevertheless future cases are of concern The State as respondent to this appeal does not agree that the subsection has any constitutional infirmity In the High Court the claim of Thomas Redmond was rejected by McMahon J 2009 IEHC 201 from which judgment this appeal has been taken This decision affirms the judgment of the High Court In doing so the view is taken that the subsection complies with Article 38 of the Constitution where such belief evidence is supported by other evidence from the totality of which evidence the court of trial may be satisfied of the guilt of the accused beyond reasonable doubt Precedent decisions 2 It might first be usefully commented that challenges to the operation of the relevant section of the Act of 1972 have been mounted before and on a variety of grounds As O Donnell J speaking for the Court of Criminal Appeal commented in The People DPP v Donnelly Others 2012 IECCA 78 at para 23 The provisions of s 3 of the Act of 1972 have been the subject of repeated judicial consideration in the 40 years since the enactment of that provision Among the most important of these decisions are O Leary v Attorney General 1993 1 I R 102 in which Costello J in the High Court rejected a challenge to the constitutionality of the provision D P P v Martin Kelly 2006 3 I R 115 in which the Supreme Court unanimously concluded that the requirements of Article 38 of the Constitution were satisfied in a case in which the Chief Superintendent gave belief evidence and claimed privilege on the sources of his belief D P P v Binéad and Donohue 2007 1 I R 374 in which this Court concluded that where belief evidence under s 3 2 of the Act of 1972 was admitted and there was a claim for privilege in respect of the underlying facts materials or sources which led to the belief the trial was not unfair in circumstances where the court had ruled that it would not convict without support of uncorroborated evidence of that belief and Redmond v Ireland 2009 2 I L R M 419 in which the Court concluded that s 3 2 was not unconstitutional or contrary to the E C H R 3 While a challenge based on Article 6 of the European Convention on Human Rights has not been proceeded with on this appeal apparently due to the European Convention on Human Rights Act 2003 not being in force at the relevant time the jurisprudence of the European Court of Human Rights is also of assistance in terms of applying a rigorous analysis to the challenge mounted by Thomas Redmond Of particular relevance is the reasoning in the judgment in Donohoe v Ireland Application No 19165 08 decision of 12th December 2013 Background 4 On the 1st October 1999 two premises under the control of Thomas Redmond were searched by gardaí pursuant to a warrant These properties were at 10 The Grove County Wexford and at The Gatepost County Wexford A few days later arms dumps were uncovered in the same county one at Kilallen Castlebridge was discovered on 4th October and another at Shelmalier Commons was found on the 5th October In consequence of what was found within his properties Thomas Redmond was arrested and was later charged with membership of an unlawful organisation contrary to s 21 of the Offences against the State Act 1939 as amended by s 2 of the Criminal Law Act 1976 5 Thomas Redmond was tried on an indictment that specified that as of the date of the search of his premises he was a member of an unlawful organisation styling itself the Irish Republican Army or the IRA or Óglaigh na hÉireann After a trial before the Special Criminal Court lasting approximately a week he was convicted of this single offence the three judges of the court delivering a written judgement dated 22nd April 2002 In essence the Special Criminal Court accepted the evidence of a Chief Superintendent that Thomas Redmond was a member of the self styled IRA On the basis of the evidence of the Chief Superintendent the court was prepared to convict The final written reasoning however was to convict based on that evidence and on the supporting forensic evidence against Thomas Redmond He then appealed that conviction to the Court of Criminal Appeal which affirmed the conviction in a judgement dated the 24th February 2004 He then sought the necessary leave to appeal this decision to the Supreme Court under the then existing constitutional provisions for appeal pursuant to s 29 of the Courts of Justice Act 1924 claiming that such second appeal should be granted because there existed a point of law of exceptional public importance On the 8th July 2004 the Court of Criminal Appeal refused to grant a certificate for leave to appeal to the Supreme Court Thomas Redmond then issued a plenary summons in November 2006 seeking the declaration of unconstitutionality the sole relief claimed on this appeal The matter came on for hearing in the High Court by way of oral evidence and submissions over five days before McMahon J who rejected the claim for the declaration by written judgement dated the 30th April 2009 From that High Court judgment this appeal was heard in October 2015 Facts and arguments as to unconstitutionality 6 In considering this appeal it is to be noted that none of the facts as found by the Special Criminal Court in the criminal trial or as found by the High Court on the plenary hearing of the challenge to the constitutionality of the particular section of the Act of 1972 have been challenged The approach taken by the defence at the trial before the Special Criminal Court is also relevant Specifically it was conceded by the defence on behalf of the accused that the Chief Superintendent giving evidence that Thomas Redmond was a member of this unlawful organisation was not lying Furthermore no application was made for discovery of any materials that might underlie that officer s belief While it may be that such materials attracted privilege where the source was an informer the privilege there being that of the informer a procedure exists according to the existing case law for the examination of such material initially by counsel for the prosecution and if the defence so requests by the court of criminal trial itself in order to ensure that no such material gives rise to the innocent at stake exception to any claim of privilege Nor was any challenge made where a claim of privilege was asserted by the Chief Superintendent as to his sources of information Finally no claim was made by the defence before the court of criminal trial that any procedure involving a special advocate should be applied related to the reception of the evidence by the Chief Superintendent as to his sources Thomas Redmond as the accused in that criminal trial did not give evidence in his own defence which of course is his right 7 The Special Criminal Court noted that much of the trial of the proceedings before that court consisted of a detailed ballistic examination of the materials found at the two premises of Thomas Redmond in County Wexford and a comparison of those materials with the weaponry and paraphernalia found at the two arms dumps in that county The Special Criminal Court following a consideration of the relevant evidence found that much of what was found on the two properties of Thomas Redmond consisted of items that would be found in engineering workshops throughout the world and are items which have a myriad of innocent uses While the court found that many of these items could have been adopted to form component parts of firearms or ammunition it would be stretching imagination beyond acceptable limits to conclude beyond reasonable doubt that the majority of these items had been put to that use Two items however were found by the court not to have possible innocent uses As the gardaí arrived to search the premises of Thomas Redmond at The Grove County Wexford he was observed to have thrown an object from a rear window by Detective Garda O Driscoll The court of criminal trial made the following finding of fact in relation to this object Insofar as the metal object which Detective Garda O Driscoll saw the accused throw from a rear window of the premises of The Grove County Wexford on the 1st of October is concerned the Court heard evidence from Detective Garda Shane Henry who is attached to the ballistics section of the Garda Technical Bureau and who the Court accepts is an expert in the field of ballistics that having examined that object it was his opinion that it had been processed from a piece of metal similar to metal cut offs which he had found on the 1st of October 1999 on the ground outside a workshop located on the accused s premises at Forth Commons Co Wexford In this regard Garda Henry said it was clear from an inspection of the said object that it had been partly worked upon in the sense that it had been subjected to drilling and that the ends had been flattened Moreover Garda Henry expressed to the view that in its present state that object is a housing mechanism which is an internal part of an improvised grenade In this regard in the course of his evidence Detective Garda Henry described in detail the component parts of this metal object and he explained how in his view it comprised the housing mechanism for the internal part of an improvised grenade pointing out that it fitted into a warhead and is part of the firing mechanism for the warhead Detective Garda Henry referred to drawings which he had found at the arms dump at Kilallen which he said were sketches of an improvised grenade launcher which is divided into two parts the first part being the launch tube and the breach for the firing mechanism and the other part being the trigger housing and shoulder stock assembly Detective Garda Henry said that the object logically fits in such an assembly and he then referred to what he described as an improvised spigot grenade launcher which was also found at the arms dump at Kilallen into which the metal object fitted because the threading to both was identical Detective Garda Henry was adamant that in his opinion that metal object was component part of a grenade a view which the Court had no difficulty in accepting because it seems to the court that it defies logic and reason that if the said metal object had been in the accused s possession for the purpose of innocent use he would have thrown it out of his window within minutes of a group of members of the Garda Síochána coming with search warrant to search as house In the view of the Court that fact coupled with detective Garda Henry s opinion with regard to the purpose for which the said object had been processed leaves the Court in no doubt whatsoever that it was intended as a component part of a grenade 8 As to the other object found in a family car that was attributed to the possession of Thomas Redmond the Special Criminal Court held as follows Insofar as the improvised firing pin which on the 1st day of October 1999 members of the Garda Síochána had found in the boot of a red Citroen car located at the premises of the accused is concerned detective Garda Henry gave evidence that the said improvised firing pin was the same as firing pins found in improvised weapons found by members of the Garda Síochána as the arms dumps located at Kilallen and at Shelmalier Co Wexford In addition while the Court is not satisfied notwithstanding the evidence given by Garda Henry and Sgt Ennis that individually a large number of the fruits of the searches of the accused s premises at The Grove and The Gatepost are likely to have been adapted to form component parts of firearms or ammunition collectively these finds when compared with what was at the arms dumps located at Kilallen and Shelmalier remove from the realm of what might have been considered suspicion of a connection between the accused and these arms dumps and in the view of the Court converts that suspicion into a belief beyond reasonable doubt In other words it goes beyond what might be considered mere coincidence 9 The other aspect of the case in respect of which Thomas Redmond was convicted before the Special Criminal Court was the evidence of Chief Superintendent Michael Murphy admissible by virtue of s 3 2 of the Act of 1972 He gave evidence to the effect that it was his belief that Thomas Redmond was as of the date of his evidence and as of the 1st of October 1999 a member of the unlawful organisation styling itself the Irish Republican Army otherwise the IRA or Óglaigh na hÉireann It was submitted to the court of criminal trial that accepting as the sole evidence in the case the belief of a Chief Superintendent that an accused was a member of an unlawful organisation would amount to unfairness The Special Criminal Court did not accept this proposition but carefully reasoned thus At the same time the Court recognises that it is not entitled to be guided by the evidence of a Chief Superintendent given in accordance with the provisions of section 3 2 of the Act of 1972 merely because the Chief Superintendent gives verbal expression to a particular belief Before a Court can decide that a conviction of an offence of membership of an unlawful organisation is justified by the evidence of a Chief Superintendent given in accordance with the provisions of section 3 2 of the Act of 1972 the Court must assess the credibility of that Chief Superintendent and in the light of that assessment must conclude beyond reasonable doubt that he is a credible person and worthy of belief Furthermore although where a person accused of an offence of membership of an unlawful organisation gives sworn testimony denying that charge and contradicts that of a Chief Superintendent the Court has to accept that the value and cogency to be attached to the expression of the Chief Superintendent s belief is very much diminished it does not follow that the accused person is under any obligation to give evidence and neither is the Court entitled to draw any inferences which are unfavourable to the accused arising from his failure to give evidence In this regard the Court recognises and acknowledges that unless and until the Court determines otherwise Thomas Redmond is cloaked with a presumption of innocence a presumption which entitled him to remain silent throughout the investigation of the offence which is alleged against him subject certain statutory exceptions which are not relevant to this case and a presumption which entitles him to remain silent throughout the trial of these proceedings without that silence being held against him The Court also accept that in accordance with the decision by this court on the 3rd day of May 2001 in a case of The Director of Public Prosecutions v Dermot Gannon the results of an investigation into the alleged offence cannot be relied upon to support the belief of a Chief Superintendent that an accused person is a member of an unlawful organisation but again the Court notes that in that case the Court concluded that it is entitled to rely on the unchallenged opinion evidence of a Chief Superintendent with regard to membership of an illegal organisation In that regard while it was suggested to Chief Superintendent Murphy under cross examination that the second statement which he made was choreographed by his legal advisers and by the member of the Garda Síochána who is in charge of the investigation for the purpose of avoiding the consequence of

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/335a18de8f786f1a80257f1e00497fae?OpenDocument (2016-02-09)
    Open archived version from archive