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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> McNulty -v- Ireland & anor  IESC 2 (21 January 2015)
Cite as:  IESC 2,  2 ILRM 269
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THE SUPREME COURT
[Appeal No. 268/13]
IRELAND AND THE ATTORNEY GENERAL
THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE IRISH HUMAN RIGHTS COMMISSION
Judgment delivered on the 21st January, 2015 by Denham C.J.
1. This appeal raises an issue of statutory interpretation.
2. At issue is the meaning of s. 41(3) of the Criminal Justice Act, 1999, as amended, which Act is referred to as “the Act of 1999”.
3. Section 41 of the Act of 1999, provides:-
(b) with the intention thereby of causing the investigation or the course of justice to be obstructed, perverted or interfered with, a member of his or her family,
shall be guilty of an offence.
(5) A person guilty of an offence under this section shall be liable –
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 15 years or both.”
5. This is an appeal by Mr. McNulty, the plaintiff/appellant, referred to as “the appellant”, from the judgment of the High Court (Gilligan J.) delivered on the 31st May, 2013,  IEHC 357, which rejected the claim that s. 41(3) of the Act of 1999 is repugnant to the provisions of the Constitution or incompatible with the provisions of the European Convention on Human Rights.
7. Edward Jones has been in a relationship with Michelle McNulty, who was married to the appellant for five years from 2004 to 2009.
8. At the time of the alleged offence there was a prosecution pending against the appellant arising out of an assault allegedly perpetrated on Edward Jones on the 17th October, 2010, about which Edward Jones made a complaint to the Garda Síochána. The first charge in respect of this offence was struck out on the 6th November, 2011, and the appellant was re-charged with the offence on the 23rd November, 2011.
9. The appellant brought plenary proceedings seeking a declaration that s. 41 of the Act of 1999 was invalid having regard to Article 38 of the Constitution of Ireland, or that s. 41(3) was invalid having regard to Article 38 of the Constitution. In the alternative, he seeks a declaration pursuant to s. 5 of the European Convention on Human Rights Act, 2003, that s. 41(3) of the Act of 1999 is incompatible with Article 6 of the European Convention on human rights. The appellant also sought a number of ancillary orders.
10. In paragraph 10 of the Statement of Claim the alleged facts are described as follows:-
The High Court
39. Further s. 41(3) does not oblige the court to draw any inferences but the court has discretion to do so. As the section stands, it provides for the court to evaluate and assess the significance of the evidence before it. It does not infringe on the accused’s right to the presumption of innocence.
40. Similarly the Supreme Court in Hardy in dismissing the appeal held:-
‘…in the course of a trial for an offence under s. 4, sub-s. 1 of the Explosive Substances Act, 1883, the prosecution remained under an obligation to prove all the elements of the offence beyond a reasonable doubt; the principle that an accused must be tried in due course of law was not infringed by a statutory provision which permitted the drawing of inferences from facts proved beyond a reasonable doubt by the prosecution’.
41. I accept the submission of Mr. Callanan that the burden of proving, beyond reasonable doubt, remains on the prosecution throughout any action taken under the legislation and s. 41(3) of the 1999 Act merely provides that an accused may have an evidentiary burden to displace where prima facie there is evidence pointing to his guilt.
42. Section 41(3) of the Criminal Justice Act, 1999 does not discharge the prosecution of the onus to prove the act alleged beyond reasonable doubt. Further, nothing in the section invalidates the right to a trial in due course of law. Hederman J. in Hardy stated:-
‘…this analysis complies with our well-established criminal law jurisprudence in regard to having trials in due course of law. That constitutional requirement applies whether the offence is made an offence under a pre or post constitutional enactment. It protects the presumption of innocence; it requires that the prosecution should prove its case beyond all reasonable doubt; but it does not prohibit that, in the course of the case, once certain facts are established, inferences may not be drawn from those facts and I include in that the entitlement to do this by way of documentary evidence. What is kept in place, however, is the essential requirement that at the end of the trial and before a verdict can be entered the prosecution must show that it has proved its case beyond all reasonable doubt.’
43. It is clear from the decision in Rock that the provisions under s. 41(3) of the Criminal Justice Act, 1999 do not oblige a court to draw inferences – the court retains discretion to do so. The court has an obligation to ensure that no improper or unfair inferences are drawn. I am of the view that there is nothing contained in s. 41(3) of the 1999 Act that would limit this obligation.
44. Further the court has an inherent obligation to conduct a trial in a manner consistent with the plaintiff’s constitutional rights, which would include allowing him to rebut any evidence offered against him.
45. On the basis of the contentions submitted on the plaintiff’s behalf, I am not ‘satisfied that s. 41 of the Criminal Justice Act 1999 is incompatible with Article 38 of the Constitution.’”
13. The appellant has brought an appeal against the order and judgment of the High Court, filing eight grounds of appeal, as follows:-
(ii) The learned trial judge erred in fact and in law in failing to address the central issue raised by the appellant, namely that the effect of s. 41(3) is to permit the prosecution and conviction of a person for a serious criminal offence without the need for the prosecution to adduce any actual evidence of mens rea.
(iii) The learned trial judge erred in fact and law in determining that s.41(3) is not mandatory in providing that proof of the matters set out in s.41(1)(a) shall be evidence of the matters set out in s. 41(1)(b) and/or that there is no requirement to treat the same as evidence.
(iv) The learned trial judge erred in fact and in law in determining that s. 41(3) does not oblige a court to draw any inferences but the court has discretion to do so. As a matter of law, a trial judge is entitled to draw such inferences as appear reasonable from the evidence, so to read s.41 (3) as merely re-stating this renders the section otiose.
(v) The learned trial judge erred in fact and in law in determining that s. 41(3) merely provides that an accused person may have an evidentiary burden to displace where prima facie there is evidence pointing to his guilty in circumstances where the issue raised by the appellant is that the prosecution do have to raise a prima facie case of mens rea in order to secure a conviction. In interpreting this section as merely creating an evidential burden based on a prima facie case, the learned trial judge conflated the actus reus and the mens rea of the offence which is created by statute.
(vi) The learned trial judge erred in fact and in law in determining that s. 41 (3) does not discharge the prosecution of proving the act beyond reasonable doubt in circumstances where a conviction is possible in the absence of any prima facie evidence pointing to the intention as specified in s. 41(1)(b), other than that evidence which is created by reason of s. 41(3).
(vii) The learned trial judge erred in fact and in law in determining that s. 41(3) does not oblige a court to draw inferences, notwithstanding the mandatory nature of the wording of the section. Further, the learned trial judge erred in holding that the appellant submitted the evidence raised by s. 41(3) was conclusive- the appellant’s submission was that s. 41(3) requires proof of the matters at s. 41(1)(a) to amount to evidence of s. 41(1)(b) thus there is automatically evidence of mens rea once proof of actus reus had been established.
(viii) The learned trial judge erred in fact and in law in determining that the effect of s.41(3) is rational and/or reasonable and/or proportionate having regard to the appellant’s right to a fair trial.
14. The gravamen of the appellant’s case is that s. 41 of the Act of 1999, and in particular subsection (3), discharges the prosecution of its duty to prove the case beyond reasonable doubt. Specifically it was submitted that the prosecution is relieved of the requirement to provide any actual evidence of an intention to pervert or interfere with the course of justice, and that they need only prove that a threat was made to a classified person under s. 41(1) and, without more, they can secure a conviction.
15. It was submitted by the appellant that pursuant to s. 40(3) of the Act of 1999, proof of the actus reus of the threat is by reason thereof evidence of the specific mens rea and, of itself, is capable of amounting to sufficient evidence for a conviction.
16. The appellant submitted that at issue in this case was not a mere evidential burden being placed on the appellant, but the omission of the requirement to prove an essential element of the offence, in this case the mens rea of intention to pervert the course of justice. It was submitted that the section goes far beyond a mere evidential presumption that can be rebutted and in fact discharges the onus to prove half of the offence.
17. The appellant submitted that should the Court not accept the foregoing, and finds that the section creates no more than an evidential presumption, the decisions of O’Leary v. Attorney General  1 I.R. 254 and Hardy v. Ireland  2 I.R. 550 are distinguishable from the present case.
18. It was submitted that s. 41(3) of the Act of 1999 amounts to a constitutional interference with the appellant’s right to the presumption of innocence.
Submissions on behalf of the respondents
20. It was submitted further that s. 41(3) does not discharge the burden of proof placed on the prosecution. The respondents submitted that the impugned provision merely gives a statutory underpinning to the drawing of an inference of an intention to obstruct the course of justice. The respondents submitted that s. 41(3) of the Act of 1999, as amended, provides that proof of the doing by an accused of the act referred to in subsection (1)(a) “shall be evidence” that the act was done with the intention required by subsection (1)(b). It does not, it was submitted, alter or shift the burden of proof required for a successful prosecution.
21. The respondents’ position was that the provision does not remove the need to prove mens rea or the required factual constituents of an offence. It was submitted that where a person knows that a person is a witness or juror or a potential witness or potential juror, and threatens, harms or menaces that person, the fact of the act may be regarded as evidence of an intention to obstruct the course of justice.
22. It was submitted by the respondents that the section does not render a conviction mandatory. It would be sufficient for an accused to raise a reasonable doubt in relation to the required intention to defeat section 41(3).
The Presumption of Innocence
23. In a criminal trial the burden of proof is on the prosecution to prove all elements of the offence beyond all reasonable doubt. This principle is part of the constitutional protection of the presumption of innocence which is implicit in Article 38.1 of the Constitution, requiring as it does, that no person shall be tried on any criminal charge save in due course of law. As Costello J. stated in O’Leary v. The Attorney General  1 I.R. 102 at p.107:-
25. The plaintiff in O’Leary v. The Attorney General was convicted of membership of an unlawful organisation pursuant to s. 3(2) of the Offences Against the State (Amendment) Act, 1972, and s. 24 of the Offences Against the State Act, 1939, which provide for the drawing of certain inferences on the basis of particular evidence. The constitutionality of those provisions was unsuccessfully challenged both in the High Court and, on appeal, in this Court. Costello J. in the High Court distinguished a legal burden of proof from an evidential burden of proof. The evidential burden of proof is defined in O’Leary as the burden in a criminal trial placed on the prosecution of “adducing evidence to establish a case against an accused.” Costello J. continued to state at p. 109:-
[I]f the effect of the statute is that the court must convict an accused should he or she fail to adduce exculpatory evidence then its effect is to shift the legal burden of proof (thus involving a possible breach of the accused’s constitutional rights) whereas if its effect is that notwithstanding its terms the accused may be acquitted even though he calls no evidence because the statute has not discharged the prosecution from establishing the accused’s guilt beyond a reasonable doubt then constitutional invalidity could arise.”
This Court held that the presumption of innocence in a criminal trial was implicit in the requirements of Article 38 of the Constitution. Examining whether the terms of s. 24 of the Act of 1939 breached the principle of the presumption of innocence, the Court first applied the principles as laid down in East Donegal Co-Operative Livestock Marts Ltd. v. The Attorney General  I.R. 317, i.e. the presumption of constitutionality in relation to the statute and that a statute shall not be invalid where it is possible to construe it in accordance with the Constitution. Construing the section accordingly, the Court in O’Leary held that possession of an incriminating document amounted to evidence, rather than proof, of membership of an unlawful organisation, and that the probative value of such possession may be undermined in a number of ways, including cross-examination. Thus, while the evidentiary burden shifted to the accused, the legal burden did not, and the presumption of innocence was not displaced.
27. O’Flaherty J. in O’Leary v. The Attorney General  1 I.R. 254 at p. 266 stated:-
29. The Court held that the prosecution still had to prove the case against the accused beyond reasonable doubt. It was held that under the section the accused had to have the substance in his possession knowingly; and in such circumstances as to give rise to a reasonable suspicion that he did not have it in his possession for a lawful object which meant that there is an onus on the prosecution to then prove that the accused could not show that the substance was in the accused’s possession for a lawful object.
30. The Court held at pp. 564-565 that:-
[T]his analysis complies with our well-established criminal law jurisprudence in regard to having trials in due course of law… [That constitutional requirement] protects the presumption of innocence; it requires that the prosecution should prove its case beyond all reasonable doubt; but it does not prohibit that, in the course of the case, once certain facts are established, inferences may not be drawn from those facts… What is kept in place, however, is the essential requirement that at the end of the trial and before a verdict can be entered the prosecution must show that it has proved its case beyond all reasonable doubt.”
32. This Court has regard also to its earlier decision in Rock v. Ireland  3 I.R. 484 where the constitutionality of ss.18 and 19 of the Criminal Justice Act, 1984, was upheld. Those sections permitted a court to draw inferences from the failure or refusal of an accused to account for the presence of certain objects, substances or marks which a member of An Garda Síochána believed may be attributable to participation in the commission of the offence for which he was arrested. The plaintiff in Rock contended that ss.18 and 19 of the Act of 1984 infringed on his constitutional rights to silence and the presumption of innocence.
33. The Court noted that the wording of the sections were such that it was not mandatory that a court draw inferences from a failure or refusal to account, rather it was discretionary. The Court continued, at p. 497, to state:-
34. Hamilton C.J. stated, at p. 498, that:-
36. Hardiman J., delivering the judgment of the Court, held that the section contained “no balance” in so far as it wholly removed the mental element, and expressly criminalised those who were mentally innocent. He stated, at pp.78 – 79, that:-
37. The appellant submitted that this case falls to be considered in light of the decision of this Court in C.C. as discussed above, and that s. 41 of the Act of 1999, which provides for the conviction of a person for the offence of intimidation of a witness where there is evidence of a threat being made to a witness, is similar.
38. However, the decision in C.C. can be distinguished from this appeal. The statutory provision considered in C.C., provided for the offence of statutory rape in s. 1(1) of the Act of 1935. First, the unusual nature of the offence in C.C. was emphasised by the Court, where it quoted, at p. 76, Professor Thomas O’Malley in his observance of the discriminatory effect of that particular provision against males, in that a male was guilty even if a female clearly consented and there was a genuine mistake as to age. Second, in C.C. the offence in question was absolute in its nature, providing no defence to an accused person once the actus reus was established. The Court in C.C. was satisfied that absolute liability, convicting an accused person in the absence of mens rea, as was provided for in s. 1(1) of the Act of 1935, was inconsistent with the provisions of the Constitution. Finally, the Court found that there was no balance in the provision in issue which removed the mental element.
39. However, the effect of the section in this case is different, and is that, once an act as provided for in s. 41(1)(a) of the Act of 1999 is proven, it shall, in accordance with s. 41(3), be evidence of the intention required under s. 41(1) of the Act of 1999.
40. As stated by the Earl of Halsbury in The Laws of England by the (Butterworth & Co., 1910) at p. 419:-
41. Section 41 of the Act of 1999, enjoys a presumption of constitutionality. That is the first principle to apply in construing the section.
Double Construction Rule
44. However, the respondents conceded at the oral hearing that the prosecution would have to prove that an accused had knowledge that an alleged victim was a witness or potential witness or was assisting in the investigation of the crime, in order for the proof of actus reus to constitute evidence of the necessary mens rea under section 41(3).
45. In this analysis The People v. Murray  I.R. 360 is relevant. In Murray the Court considered the statutory offence of capital murder, and analysed whether the section required knowledge or recklessness on the part of the accused before such a person could be guilty of the offence of capital murder. At p. 421 Kenny J. stated:-
47. As in Murray, the necessary intent required by s. 41(1) of the Act of 1999, involves proof that the accused had knowledge that the alleged victim was a classified person as identified in s. 41(1) of the Act of 1999. If an accused person did not know that an alleged victim was a classified person, then it follows that an act harming or threatening, menacing or in any other way intimidating a person, or putting in fear another person, can not be taken as evidence of the mens rea as provided for under s. 41(3) for the purposes of establishing an offence under section 41(1).
48. It is for the prosecution to establish that an accused had knowledge, that the person who they harmed, threatened, menaced or in any way intimidated, was a classified person, in proceedings for an offence, before the act under s. 41(1)(a) can amount to evidence of an intention to obstruct the course of justice under s. 43(3), for the purposes of fulfilling the requirement of mens rea required under s. 41(1)(b).
49. Thus, the prosecution in this case would have to prove that the appellant knew that Edward Jones was assisting the Garda Síochána in the investigation of the assault charged at the time of the alleged intimidation offence, or that he knew facts from which he could infer or advert to this, or was reckless. This would be part of the prosecution’s case as to mens rea under section 41(1)(b). It follows that, if knowledge of an accused cannot be established by the prosecution, then proof of the act of intimidation cannot amount to evidence of the required intention as provided for under section 41(3).
50. Consequently, on this construction, I am satisfied that s. 41 of the Act of 1999 is constitutional. The presumption of innocence remains, and the burden of proving the prosecution case beyond all reasonable doubt remains in the operation of s. 41 of the Act of 1999, including section 41(3).
The European Convention on Human Rights
52. The appellant relied on case law from the European Court of Human Rights, (referred to as “the ECtHR”), including its decision in Salabiaku v. France (1991) 13 EHRR 379 in which case a presumption of criminal liability laid down in the French Customs Code for a person in possession of prohibited goods was held to be compatible with the Convention. The ECtHR held at para. 28 that:-
Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.” (emphasis added)
54. The domestic courts were held to “have exercised their power ‘on the basis of the evidence by parties before [them]’.” They inferred from the “fact of possession a presumption which was not subsequently rebutted by any evidence of an event responsibility for which could not be attributed to the perpetrator of the offence or which he would have been unable to avoid.” It was for these reasons, the ECtHR held that the domestic courts had not applied Article 392(1) of the French Customs Code in a manner which conflicted with the presumption of innocence.
55. I do not find that the ECtHR jurisprudence in Salabiaku to be of assistance in the circumstances of this case. Specifically, I do not consider that this case advances the appellant’s appeal.
56. The appellant also relied upon the more recent decision of the ECtHR in Telfner v. Austria (2002) 34 EHRR 207. In Telfner the ECtHR found that the requirement that, notwithstanding that the prosecution had not established a convincing prima facie case against the accused, that he provide an explanation for the alleged offence, violated the guarantee of the presumption of innocence under Article 6(2) of the ECHR. The ECtHR held at paras. 15 - 16 that:-
It is true, as the Government pointed out, that legal presumptions are not in principle incompatible with Article 6; nor is the drawing of inferences from the accused’s silence.” (emphasis added)
57. Telfner, however, may be distinguished from the circumstances of the present case. In Telfner, Austria sought to uphold a conviction on the basis of an uncorroborated police report, which stated that the applicant was the main driver of a car involved in an accident and that he had not been home on the night of same. This can be distinguished however from the situation created under the s. 41(3), whereby proof of the act of intimidation etc., of a classified person is required before it will constitute evidence of intent under the provision. The establishment of the actus reus is clearly required under the provision. In this case, unlike in Telfner, the prosecution have to establish that an accused has committed the act in question. In Telfner the prima facie case against the applicant had not been established, and this constituted a shift of the burden of proof from the prosecution to the defence, which in turn was found to constitute a violation of Article 6(2) of the ECHR.
58. The High Court dismissed the appellant’s case brought in relation to the declaration sought under the European Convention on Human Rights Act, 2003. In relation to Telfner the learned High Court judge held:-
1. I concur with the judgment of the Chief Justice and agree that this appeal should be dismissed. There are some further observations which I wish to make in relation to the interpretative issue which arose in this case.
2. Any statutory provision which provides that proof of one fact in a criminal trial shall be evidence of another and distinct fact, which is also an ingredient of an offence which the prosecution must establish, warrants careful scrutiny by the courts.
3. The statutory provision in issue in this case is s.41 of the Criminal Justice Act, 1999, and provides:
“(1) Without prejudice to any provision made by any other enactment or rule of law, a person -
(b) with the intention thereby of causing the investigation or the course of justice to be obstructed, perverted or interfered with,
(3) In proceedings for an offence under this section, proof to the satisfaction of the court or jury, as the case may be, that the accused did an act referred to in subsection (1)(a) shall be evidence that the act was done with the intention required by subsection (1)(b).”
5. For the purpose of respecting the constitutional guarantee of due process in a criminal trial, and in particular two of the underlying fundamental principles, namely, the presumption of innocence and the discharge of the onus of proof placed on the prosecution, there must be limits to which a statute can specify that proof of one fact is evidence of another fact.
6. Certainly, in criminal trials, it is not necessary for the prosecution to adduce direct evidence of every particular fact which it seeks to establish beyond reasonable doubt. A court or jury is entitled to infer from one established fact the existence of another fact which is essential to establishing the accused’s guilt, provided the inference is one which may properly and rationally be inferred in the circumstances of the case. In principle, the Oireachtas may provide, by statute, that a fact or certain facts proved in a criminal trial may be evidence of another fact or facts. However, it would never be permissible to have a rule of law, in a statute or otherwise, which arbitrarily deemed proof of a particular fact to be evidence of another fact, when there was no reasonable connection between the two. In other words, any statutory provision which declares that proof of one fact shall be evidence as to the existence of another fact, the former fact must be reasonably capable of giving rise to a conclusion that the latter fact may be inferred.
7. Notwithstanding the provisions of sub-section 3 of Section 41, the burden of proof placed on the prosecution remains unaffected. It is clear that a proper interpretation of s.41, as explained by the Chief Justice in her judgment, and indeed not disputed by the State, is that the prosecution must establish, in respect of an offence under the section, all the elements referred to in sub-section 1(a) which include that he or she intimidated or put in fear a particular person and, to the knowledge of the accused, such a person was assisting in the investigation of an offence by the gardai, or was a witness or a juror, or potentially so, in proceedings for an offence. In my view, once those facts are established, and in particular the knowledge of the accused in respect of those facts, it is neither irrational nor arbitrary to provide that proof of those facts be treated as evidence that an act was done with the intention of causing an investigation or the course of justice to be obstructed or interfered with. I am satisfied that this is a conclusion that can be made on a broad but objective consideration of the nexus between the facts proved and the fact to be inferred in this case. It is not necessary, for the purposes of this case, to consider whether there are more precise parameters which might be applied in order to determine, in a particular case, whether a sufficiently reasonable nexus exists between a fact proven and a fact to be inferred on foot of a statutory provision of this nature.
8. I arrive at this conclusion in the context of the manner in which the section in issue falls to be applied and I refer to the principal considerations in this respect. The section provides no more than that proof of a relevant act “shall be evidence that the act was done” with the intention to obstruct the course of justice, or as the case may be. It is always a matter for the court or a jury to decide what weight, if any, should be attached to any evidence which is tendered before it. It is no different as regards matters which are to be considered as evidence by virtue of a statutory provision such as s.41 of the Act of 1999. What weight is to be attached to such evidence will depend on the facts and circumstances established in a particular case.
9. Insofar as it was so contended on behalf of the appellant, sub-section 3 does not at all mean that an accused would invariably be placed in a position of having to give rebuttal evidence. In O’Leary v. The Attorney General  1 I.R. 254 this Court found that s.24 of the Offences Against the State Act, 1939 was compatible with the Constitution. That section provided, inter alia, that proof to the satisfaction of the court that an incriminating document relating to an unlawful organisation was found in the possession of a person “shall, without more, be evidence until the contrary is proved that such person was a member of the said organisation …”. Of course, the section in this case does not even go so far as to include the phrase “until the contrary is proved”. Certain dicta of O’Flaherty J. are pertinent to the issue in this case, and, in one of them, at page 265 of the Report, he stated:
11. Having regard to the foregoing considerations and the reasons set out in the judgment of the Chief Justice, I agree that the appeal should be dismissed.