Supreme Court dismisses appeal holding statutory evidence of intimidation does not create presumption of guilty intent.

THE SUPREME COURT

[Appeal No. 268/13]

Denham C.J.

Murray J.

Hardiman J.

O’Donnell J.

MacMenamin J.

Between/

SAM McNULTY

Appellant

and

IRELAND AND THE ATTORNEY GENERAL

Respondents

and

THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE IRISH HUMAN RIGHTS COMMISSION

Notice Parties

Judgment of Murray J. delivered on the 21st day of January, 2015

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 -

(a) who harms or threatens, menaces or in any other way intimidates or puts in fear another person who is

assisting in the investigation by the Garda Síochána of an offence or is a witness or potential witness or a juror or

potential juror in proceedings for an offence, or a member of his or her family,

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

interfered with,

shall be guilty of an offence.

…

(3) In proceedings for an offence under this section, proof to the satisfaction of the court or jury, as the case may be,

that the accused did an act referred to in subsection (1)(a) shall be evidence that the act was done with the intention

required by subsection (1)(b).”

4. As can be seen, sub-section 3 of s.41 specifically provides that proof to the satisfaction of the court or jury that the accused did

an act referred to in sub-section 1(a) shall be evidence that the act was done with the intention of thereby causing an investigation

or the course of justice to be obstructed, perverted or interfered with.

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 [1995] 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:

“It is clear that such possession is to amount to evidence only; it is not to be taken as proof and so the probative value

of the possession of such a document might be shaken in many ways: by cross-examination; by pointing to the mental

capacity of the accused or the circumstances by which he came to be in possession of the document, to give some

examples. The important thing to note about the section is that there is no mention of the burden of proof changing,

much less that the presumption of innocence is to be set to one side at any stage.”

10. The essence of this dictum can be applied to the interpretation and application of s.41 of the Act of 1999. For example, an

accused might well establish by way of cross-examination that any threat, which had been made against a person who was a witness

or a juror had been made in circumstances or for reasons which had nothing to do, or was unlikely to have anything to do, with the

status of such a person as a witness or juror. Moreover, there is nothing in the section which would affect the discretion of a judge

to direct a jury to find an accused not guilty at the conclusion of the prosecution case where satisfied that no reasonable jury could

convict on the evidence tendered having regard to the circumstances of the case. Of course, if the prosecution do establish a prima

facie case, it is, as always, solely a matter for an accused to decide whether he or she should give or call evidence by way of

defence. That is a situation which arises in the ordinary course of a criminal trial and in accordance with due process.

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.