THE five Supreme Court judges decided unanimously yesterday to reject Mr Des Hanafin's challenge to the divorce referendum on the grounds that he had failed to establish that the constitutional wrongdoing by the Government materially affected the result of the referendum as a whole.
The verdict that divorce legislation could go ahead was known at 12.15 p.m. when the Chief Justice, Mr Justice Hamilton, Mr Justice O'Flaherty, and Mr Justice Blayney had delivered their judgments and disallowed the appeal. The other two judges then concluded and the dismissal was unanimous.
After the judgments were read out to the crowded courtroom over two and a half hours, the Attorney General, Mr Dermot Gleeson SC, applied for legal costs against Mr Hanafin for the four day Supreme Court hearing.
Mr Garrett Cooney SC, for Mr Hanafin, submitted that the case had been one of great public importance and that the court should consider granting Mr Hanafin his costs.
Following an adjournment, Mr Justice Hamilton said that in view of the importance of the case and the fact that Mr Hanafin had succeeded to a substantial extent, the court would allow him the costs of the appeal in the particular circumstances of the case.
After the divisional court of the High Court had heard the original petition and dismissed it in February, Mr Hanafin was allowed his costs of four of the 11 days of the hearing. This meant he had to pay both his own and the State's costs of seven days of the hearing.
The basis for Mr Hanafin's claim that the Government wrongfully sought to influence the outcome of the referendum by spending public monies to advocate support for the Yes vote was the Supreme Court decision in the McKenna judgment. The court decided that the Government had acted in breach of the Constitution.
Yesterday, the Supreme Court concluded that the admitted purpose of the campaign and its unconstitutional funding constituted an interference with the conduct of the referendum.
However, it decided it was impossible to assess what effect the Government's advertising campaign had on public opinion.
The Chief Justice said that the people were presumed to know what they wanted, to have understood the proposed Amendment submitted to them and all of its implications.
Mr Hanafin had sought to rebut this presumption by producing evidence of the opinions of various experts with regard to opinion polls and the factors which affected the voting pattern and intentions of the electorate.
This was a matter for the consideration of the divisional court and it was rejected. It was not open to the Supreme Court to interfere with such linings and conclusions he said.
Mr Justice O'Flaherty said that there could be no doubt the Government action was calculated to and did influence the course of events to the McKenna judgment.
At that stage there was a week remaining to polling day. In this case, the people had a week to reflect on the referendum issues. No case was made but that each citizen who voted did so in accordance with his or her own free will.
In his judgment, Mr Justice Barrington said it seemed impossible to assess on any scientific basis what effect the Supreme Court ruling and the reaction of the Government and the various parties to it, had upon public opinion.
The constitutional wrong was discovered before the referendum and the people voted with full knowledge of what the Government had done.
Mr Justice Blayney said he could not see any ground on which the Supreme Court could interfere with the decision of the divisional court.
In her judgment, Mrs Justice Denham stated that the will of the people was expressed in the referendum. The State had an educated and sophisticated electorate who had immediate access to information on the McKenna decision.