MR Justice Murphy said that he was unconvinced that the Government advertising campaign affected materially the result of the divorce referendum, having heard all of Mr Des Hanafin's witnesses giving their evidence and being cross examined.
The President of the divisional court of the High Court said that the campaign carried on by the Government qua government using public funds was admittedly unconstitutional as to the use of those funds. But it did not constitute an obstruction of or interference with, or irregularity in the conduct of the referendum.
The judge said the petitioner's claim failed fairly and squarely on the grounds that the constitutional wrong perpetrated by the Government did not translate into electoral wrongdoing within the meaning of the Referendum Act 1994.
It was clear that what might be questioned under the Act was the validity of a Provisional Referendum Certificate and not the validity or otherwise of a referendum as such.
The referendum was foreseen long before September 1995. The Government sought presentations from highly reputable advertising and public relations experts. The brief given to them indicated, among other things, that the campaign was to give a strong message to vote Yes.
The proposal ultimately accepted was that prepared by QMP dated June 1995. The judge said there was no doubt whatever that the campaign as envisaged, and as ultimately implemented, involved an expenditure of £500,000 voted officially for the purpose.
The AG admitted that the Government at all times made clear that it actively and vigorously sought a Yes vote. It was also clear that public servants were engaged to an appreciable extent, in the GIS and elsewhere, in aiding the campaign.
Mr Hanafin had claimed the result of the referendum was materially affected by the obstruction and/or interference with, and irregularity in, the conduct of the referendum.
Mr Hanafin's counsel said it was not contended that the result was affected by any offence eliminating any allegation of the numerous electoral offences including personation, bribery, breach of secrecy, obstruction of polls.
The judge gave the issues in the case. Was the expression "conduct of the referendum" in the Act confined to the mechanism, procedures and operations of the referendum?
Did the Government campaign constitute an obstruction, interference or irregularity of, with, or in the conduct of the referendum, however that expression might be interpreted Had the petitioner discharged the onus of proving the wrongdoing of which he complained?
From the Act, he would infer the legislature intended the words conduct of the referendum" to embrace those aspects of the organisation of and for the referendum, the taking of the poll, holding of counts, and other matters entrusted to the Referendum Returning Officer.
The expression would not justify interpreting those words as including or extending to a campaign carried on by political parties or other interested groups of persons in relation to the referendum.
It was not said by Mr Hanafin that the Government campaign was deceitful or misleading or that it constituted an electoral abuse or offence. It was conceded that the campaign would have been entirely unobjectionable if it had not been funded out of the central Exchequer.
The judge said he did not accept that the decision of the Supreme Court in the McKenna case prohibited the Government from lending its authority to a particular viewpoint.
"To my mind it would be unreal to attempt to draw a distinction between the attitude of the Government as government and the attitude propounded by exactly the same persons in a non governmental capacity. Such a distinction would move beyond the boundaries of the subtle into the realms of the metaphysical," he said.
He would be satisfied to approach the petition on the basis that what the Government did, both in relation to the provision of finances and the use of its authority as Government, was constitutionally impermissible.
"In my view, the petitioner's claim fails fairly and squarely on the grounds that the constitutional wrong perpetrated by the Government, whether it be as serious as the petitioner contends or as innocent as the respondents would suggest, does not translate into an electoral wrongdoing within the meaning of Section 43 of the 1994 Act," the judge stated.
The unconstitutional activity it self was not an electoral wrongdoing. The manifestation of the constitutional abuse, whether or not an influential factor in the outcome, was not an interference, obstruction, hindrance or irregularity in the conduct of the referendum.
"The fact that the costs of a campaign were defrayed out of monies which were obtained unlawfully, unconstitutionally or even illegally could not, in my view, alter the nature of the campaign from a permissible communication of information to an impermissible interference with the free will of the electorate," Mr Justice Murphy said.
As was pointed out in argument, voters could not be compelled to disclose how they voted. Accordingly, the only means available to Mr Hanafin was to attempt, to establish by means of a series of polls held by the Market Research Bureau of Ireland what the voting intentions of the Irish people were at different times, and to present expert evidence as to what factors influenced those intentions.
Mr Jack Jones, chairman off MRBI, gave evidence about the polls taken at the Government's request. While Mr Jones was mistaken in saying his company did not advise on the strategy to be adopted, the judge said he formed a very favourable impression of the integrity of the witness and his, expertise in identifying the factors which influenced public opinion during the course of the campaign.
Four other witnesses were called. The judge said Mr Anthony Coughlan, an academic, was unable to identify any technique by which the volume of advertising could be related to the number of votes cast.
It was apparent that neither of the two UK witnesses, Mr Phil Harris nor Mr Gordon Heald, had the opportunity of monitoring in any detail the campaigns or the political, religious or social events which might be thought to have had an impact on the result.
The last witness, Dr Cathal Brugha, a UCD lecturer, attributed a discount of 3.5 percentage points to cover other influencing factors but could give no explanation or justification for the figure.
Mr Justice Murphy said he was unconvinced that the campaign materially affected the result.