STATE lawyers in the challenge by former senator Mr Des Hanafin to the divorce referendum result yesterday contended that evidence to be submitted by opinion poll experts on how people might have voted was inadmissible.
The three-judge divisional court of the High Court will give its decision today on whether such evidence should be admitted.
Mr Hanafin is seeking to overturn the result of the November 24th referendum on the grounds that the Government wrongly spent public money promoting the Yes campaign. He wants the court to order a new referendum.
On the sixth day of the hearing the objection was made by Mr Peter Shanley SC, for the State, when the first witness for Mr Hanafin's side was called. Mr Jack Jones, chairman of the Market Research Bureau of Ireland, began giving evidence on three opinion polls carried out by his company on behalf of the Government during 1995 on the divorce referendum.
Mr Shanley said he objected as Mr Jones would be giving poll results. This was entrenching upon the secrecy of the ballot. If it was not permissible to inquire how people voted then it was not permissible for the experts to give evidence on how people might have voted.
One could not get around the secrecy issue by calling experts to say how voters did, ought or might" vote. Mr Shanley said the petitioner did not contend that one single voter was misled or that one single voter had not expressed his or her vote freely.
The evidence of the experts would be of a hearsay nature. It was intended that Mr Jones would give evidence of interviews for the poll, but there would be no evidence from interviewers. This would be allowing evidence by the back door on how some sector voted. There would be no electors giving evidence as they were prohibited by the Constitution and law.
Nothing could be used to cast light on how people voted. The admission of such evidence would indicate that the court was entitled to ask how people had voted. It was all directed towards asking the court to draw a decision about how somebody had voted, he said.
Mr Garrett Cooney SC, for Mr Hanafin, said the evidence would show that the campaign by the Government was based on the findings of the MRBI polls and the recommendations made by MRBI. On that basis, the Government used public funds to conduct an advertising campaign and used the advice of MRBI to conduct the campaign.
He would be calling experts who he hoped would satisfy the court that the sort of campaign conducted with public funds had a material effect on the result.
The evidence would establish not only the attitude of people interviewed but also the recommendations and interpretation of results made to the Government. All of that was very relevant.
Mr Jones furnished reports and gave a summary and conclusion. He informed the Government of the result of the survey and what support there was and recommended remedial action. This was very pertinent to the main issue. The planning of the campaign was based, at least partly, on Mr Jones's surveys.
Mr Shanley said Mr Cooney seemed to be suggesting the will of the people could be ascertained by a form of survey. His answer to that was that the court should not provide a platform for second-hand evidence concerning the will of the people.