THE SUPREME COURT
[Appeal No. 366 of 2014 ]
In the Matter of the Local Elections (Petitions and Disqualifications) Act 1974
In the Matter of the Local Elections for Listowel Held On the 23rd Day of May, 2014
John Brassil, Jimmy Moloney, Mike Kennelly, Michael O’Gorman, Robert Beasley, Aoife Thornton, Kate Carmody, Brian Finucane, Tom Walsh, Katie Lucid McCabe, Pat Leahy, Dianne Nolan, Liam Purtill and Tim Buckley
Judgment of Mr. Justice Clarke delivered the 17th December, 2015.
1.1 For over two decades now, elections to the European Parliament and Local Elections in Ireland have frequently taken place on the same day. A phenomenon has been observed by those involved in counting the votes at such elections that a number of ballot papers turn up which have a sequence of numbers not beginning with “1” and often involving a sequence starting with a “3”, “4” or “5”. The inference that is drawn is that voters have started on one ballot paper and written, for example, “1”, “2” and “3” and have then continued on to the other ballot paper and written, for example, “4”, “5” and “6”. As far back as an election petition brought in respect of the European Parliamentary election in 1989 (in the Matter of Election to European Parliament for Constituency of Leinster held on June 15, 1989, Petition of Micheal Bell (Unreported, High Court, Hamilton P., 24th November, 1989)) (“Bell”) there has been a debate about whether ballot papers which have a sequence of numbers not starting with “1” are, or can be regarded as, valid and thus properly included in the count. For reasons which I will record later, the issue was not decided in Bell. It will be necessary to address the issue in the context of this appeal.
1.2 The election last year to Kerry County Council involving the Listowel District proved to be extremely close. On the final count, there was little to choose between a number of candidates. In particular, the petitioner (“Mr. Kiely”) lost out on the final seat by just two votes. In circumstances which it will be necessary to set out in a little more detail, those votes which contained a sequence of numbers not starting with “1” were included by the returning officer in the count. Mr. Kiely suggests that the returning officer was wrong so to do. He also suggests that it is realistic to consider, given the closeness of the election, that excluding those votes (as he suggests the returning officer was obliged to do) might have made a difference to the result.
1.3 Against that background, Mr. Kiely brought a petition to the Circuit Court in accordance with s.2(1) of the Local Elections (Petitions and Disqualifications) Act 1974 (“the 1974 Act”). The respondent county council was responsible for the conduct of the election and sought to stand over the decision taken by the returning officer to include the questioned votes. The various other candidates were named as notice parties. Some, but not all of those other candidates participated both before the Circuit Court and in the appeal before this Court.
1.4 In addition to the underlying question as to whether the relevant votes should have been included in the count, a number of other issues concerning the scope of an election petition under s.5 of the 1974 Act and questions concerning what ought properly to arise on a recount when requested were raised in the course of the hearing of this appeal.
1.5 In order to fully understand the issues, it is necessary to start by identifying the procedural history insofar as it is now relevant to the issues which have to be decided and also to set out the relevant legislation.
2. The Procedural History
2.1 There has already been a hearing before this Court in this matter. The issues which arose at that hearing and the judgment of this Court in that regard are set out in Kiely v. Kerry County Council  I.E.S.C. 65.
2.2 For the reasons set out in that judgment, the ultimate determination of the Court was that what is properly described as an appeal came to be before this Court. It is that appeal which was the subject of an oral hearing in October giving rise to this judgment.
2.3 On the day of the October hearing, only two of the notice parties appeared before this Court to make submissions through counsel, namely the third named notice party (“Mr. Kennelly”) and the fourth named notice party (“Mr. O’Gorman”). Counsel for the Minister for the Environment also appeared for the purposes of assisting the Court and offering submissions on the points of principle raised although it was made clear that the Minister took no part in any specific issues which arose between the parties.
2.4 I next turn to the legislation
3. The Legislation
3.1 Section 5 of the 1974 Act provides for the grounds on which an election petition can be brought and is in the following terms:-
3.2 As part of that process the Court has the powers set out in s.8 of the 1974 Act as follows:-
(1) Subject to section 82 (6) of the Act of 1963, a local election may be questioned on the grounds of want of qualification, obstruction of or interference with or other hindrance to the conduct of the election, or mistake or other irregularity which, if established, are likely to have affected the result of the election and without prejudice to the generality of the foregoing, any of the following grounds may be specified in a petition:
(1A) A local election shall not be declared invalid because of a non-compliance with any provision of the Local Elections (Disclosure of Donations and Expenditure) Act, 1999, or mistake in the use of forms provided for in regulations made under that Act, where it appears to the court that a candidate, national agent, designated person (within the meaning of that Act) or person to whom section 6(7) of that Act applies, as the case may be, complied with the principles laid down in that Act taken as a whole and that such non-compliance or mistake did not materially affect the result of the election.
(a) a local election was affected by error or was not completed or was otherwise not conducted by the returning officer in accordance with law;
(b) a local election was affected by electoral offences,
(c) a person at a local election was, on the date of his nomination, not qualified for membership of the relevant local authority.
(2) Notwithstanding any other provision of this Act, a petition shall not be dismissed on account of an informality in its contents which does not materially affect its substance.
3.3 Provision for a recount is set out in article 87 of the Local Election Regulations 1995 (S.I. no. 297/1995) (“the Regulations”), which were made under the powers conferred on the Minister for the Environment by s.22 of the Local Government Act 1994, and which provides:-
“8.—(1) The court may, for the purposes of the trial of a petition, if it thinks fit, order—
and where the court so orders, the provisions of the following subsections shall have effect.
(a) that all the votes cast at the election shall be counted afresh,
(b) that all the votes so cast in a particular local electoral area shall be so counted, or
(c) that all the votes so cast and recorded on the ballot papers contained in a particular parcel shall be so counted,
(2) Votes to which an order under this section relates shall be counted afresh under the direction of the court and, subject to subsections (3) and (4) of this section and to such modifications (if any) as the court considers necessary, the provisions of any regulations made by the Minister under section 82 of the Act of 1963 relating to the counting of votes at a local election shall apply to such counting.
(3) Where votes are counted afresh pursuant to an order under this section the court shall cause the following to be ignored:
(4) The court shall have power to reverse any decision of a returning officer at the original count.
(a) preferences recorded on ballot papers which are invalid by virtue of regulations made by the Minister pursuant to section 82 of the Act of 1963.
(b) preferences recorded on forged or counterfeited ballot papers, and
(c) preferences recorded for any person who, with respect to the relevant election, is found by the court not to have been qualified for membership of the local authority.
3.4 In addition, provision is made for the scrutinising of votes to determine their validity by the Returning Officer under article 78 of the Regulations as follows:
“87. (1) Any candidate or any agent of a candidate may, at the conclusion of any count, request the returning officer to re-examine and recount all or any of the papers dealt with during that count, and the returning officer shall re-examine and recount such papers accordingly without making any alterations in the arrangement of the papers in the various parcels, save where such alterations may be necessary in consequence of any error discovered in the recount. Nothing in this sub-article shall make it obligatory on the returning officer to re-examine or recount the same parcel of papers more than once.
(2) The returning officer may at his or her discretion recount papers either once or more often in any case in which the officer is not satisfied as to the accuracy of any count. The power under this sub-article of a returning officer to recount papers shall extend to papers dealt with at an earlier count than the immediately preceding one.
(4) Where an error is discovered, the returning officer shall, where necessary, amend any results previously announced by the officer.
(3) (a) One request (and not more) may be made by each candidate for a complete re-examination and recount of all parcels of ballot papers and the returning officer shall re-examine and recount the parcels of ballot papers accordingly.
(b) In the re-examination and recount, the number or order of ballot papers in any parcel shall not be disturbed.
(c) Nothing in the provisions of this sub-article shall make it obligatory on the returning officer to re-examine or recount the same parcel of papers more than once, but if an error is discovered which is, in the opinion of the returning officer, a significant error likely to affect the result of the election, the returning officer shall count all the papers afresh from the point at which the error occurred.
(d) Nothing in this sub-article shall make it obligatory on the returning officer to comply with a request by a candidate which, in the opinion of the returning officer, is frivolous or vexatious.
(e) A request under this sub-article may be made only at the conclusion of a count.
(5)Where a request made under sub-article (3) is withdrawn by the candidate as respects whom it is made, it shall be open to the returning officer not to proceed, or proceed further with the re-examination and recount.”
3.5 A question, therefore, potentially arises as to what exactly is to happen, in the event of a recount being called, about a reassessment of the rulings made by the returning officer as to the invalidity or otherwise of ballot papers.
“The returning officer shall cause the ballot papers to be scrutinised for the purpose of discovering any papers liable to be rejected as invalid and shall, in accordance with Part XIII, ascertain and record the number of votes given to each candidate.
3.6 In accordance with the legislation, ballot boxes are emptied and all ballot papers are checked for the purposes of ascertaining whether a valid vote has been cast. Where a question mark arises as to the validity of any ballot, the relevant paper is normally placed to one side so that a decision can be taken by the returning officer as to whether a valid vote has been cast. It is normal practice to permit the candidates or their representatives to be present so that they can express views on whether a particular ballot paper ought or ought not properly to be included. In any event, those ballots which are deemed admissible are stamped to that effect and are returned for counting in the ordinary way. The other ballots are excluded from any further counting, although the returning officer does record the number of excluded ballots.
3.7 The issue which arose was as to whether, in the event that a recount is called, it is open to the parties to seek to revisit decisions previously made on the admissibility of ballots. That is an issue to which it may be necessary to return.
3.8 So far as the main issue is concerned, the relevant provisions of the legislation are as follows. Article 80(2) of the Regulations sets out what constitutes a valid or invalid vote in the following terms:-
3.9 In addition, it is necessary to note the statutory definition of a “first preference” which is set out in article 80(1) of the Regulations as follows:-
“(2) Any ballot paper—
shall be invalid and not counted, but the ballot paper shall not be invalid by reason only of carrying the words ‘one’, ‘two’, ‘three’ (and so on) or any other mark which, in the opinion of the returning officer, clearly indicates a preference or preferences.”
(a) which does not bear the official mark; or
(b) on which the figure 1 standing alone, or the word "one" or any other mark which, in the opinion of the returning officer, clearly indicates a first preference, is not placed at all or is not so placed as to indicate a first preference for some candidate; or
(c) on which the figure 1 standing alone indicating a first preference, or the word "one" or any other mark which, in the opinion of the returning officer, clearly indicates a first preference, is set opposite the name of more than one candidate; or
(d) on which anything is written or marked which, in the opinion of the returning officer, is calculated to identify the elector;
3.10 In like manner, article 80(1) also sets out the definitions for other preferences as follows:-
(a) "first preference" means any mark which, in the opinion of the returning officer, clearly indicates a first preference;
3.11 The principal substantive issue comes down to a question of whether it was open to the returning officer to form a lawful opinion that ballots containing a sequence of numbers not starting with “1” could be said to have “clearly indicate[d] a first preference ”.
“‘second preference’ means any mark which, in the opinion of the returning officer, clearly indicates a second preference standing in succession to a first preference;
‘third preference’ means any mark which, in the opinion of the returning officer, clearly indicates a third preference standing in succession to a second preference and so on;
(b) ‘next available preference’ means a preference which, in the opinion of the returning officer, is a second or subsequent preference recorded in consecutive order for a continuing candidate, the preferences next in order on the ballot paper for candidates already deemed to be elected or excluded being disregarded;”
3.12 It is also of some relevance to note that guidance was issued to returning officers as to a range of questions which might arise in the context of conducting the count. That guidance is contained in a document entitled “Memorandum for the Guidance of Local Authority Returning Officers at the Local Elections Friday, 23rd May, 2014” (“the Guidance”).
3.13 In the context of the votes which are contested in this case, the Guidance says the following at pp.52-53:-
3.14 While there was broad agreement on all sides that the Guidance did not have any legal effect, nonetheless it does need to be recorded that the decision taken by the returning officer was in accordance with the Guidance, which seems to suggest that votes with a sequence of numbers not starting with “1” should be included.
“…A sequence which starts with the number other than 1 e.g. 3, 4, 5, 6 – (discuss with agents – see below)
“In this connection, and for the purpose of consistency, returning officers should accept as valid individual ballot papers which include a sequence of preferences (e.g. 4, 5, 6 or 6, 7) which suggest that voters followed on from preferences recorded on the ballot papers at another election held on the same day.”
3.15 Finally, so far as the legislation is concerned, it is important to note that, in order for an election petition to be successful, it is necessary that any error identified must have been “likely to have affected the result of the election” (see s.5(1) of the 1974 Act). This Court, in its recent judgments in Jordan v. Minister for Children and Youth Affairs  I.E.S.C. 33, made clear that, when used in electoral legislation (Jordan was, of course, concerned with a referendum), the term “affected” in that context means an effect on the actual outcome rather than simply an effect on the votes cast in a particular direction. In the context of the referendum under consideration in Jordan it would have been necessary, therefore, that the appropriate threshold of materiality be established by reference to the possibility that the ultimate outcome of the referendum might have been altered. It follows, therefore, that, in the context of an election, in order that an error be regarded as having affected the result, any such error must be demonstrated to meet a threshold of likelihood of having actually altered the outcome of the election in the sense that there would be a difference in the candidates elected. Finally, it must be noted that the relevant provision of the Regulations concerning marks expressing a clear preference makes reference to the “opinion of the returning officer”. In that context, there may also be a question as to the extent to which a court should afford some margin of appreciation to a returning officer.
3.16 Against that general background it is next necessary to turn to the issues.
4.1 Counsel for Mr. Kennelly did seek to raise, on the hearing of the appeal, a point concerning what was said to be an unfair procedure or practise adopted by the returning officer. It was said that he or his representatives were not given a reasonable opportunity to make representations at a particular point in the process. I am, however, satisfied that this Court, on this appeal, is confined to considering those issues which were properly before the Circuit Judge and which are specifically referred to in Mr. Kiely’s notice of appeal. It does not seem to me that the issue thus sought to be raised on behalf of Mr. Kennelly is properly before the Court and I do not consider it appropriate to comment further on it.
4.2 Next, it is necessary to touch on a question which was debated by a number of parties at the hearing of this appeal. As noted earlier, a question was raised as to whether it was appropriate, in the context of a recount being called, to revisit the question of the proper inclusion or exclusion of votes where the returning officer had, prior to starting to count the numbers of ballot papers containing a first preference for each candidate, determined that certain ballots were either valid, and thus included in such counting, or invalid, and thus excluded as being spoiled. The issue concerned whether the concept of a recount, properly construed in accordance with the legislation, included a reassessment of the original decision of the returning officer in that regard. However, it will not be necessary to consider that point if Mr. Kiely is correct in his principal contention, which is that the returning officer was wrong to include or deem valid votes containing a sequence of numbers not beginning with “1”. I, therefore, propose for the moment to leave over the question of the scope of a recount.
4.3 It seems to me to follow, therefore, that there are three principal issues which need to be addressed. The first two are connected. The first concerns the status of votes containing a sequence of numbers not beginning with “1”. The second concerns the extent to which the legislation might be said to confer an adjudicative function on the returning officer to determine whether such votes should be considered valid such that the Court should give some deference to the opinion of the returning officer in that regard. I propose to consider both of those questions together.
4.4 Third, and in the event that Mr. Kiely is successful in persuading the Court that the questioned votes were erroneously included, the issue arises as to whether Mr. Kiely has also established that the wrongful inclusion of the votes in question was likely to have affected the result.
5.1 The context within which those issues arise is the scope of the grounds on which an election petition can successfully be brought. The first requirement for present purposes in that regard, which is to be found in s.5(1) of the 1974 Act, is that there be a “mistake or other irregularity”.
5.2 The question of a mistake or irregularity must be seen in the context of the requirements of article 80(2) of the Regulations as to what constitutes a valid vote. Those provisions require, in order that a vote be valid, that the figure “1”, or the word “one”, “or any other mark which, in the opinion of the returning officer, clearly indicates a first preference” must be present. Clearly, the votes in question in this case do not have the number “1” or the word “one”, so they can only be considered valid if they meet the third possibility, being that they contain a mark which, in the opinion of the returning officer, clearly indicates a first preference. Similar considerations apply to treating the second number in such a sequence (for example, a “4” in circumstances where the ballot paper contains the sequence “3”, “4” and “5”) as a second preference and so on.
5.3 In substance, therefore, the issue comes down to the question of whether the inclusion of such votes can be said to amount to a mistake or irregularity. It is in that context that the use of the term “in the opinion of the returning officer” in the legislation also comes into play. If the decision to include a vote comes within whatever margin of appreciation is afforded to the returning officer, then, even if the Court might itself have taken a different view as to whether it would have admitted the vote in question, the inclusion of the vote could not be regarded as resulting from “a mistake or irregularity” and thus could provide no basis for a successful election petition. The question comes down to one of whether it was, therefore, permissible, as a matter of law, for the returning officer to form the opinion that sequences of numbers not beginning with “1” can “clearly indicate” first and other preferences.
5.4 I should say first that there may well be cases where the question of whether a particular mark represents a first or other preference does come down to a pure question of judgement. One example was discussed in the course of the hearing. It is, of course, necessary, even where the number “1” or the word “one” is used, that it be placed on the ballot paper in a way which clearly indicates the candidate on whom the voter intended to confer that first preference. It is possible to envisage cases where the number is not neatly placed within the box provided on the ballot paper. However, in some such cases it may be very clear that the number was intended to be placed opposite a particular candidate, thus conferring a first preference vote on the candidate in question. The more the number might be separated from a position where it is directly beside a particular candidate, and the more it may lie towards overlapping with the position in which one might expect a voter to place the number were they voting for a candidate whose name appeared either immediately above or immediately below the candidate in question on the ballot paper, the more it may become necessary to form a judgement as to whether the candidate in whose favour the voter may have intended to give a first preference has been clearly identified. At a certain point, it may cease to be the case that it can be said that the first preference is clear, for the location of the number or word may be such as to create a real doubt as to which of two candidates was the intended beneficiary of the vote concerned. But in such a case, there is no hard and fast rule. It is a matter of impression. It involves the exercise by the returning officer of a judgement. In my view, a court should not second guess the judgement of a returning officer in that regard unless it can be demonstrated that the returning officer’s view was manifestly ill-founded or clearly wrong. The reason for taking that view is that the issue which the returning officer would have to decide in such a case is a pure matter of adjudication and not a matter which involves any question of law at all. The only legal question is as to whether a preference has been clearly indicated. Whether that is so, having regard to the positioning of the number or word concerned, is purely a question of judgement.
5.5 However, a case such as this does raise a more significant issue which involves, at least potentially and in part, a legal question. Is a sequence of numbers which does not commence with “1” capable of “clearly” expressing a first preference? That is, at least in part, a question of the proper interpretation of the legislation and, thus, a question of law.
5.6 I should start by stating that it appears entirely reasonable for the returning officer to have formed the view (in conformity with the suggestion in the Guidance) that it was likely that many, perhaps most, of the voters who completed a ballot paper with a sequence of numbers not starting with “1” did, as a matter of fact, do so because they erroneously voted sequentially between the two ballot papers which they were completing on the occasion in question. It may well be that a voter who made that error could be said to have intended to give a first preference to the candidate to whom they attributed the lowest number on the second ballot paper in question. It is undoubtedly probable that quite a number of the ballot papers which were included in the count in this case (even though they did not contain the number “1”) were completed by the voters in question in that way. However, there could be other reasons why a voter might have omitted a number “1” on their ballot paper. Not all voters start with the number “1” and continue down the ballot paper writing successive numbers until they have reached the end of the candidates on whom they wish to confer a preference. Some voters might give lower preferences first and work backwards. Alternatively, a voter may have decided to confer their first two preferences on the candidates of a particular party but might have proceeded to give lower preferences first before coming back to deciding which of the candidates of their preferred party was to get a first preference and which a second. Many other examples can be given. Therefore, it does not follow that the absence of a “1” on the ballot paper necessarily implies that, in each and every case, the voter in question made the error of voting sequentially between the two ballot papers. There may be other explanations which might suggest that the relevant voter did not intend to give a first preference to the individual opposite whom the lowest number was written on the ballot paper but rather intended to return to give a first or other high preference to other candidates but, for some reason, did not do so.
5.7 I do not doubt that, taking one ballot paper with the next, the “sequential voting between ballot papers” explanation is much more likely and that, therefore, of a set of ballot papers containing the problem with which this Court is concerned in this case, it is probable that the majority, or even a significant majority, can be explained by that error rather than some other mistake. But it does not seem to me that that analysis represents the correct approach in law. It is not a question of determining whether, as a matter of probability, the majority of votes displaying a particular problem might have been completed as a result of an error which would lead to the inference that a number other than “1” was intended to confer a first preference. Rather, the question is whether each individual ballot paper can be said to “clearly” indicate a first preference for the candidate opposite whom the lowest number had been written. In my view, it can not be said that this is clearly the case. It must be recalled that, while the intention of the voter lies behind the exercise, the test is as to whether the ballot paper itself conveys a clear preference.
5.8 While it might well be said that it is probable that a significant majority of the ballot papers displaying a sequence not beginning with “1” might have resulted from an error in which the voter placed the lowest number opposite the candidate on whom they wished to confer a first preference, it cannot be said that this is clearly so in respect of any individual ballot paper, not least because there are other explanations. For those reasons, it does not seem to me that, as a matter of law, the presence of a number other than “1” opposite a candidate can be said to “clearly” confer a first preference on the candidate in question. It is not necessary, therefore, to consider whether a number can be a “mark” within the meaning of the Regulation. Even if it is possible that a number might be a “mark” for that purpose, it does not seem to me that a number other than “1” can be taken to have sufficiently clearly indicated that each individual voter intended that larger number to represent a first preference even though it may well be the case that a significant number of the voters did so intend.
5.9 As noted earlier, it is also necessary to consider the extent to which a court hearing an election petition should defer to the judgment of a returning officer on questions such as the one which lies at the heart of this appeal. As also already noted, there may well be questions of pure judgement in respect of which the Court should confer considerable deference on a returning officer. However, the question which arises on this appeal is as to whether a sequence of numbers not beginning with “1” is capable, as a matter of law, of “clearly” indicating a first preference. That question does not come down to one of pure judgement but rather involves, at least to a material extent, a question of law, or at least the proper application of law to particular circumstances. For the reasons which I have sought to analyse, I am not satisfied that a sequence of numbers starting with a number other than “1” can “clearly” indicate a first preference, for there is a range of explanations as to why a voter might have omitted a “1”, at least some of which are inconsistent with the view that the voter was intending to confer a first preference on the candidate opposite whose name the lowest number appeared.
5.10 In those circumstances, as a matter of law, I am not satisfied that, in respect of any individual ballot, it can be said that a number other than “1” can clearly demonstrate a first preference. Thus, the decision to include such ballots amounted to a mistake of law and does not involve the type of decision where the Court should accord significant deference to the judgment of the returning officer.
5.11 For the avoidance of doubt, I should emphasise that what I am concerned with here is a ballot paper which contains a number other than “1” rather than a non-numerical mark which might reasonably be interpreted as amounting to the equivalent of a number “1”. Thus, it may well be reasonable for a returning officer to interpret a ballot paper which contains an “X” followed by a “2”, “3” and “4” as representing a ballot paper with a clear first preference in favour of the candidate opposite whose name the “X” appears. Like considerations may well apply where other marks which might be taken to represent a first preference are found, followed by the numbers “2”, “3” and “4”. This judgment is not concerned with such votes. Rather, this judgement is concerned with ballot papers which contain only numbers but where the lowest number is not “1” or “one”.
5.12 Indeed, it is worth noting in passing that, if it did transpire that some of the voters whose votes are in question on this petition had made one of the other types of errors which I identified above, a significant and additional injustice would be visited on that voter as a result of the inclusion of the vote in question. Let us take the example of a voter who remained undecided as to which of the two candidates of a particular party she wished to benefit with a number “1” and who therefore filled in the rest of the ballot paper with numbers, beginning with “3”. Let us assume that the same voter was then distracted, perhaps by completing the other ballot paper, and forgot to come back to include a “1” and a “2” for the candidates of the party of her choice. The inclusion of such a ballot paper in the count would actually mean that the ballot of the voter in question would be treated as a number “1” for a candidate opposed to the preference of the voter in question. That voter could not complain about her vote being excluded because it was her error not to go back and fill in a “1” and a “2”. She might, however, have a legitimate complaint if her vote was actually counted against the candidate(s) on whom she hoped to confer a first (or second) preference.
5.13 In any event, it seems to me that Mr. Kiely has established that there was a mistake in the conduct of the count in this case. That mistake was the inclusion of votes which cannot be said to have contained the number “1”, the word “one” or an acceptable mark which clearly indicated a first preference. Given that finding it is, therefore, necessary to turn to the question of whether it can be said to have been demonstrated in a proper fashion that such an error affected the result.
6. Did the error affect the result?
6.1 The starting point has to be to identify the test by reference to which this question must be judged. As noted earlier, an analogous question, in the context of a referendum, was addressed by this Court in Jordan. The test identified by the Court is to be found in the judgment of O’Donnell J. where he said, at para. 85:-
6.2 There are a number of questions which arise in relation to the proper application of that test in the circumstances of this case. The first is a question of evidence. As petitioner, the onus to prove his case undoubtedly rests on Mr. Kiely. It is for him to demonstrate that the conditions necessary for the Court to intervene are present. There are, however, questions as to whether Mr. Kiely has properly established sufficient facts to warrant the Court’s intervention. It might be said that there are two aspects of the facts which are not very clear on the evidence and which, it is argued against Mr. Kiely, could have been the subject of better evidence presented on his side. Those two aspects of the facts concern the precise number of votes which were included as a result of the mistake which I have already identified, and also the question as to which candidates might have been favoured by the inclusion of the votes in question. On the basis of what is said to be the inadequacy of the evidence presented by Mr. Kiely in that regard, it is argued that he has failed to discharge the onus of proof which rests on him.
“Accordingly, I would hold that ‘material effect on the outcome of a referendum’ involves establishing that it is reasonably possible that the irregularity or interference identified affected the result. Because of the inherent flexibility of this test, it may be useful to add that the object of this test is to identify the point at which it can be said that a reasonable person would be in doubt about, and no longer trust, the provisional outcome of the election or referendum.”
6.3 In that context it must, of course, be noted that the trial judge did not consider there to have been any error, and therefore the question of the materiality of any error was not the subject of a particular focus of the judgment. The trial judge held that the outcome of the election would have been the same even if Mr. Kiely had succeeded on either the first or second grounds originally raised (i.e. on the ground that the returning officer should not have refused to include the re-examination of doubtful ballots in a recount, or on the ground that the returning officer should not have adjudicated on doubtful ballots without notifying Mr. Kiely or ensuring his presence). Those issues were not raised on this appeal. However, having considered that the returning officer was entitled to admit such votes as, in his opinion, clearly indicated a first preference, the Court did not expressly consider whether the outcome of the election might have been different had these votes not been included. This is so even though the trial judge recorded that “[i]t is the Petitioner’s case that the admission of ballot papers without a “1” or a “one”, probably, would materially have affected the result, there being so many of them” at p.16 of his judgment.
6.4 Be that as it may, the principal argument made against Mr. Kiely under this heading is that he could (and, it is said, should) have exercised the entitlement to apply to the trial judge to be allowed to inspect the ballot papers and, thus, have put himself in a position to present more detailed evidence as to the practical consequences for the result of the election of the inclusion of the contested votes. There is no doubt but that the trial judge would have had authority to allow the votes to be inspected. It is, however, illustrative to note what happened in Bell. In that case, Hamilton P., of his own motion, arranged for the questioned ballot papers to be looked at by an experienced returning officer for the purposes of ascertaining whether, even if the point made by Mr. Bell were correct, a different view on the validity of the ballots in question would have made any difference to the result. It is interesting to note that at the elections to the European Parliament which were the subject of the petition in Bell, differing views on the inclusion of ballot papers containing a sequence of numbers starting with a number other than “1” had been taken by different returning officers. Hamilton P. did not find it necessary to express a view as to what the correct approach was precisely because, having adopted the course of action to which I have just referred, it became clear that even if Mr. Bell were correct in his legal contention, it would not have altered the result. However, in Bell, that factual situation became clear as a result of the decision of the trial judge to conduct a counting exercise under his own direction and with the assistance of an experienced returning officer rather than as a result of the presentation of evidence by the petitioner.
6.5 The real question is as to whether there was something amounting to an obligation on Mr. Kiely to present detailed evidence as to precisely how many votes were involved and which candidates they favoured. Even in that context, it must be acknowledged that scrutiny of the relevant votes would not necessarily have given rise to absolute clarity. One of the consequences of the exclusion of the relevant contested votes would, of course, have been that the total valid poll would thus have been reduced with a consequent reduction, almost certainly, in the quota. There would, therefore, have been potential knock-on effects on how certain counts would have been conducted in that a reduced quota might mean a larger surplus for a particular candidate. Precisely how, through a series of counts, the effect of the exclusion of the votes in question would have fed into the ultimate result is not a matter which a simple perusal of the votes in question would necessarily have disclosed. The quirks of the proportional representation system, including the sequence in which candidates are eliminated, the method by which a surplus is distributed, including the fact that a different method is adopted in respect of the distribution of a surplus arising on a first count as opposed to a surplus arising on a second or subsequent count, and other matters of detail mean that the exclusion of even a relatively modest number of votes could, potentially, have consequences which would not necessarily be apparent from a simple consideration of the relevant ballot papers.
6.6 Be that as it may, it seems to me that the answer to this question lies in the test identified by this Court in the judgment of O’Donnell J. in Jordan.
6.7 The starting point has to be the evidence. It would appear that the trial judge was satisfied that, of the ballots which were specifically referred to the returning officer as being questionable, 57 were admitted to the count with 173 being excluded. It seems reasonable to infer that the ballots, the admission of which is questioned in these proceedings, must have formed part of the 57 ballot papers ultimately admitted. There does not appear to have been direct evidence as to just how many of the 57 ballot papers which were thus admitted had originally been queried on the basis of having a sequence of numbers not beginning with “1” or “one”. Doubtless, some the relevant 57 ballot papers were queried on other grounds but were nonetheless found to be valid. Thus, only a proportion of those 57 votes could be said to have involved ballots with a sequence of numbers not including “1”. However, as already noted, there were only two votes in it on the final count. It would not have taken much to change the result. There seems to me to be a realistic possibility that there might have been enough votes of the questioned type included so that, having regard to the quirks of the proportional representation system to which I have already referred, it would not be unrealistic to regard it as possible that the result could have been different had those votes not been included.
6.8 To use the terminology adopted by O’Donnell J. in Jordan it is “reasonably possible” that the inclusion or exclusion of the contested votes might have affected the result. Likewise, the point was reached where a reasonable person would be in doubt about, and no longer trust, the result as declared on being told that the returning officer had, by a mistake, included in the count votes which ought properly to have been excluded.
6.9 The fact that it might have been possible for Mr. Kiely to present better evidence in that regard does not take away from the fact that the evidence which was before the trial judge gives rise to an inference that there was a realistic possibility that the result might have been different had the votes in question been excluded. In my view, Mr. Kiely met the onus of proof which rested upon him. Any other party could, of course, have also sought the examination of the contested ballot papers. If such an examination had taken place during the hearing of the Petition and if, as in Bell, it had thereby become clear that the exclusion of the ballots in question would not have availed Mr. Kiely, then the fact that he had met the prima facie burden of proof would nonetheless not have availed him. But no other party chose to present such evidence either.
6.10 Indeed, it seems to me that the very fact that one of the orders which a court can make in the course of an election petition is to direct that the ballots be “counted afresh” means that it cannot be the case that there is an absolute onus in all cases on a petitioner to present evidence of what is contained in the ballot papers. If such an onus rested on a petitioner, then the Court would have that evidence at the hearing, and it is very difficult to see what point would be served by requiring the votes to be “counted afresh”. That is not to say that there may be cases where it would be impossible for the petitioner to discharge the onus of proof to the appropriate standard without presenting some evidence as to what was contained in the ballot papers. However, for the reasons which I have sought to analyse, I am not satisfied that this was such a case, for the evidence which Mr. Kiely presented to the trial judge was, in my judgment, sufficient to discharge the onus of proof that rested on him.
6.11 In my view, therefore, it follows that not only has Mr. Kiely demonstrated that there was an error in the conduct of the count, but also that that error meets the threshold of materiality identified by this Court in Jordan. Before going on to consider the consequences of those findings, I wish to make a number of brief observations.
7. Some Observations
7.1 First, I should say that, in the light of those findings, it is unnecessary to consider whether the failure to reassess the admissibility of contested ballot papers on a recount amounts to a mistake or irregularity. There was, in any event, a mistake which is sufficient to meet the statutory test under s.5(1)(a) of the 1974 Act.
7.2 Next, it is necessary to say something about what is sometimes referred to as the “sanctity of the bundles”. There is a certain degree of randomness in the conduct of a multi-seat proportional representation count under our system. The reason for that randomness stems from the way in which physical ballot papers are transferred when the surplus of a candidate who exceeds the quota is being distributed. In general terms, all relevant ballot papers (being all ballot papers in favour of a candidate who is elected on the first count or all of the ballot papers which were transferred to the candidate concerned on a subsequent count where the transfer in question had the effect of bringing the candidate over the quota) are examined and the surplus is distributed proportionately. Thus far, there is no element of randomness.
7.3 However, when it has been determined that a particular number of votes is to be transferred as a result of a surplus, the physical ballot papers (being the relevant proportion required to be transferred) are taken from the top of the bundle in question and physically transferred to the candidate who is entitled to the relevant votes as part of the relevant surplus transfer. If that candidate, in turn, is either eliminated or is elected as a result of the transfer of the surplus in question, then the ballot papers physically transferred to that candidate can have an effect on where the votes in question ultimately end up. It would be unlikely that there would be any very significant difference, but it equally cannot be ruled out that there might be a marginal difference resulting from the way in which the ballots which are the subject of a surplus are actually stacked up in their bundles. Thus, it follows that if all the votes in a count which was conducted with complete accuracy were mixed again and recounted again, also with complete accuracy, there might be a marginal difference in the result. If the count is very close then that marginal difference might be material. It is for that reason that the rules for the conduct of counts require that the ballot papers be kept in the same sequence at all times because, if that were not to be the case, the result could become truly random (see for example article 87(3)(b) of the Regulations cited earlier which requires that the same order of ballots be kept during a recount). With the bundles kept in the same sequence, whatever randomness there may be crystallises when the votes are put in a particular order at the beginning of the count.
7.4 Obviously, if there were to be a remixing of the ballot papers, then whatever randomness had crystallised by the original ordering of the ballot papers in question when the count began would be recreated by the very act of remixing the ballot papers. It will be necessary to consider that undoubted fact in the context of the final issue, to which I now turn, which concerns the order which the Court should make.
8. What Order should the Court make?
8.1 The starting point has to be the finding, which I have already indicated should be made, to the effect that the count in this case was affected by a mistake and that it has been established that it is reasonably possible that the result of the election was affected by that mistake. It is against that background that the Court must decide what the consequences of those findings should be.
8.2 Section 8 of the 1974 Act provides that the Court may, for the purposes of the trial of a petition, if it thinks fit, order, amongst other things, that “all the votes cast at the election shall be counted afresh”. (See s.8(1)(a)).
8.3 Section 8(4) provides that the Court “shall have power to reverse any decision of a returning officer at the original count”. Given my view that the original count was conducted in error in a manner which met the threshold of likelihood of affecting the result, it seems to me to necessarily follow that the Court should direct the counting afresh of the ballot papers and should, in that context, reverse the decision of the retuning officer concerning the admissibility in that count of the ballot papers which contained a sequence of numbers not starting with “1”.
8.4 However, an issue arises as to what is meant by the term “counting afresh” in the sense in which it is used in s.8 of the 1974 Act. First, it should be noted that this is not a case in which a question arises as to ordering or directing the counting afresh of all the votes in a particular electoral area or all the votes contained in a particular parcel in accordance with ss. 8(1)(b) or (c). The mistake identified is not confined to any particular electoral area or any particular parcel or parcels of ballots. Therefore, what is required is the counting afresh of “all the votes cast at the election”. Clearly, in so doing, the Court must direct that the returning officer exclude the ballot papers identified in this judgment. However, the further question arises as to just how far back in the process of conducting the count it is necessary to go in accordance with the requirement that “all the votes cast at the election shall be counted afresh”.
8.5 There are three possibilities. They are:-
8.6 Given the “sanctity of the bundles” point which I have already addressed, there is an argument to the effect that the Court should direct that, during any counting afresh, the ballots should be retained in the same order as they were originally placed in bundles, subject only to removing those ballots which, for the reasons addressed in this judgment, were wrongfully included. The alternative course of action could lead to a situation where the ultimate result, after the counting afresh, might, because of the randomness element which I have identified, actually be different to the result which would have occurred had the count been properly conducted in the first place. Indeed, paradoxically, if one were to conduct a “counting afresh” in any other way, then there would be a possibility that Mr. Kiely might find himself in a situation where it would become apparent that he should have won the election had it been properly conducted with the ballots in the order into which they were placed during the original count, but might still lose the election after a “counting afresh” because a remixing of the ballots and a reintroduction of a different random element to the count might work against him.
(a) That one must go back to the very beginning so that, in counting afresh, the question of the admissibility or validity of those votes previously ruled on (with the exception of the votes whose admissibility are specifically dealt with in this judgment) can be reopened; or
(b) That one goes back to the point immediately after the validity or otherwise of votes has been determined but conducts all stages thereafter, including a complete remixing of the ballot papers; or
(c) That the counting afresh complies with the obligations contained in the Regulations concerning a recount and thus retains, in accordance with article 87(3)(b), “the number or order of ballot papers in any parcel”.
8.7 Indeed, the circumstances of this case demonstrate a further difficulty. For the reasons set out earlier in this judgment, I am unable to agree with the view expressed by Charleton J. to the effect that Mr. Kiely has failed to discharge the onus of proof which undoubtedly rests on him in bringing a petition such as this. However, it is clear that it would at least have been possible for Mr. Kiely, or indeed any other party to the petition, to have sought an order from the trial judge to enable them to inspect the votes and to have presented whatever evidence might have been forthcoming from such an inspection at the hearing of the petition before the Circuit Court. In essence, the difference of view between myself and Charleton J. stems from whether the presentation of such evidence is required, as opposed to being merely permissible. However, the one thing that is clear, on either view, is that the evidence concerned could have been presented.
8.8 In that context, it is worth considering what course of action it might have been appropriate for the Circuit Court judge to adopt in the event that such evidence was presented, and was such that it indicated that, had the contested votes not been included in the count proper, Mr. Kiely would have succeeded and some other identified candidate would have lost. I appreciate that the evidence might or might not have been capable of dealing with that question in a clear fashion. If, for example, exclusion of the contested votes would have led to a different order of exclusion of candidates or the like, then it might not really be possible, short of conducting a very elaborate exercise, to attempt to work out what would have happened had the contested votes not been included. But equally, it might be possible that the relevant votes could be identified, their effect on the various counts calculated, and the effect of the exclusion of those votes on the position of the continuing candidates on the final count determined as a matter of real certainty. If that had happened and if it had transpired that Mr. Kiely would not suffer significantly by the exclusion of the contested votes but other candidates would, so that Mr. Kiely should have won, what then should the Circuit Court judge do? Should he simply correct the result and declare that Mr. Kiely should have been elected instead of whichever candidate was found to have only been elected by virtue of the inclusion of the contested votes, or should he order a full counting afresh if that is to mean going back and remixing the votes from the beginning?
8.9 Given the random element already identified, it is, as I have already noted, entirely possible that a counting afresh involving a remixing of the ballots might lead to a different result again. That analysis raises the possibility, which is undoubtedly unattractive, that the result of an election petition might depend on whether a judge, prior to or in the course of hearing the petition, gave liberty to one or other party to inspect the votes and present evidence at the hearing, on the one hand, or simply heard sufficient evidence to be satisfied that there was a realistic possibility that the count had been affected by error and ordered a “counting afresh”, on the other hand. But, unattractive as that proposition may appear, it is necessary to consider whether that anomaly is what the legislation requires.
8.10 The question turns on whether the phrase “all the votes cast at the election shall be counted afresh”, as used in s.8(1)(a) of the 1974 Act, requires a remixing of the votes in question. It is important to emphasise that the term “counting afresh” is used in s.8 of the 1974 Act, whereas the term used in the Regulations for what is to occur during the count itself when a candidate wishes to have votes re-examined is a “recount”. As noted earlier, the Regulations (which, by virtue of s.20(1) of the Electoral (Amendment) Act, 2009 have statutory effect “as if they were an Act of the Oireachtas”) themselves expressly provide that, in the event of a recount, the order of the ballots is to be kept the same. However, the actual legislation does not use the term “recount” but rather uses a different term, being “counting afresh”, for what is to occur, if directed, during an election petition. The legislation could have provided that the Court might direct a further recount and, in so doing, might require that certain decisions which the Court found to be mistaken would be corrected. But that is not what the legislation does. The term “counting afresh” is applied, expressly, to “all the votes”. That phrase seems to carry with it a necessity to go back to the beginning and thus consider first the validity of any questionable votes (other than those which are expressly the subject of the ruling in this judgment) and thereafter to remix the votes and count them entirely afresh. I recognise that this will reintroduce a random element which had crystallised, but it seems to me that the clear wording of s.8 requires just that.
8.11 There is no reason in principle why, should it be considered desirable and practical for the sort of reasons identified in this judgment (or, indeed, any other reasons) to change the law so that the Court might direct something analogous to the form of recount in which the order of ballots is retained, legislation could not provide for this. However, if such a change in the legislation is considered appropriate, same is a matter for the Oireachtas rather than for the courts. All the courts can do is interpret the legislation as it is. The legislation requires that all the votes be counted afresh and that, it seems to me, requires that the process go right back to the beginning.
9.1 I have, therefore, come to the conclusion that the inclusion by the returning officer of votes containing a sequence of numbers not including “1” amounted to a mistake for the purposes of s.5(1)(a) of the 1974 Act. I am also satisfied that Mr. Kiely produced sufficient evidence to discharge the burden of proof upon him to establish that it was reasonably possible that the mistake in question could have affected the result of the election as per the decision of this Court in Jordan.
9.2 It follows that the Court should, in my view, direct, under s.8(1)(a) of the 1974 Act, that the votes be counted afresh. In that context, I would propose that the Court should give a direction under s.8(4) that, in the context of counting the votes afresh, the decision of the returning officer in respect of votes containing a sequence of numbers not commencing with “1” or “one” should be reversed, and that those votes be excluded from being allocated to candidates as part of the counting afresh. In all other respects, I would direct that there be conducted a full count from the beginning including a re-examination of the validity of all ballots and a re-mixing of the ballot papers.