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Judgment
Title:
Kiely -v- Kerry County Council
Neutral Citation:
[2015] IESC 97
Supreme Court Record Number:
366/2014
Circuit Court Record Number:
2014/303
Date of Delivery:
12/17/2015
Court:
Supreme Court
Composition of Court:
Denham C.J., O'Donnell Donal J., McKechnie J., Clarke J., Charleton J.
Judgment by:
McKechnie J.
Status:
Approved
Result:
Appeal allowed
Details:
Judge Charleton concurred with his colleagues with the exception of the burden of proof issue.
Judgments by
Link to Judgment
Concurring
O'Donnell Donal J.
Denham C.J.
McKechnie J.
Denham C.J., O'Donnell Donal J.
Clarke J.
Denham C.J., O'Donnell Donal J.
Charleton J.



THE SUPREME COURT
[2014/366]
Denham C.J.
O’Donnell J.
McKechnie J.
Clarke J.
Charleton J.

IN THE MATTER OF THE LOCAL ELECTIONS (PETITIONS AND DISQUALIFICATIONS ACT, 1974), AND
IN THE MATTER OF THE LOCAL ELECTIONS FOR LISTOWEL HELD ON 23rd MAY, 2014
BETWEEN
DAN KIELY
PETITIONER/APPELLANT
AND
KERRY COUNTY COUNCIL
RESPONDENT
AND
JOHN BRASSIL, JIMMY MALONEY, MIKE KENNELLY, MICHAEL O’GORMAN AND OTHERS
FIRST, SECOND, THIRD & FOURTH NAMED NOTICE PARTIES & ORS
AND
THE MINISTER FOR THE ENVIRONMENT, COMMUNITY AND LOCAL GOVERNMENT
STATUTORY NOTICE PARTY

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 17th day of December, 2015
Introduction:
1. Anyone interested in a democratic system of government will have an interest in the process of democratic elections which in a fundamental way underpins the operation of democracy itself. Not much gives rise to such controversy as disputes on election results: perhaps the more local the election is and the tighter the margin appears to be, the greater intensity that is aroused between the affected candidates and most certainly between their personal supporters. History abounds with examples of late nights, long counts, and multiple recounts, ending either with a generous acknowledgement of defeat or with an over enthusiastic acceptance of victory; or else, as here, with the law becoming involved. Many years on, or even decades later, those involved can vividly recall how a high preference on, say, count 12 was sufficient to accredit victory to their candidate: others will forever believe that it was their man or woman and no other who was deserving of that final seat. However unsatisfactory it is to resort to an election petition, it seems that on occasions it may be the only means of resolving certain difficulties so that the electorate of any given area can be served by all duly elected representatives to the body in question.

2. Throughout the years there have been elections of many different sorts for membership of our national legislature and for membership of more regional or local representative bodies. Whilst there are statutory provisions governing all such elections, there are also constitutional provisions of relevance. For Dáil and Seanad elections one can refer to Article 16 and Article 18 of the Constitution respectively. Some of the matters so specified can be considered as stand alone provisions, whilst the detail of many others is to be regulated by law. It is only necessary to note for our purpose that voting shall be by way of secret ballot and that members of both Houses shall be elected on a system of proportional representation by means of a single transferable vote. (Article 16(5) and Article 18(5) respectively). Given this system of proportional representation, which applies equally to local elections, as distinct from say the first-past-the-post system, one can see how important every single vote and every preference might be, in a closely contested election.

3. For many years the role of local government was not recognised at all in the Constitution, but following the Twentieth Amendment, approved by the people in 1999, a new provision was added to the text. Article 28A(1) and (2) read as follows:-
      “1. The State recognises the role of local government in providing a forum for the democratic representation of local communities, in exercising and performing at local level powers and functions conferred by law and in promoting by its initiatives the interests of such communities.
      2. There shall be such directly elected local authorities as may be determined by law and their powers and functions shall, subject to the provisions of this Constitution, be so determined and shall be exercised and performed in accordance with law.”

4. It is not in any way necessary to examine these provisions, either as to meaning or scope. Laffoy J. in Ring v. the Attorney General [2004] 2 I.R. 185 at 201 felt that these provisions simply recognised the role of local government rather than guaranteeing it, as did Birmingham J. in O’Doherty v. the Attorney General & Ors [2010] 3 I.R. 482. Whatever the exact designation of this Article, it is however clear that the importance of democracy, through local elections, has been enshrined in our law at constitutional level. Therefore, whilst nothing directly turns on these provisions in this case, the background and context is of itself worthy of note.

The Parties:
5. Mr. Kiely is the petitioner/appellant and, as will appear immediately next, was an unsuccessful candidate in the election, the subject matter of this case. Kerry County Council, which is responsible for the conduct of the election, is the respondent in both the petition and in this appeal and evidently represents the deputy returning officer, Mr. Michael McMahon, who was in charge of the election in question. The first named notice party was a successful candidate in the election and whilst so named has not participated on this appeal. Mr. Moloney and Mr. Kennelly were also successful candidates, but only by a margin which potentially could be affected if the petitioner should be successful in the case. The former has been represented by solicitor and counsel who have made submissions on his behalf to this Court. Mr. O’Gorman is a further notice party who was eliminated from the election on the ninth count. He has also made submissions on this appeal. Finally, though remaining entirely neutral as between the candidates, the Minister for the Environment, Community and Local Government was also represented and oral submissions were made on his behalf which augmented those previously submitted in written form.

The Context:
6. On the 23rd May, 2014, there was held in this country an election to the European Parliament (“the European Election”) and on the same occasion there was also held what I will describe as “local elections” for each local electoral area (paras. 30-32 infra). Whilst neither the conduct or the result of the European Election are of themselves directly significant, the fact of it being held simultaneous with the local elections plays a key role in the surviving issues which have been addressed on this appeal.

7. The local election in question arises out of that held for the Listowel electoral area of North Kerry. After the eleventh and final count, there were five continuing candidates, none of whom had reached the quota for the remaining four seats. The deputy returning officer who was in charge eliminated Mr. Dan Kiely, who was the candidate with the least number of votes at that stage of the count. After a recount was called for and carried out, the result did not change. Therefore, Mr. Kiely failed to obtain a seat. By petition he challenged the legality of how the returning officer had conducted certain aspects of the overall count. Having failed in the Circuit Court he has now appealed to this Court, which apparently is the first occasion (ever) upon which such a procedure has been adopted. This judgment deals only with the live issues advanced on his behalf at the hearing.

8. Although it will be necessary to explain more fully later in this judgment the complaints raised in the petition and the issues dealt with by the trial judge in his decision, it would be convenient at this stage to briefly describe the principal ground relied upon this appeal. A notice party, Mr. O’Gorman, raised additional matters which will be dealt with separately (paras. 81-82 infra). The ground advanced is based on the fact that unless a ballot paper “clearly indicates” a first preference, it is not valid. If it does but fails to clearly indicate a second preference or if it also clearly indicates a second preference but not a third preference etc, it remains valid for the first or second preference as the case may be, but thereafter becomes a non-transferable paper. It is the first of these situations that we are essentially concerned with.

9. The total poll for the electoral area in question numbered 14,929: the valid poll was 14,756, thus giving a number for spoilt or invalid votes of 173. This last mentioned figure, which is not in controversy, was arrived at by the returning officer after he had firstly scrutinised the entire poll so as to indentify what were classified as “doubtful votes” or “doubtful ballot papers”: in all, there were 230 such votes. Having examined each of these papers, he rejected as invalid and so marked, as I have said, 173. He declared as valid the remaining number, which, although not so admitted by the Council, I propose to take as being 57, as there is a justifiable finding to this effect by the trial judge (“the disputed papers”). The returning officer also marked these papers in a manner which I will describe in a moment. It is only a handful of these papers which remain in issue and which for reasons which will become immediately obvious I will sometimes also refer to these as “the sequenced votes” or “papers”.

10. Mr. Kiely alleges that an unspecified number of the disputed papers had the numbered sequence 3, 4 and 5 or 4, 5 and 6 written on them, with each digit being placed against the names of different individual candidates: these papers did not have the figure 1, or the figures 1 and 2, or, if the sequence displayed was 4, 5 and 6, did not have the figures 1, 2 and 3 recorded on them. In fact in no part of any of those papers did the figures last mentioned or their equivalent in word form appear. Likewise, no roman numerals were used and neither, for that matter, was any other form of mark such as “X” (which traditionally has been accepted as demonstrating a first preference). The only indication therefore of a first or subsequent preference was by reference to the numerals 3, 4 and 5, or such similar sequence as may have occurred, commencing with the next higher number, say number 4.

11. In simple terms the petitioner says that the number 3 or the number 4 can never be a number 1: therefore, there was no mark on the sequenced papers evidencing the elector’s first preference for any candidate. Accordingly, these votes should not have been counted. If such papers so styled had been rejected this would likely have had an effect on the election result. The respondent disagrees with this submission and says that the sequence in question was capable of being interpreted as giving a first preference to the candidate against whose name the figure 3 was written, or the figure 4 as the case may be. The Circuit Court so agreed with this argument. This is the context thus giving rise to the first issue raised on this appeal.

Local Elections (Petitions and Disqualifications) Act 1974 (“The 1974 Act”):
12. Local elections are conducted essentially in accordance with the Local Elections Regulations 1995 (S.I. 297/1995) made by the Minister for the Environment, as then titled, in exercise of the powers conferred on him by s. 22 of the Local Government Act 1994. Nothing turns on the power or the exercise of the power to make such Regulations, or on the fact that by virtue of s. 20 of the Electoral (Amendment) Act 2009 (“the 2009 Act”) they are deemed to have statutory effect. Whilst several changes have been made to these Regulations by the 2009 Act, none affect the provisions in play on this appeal, with all parties agreeing that such Regulations remain the essential bedrock which govern virtually all aspects of local elections.

13. At sub-legal level the Department of the Environment, as has been its practice for many years, issues in respect of each local election a document headed “Memorandum for the Guidance of Local Authority Returning Officers” (“the Guidance Memorandum”). It did so as normal for the election in question. Whilst this memorandum featured heavily in the evidence, it has no legal status, at least in the context of the presenting issues on this appeal (paras. 27 and 49-58 infra). In addition, the grounds upon which a local election can be challenged and the means by which that may be done are set out in the 1974 Act, which has been amended in non-relevant from by the Local Government Reform Act 2014. It will therefore be convenient at this point in the judgment to set out or otherwise refer to the relevant provisions of these statutory measures so that one may be able to more fully understand and follow the argument that has been addressed. First, therefore, the 1974 Act.

14. A local election may only “be questioned” by the presentation of a petition to the Circuit Court (s. 2). Such a petition may be taken out “by any person over the age of eighteen”: it must issue within 28 days after the result of the election is declared save that, where the allegation is one of improper payment or a bribe such a petition, or indeed even a second petition, can issue within 28 days after the payment or the bribe has been made, as the case may be (s. 4). Whatever the grounds of challenge may be, one cannot question a local election after the period of twelve months from the date of the declaration: thereafter “…the election shall be deemed to be valid for all purposes” (s. 19).

15. Subject to an additional subsection, inserted by the Local Elections (Disclosure of Donations and Expenditure) Act 1999, which is not relevant, a local election may be questioned where it is alleged that a candidate is not qualified to run, that the conduct of the election has been obstructed, interfered with or hindered, or that a mistake or other irregularity has occurred. Without prejudice to the generality of the foregoing, s. 5(1) of the 1974 Act sets out three particular grounds which may be specified in a petition, namely that:-
      “5-(1) …
          (a) a local election was affected by error or was not completed or was otherwise not conducted by a 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.”
Furthermore, following the establishment of any such grounds, the petitioner must also satisfy the court that the ground so found is “…likely to have affected the result of the election…”. All of these matters are provided for in s. 5 of the Act.

16. Where a petition has issued, it shall be tried by a judge of the Circuit Court within whose area the principal offices of the local authority in question is situated. For the purposes of the trial the following provisions apply:-
      “8 -(1) The court may, for the purposes of the trial of a petition, if it thinks fit, order -
      (a) that all the votes cast at the election shall be counted afresh,
          (b) that all the votes cast in particular electoral area shall be so counted,
          (c) that all the votes so cast and recorded on the ballot papers contained in a particular parcel shall be so counted,
      and where the court so orders, the provisions of the following subsections shall have effect.
        (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 the section, the court shall cause the following to be ignored:-
            (a) preferences recorded on valid 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 counter fitted ballot papers, and
            (c) preferences recorded for any person who, with respect to the relevant election, was found by the court not to have been qualified for membership of the local authority.
          (4) The court shall have power to reverse any decision of a returning officer at the original count.
          (5) The cost of giving effect to an order under the section shall be paid by the local authority concerned.”
17. Having determined the complaint at issue in the petition, the court by way of final order has the power to:-
      (a) Issue a declaration of the correct result of the election, or
      (b) If it is unable to determine that result, grant a declaration that the whole of the election or a specified part thereof was void together with a statement of its reasons for making the declaration.
In addition, the court has power to give effect to the consequences of any decision made by it in respect of the persons who were or who should correctly be considered as elected members of the local authority (s. 14 of the 1974 Act).
    18. Finally, the court of trial has the option, given to it by s. 23 of the Act, to state a case for the opinion of the Supreme Court on any question of law arising during the trial (s. 23 of the Act); in addition, any party to the petition who is dissatisfied with the determination of the Circuit Court is entitled to appeal against that decision to this Court, again on any question of law: subject thereto the decision of this Court shall be final and not appealable. (s. 7(3) of the Act). It is by virtue of this provision that the present appeal has found its way to this Court.

    The Local Election Regulations 1995 (S.I. No. 297/1995) (“The Regulations”):
    19. This is the legislative measure which sets out in detailed form the provisions by which all of the essential steps in the conduct of a local election are to be taken. As the Regulations are extensive in nature, I will confine myself to those provisions which are directly in issue, which incidentally are in some cases identical with and in all cases are substantially the same as like provisions relating to national elections. These are largely to be found in Part XIII of the Regulations, but a limited number of other Articles must also be referred to.

    20. As can be imagined, the returning officer plays a critical role in the administrative scaffolding without which such elections could not be orderly conducted. For that purpose there is placed on him or her a general duty to do all such acts and things “as may be necessary for effectually conducting the election” in accordance with such Regulations: a duty in almost identical wording can be found as far back as s. 8 of the Ballot Act 1872. Obviously this includes an obligation to ascertain and declare the result and to furnish to the local authority in question a return of those persons who have been duly elected (Article 5). He may appoint one or more persons as deputy returning officers to help him with his functions. (Article 6). He is responsible for giving public notice of the election and for receiving the nomination of those who intend to run. He is in charge of the postal votes and voting by special voters (Articles 29 and 43). He makes all the necessary arrangements for holding the poll, including the production of the required ballot papers (Part X of the Regulations). He is in charge of the poll, responsible for ascertaining the total poll, the quota and for the counting of votes: he also adjudicates on the validity or invalidity of ballot papers. He makes the declaration of those who have been successful. He and his team have several other ancillary functions, the details of which are not required to be further set out in this judgment.

    21. Part XIII sets out the requirements for the counting of votes; these are designed at a detailed level to facilitate the practical implementation of the relevant provisions of the 1974 Act. In as brief a form as the context allows the following should be noted:-
        (i) A “continuing candidate” is a candidate not deemed to be elected and not excluded.
        (ii) “count” means the operation of counting all of the first preferences for one or more candidates, of dealing with surpluses where they arise and of excluding candidates where that occurs.
        (iii) (a) “non-transferable paper” means a ballot paper where no second or subsequent preference is recorded for a continuing candidate,
            (b) a paper shall be deemed to have become a non-transferable paper:-
                  · where the same order of preference is given to two or more candidates,
                  · where the next order of preference does not follow consecutively after some other mark on the ballot paper, or is marked with two or more marks,
                  · where the paper is void for uncertainty.
    All of these matters are governed by Article 80(1) of the Regulations.

    22. Within that particular Article there is also a definition of what is meant by a first, second and third preference. A reference to one such description is sufficient for my purpose: accordingly,
        “A “first preference” means any mark which, in the opinion of the returning officer, clearly indicates a first preference.”
    All other preferences, with the obvious adjustments, are likewise styled. The authority so given to the returning officer in this context is an important matter and is one which I will later deal with in this judgment (paras. 45-47 infra).

    23. Article 80(2) of the Regulations declares that any ballot paper suffering from the following shall not be counted; in effect these are considered as spoilt votes:-
        (i) one which does not have the official mark,
        (ii) one which, in the opinion of the returning officer does not “clearly indicate” a first preference for some candidate,
        (iii) one which, in the opinion of the returning officer indicates a first preference for more than one candidate, and
        (iv) one which, in the opinion of the returning officer is calculated to identify the elector.
    Under subpara. (3) of Article 80, the returning officer shall endorse the word “rejected” on such ballot papers and shall record the number of such papers. He shall also indicate which of the “doubtful ballot papers” he accepts as valid and should so indicate that decision on each such ballot paper, without otherwise interfering with that paper (s. 80(5)).

    24. Article 81(1) provides that after the ballot papers have been mixed the retuning officer shall, rejecting any of the ballot papers that are invalid, arrange them in parcels according to the first preference recorded for each candidate. He shall then count the number of such preferences in each parcel and credit each candidate as appropriate. The reference to ballot papers having been mixed is a reference to what occurs once the boxes are initially opened. Apparently the first act of the returning officer is to count all of the papers in such boxes and then compare the total number with the number shown in the appropriate ballot paper account, which is the responsibility of the presiding officer. This is immediately followed by mixing the whole of the ballot papers from all of the boxes in respect of the local area in question. As a result the papers are then randomly interchanged with one another as the particular form of proportional representation operating in this country demands. The counting process is then commenced.

    25. Reference should also be made to Article 87 of the Regulations. Under subpara. (1) any candidate, at the conclusion of a given count, may request the returning officer to re-examine and recount all or any of the papers dealt with during that particular count, and the returning officer shall accordingly do so. The returning officer may at his own discretion recount the papers from the previous or earlier counts, either once or indeed more than once, if he is not satisfied as to the accuracy of any given count. Article 87(3) then provides:-
        “(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.”
    It is therefore feasible to have a single count re-examined or, as happened in this case, to have a full recount of all the parcels of ballot papers. Whether the papers rejected initially as invalid should form part of a full recount was once hotly contested in this case: it is however no longer an issue. I will therefore defer offering any view on the point until it directly arises in some future case.

    26. The only other provision of note is that found in Article 91, which says that the decision of the returning officer on a question which arises in relation to a ballot paper or transfer of votes shall be final, subject only to an election petition. Finally, it should be pointed out that a form of ballot paper is attached to the Regulations with instructions given to the elector, placed immediately after the names of the candidates, as to how it should be filled in: it says “Write 1 beside the name of the candidate of your first choice, 2 beside your second choice and so on”.

    The Guidance Memorandum:
    27. This document, as I have said (para. 13 supra), is an aid to returning officers when discharging their functions after a local election has been called. It is an impressive document with regards to both detail and length. It deals with most aspects of what different situations a returning officer might encounter during the course of an election and offers guidance when decisions are called upon to be made. Section 12 is headed “Invalid Ballot Papers,” with section 13 dealing with “The Count”. It is undoubtedly non-binding and has no legal status. In case of conflict or even ambiguity, it must therefore yield to the 1974 Act and to the Regulations above mentioned. Even allowing for its standing, however, it deserves some mention.

    28. Having stated that any mark which indicates the intention of the voter with reasonable certainty should be accepted, it goes on to state that normally a first preference is indicated by the figure 1, a second preference by the figure 2 and so on. Where so marked the paper is a valid one: as is one without such figures but having mark(s) which likewise clearly describe a preference or preferences. Examples given are an “X” or a single tick, or where roman numerals are used. It then states that the use of double digits, such as 11, 22 and 33, are also allowed, although why this might be the case has never been explained. Of direct significance in this case however is another example given, of a variation to what undoubtedly is the most commonly used mark, namely the figures 1, 2 and 3. At p. 52 the following appears:-
        “A sequence which starts with a number other than 1 e.g., 3, 4, 5, 6 – (discuss with agents – see below).”
    This aspect of the Guidance Memorandum is further discussed below (para. 55 infra).

    29. On the following page, exactly the same type of sequence is returned to, but on this occasion what is stated is different:-
        “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.” (emphasis added)
    Again, that part of the statement which is emphasised has a significance which becomes evident later in this judgment. Finally, it assures the returning officer that subject to an election petition, his decision on any disputed question arising out of the counting of votes is final.

    A Bit More of the Background:
    30. Mr. Kiely had previously contested many elections; in every election prior to the one in question, he had run as a candidate representing the Fianna Fáil party. Having failed to get a nomination from that party, he ran as an independent in the May, 2014 Election, which in his area had a total of fifteen candidates for seven seats. As such, he therefore did not have available to him the support of a party machine, in particular for the purposes of and during the counting process. Normally there would be an agent(s) of the party present at all stages during this operation so that if any issue(s) of concern arose, he or she could represent the interests of the party candidates. Whilst the petitioner, as an independent, could also have nominated a person to act as his agent, he did not in fact do so. Given that he did not arrive at the count centre until the third count was underway, by which stage two candidates had been elected and two more had been eliminated, he was therefore unrepresented at all stages prior to his arrival.

    31. Once the polling stations had closed on the 23rd May, 2014, all of the ballot boxes throughout the county for both elections were taken to the Killarney Sports & Leisure Centre, where they were opened at 9.00am on the 24th May. Per the judgment of the election court, the papers from the European boxes were separated from those cast in the local election: the boxes, inter alia, for the Listowel area were then taken to a different count centre, situated in Tralee. Mr. John Flynn was the returning officer for the local elections, with Mr. Michael McMahon being his deputy returning officer: Mr. McMahon, once appointed, had the same duties and responsibilities as the returning officer. As previously agreed between them, Mr. Flynn took charge of the electoral areas of Kenmare and Killarney, with Mr. McMahon being responsible for the Tralee and Listowel areas. Whilst it was not possible to indicate in advance precisely when counting would commence for the last mentioned districts, it was envisaged and announced to all the candidates that it would be somewhere between 5.30 and 6.00pm on the 24th May, 2014.

    32. According to his evidence Mr. Kiely had no complaint with the conduct of the count or the counting process until they had reached the eleventh and last count. At that stage, as above noted, he found himself being eliminated, as he was five votes behind Mr. Moloney and two votes behind Mr. Kennelly. As was his entitlement he sought a full recount. Having spoken with some other people at the count centre who had been present throughout, he was alerted to the fact that when the total poll was being firstly scrutinised for invalid papers, the returning officer had identified 230 “doubtful votes”, of which, as previously stated, he rejected 173 and marked as valid the remaining 57. Mr. Kiely sought to have the rejected ballots re-examined by the counting staff. This request was refused by the returning officer on the basis that he had previously ruled on each of these papers and accordingly, consistent with his practice and that of other returning officers, he would not be re-examining such papers. Mr. Kiely also made some reference to those papers which had been marked as valid, which I have referred to in this judgment as “the disputed papers.” The recount which then took place, whilst disclosing some minor variations from the original, did not affect the ultimate margin of difference between Mr. Kiely and the other two competing candidates. The returning officer thus proceeded to issue a declaration, thereby resulting in Mr. Kiely’s failure to obtain a seat for the Listowel electoral area.

    Judgment of the Circuit Court:
    33. Arising out of the petition, the evidence tendered at the hearing and the submissions made, the trial judge identified four issues which required his determination. The fourth would only arise as consequential to Mr. Kiely’s success on one or more of the other issues.

    34. The first matter dealt with was based on an allegation that the returning officer was incorrect in not re-examining as part of the full recount afforded to the petitioner the total number of doubtful votes, in all the 230 papers above mentioned (Issue No. 1). The second point was that the returning officer was likewise incorrect in adjudicating on these papers without the petitioner being present, or otherwise being represented (Issue No. 2). The learned judge dismissed both of these grounds and neither has been pursued on this appeal. Accordingly, as it is not necessary to address either point, I have not considered whether the trial judge was correct as a matter of law in concluding as he did on such matters.

    35. Having rejected the above grounds of complaint that left the third issue, which has been above described at paras. 8 and 9 of this judgment, and also the follow-on issue which strictly speaking did not arise, given the trial judge’s rejection also of this ground. The judge however went on to deal with it and so a reference must likewise be made to his views on this point.

    Issue No. 3 in the Judgment:
    36. Was the returning officer entitled to admit as valid those ballot papers which only had written on them the sequence 3, 4 and 5 or 4, 5 and 6 or the like without any other indication of what the elector’s first preference was? In rejecting Mr. Kiely’s challenge in this regard, the learned judge adopted the rationale advanced by the returning officer as justifying the decision which he had made: this was:-
        (1) that by reference to Article 80(2) of the Regulations it clearly was the case that a first preference could be indicated by way of a mark, other than by the number 1,
        (2) that the holding of a second election on the same occasion was a relevant factor,
        (3) that where there were two simultaneous elections, the Guidance Memorandum advised that papers starting with a sequence 3, 4 and 5 or 4, 5 and 6, as the case may be, could be accepted as valid,
        (4) that such decision reflected commonsense and avoided needless disenfranchising of voters, and
        (5) that it was consistent with a reasonable interpretation of the Regulations.
    For these reasons he agreed with the decision of the returning officer.

    Issue No. 4 in the Judgment:
    37. Rightfully pointing out that this issue only arose if Mr. Kiely was successful on one of the other grounds pleaded, the trial judge nonetheless went on to express a view on this final matter: this was whether the result of the election might have been different if the petitioner had been successful on any such ground. In rejecting the case advanced under this heading, the learned judge gave as his reasons the following:-
        (1) that according to Mr. Enright, a solicitor by profession and the election agent for Mr. Kennelly, who was present at the adjudication of the doubtful ballots, there was very little chance of changing the mind of the returning officer once he had made a decision on these papers;
        (2) that in any event there was just one doubtful ballot which aroused any real interest or discussion;
        (3) that the petitioner had not adduced any evidence to contradict that given by Mr. Enright;
        (4) that even if present, it is highly unlikely that any representation made by or on behalf of Mr. Kiely would have influenced the returning officer; and
        (5) that from a photograph of the count centre, timed at 20.36 on the 24th May, 2014, there were only about seven persons present at this adjudication.
    Accordingly, for these reasons the outcome would not have been altered even if the circumstances as postulated had occurred.

    Submissions
    The Petitioner:
    38. The petitioner submits that to treat a sequence of 3, 4 and 5 or 4, 5 and 6, as equivalent to 1, 2 and 3 is illogical, invalid, unwarranted and against principle. Of even more significance, he says, is that it is contrary to the 1995 Regulations. Whilst he has advanced a variety of arguments as to the correct meaning of the word “mark” in the context of the definition of a first, second or third “preference” in Article 80(1) of the Regulations (para. 22 supra), and as to the distinction between a mark and numerals for that purpose, his most fundamental point is that it is impermissible in law to deduce from such a sequence(s) the conclusion which the returning officer arrived at. Whilst acknowledging the desirability of reflecting the votes of all persons who are entitled to vote and who in fact exercise their franchise, a returning officer cannot take it upon himself, even if supported by fellow colleagues throughout the country, to determine policy in this respect. That is a matter solely for the Oireachtas, which has singularly not legislated for the actions undertaken by the returning officer. In fact, the provisions as enacted are quite to the contrary. Moreover, the fact that a second election was being held on the same day was entirely irrelevant in legislative terms. Therefore, Mr. McMahon’s decision in this regard and that of the trial judge in accepting such decision as valid were incorrect in law.

    39. On the second issue (Issues No. 4) it is submitted by Mr. Kiely that, if successful on the above point, there is sufficient evidence in the case to indicate that at least some votes with this sequence(s) were marked as valid and thus allowed in by the returning officer. Whilst the number is not precisely known, and it may indeed be small, nonetheless in light of the margins which at the final count separated him from the fourth and fifth candidates, who were elected, and given the importance of any preference in a single transferable system such as ours, it is probable that if the “sequenced” votes were discounted, the same would be likely to affect the election result. Consequently, it is asserted that he is entitled to succeed on both grounds.

    Kerry County Council:
    40. In response, Kerry County Council essentially relies on the same justification for the actions of the returning officer which were advanced before the Circuit Court and which are set out at paras. 36-37 supra. It points out that under the provisions of Article 80(1) of the Regulations, any mark, which in its submission must also include a number, is capable of representing a first preference if the entry in the ballot paper is otherwise clear and correct. Reference is made to the evidence tendered at the trial as to the custom and practice of returning officers throughout the country when dealing with ballot papers so sequenced in circumstances where more than one election is held simultaneously. It states that this approach is entirely consistent with the desire to avoid needlessly disenfranchising those who exercise their right to vote and in any event, is consistent with the Regulations.

    41. In addition, again under the provisions of Article 80(1) of the Regulations, it is for the returning officer to make a decision as to whether a mark on a ballot paper “clearly indicates a first preference”. In fact, a “first preference” is described as meaning any mark which “in the opinion of the returning officer” clearly indicates a first preference. Given the unique role of this office in the electoral system, once a decision has been made by him the courts “should be slow” to interfere with it, unless it is irrational or is inconsistent with legal requirements. Such a cautious approach, which should be applied by both the petition court and any appellate court, is reflective of Article 91 of the Regulations which states that any such decision is final, save for a challenge by petition.

    Discussion/Decision
    42. It is not altogether certain as to what precise ground the petitioner is relying upon, as questioning in effect the counting process of the election in issue. It is clear that he must frame his action within the confines of s. 5(1) of the 1974 Act, but as set out at para. 15 above, this provision refers to a number of different grounds including mistake and irregularity; in all probability, however, it is the more general ground set out in subs (1)(a) of s. 5 which he is invoking. This view is I think justified in an overall sense and thus I take his case to be that the election “…was affected by error or was not completed or was otherwise not conducted by the returning officer in accordance with law…” (s. 5(1)(a) of the 1974 Act). In any event, it may not matter a great deal in practice as there may well be an overlap between what is there provided for and the more specific grounds of mistake and irregularity.

    43. Even, however, if he should be successful on this ground, or indeed on any ground, he must also succeed on the second requirement of s. 5, which is that the established complaint “…is likely to have affected the result of the election…”: unless he demonstrates this, he is not entitled to any relief under the Act. Undoubtedly, he carries the onus of proof on both points: even without authority I would have been surprised to encounter any argument that the standard of proof should be anything other than that normally applying in civil actions. Even with much more complicated “non-mechanical” issues and the inevitable evidential difficulties which these give rise to, as evidenced in the referendum cases of Hanafin v. Minister for the Environment [1996] 2 I.R. 321 and Jordan v. Minister for Children [2015] I.E.S.C. 33, this Court on both occasions has so confirmed (see para. 84 infra).

    44. Apart from describing what Mr. Kiely must establish under the 1974 Act before the court will engage itself in deciding what remedial steps might be appropriate, very little else of that Act requires debate as many of its provisions are not in dispute between the parties. No submissions were made as to the meaning of the phrase, in s. 2, that a local election may only “be questioned” via the petitioning process. Nor was there any discussion on the scope of an appeal to this Court as provided for by s. 7(3) of the Act. Whilst some comments were made on what votes would be involved if the court should make an order under s. 8(1)(a) or (b) of the Act – “…that all votes so cast…shall be counted afresh” – it seems to be accepted – or at least acquiesced in – by all parties that this phrase, common to both provisions, should be given its literal meaning. In any event, this is a point I will return to later. What legal argument there was centred more directly on the Regulations and, in particular, on the position of the returning officer as provided therein.

    45. Whilst it is undoubtedly the case that the role of the returning officer is indispensable to the election process, it is also evidently the case that he or she, in fulfilling that role, is a creature of statute and is bound by the terms of the express legislative provisions above referred to. Accordingly, in the performance of his (or her, as the case may be) duties and functions he must be guided by the principles so laid down in such legislation, within which is set out the framework where those whose names are validly on the register of electors can give effect to the franchise so vested in them. He must obviously not exceed the limits of the competence so conferred on him: he is therefore confined to what can legitimately be extracted from the provisions in issue, either by way of express conferment or necessary intendment. He cannot operate in excess of these limitations. He cannot, for example, justify any act or action, however desirable his intentions might be, based on any form of inherent power for the simple reason that his office is not amenable to attract competence in this way. When the occasion arises it therefore becomes a matter of statutory interpretation as to whether or not the act or omission complained of is within the competence of his office to perform.

    46. As the statutory regime makes clear, the returning officer has a number of significant functions, some of which are of a decision making type, with important consequences for those involved. These include adjudicating on issues which may have an effect, ranging from the minimal to the fundamental, on several matters of significance, such as a voter’s right to exercise their franchise, an elector’s right to have a valid ballot paper admitted and his preferences accurately distributed, a candidate’s right to have all the papers cast properly assessed for their validity and to have those rightly admitted, counted and allocated in accordance with the Regulations. Moreover, as part of this process all involved have a rightful concern to ensure that no paper should be admitted or rejected save in circumstances as prescribed by law. Furthermore, the people as a body and the State as an institution have an overarching interest in ensuring the integrity of the democratic process.

    47. The 1995 Regulations, when outlining how the officer holder should exercise his functions and duties, express the scope of his decision making authority in slightly different ways. Of particular interest to this case are the occasions where such decisions are based upon “…the opinion of the returning officer…” (para. 22 supra). The Minister in his submissions suggests that there are about eighty separate references to this phrase in the Regulations. Evidently, the circumstances in which it is used will differ but in the context of this case, the question immediately arises as to what the phrase actually means, what are the parameters within which such an opinion must be formed and arrived at, and in what circumstances and by what test can that opinion be challenged (if at all), either in the petitioning court or on appellate review in this Court.

    48. In adjudicating upon Issue No. 3, the Circuit Court judge was heavily impressed, firstly, by what is contained in the Guidance Memorandum, secondly, by what the practice is, not only amongst returning officers in County Kerry but also generally throughout the country - as represented by the evidence of Mr. Martin Harvey and Mr. John Fitzpatrick (paras 51-53 infra) - and, thirdly, by the understandable motivation of the deputy returning officer, who testified that if at all possible he would recognise the franchise of those who voted. Whilst I do not place over reliance on the manner in which he approached this issue, nonetheless it is of note that a consideration of the Regulations does not appear to have been foremost in his analysis of this point. Each of the factors relied upon are worthy of consideration.

    Guidance Memorandum:
    49. Since at least 1979 the Department of the Environment, in its various manifestations, has produced documentary guidance for returning officers in advance of each election held and also of each referendum conducted. It did likewise for the local election held in May, 2014. It is said that its content is based on the experience gained and lessons learned from the conduct of such elections over the years, and it thus reflects best practice at any given time. The Department, whilst expecting that returning officers will have regard to what it says, nonetheless emphasises the independence of such officers, acknowledging as is undoubtedly the case that at all stages the decision of that office holder must be his, and his alone.

    50. At paras. 27-29 of this judgment, I have referred to Sections 12 and 13 of the Guidance Memorandum. As will be recalled, reference is made on two separate occasions to ballot papers which commence with a sequence such as 3, 4 and 5 or 4, 5 and 6: at the first reference point the advice offered to the returning officer, when adjudicating on the validity of such a paper, is to “discuss with agents – see below”. At the second point, the advice is more definitive: it is to accept as valid all such a papers. The justification in this instance is that such a sequence “…suggests that voters followed on from preferences recorded on the ballot papers at another election held on the same day”. Therefore, the simultaneous holding of a second election on the same occasion, as happened in this case, would appear to be the defining distinction between “discuss” and “accept” as set out (but see para. 74 infra).

    51. The experience which gave rise to the advice last mentioned can clearly be seen from the evidence given in this case, in particular, that of Mr. John Fitzpatrick and Mr. Martin Harvey.

    52. Mr. Fitzpatrick, who was the returning officer for the County of Dublin for more than 35 years until his retirement in 2013, and who thus has considerable experience in this area, explained that on the first occasion when a national and European election were held together, he discovered that there were a lot of European election papers which were marked 4, 5 and 6 etc, but which did not contain any numbers 1, 2 or 3, in any form of expression. Having checked with fellow colleagues he found that a similar experience was being encountered by them. He mentioned in particular the returning officer for Dublin City at the time, Mr. Michael Hayes. So, in discussion it was decided that on a multi-election occasion those papers with such a sequence, consecutive in number, should be admitted as valid unless otherwise distorted.

    53. Mr. Harvey, a practising solicitor and the returning officer for Cork City since 1991, was of a similar view to that of Mr. Fitzpatrick. He said that a paper with such a sequence would be accepted where there were two or more elections held on the same occasion, but in a single poll election any vote without the number 1 on the paper, or other recognisable mark to that effect, would be regarded as void. The rationale for the former was a belief that those electors who had used this sequence had firstly filled in their ballot paper for the other election as 1, 2 and 3, and had then switched to the ballot paper for the election in question and continued the sequence 4, 5 and 6 etc. He stated that such papers on the occasions described, would clearly be accepted. His job, if at all possible, was to try and “get votes past the post”, if he could. Incidentally, and of interest only is that in his experience the higher sequence was usually found on the European papers, rather than as here, on the local papers: however, in his view such a distinction was not relevant.

    54. The duly appointed returning officer in charge of the May local elections for the County of Kerry was Mr. John Flynn, who was appointed to that post by the manager of the Council. He had fulfilled the same role in 2009 and before he moved to Kerry was the returning officer for Cork City in the 2004 election. He in turn appointed Mr. McMahon as deputy returning officer. Likewise, he had previous experience in that role and had also worked with Mr. Flynn in past elections. In fact their common practice was to meet before each election and agree on a strategy to deal with issues which might arise, both during the polling hours and the counting process. One such matter discussed and agreed upon was the situation where a paper might have the type of sequence at issue in this case. When there were two elections held on the same day, such papers were to be admitted as valid precisely on the same basis as explained by Mr. Harvey. Such had been their practice for the past three elections and neither saw any reason to change it.

    55. Mr. Flynn in evidence said that he was satisfied to treat the sequence of say 3, 4 and 5, or 4, 5 and 6, it matters not which one, as being a number 1, 2 and 3. If the sequence however was not consecutive, then at the break point the vote would become non-transferable. Up to that point it was to be treated as valid. This is exactly what happened in the election in question, as it did in the concurrent European election, presided over by the designated officer in respect of that poll. Such a practice was entirely consistent with the guidelines, in which context, however, he was not able to explain what lay behind the advice given “…discuss with agents – see below…” or the double digit sequence of 11, 22, 33 etc, also referred to at page 52 of that document. Perhaps the next version of its presentation will clarify the matter. In any event, he had not come across this particular type of sequence before and thus it had never presented a problem for him.

    56. Finally, Mr. McMahon also confirmed his adherence to the guidelines which he followed with regard to such votes whenever he encountered them during an election. In respect of these papers he added that, it was also his practice to write in green biro the numbers 1, 2 and 3 immediately adjacent to the sequence as inserted, without however disturbing the designation made by the voter or otherwise defacing the paper. The reason for this was to give a clear indication to his staff when counting the votes as to what precise value should be given to each vote in such sequence. Finally, he supported this approach for the same reasons as given by the other returning officers above referred to.

    57. It must undoubtedly be the case that returning officers throughout the country are greatly assisted by the Guidance Memorandum and in a great number of situations any uncertainty which they may encounter as to what is the correct decision to make is resolved by reference to such document. However, the Memorandum has no statutory foundation and neither does it have any other recognisable basis in law, save perhaps where an issue of “reasonableness” might be raised. In fact, it does not suggest that it has; quite the contrary, at the outset of the document, when dealing with its scope, it sets out its purpose and legal positioning. It says:-
        “This memorandum is intended to assist local authority returning officers in the performance of their duties at the 2014 local elections which will be held in conjunction with the European Parliament elections. It does not purport to give a definitive statement of the law on any point; for this, reference should be made to the relevant statutory provisions…”
    Therefore, whilst appreciating its invaluable assistance at a practical level, its advices in cases of conflict, uncertainty or doubt, must yield to what is ordained by both the primary legislation and, more significantly in this case, by the Regulations. (Para. 61 infra).

    58. In addition to this conclusion relative to the Guidance Memorandum, the same quite evidently must also apply to practices, whether described as being based on custom, tradition or otherwise, which returning officers, apparently at all election levels, follow in any given situation. Likewise, in respect of the commendable desire which such officers have, to validate each and every paper cast if possible to do so. As previously outlined, when a complaint is made about the validity of a returning officer’s decision, giving rise to electoral consequences, that decision howsoever framed must have been made within the legislative parameters of the power conferred on him or her, as the case may be.

    The Validity of such Sequenced Votes:
    59. It is beyond controversy but that for a paper to be valid it must have recorded on it a first preference. This reflects basic principles of electoral law. It can also be seen from Article 80(2) of the Regulations where it is stated that any ballot paper –
        “(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”
    shall be invalid and not counted. Accordingly, any paper which fails to disclose such a preference must be rejected.

    60. At an election count it is for the returning officer to make a decision on any papers which may fall into this category. He has both a general and specific authority to do so: he is guided in this regard by the provisions of Article 80(1) of the Regulations, which have been previously referred to (paras. 21-22 and para. 47 supra). Thus, he must be “…of opinion…” that the papers so sequenced “…clearly indicate…” a first preference for some candidate. The question therefore on this aspect of the case is whether Mr. McMahon could have been satisfied as a matter of electoral law that the papers so numbered meet this statutory condition.

    61. The requirement of a ‘clear indication’ neatly brings into focus a point above made regarding the relationship between the Regulations and the Guidance Memorandum. This phrase can be contrasted with the relevant wording used in the latter which is that a paper should be accepted as valid “…[where it includes] 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” (emphasis added). As noted by Hardiman J. in Maguire v. Wright [2002] I.E.S.C. 21, “…it is trite law that words are to be interpreted according to their natural and ordinary meaning unless there is a legal reason (such as statutory definition) for interpreting them otherwise”. As such, there is in my view a fundamental difference between the wording of the Regulations and the Memorandum in this respect. The word “clearly” is not defined in the Regulations or in the 1974 Act. According to the Oxford Dictionary, it means “without doubt” or “obviously”. One can add I think without controversy, ‘undoubtedly’, ‘distinctly’ and ‘decidedly’. In the same dictionary the word “suggest” is defined as “put forward for consideration”. Again one can add ‘give the impression’ or ‘imply or indicate’. Evidently, and particularly in a legal context, the distinction is sharp and on occasions can be decisive.

    62. A good deal of reliance is placed by the respondent County Council, with support from the Minister, on the submission that the decision of Mr. McMahon in question was one which he was authorised to make not only by reference to the “discretion” vested in him at a general level, but also and in particular by his role in determining what a first preference is. Again, Article 80(1) of the Regulations is central to this point (para. 59-61 supra). On the discretion issue it was suggested, admittedly in passing and undoubtedly in a most tentative manner, that given his role and expertise, neither the petitioning court nor this Court on appeal should in effect second guess his decision. In fairness, after some more reflection the respondent’s real position is less stark: the Council says that a court should be slow to interfere with his opinion, and should only do so if the same was irrational or reached in a manner inconsistent with legal requirements. As neither basis has been established it says that this appeal should therefore be dismissed.

    63. The petitioner, when requested to formulate what test should be adopted by this Court in evaluating the impugned decision, cautiously suggested that it should rest on some form of ‘reasonableness’, but did not want to be drawn further in this direction. Rather he repeatedly returned to his principal point which was that the issue is one of statutory interpretation, being purely a question of law. No other analysis could be substituted for this, nor was it necessary to discuss or debate any such options. On any view the returning officer should not have arrived at the opinion which he did on the sequenced votes.

    64. I am not at all certain that it is correct to say that in deciding whether a particular ballot paper discloses a first preference, the returning officer has a “discretion”, as such in that regard. Certainly not if that term is understood as it generally has been, in the context of the courts’ examination of the exercise of discretionary power. Secondly, I am quite sure that there can be no question of applying any form of curial deference or margin of appreciation or otherwise, as howsoever described, to such decision. This does not mean however, that his overall role is not deserving of respect (para. 67 infra). Thirdly, there is no comparison between his function and the exercise of delegated powers which have given rise to challenges, inter alia, on the ‘principle and policy’ line of authority. And, finally, I also very much doubt whether the yardstick of ‘unreasonableness’ or ‘irrationality’ as set out in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642, and as influenced by Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 I.R. 701, is in point. If a decision for whatever reason is ultra vires, no amount of reasonableness or, for that matter, deference or appreciation can render it intra vires. It seems to me that none of these concepts are apposite to an officer designated to perform a particular function within a fairly specific statutory framework (see para. 67 infra).

    65. There are I think three possible approaches which the court might consider when looking at this particular decision making function. Subject to the existence of a question of law properly so described, and to the normal appellate constraints such as in Hay v. O’Grady [1992] 1 I.R. 210, I would not see any substantive distinction between the role of the electoral court and this Court, in that regard.

    66. These options, I think are as follows: firstly, that the returning officer’s decision is absolute; secondly, that the court can substitute its own views for those of the returning officer; or, thirdly, that some other test might be more appropriate. To favour the first approach would logically mean that any such decision would in effect be rendered immune from the judicial process. Such would constitute a complete ouster of the court’s jurisdiction over this type of controversy and would require the most clear cut of statutory provisions, which obviously is not the case: in fact such a position in any event would be entirely inconsistent with the statutory right to challenge an election result, and to do so on one of the principal grounds set out in s. 5 of the 1974 Act. That evidently therefore is not and cannot in my view be the situation.

    67. To adopt the second suggestion, in an overly stringent or rigid way, would involve a failure to give due recognition to the statutory role so vested in the returning officer. Obviously he must take a view and make a call on disputed papers: he is perfectly entitled to draw upon his own knowledge and experience in this regard and such must be respected. In fact, depending on the presenting circumstances he may have considerable latitude in what and how he decides an issue, subject of course to remaining always within his competence. Moreover, at a general level his function is a central and important feature of the law governing the operation of local elections and in Irish electoral law generally. Consequently, for the court to simply substitute its own views for these of the officer would not appropriately reflect the due respect which his role should command. Indeed, that role is deserving of careful protection as it is the critical vehicle for ensuring the orderly running of elections: hence the statutory recognition of its importance in various provisions of the Regulations, including Article 80(1) and Article 91 thereof. Accordingly, due and proper regard must be had to this position. However, where that due and proper respect may rightly be positioned, and within what limits, does not on the view which I have taken on this issue, arise for definitive consideration in this case.

    68. If it was necessary to decide on what analytical test should be applied when a returning officer is called upon, in the context of Article 80(1) of the Regulations, to make the type of decision in question, it would in my view in all probability be that as identified by Henchy J. in Lynch v. Cooney [1982] I.R. 337.

    69. RTÉ, the National Broadcasting Authority, had agreed to allow Mr. Cooney, the nominee of the Sinn Féin party, to deliver an election address on both national radio and TV, in anticipation of the then forthcoming general election to be held on the 18th February, 1982. The relevant Minister made an order directing the authority to refrain from broadcasting such matter. His power to do so derived from s. 31(1) of the Broadcasting Authority Act 1960, as amended by s. 16 of the Broadcasting Authority (Amendment) Act 1976. Thereunder it was stated that where such Minister “…is of the opinion…” that the broadcasting of a particular matter etc. would be likely to promote, or incite to, crime, or would tend to undermine the authority of the State, he may issue the type of order which he did. On appeal from the High Court’s decision dismissing the prosecutor’s challenge, the Supreme Court delivered a number of judgments but only that of Henchy J. is relevant to this case. The essence of what the High Court decided rested on the subjective element connoted by the words “…of opinion…”, which in the learned judge’s view meant that once the Minister had formed such opinion, then the same could not be invalidated by reason of any defect in the process by which that decision had been reached. O’Hanlon J. did however enter a caveat to that rather unqualified statement by also stating that the Minister had to form his opinion bona fide.

    70. Having pointed out that some of the most erroneous and insupportable opinions could be formed in good faith, Henchy J., at pp. 380-381 of the report, set out what in his view were the correct legal principles attaching to this type of statutory provision. He said:-
        “I conceive the present state of evolution of administrative law in the courts on this topic to be that when a statute confers on a non-judicial person or body a decision making power affecting personal rights, conditional on that person or body reaching a prescribed opinion or conclusion based on a subjective assessment, a person who shows that a personal right of his has been breached or is liable to be breached by a decision purporting to be made in excess of that power has standing to seek and the High Court has jurisdiction to give a ruling as to whether the pre-condition for the valid exercise of the power has been complied with in a way that brings the decision within the express, or necessarily implied, range of the power conferred by the statute. It is to be presumed that, when it conferred the power, parliament intended the power to be exercised only in the manner that would be in conformity with the Constitution and within the limitations of the power as they are to be gathered from the statutory scheme or design. This means, amongst other things, not only that the power must be exercised in good faith but that the opinion or other subjective conclusion set out as a pre-condition for the valid exercise of the power must be reached by route that does not make the exercise unlawful such as by misrepresenting the law or by misapplying it through taking into consideration irrelevant matters of fact, or through ignoring relevant matters. Otherwise the exercise of the power will be held to be invalid for being ultra vires.
    In many of the subsequent cases which have followed and applied this decision, the principles as outlined have in shorthand been described as requiring that the opinion reached be bona fide held, factually sustainable, and not unreasonable.

    71. What emerges from this decision, which has long since been accepted as representing a correct statement of the law when it is appropriately applied to any given situation, is that even when a person or body is entitled to reach a decision, which ex facie has some element of personal assessment to it, that decision must accord with the statutory parameters within which the underlying power is conferred. If therefore the decision involves a ‘misapprehension or a misapplication of necessary legal or factual considerations’, it will be regarded as having been reached in excess of jurisdiction. It will in those circumstances be considered as being outside the limitations set down. In effect, even allowing for the subjective element, it is a precondition to the valid exercise of such power that the decision does not breach the legislative framework within which the power is given. As this is an important factor in its own right, it might therefore be worthwhile, purely for the purposes of clarity, to add a fourth requirement to the requirements that the opinion be bona fide held, factually sustainable, and not unreasonable, namely that the opinion must otherwise be within vires.

    72. Some years prior to Lynch v. Cooney this same point was made in the seminal case of East Donegal Cooperative Livestock Mart Ltd & Ors v. The Attorney General [1970] I.R. 317. Section 3 of the Livestock Marts Act 1967, which granted many powers to the Minister, prefaced their exercise by words such as, “at his discretion”, or “as he shall think fit”, or “if he so thinks fit”. The Supreme Court, through the judgment of Walsh J. (p. 344), declared that such powers may be exercised only “within the boundaries of the stated object of the Act; they are powers which cast upon the Minister the duty of acting fairly and judicially in accordance with the principles of constitutional justice, and they do not give him an absolute or an unqualified or an arbitrary power to grant or refuse at his will.” In truth, the only point of relevance to the instant case is the observation first made, namely that both the manner in which the decision is made, and the decision itself, must remain within the statutory confines as imposed by the Oireachtas.

    73. However, in my view it is not necessary to be definitive about the precise test which should be applied, as in my opinion, whatever that test might be, the decision of the returning officer could not be said to fall within the range of statutory authority vested in him. I am satisfied that given the legislative scheme and having considered the evidential background, he could not as a matter of law have concluded that those of the disputed papers which were sequenced in number, “clearly indicated” a first preference for any candidate.

    74. From the returning officer’s point of view the basic justification for his decision derives from a deduction that the voters in question moved seamlessly from their ballot paper in one election to their ballot paper in the other election, and in the latter simply continued where they had left off in the former. Therefore a second election on the same day is critical: in fact without such simultaneous elections a sequence vote such as in this case, would be regarded by Mr. McMahon as invalid, as apparently it would be by all other returning officers in the country. Interestingly, the Minister in his submissions takes a different view and says that the practice should be applied even where a single election only takes place. Whilst one does not have to deal with this situation, quite obviously if such were the circumstances the position of the returning officer would be even more invidious than it is in this case.

    75. The underlying explanation offered in support of the respondent’s position may indeed have some merit to it. In fact, it may even possibly be correct in respect of a number or even a significant number of votes. However, that level of confidence, high as it might be, would not be sufficient to satisfy Article 80(1) of the Regulations: it would not support a conclusion that “each vote”, “clearly indicates” a first preference. For to do so the sequence, in order to leave no doubt, must obviously and distinctly so demonstrate.

    76. To reach the conclusion which Mr. McMahon arrived at, one must disregard a number of real possibilities which offer a realistic alternative explanation for why voters may have adopted a sequence type of approach, which some did. Of course there is no possibility of checking the papers said to travel in tandem with those in question. In this case the papers for the European election were immediately separated from those in the local election and in fact were counted at different centres. Even disregarding that difficulty however, the secrecy of the ballot box makes it impossible to identify who cast what vote: therefore there is no possibility for any cross verification or even a cursory examination to take place. Thus, I think that it must be accepted that there is intrinsic to this rationale a high degree of surmise, speculation and conjecture.

    77. A simple explanation for the type of voting encountered may be that a person might start with giving a fifth, a fourth and a third preference with the intention of returning and marking his higher preferences later. He may then have simply forgotten to do so, or may have been unable to decide between two rival candidates for a first preference, or may simply have abandoned the voting process altogether at that point. It may be that a voter is of the view that no candidate on the ballot paper is deserving of a higher value than a third preference and accordingly, has no intention of giving any candidate a preference with greater value. It may be, as was put during the course of the debate, that having marked five, four and three, the voter had simply run out of “venom” for the rest of the candidates whose names appeared on the ballot paper. Another possibility is that the vote is spoilt either intentionally or inadvertently. Furthermore, it could be that the first number of the sequence has not continued in consecutive order from the last number recorded in the other paper. One simply does not know. This difficulty arises with each one of such ballot papers: evidently it multiplies in complexity as the number grows.

    78. In the context as outlined, how can it confidently be said that such a sequence, without any reference to a No. 1, clearly indicates a first preference? At best it must be ambiguous. It is and must be unclear. It may indicate such a preference, but as likely as not, it may not. Why else did Mr. McMahon clarify the numbering with his green biro? Therefore even if there could be some debate on what test should be applied, nonetheless it seems to me that the impugned decision of the returning officer in this case, is vitiated as being outside the range of options conferred by the power vested in him, under the Regulations.

    79. Finally, whilst at first sight it seems desirable, if possible, to credit as part of the count every person who votes, nonetheless such an approach has within it an even more disturbing possibility than that of de-franchising a voter. It is that such a person is declared to have cast a preference for a candidate, when in fact he did not and when it may never have been his intention to do so. That result must be even more damaging to electoral integrity than what the returning officer was endeavouring to avoid.

    80. For the above reasons, therefore, I would consider that the disputed decision involving the sequenced votes to be ultra vires the 1974 Act and the Regulations made thereunder. Consequently, the petitioner has established in my view one of the permitted grounds of challenge, namely that the election was not completed or conducted in accordance with law. (s. 5(1))a) of the 1974 Act)

    The Submission of Mr. O’Gorman:
    81. Mr. O’Gorman was an independent candidate in the election in question, but unfortunately for him was eliminated on the ninth count. At all relevant times, in particular at the initial adjudication process, his interests were being looked after by his aunt, Ms. Marie O’Gorman, who had previous knowledge of elections and who had in fact on many occasions attended, throughout the full count.

    82. In his submissions he supports the position of Mr. Kiely on the issue which previously I have dealt with. In addition, however, he wishes this Court to consider whether each candidate must be notified before the returning officer adjudicates on the validity of any doubtful vote: this issue was originally raised by the petitioner but was not pursued by him on this appeal. That matter was dealt with as Issue No. 2 by the learned Circuit Court judge. (para. 34 supra). As Mr. O’Gorman is but a notice party, and as he was in any event represented at all relevant stages during the adjudication process, I would not entertain consideration of this ground of complaint.

    Effect on the Result of the Election:
    83. As above stated (para. 15 supra), the petitioner, even if he establishes that some invalidating error took place in the conduct of the election, must also satisfy the second requirement of s. 5 before any consideration can be given to the exercise by the court of its powers under s. 8 of the 1974 Act. This latter observation is subject to the possibility of using the provisions of s. 8 as part of establishing the s. 5 requirement as Hamilton P. did in the case of Bell. The relevant part of s. 5 reads:-
        “5(1) Subject to section 82(6) of the 1963 Act a local election may be questioned on the grounds of…which, if established, are likely to have affected the result of the election…” (emphasis added)
    Thus, Mr. Kiely must also meet this statutory condition.

    84. The onus of proof in this matter remains on the petitioner throughout. No submission like that made in Jordan v. Minister for Children [2015] I.E.S.C. 33 (“Jordan”), to the effect that the burden shifts at a particular point, has been made in this case. The standard of proof is at the normal civil standard (para. 43 supra).

    85. The relevant phrase contained in the aforesaid section has not been defined or further described in the Act or in the Regulations. Its purpose on the negative side is to prevent results being impugned, and on the positive side to uphold this treasured value of democracy, where the error of law could have no causative effect on the outcome. As stated by Henchy J. in Thomas Dillon-Leetch v. Sean Calleary & Ors, (Supreme Court, 31st July, 1974) (“Thomas Dillon-Leetch”) an error, even if established, which is “electorally ineffective” will not be sufficient to set aside the correctly exercised constitutional right of the rest of the electorate to elect their representative to the body in question. This issue, unlike the first requirement of s. 5 of the 1974 Act (para. 15 supra), is a question of fact: see Palles C.B. in In Re Pembroke Election Petition [1908] 2 I.R. 436 at 449.

    86. The case of Jordan featured on this aspect of the instant appeal where the comparable requirement to that set out in s. 5(1) of the 1974 Act (para. 83 supra), is set out inter alia, in s. 42(3)(b) of the Referendum Act 1994 (“the 1994 Act”): this obliges a petitioner to establish that the irregularity complained of “…is such as to affect materially the result of the Referendum as a whole” (emphasis added).

    87. Before outlining the test or the interpretive approach to that phrase which the court in Jordan agreed upon, could I refer to a number of points made by O’Donnell J. in his judgment, with which I entirely agree. These are, firstly, that there is a difference between (i) proving that the result must or would have been different if the irregularity had not taken place on the one hand and (ii) proving that there is a real likelihood or a real risk that that is so, on the other hand; secondly, that the Constitution does not demand that the threshold of ‘material effect’ on the Referendum result, should be interpreted as meaning “…must necessarily have altered the result…”, and thirdly, that there is a difference between what must be proved and the standard to which that must be established.

    88. Having discussed the approaches suggested by (i), Henchy J. in Thomas Dillon-Leetch (“…that the result…has been or could have been affected…”), (ii) Palles C.B. in In Re Pembroke Election [1908] 2 I.R. 436, both election cases, (“…that the irregularity had, or might have, affected the result…”), and (iii) the Canadian Supreme Court’s decision in Opitz v. Wrzesnewsky J [2012] 3 S.C.R. 76 (The Magic Numbers Test), O’Donnell J., at para. 85 of his judgment continued:-
        “Accordingly, I would hold that ‘material affect 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.”
    89. The word ‘affect’ is common to both provisions. In its ordinary sense it means to produce an effect on, to alter or to change or to influence. That word however is conditioned in the 1994 Act by the word ‘materially’, which is not to be found in s. 5 of the 1974 Act. Evidently that qualification has a meaning, which meaning, according to Denham C.J. in Jordan (paras. 51-52), corresponds with the word “substantial”. It therefore seems to me that one cannot simply lift the Jordan test and transpose it into s. 5 of the 1974 Act. To do so is to equate both statutory requirements which self evidently are clearly distinguishable.

    90. The nature of the exercise by the people of their right to vote in a Referendum is different to that of a local election. In the former the entire people of the country are consulted on an issue(s) of such national importance that the government has seen fit to call upon them, to act as the ultimate arbiters on some vital question of national policy (Article 6.1 of the Constitution). On the other hand a local election, though of course also a significant expression of democratic value, is quite different: it decides no issues: it is geographically confined and it elects people to a local body with quite restricted and limited powers. Accordingly, although obviously a matter for the legislature, one could readily see the justification for having different review standards as between that type of election and a nationwide Referendum. Consequently, I do not think that a direct application of the test above outlined, would be appropriate for the purposes of s. 5 of the 1974 Act.

    91. That is not to say however that Jordan can or ought to be ignored. On the contrary, there is an invaluable and high level discussion in paras. 70-84 by O’Donnell J. of this general issue, culminating in the formulisation of the test adopted by all other members of the court, which I have set out at para. 88 of this judgment.


    92. Very little guidance on this point can be obtained elsewhere, in particular from a consideration of other statutory provisions where the phraseology is somewhat different than that contained in s. 5 of the 1974 Act, or from a consideration of the case law on such provisions. However, it is instructive to recall what O’Donnell J., in his judgment in Jordan, had to say on the applicable provision dealing with referenda (para. 88 supra).

    93. Against the backdrop of the differences between s. 5 of the 1974 Act and s. 42(3) of the 1994 Act, it is noteworthy that the relevant passages of his judgment convey that in respect of a provision more demanding than that at issue in this case, where it was “reasonably possible” that the irregularity could affect the result, that would be a sufficient compliance with the 1994 requirement. Or as it was also put, the same conclusion could likewise be reached where “a reasonable person would be in doubt” about the result or that such a person would no longer trust the result. In such circumstances judicial intervention would be justified.
    94. In this case Mr. Kiely must prove that the error of law above declared is likely to have affected the result of the election in question. This requirement under s. 5 of the 1974 Act, has a number of aspects to it: one relates to impact, a second relates to outcome and a third describes the level to which both must be established. By “impact” I mean “affect” and by “outcome” I mean “election result”. This is the statutory obligation which must be satisfied on the balance of probabilities. There is however no obligation to prove more. Certainly one does not have to establish that the candidates, as nominated in the Declaration of the returning officer, would be different but for the error. Nor is it necessary to show that a petitioner would himself have obtained a seat. In addition, the verb “affect” is not qualified in any way, unlike that in Jordan: therefore the same level of impact is not required. However, a “possible” effect only would not be sufficient and neither would some insignificant or immaterial effect meet the threshold. Rather in my view, the petitioner must identify consequences, referable to the result, which are not electorally inconsequential: if established, the same will be a sufficient compliance with this aspect of the section.

    95. Could I add before concluding on the point that despite the evaluation which I have attempted, I am not sure if, in the final analysis, one can better the actual wording of the section itself, or that it would be wise to do so. Accordingly, I am satisfied to test the evidence in order to see whether it provides a sufficient foundation upon which one can say that the consequences of the error, as found in this judgment, is “likely” to have affected the election result.

    The Evidence:
    96. It has not been possible to establish precisely what number of the 57 disputed votes, which the returning officer marked as valid, involved the type of sequencing formula as is in issue in this case. No separate record was made of such votes. Whilst it would have been possible for the petitioner to obtain an order under Article 93 of the Regulations to inspect those votes, he did not do so. He has been heavily criticised by the respondent County Council for his failure in this regard: that cannot deprive him of relief if on the available evidence he can otherwise establish the point.

    97. Since my fellow colleagues in their respective judgments have dealt with this issue at some length, I should like to say something further on the point. Indeed, Charleton J. has dismissed the appeal because of what he perceives to be a deficit in the evidential corpus which he points out may not necessarily have occurred if inspection of the doubtful votes had taken place.

    98. I would agree that greater certainty would have resulted if the statutory provisions had been utilised. As the disputed papers were admitted, they inevitably formed part of the “counted ballot papers” which were retained after the election and which were within Article 93 of the Regulations for inspection purposes. To identify the number of sequences votes which existed, one would have had to inspect the total valid poll. If this had been done, a precise figure for such papers could have been ascertained and that evidence placed before the court. The greater the number of such votes, the greater the likelihood of those affecting the election result. However, I do not think that one can go much further than this.

    99. I suppose it would have been possible for the petitioner to engage some electoral who might have been in a position, having discarded the sequenced votes, to redo the entire count, including the distribution of the votes of eliminated candidates and the surpluses of those who had reached the quota. And further, by this means, to suggest a corrected outcome, if that be the case, of the election result. Presumably in such a scenario the Council would stand over the decisions made and conclusions reached, by the deputy returning officer.

    100. But if the legal challenge was to be decided in that way, I doubt strongly if such an approach would have been in compliance with s. 8 of the 1974 Act. This for the simple reason that the “counting afresh” would not have taken place under “the direction of the court” as required by subs (2) of that section. This in my view is a vital safeguard and a key aspect of the legislation in question. This is what Hamilton P. did in Bell, even if in that case the entire purpose was to see whether or not the disputed votes would have made a difference to the result. Therefore the exercise was part of establishing the requirements of s. 5(1) of the 1974 Act, rather than as part of the follow-on phase, as set out under s. 8 of the Act (para. 83 supra). In any event, none of this in fact happened in the instant case. Accordingly, one is left with the evidence as it is, whatever that might be. It is for Mr. Kiely to decide on his proofs: if he falls short he must suffer the consequences.

    101. Finally, could I say that s. 8 of the 1974 Act is in my view, designed to regulate the “counting afresh” of the votes after an irregularity and “likely” impact has been established, or perhaps as part of establishing the latter requirement. Subsection (4) empowers the Court to set aside or reverse a decision of the returning officer as part of this process. That evidently has not as yet taken place in this case. The power of the Court which hears the election petition and that of any appellate court to find and remedy any established irregularity is contained in section 5 of the Act. Therefore in my view I do not think that section 8(4) has any application outside of that and, in particular given the way in which this petition was proceeded with, was not relevant at the petition hearing and likewise is not relevant to this Court on appeal.

    102. Two witnesses in particular are relevant to the evidential issue, namely the deputy returning officer and Ms. Marie O’Gorman. During the course of his direct evidence Mr. McMahon was asked and stated the following:-
        “Q. During the course of the adjudication process did people raise issues with you?
        A. Yes
        Q. And in relation to what? What kind of issues were raised?
        A. Well, the issue about the two, three, four, five was raised
        Q. By who do you remember?
        A. - as an issue. I can’t recall?
        Q. You can’t recall?
        A. There would have been backwards and forwards. Some people would have been giving one type of view on it, another person might be giving a contrary view on it.
        Q. And I take it on each ballot some people would want it admitted and some people might want it not admitted, depending what was on it?
        A. Yes. And I think as the process proceeded then I’d say there was less intervention, you know, once people saw what was being accepted, what wasn’t accepted, and that provided –
        Q. A pattern develops.
        A. yes and once I was consistent in my rulings.”
    103. Under cross examination he continued:
        “Q. Okay. But as far as I understand it from your evidence some of those that went in, some of those that went in were definitely three, four, five?
        A. Yes
        Q. or five, six, seven?
        A. Yes
        Q. Or possibly eight, nine, ten?
        A. Well, I didn’t –without seeing them again.”
    104. Ms. O’Gorman, who was present during the adjudication of these questionable ballots, gave evidence as follows:-
        “A. …Then there were a few which apparently because there was a European election as well there were some ballot papers that had three, four and five on them and no one and two and –
        Q. Were they allowed or disallowed?
        A. They were allowed because it was felt that there was a European election and the person went in and voted one and two in the European and they continued the preference three, four and five in the local and that was the –
        Q. Who felt?
        A. Well, the returning officer, Michael McMahon, was saying this, you know, that it was – you know the trend was there. It happened before obviously.
        Q. Were there many of them?
        A. There were a few.”
    105. In dealing with this aspect of the case, (Issue No. 4), the learned trial judge was heavily influenced by the evidence of Mr. Enright, who was an election agent on behalf of Mr. Kennelly and who was present during the adjudicative part of the count. That evidence in effect stated that only a handful of votes were subject to any form of objection, and that only one disputed vote aroused any substantive discussion. On that basis, the judge reached the conclusion which he did.

    106. It is difficult to see how the evidence of Mr. Enright could have had such an impact on the evidence of the other two witnesses as outlined. Whether there was any, or any substantive, discussion on the sequenced votes, could not be determinative of the likely effect which such votes could have had on the election result. There may have been several reasons for the absence of vocalised challenges: however, once the issue was raised, as clearly it was, then whether further debate or discussion took place could not be decisive. What is more relevant in the context of a causative effect is the number of such votes. In that regard the evidence, although obviously imprecise, nonetheless clearly shows that there were at least some such votes, as demonstrated, inter alia, by Mr. McMahon’s reference to a sequence starting 3, 4 and 5 and to a sequence starting at 5, 6 and 7. This is also supported by Ms. O’Gorman who refers to the number of such votes as being, in her view, “a few”. The question thus is whether on this evidence the second requirement of s. 5 of the 1974 Act has been satisfied.

    107. It may well be that if the circumstances were otherwise, the petition should rightly be dismissed on this fragile evidential basis. But given the margin by which Mr. Kiely lost the seat to both the fourth and fifth candidates who were elected, I have come to the conclusion that there is sufficient evidence for concluding that if such votes were admitted, the same could have had an effect on the result. Given the type of proportional representation applying in this country, even a very small number of votes could have an accumulative effect on earlier transfers or eliminations, which, as the counting proceeds, could have an impact on the outcome. If the margins of success or failure were greater the available evidence may not at all be considered sufficient. But they are as they are, and in these particular circumstances, I am satisfied that Mr. Kiely has discharged the onus of establishing the second requirement of s. 5 of the Act.

    The Next Step: Section 8:
    108. In these circumstances I believe that court intervention is justified. Its powers in that regard, once s. 5 of the 1974 Act has been satisfied, are set out in s. 8 of the 1974 Act. In that provision three options are given, not as a matter of indifferent choice but as a matter of deliberate decision. For obvious reasons, that given under subs (1)(c) can be discounted. So it is either s. 8(1)(a) or s. 8(1)(b), both of which read as follows:-
        “The court may for the purpose of the trial of a petition, if it thinks fit, order –
        (a) that all the votes cast at an election shall be counted afresh, or
            (b) that all the votes so cast in a particular local electoral area shall be so counted.” (emphasis added)
    I am entirely convinced that there is no necessity to embark on the former exercise and that the more restricted re-examination as provided for under s. 8(1)(b) is what is required.

    109. By an Order which is cited as “The County of Kerry Local Electoral Areas and Municipal District Order 2014 (S.I. 51/2014)”, it was provided that the County of Kerry shall be divided into the local electoral areas which are named in the first column of the schedule to this Order. The names of the four local areas given are Killarney, Listowel, South and West Kerry and Tralee. The number of members of Kerry County Council to be elected for each such local electoral area is then set out in the third column of the schedule which, referable to Listowel, is seven. Consequently, these provisions apply for the purposes of the 2014 local elections. Incidentally, there was in substance a similar Statutory Instrument, with obvious adaptations, made in respect of each county, city and, in the case of Limerick and Waterford, city and county for the 2014 Local Government elections throughout the country, save that I have been unable to verify one made for Cork City. In any event, it is quite clear from this Order that whilst the election covers the entire County of Kerry, nonetheless for that purpose there is a specific and determinable division within the County into the areas which I have mentioned. In essence, each area in itself must be considered as a local electoral area. Candidates run not for the County of Kerry but for the divisional districts, as provided for in the Order. For example, Mr. Kiely ran in Listowel. He did not do so in South and West Kerry or in any of the other two areas as delineated. Again, those who were entitled to vote in the Listowel area could not vote for candidates in any other area. Consequently, I am satisfied that each local electoral area must be considered as self contained for local electoral purposes.

    110. It seems therefore to me that unless no distinction was envisaged between subparas (1)(a) and (1)(b) of s. 8 of the 1974 Act, it must follow that the appropriate Order has to be confined to the electoral area, the subject matter of this petition. Whilst it may be the case that the sequenced vote pattern in question may have occurred in any or all of the other three areas within the County of Kerry, it is also possible that this may not have happened. In any event and critically, there has been no challenge to the Declaration made by the returning officer in respect of these areas and it is now far too late for such to issue (s. 19 of the 1974 Act). Furthermore, whilst one may speculate as to what might have occurred in these areas, there is no evidence whatsoever that the irregularity so found by this Court in respect of the Listowel area has also occurred elsewhere. For these reasons, unless as I have said there is no distinction between subparas (a) and (b), I would confine any Order of this Court reflecting its judgment to that contained in subpara (b).

    Distinction between the Subparas?
    111. It is a rule at the level of first principle that words should be given their ordinary meaning and that the Oireachtas does not intend to enact surplus or duplication. Therefore, at a prima facie level, one must search for a meaningful distinction between subparas (a) and (b) of s. 8(1) of the 1974 Act. In my view the answer is readily apparent. The first permits of the recounting of the votes for an entire county, whereas the second is restricted to a recount for a particular electoral area. The former might be engaged if the complaint upheld by the court was pitched at that level, or else if the evidence adduced carried through from one local electoral area into all others within the county boundary. For example, there might be a generalised complaint about the particular manner in which the returning officer and any deputy under him conducted the election. It is not difficult to envisage an issue of irregularity which would, at the level of principle, have that level of exposure. In those circumstances an Order under s. 8(1)(a) would be appropriate. However, in this case the complaint is confined and the evidence relates solely to the papers cast for the Listowel electoral area. Therefore, I cannot see how any Order of this Court should go further than that area. Consequently, I will propose that an order should be made under s. 8(1)(b) of the Act.

    The Phrase “…Counted Afresh”:
    112. Whichever type of Order may be made all the votes cast must, according to s. 8 of the Act, be “counted afresh.” As pointed out, again by Henchy J. in Thomas Dillon-Leetch, this requirement is in contrast to where a recount is called for, in which only the papers dealt with during that count are re-examined, or indeed even when a full recount is called for, both of course occurring during the course of the election process itself. In either situation the re-examination is confined to “all parcels of ballot papers” (Article 87(1) and (3) of the Regulations). That however is not what s. 8 of the 1974 Act provides for. Whilst I appreciate that this will affect the randomisation of the papers as arranged from time to time during the original process, nonetheless this is an inevitable consequence of an entire recount which is legislatively provided for. Such a recount will obviously involve all postal and special voter boxes as well. Accordingly, such an order should be made in these proceedings and the matter remitted back to the Circuit Court so that the recount directed can be conducted under its authority and control.

    113. Once this process has been completed under the direction of the Circuit Court, that court has jurisdiction to make a final order under and pursuant to the provisions of s. 14 of the 1974 Act, which includes a declaration as to the correct result if the outcome so permits.

    114. For the reasons above outlined, I would allow the appeal to the extent and for the purposes as stated.











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