The Supreme Court dismissed Sam McNulty’s appeal concerning section 41 of the Criminal Justice Act 1999, which makes it an offence to intimidate or put in fear a person assisting a Garda investigation, a witness or potential witness, a juror or potential juror, or a member of their family, with intent to obstruct or interfere with the investigation or course of justice.
In a judgment delivered on 21 January 2015, Murray J. said he concurred with the Chief Justice’s judgment and agreed the appeal should be dismissed. His further observations addressed section 41(3), which provides that proof of an act described in section 41(1)(a) “shall be evidence” that it was done with the intent specified in section 41(1)(b).
Murray J. said statutory provisions allowing proof of one fact to serve as evidence of another fact in a criminal trial require careful scrutiny. Such a provision could not arbitrarily link facts where there was no reasonable connection between them. But once the prosecution established the relevant conduct and the accused’s knowledge that the person was assisting an investigation or was a witness or juror, Murray J. considered it neither irrational nor arbitrary for the act to be evidence of the required intent.
He stressed that section 41(3) did not change the prosecution’s burden: the prosecution still had to establish the offence’s elements. The provision made the relevant act evidence of intent, not proof of intent. The court or jury decides what weight to give that evidence in the circumstances of the case.
Murray J. also rejected the argument, insofar as it was made, that the provision would invariably require an accused to give evidence to rebut the inference. An accused could challenge the prosecution’s case through cross-examination, including by showing that a threat was made for reasons unrelated to the person’s status as a witness or juror. A judge could also direct an acquittal at the close of the prosecution case if no reasonable jury could convict on the evidence. Whether to give or call defence evidence remained the accused’s decision if a prima facie case had been established.
The source is Murray J.’s separate observations on interpretation. It records his concurrence in the Chief Justice’s judgment and the dismissal of the appeal; it does not set out the Chief Justice’s full reasons.