THE possibility of calling advertising executive Mr Conor Quinn, brother of the Minister for Finance, and Mr Fergus Finlay programme manager to the Tanaiste, as witnesses in Mr Des Hanafin's challenge to the result of the divorce referendum was raised in the High Court yesterday.
The company of which Mr Conor Quinn is joint managing director, Quinn, McDonnell Pattison (QMP), was given the contract to draw up strategy for the Government's advertising campaign for a Yes Vote.
Mr Garrett Cooney SC, for Mr Hanafin, mentioned the names of people who had been identified because of discovery of documents by the State.
Over the past two days of the hearing, the Attorney General Mr Dermot Gleeson SC, had applied for a dismissal of the action at this stage on the grounds that the courts had no power to overturn the freely expressed verdict of the people.
The three judge divisional court of the High Court declared yesterday that it was reluctant to make any order on Mr Hanafin's petition until all the parties had been afforded the opportunity to adduce all such evidence as may be relevant.
The chairman of the divisional court, Mr Justice Murphy, in giving the judgment, said the court had decided not to accede to the immediate preliminary objections. The court would postpone its decision on the preliminary objections until the conclusion of the trial. It would not exercise its power under the Referendum Act to9 call witnesses of its own volition.
The hearing was adjourned until tomorrow. Mr Hanafin's side will then call as witnesses two civil servants, Mr Thomas Lynch, principal officer, Department of Equality and Law Reform, and Mr Joseph Harrington, assistant principal officer, Department of the Environment.
Yesterday was the fourth day of the hearing but it was adjourned until tomorrow to give time to Mr Hanafin's side to make arrangements for witnesses.
Earlier, Mr Cooney had said that they expected to call three expert witnesses who were highly qualified in their own field of advertising, PR and marketing.
The Attorney General said there would clearly be more than three witnesses. In terms of evidence, the greater part of Mr Hanafin's case seemed to be opinion polls or scripts associated with them. Questions of proof arose in this area.
These were deep seated constitutional issues. The question must arise as to what would influence a voter. How could one accept any single answer in cross examination?
Mr Cooney said witnesses who may give evidence were in three, categories. The first was the witnesses who had been identified because of discovery of documents by the State. The second was the experts and the third was witnesses whom presumably the Government would call to rebuff their evidence.
In the first category would be permanent members of the public service who made affidavits of discovery. They would also include temporary members of the public service; Mr Finlay, Mr Richard Humphreys and Ms Anne Kinsella, programme managers.
Also included would be agents of the Government such as Mr Jack Jones, chairman of the MRBI and perhaps Mr Conor Quinn. The accounts officer of the advertising agency would be included.
Mr Cooney said their relevance became known through discovery. The petitioner must have evidence of what was discovered in the State documents.
The essence of the case was that the work these witnesses did was constitutional impropriety. The State should make these witnesses available. If not, he would ask the court to direct that these people come to court.
Mr Justice Barr said the petitioner was making the case that the Government carried out a campaign which ought not 19 have taken place, therefore it turned upon the effects of the advertisements. If what they were looking at was the mind of the voter exposed to the campaign, what had the whole background to it to do with it?
Mr Cooney said the advertising campaign arose out of the effort and work that went into it and depended on research and expertise. It would be putting them at an unfair advantage not to allow them to put that evidence.
Mr Gleeson said Mr Peter Kelly SC, for Mr Hanafin, in his opening, had no entitlement to proceed with opening documents yet they were opened. Mr Kelly should not have continued to open them unless he was in a position to prove them.
In the morning Mr Kelly resumed his reply to the Attorney General's application to have the case dismissed. Mr Kelly said the court was entitled to examine the effect of the constitutional wrong perpetrated against the democratic process.
Mr Peter Shanley SC, for the State, said that he had yet to hear the petitioner express the circumstances in which people did not exercise their free will.