MR Justice Barr said it was impossible to divine with any reasonable degree of accuracy what effect the Government's advertising campaign before the referendum might have had on influencing some voters to vote Yes rather than No.
He said it seemed a distinction should be drawn between the inadvertent unconstitutionality of the Government's conduct in funding its advertising campaign out of State monies and the advertising content of the campaign per se, of which no complaint was made.
"The Government was wrong in funding its advertising in the way it did, but in my view, its illegality does not extend beyond that." It was important to bear in mind that the Government did not engage in conscious and deliberate wrongdoing.
He referred to two High Court actions taken by Green MEP Ms Patricia McKenna - one in 1992 relating to the Maastricht Treaty referendum and the other, last year, dealing with State expenditure for a Yes vote in the divorce referendum. In these cases, the High Court had not impugned the legality of the Government's conduct regarding the funding of such campaigns.
Accordingly, the bona fides of what the Government did in funding its advertising campaign in October/November 1995 were not in doubt and the advertising content was unobjectionable. It seemed to him the question of punishing the Government by condemning the advertising campaign and seeking to review the referendum vote on the premise that such advertising took place, did not arise.
On the evidence, on behalf of the petitioner, the conclusion most favourable to him was that some voters may have been persuaded by the impugned advertising to vote Yes. But how many? Would they have voted No on the day in the absence of the Government's print advertising campaign? For how long would the effect of that advertising campaign have lasted, bearing in mind that, by and large, it did not continue into the crucial last week of the campaign when the voters were subjected to a barrage of formidable propaganda daily in the print media, television and radio on both sides of the debate?
"I am not convinced that is it possible to answer these questions having regard to the nature, weight and extent of propaganda, influences and pressures brought to bear on the people to vote Yes or No.
"In my view it is impossible to assess with any confidence the conflicting effects of such factors on the ultimate decisions made by voters as to whether they would support or reject the proposed amendment of the Constitution."
The judge said he was satisfied that if the Government's advertising campaign should be regarded as tainted with the illegality of its funding - which he did not accept - there was no evidence which might be regarded as, establishing in accordance with the standard of proof postulated by the Supreme Court that the will of the people was not properly ascertained and freely expressed in accordance with law in the referendum.
He was not convinced by expert testimony, on behalf of the petitioner, that it was possible to unscramble and assess the effect of the Government's print advertising campaign on the outcome of the referendum.
As a general principle, subject to a constitutional duty of probity by the Government in the conduct of a referendum campaign, individual Government ministers, deputies and senators were lawfully entitled to urge the people to support an amendment of the Constitution which the Government initiated.
Bearing that in mind, it seemed to him (judge) it would fly in the face of logic to deny the Government as a body the right to promote its own proposed amendment of the Constitution.