DPP v O'Reilly
| Jurisdiction | Ireland |
| Court | Supreme Court |
| Judge | Clarke J.,Laffoy J.,Charleton J. |
| Judgment Date | 17 November 2016 |
| Neutral Citation | [2016] IESCDET 136 |
| Date | 17 November 2016 |
[2016] IESCDET 136
THE SUPREME COURT
DETERMINATION
Clarke J.
Laffoy J.
Charleton J.
IN THE MATTER OF SECTION 2 OF THE CRIMINAL PROCEDURE ACT 1993
This determination relates to an application by Joseph O'Reilly (hereafter referred to as the Applicant), who was the applicant in the underlying substantive proceedings in the Court of Appeal, for leave to appeal under Article 34.5.3° of the Constitution from a judgment of the Court of Appeal (Ryan P., Birmingham J. and Edwards J.) delivered on 11th May, 2015. The order appealed against was made on 11th May, 2015 and was perfected on 7th July, 2015.
As is clear from the terms of the Constitution and from the many determinations made by this Court since the enactment of the Thirty Third Amendment it is necessary, in order for this Court to grant leave, that it be established to the satisfaction of this Court that the decision sought to be appealed either involves a matter of general public importance or that in the interests of justice it is necessary that there be an appeal to this Court.
The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
The underlying proceedings involved an application under s. 2 (the s. 2 Application) of the Criminal Procedure Act 1993 (the Act of 1993) brought on behalf of the Applicant to the Court of Criminal Appeal in 2012. To put that application and this determination into perspective, s. 2 of the Act of 1993 insofar as it is relevant for present purposes provides:
‘2(1) A person –
(a) who has been convicted of an offence either –
(i) on indictment, or
(ii) … and
who, after appeal to the Court including an application for leave to appeal, and any subsequent re-trial, stands convicted of an offence to which this paragraph applies, and
(b) who alleges that a new or newly-discovered fact shows that there has been a miscarriage of justice in relation to the conviction or that the sentence imposed is excessive,
may, if no further proceedings are pending in relation to the appeal, apply to the Court for an order quashing the conviction or reviewing the sentence.
(2) An application under subsection (1) shall be treated for all purposes as an appeal to the Court against the conviction or sentence.
(3) In subsection (1)(b) the reference to a new fact is to a fact known to the convicted person at the time of the trial or appeal proceedings the significance of which was appreciated by him, where he alleges that there is a reasonable explanation for his failure to adduce evidence of that fact.
(4) The reference in subsection (1)(b) to a newly-discovered fact is to a fact discovered by or coming to the notice of the convicted person after the relevant appeal proceedings have been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings.’
As regards the s. 2 Application, the Court in s. 2 meant the Court of Criminal Appeal.
In the s. 2 Application the Applicant sought an order quashing his conviction in the Central Criminal Court on 21st July, 2007 for murder at common law. Subsequently, the Applicant applied to the Court of Criminal Appeal for leave to appeal. On 6th March, 2009 that application was rejected.
On the establishment of the Court of Appeal the jurisdiction to hear the Applicant's s. 2 Application vested in the Court of Appeal.
The order dated 11th May, 2015 from which the Applicant seeks leave to appeal was made by the Court of Appeal on foot of a motion of the Director of Public Prosecutions (DPP) seeking an order dismissing as an abuse of process the s. 2 Application. Following delivery of the judgment of the Court of Appeal, which was delivered by Birmingham J., the Court, by that order, dismissed as an abuse of process the Applicant's s. 2 Application seeking to quash his conviction.
The Applicant's application for leave and notice of appeal and the DPP's respondent notice are published along with this determination. The judgment of the Court of Appeal is also published on the Courts Service website (Neutral Citation: [2015] IECA 111). Notwithstanding the availability of those documents to the public, because the Applicant's application for leave differs from the more common type of application, relating as it does to the s. 2 Application which was heard at first instance in the Court of Appeal, it is necessary to outline the basis upon which the Applicant contends that the constitutional threshold for leave to appeal has been met in more detail, and to have a greater recourse to the...
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