O'Reilly v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 11 May 2015
• Neutral Citation: [2015] IECA 111
• Docket Number: 250CPA/12
• Court: Court of Appeal (Ireland)
• Date: 11 May 2015

[2015] IECA 111

THE COURT OF APPEAL

The President

Birmingham J.

Edwards J.

250CPA/12

Joseph O'Reilly

Applicant

and

The Director of Public Prosecutions

Respondent

Abuse of Process – Order of Dismissal –Book of Evidence – Jury – Practice and Procedures – Prejudice – Unfair Trial – Murder Trial - Criminal Procedure Act 1993 – Discovered Facts

Facts: This case was concerned with a motion grounded on an affidavit brought by the Director of the Public Prosecutions seeking an order dismissing an application brought on behalf of Mr. Joseph O”Reilly pursuant to the provisions of s 2 of the Criminal Procedure Act 1993, on the grounds that the s 2 application was not based on any new or newly discovered facts, was therefore bound to fail and was therefore an abuse of process. During Mr. O”Reilly”s trial for murdering his wife, for which he was subsequently convicted, a copy of the book of evidence which had been prepared for the trial, or perhaps more likely a portion thereof was found in the jury room. All parties involved, including Mr. O”Reilly were informed as to this development and based on tactical considerations identified by his defence, and the fact that the jury had not read the book of evidence, the case proceeded before the jury which had been sworn to try the case, with the trial judge who had been assigned the case presiding. Mr. O”Reilly submitted that during the course of his trial he did not appreciate, as he now did, the significance of the book of evidence or a portion of it being in the jury room. Consequently, he submitted that the procedure followed on day four of the trial was seriously deficient and not well investigated.

Held by Justice Birmingham in light of the available evidence and submissions presented that the appropriate procedures had been carried out throughout the trial and in respects of the discovery of the book of evidence in the jury room. According to the Court it was absolutely clear that a conscious and deliberate decision was taken for tactical and strategic reasons to proceed with the trial. Having made that election, Mr. O”Reilly it was reasoned could not be permitted to depart from it. His attempt to do so, amounted to an abuse of process and certainly it was an attempt that was bound to fail. In these circumstances the court acceded to the application by the DPP.

Judgment of the Court delivered on the 11th day of May 2015 by Mr. Justice Birmingham

1 Before the court is a motion grounded on an affidavit brought by the Director of Public Prosecutions seeking an order dismissing an application brought on behalf of Mr. Joseph O'Reilly pursuant to the provisions of s. 2 of the Criminal Procedure Act 1993, on the grounds that the s. 2 application is not based on any new or newly discovered facts, is therefore bound to fail and is therefore an abuse of process.

2 The jurisdiction to dismiss a s. 2 application as an abuse of process, on the basis that it was bound to fail or not grounded on a new or newly discovered fact was considered in the case of DPP v McKevitt[2013] IECCA 22. It clear from the judgment in that case that while the jurisdiction to make orders of the type now sought by the Director of Public Prosecutions undoubtedly exists, that it is a jurisdiction to be exercised sparingly indeed. The threshold to be crossed by the Director of Public Prosecutions when seeking such an order is a high one. That is the approach that will inform the court's consideration of this issue. Only if it is very clear that the application brought by Mr. O'Reilly is one that is bound to fail and/or that the application is not grounded on a new fact or a newly discovered fact will the court consider making the order sought by the DPP.

3 The background to the matter now before the court is that Mr. O'Reilly was charged with the offence of murdering his wife on the 4th October, 2004 at the Naul, Co. Dublin. Following a trial which lasted 21 days he was convicted on the 21st July, 2007, and the mandatory life sentence was duly imposed. Thereafter, Mr. O'Reilly sought leave to appeal from the Court of Criminal Appeal and on the 6th March, 2009, that application was rejected. Leave to appeal had been sought on a number of grounds, none of which are relevant to the matters now sought to be advanced in the s. 2 application.

4 The s. 2 application brought by Mr. O'Reilly had its origin in an unusual development which occurred on the fourth day of the trial, the 28th June, 2007. The account what follows draws very heavily on the affidavit sworn by Mr. O'Reilly on the 11th July, 2014, along with extracts from the transcripts referenced in the course of an affidavit sworn by Mr. Seamus Cassidy, the head of the Appeals Section in the Solicitors Division of the Office of the Director of Public Prosecutions which grounds the motion seeking the dismissal of the s. 2 application.

5 On day in question, a copy of the book of evidence which had been prepared for the trial, or perhaps more likely a portion thereof was found in the jury room. The matter was drawn to the attention of the Court Registrar by the jury who inquired whether the document was intended for them. That information was immediately brought to the attention of the trial judge, who in turn immediately brought the matter to the attention of leading counsel for the prosecution and for the defence, meeting them outside court in order to inform them of what had occurred. It appears that in deciding to see counsel that the judge was anxious that they should have a degree of advance warning as to what had occurred, and be given an opportunity to consider the situation before the matter was mentioned in court and should be given an opportunity to consider the situation.

6 Mr. O'Reilly accepts that he was informed as to what had occurred by his legal team and that it was explained to him that the judge intended to inquire of the jury whether the document had been read, if it had been read by any of them, the jury would have to be discharged. Even if the document had not been read, there was the option to seek a discharge. The tactical and strategic considerations were discussed with him, though it was made clear that ultimately the decision as to how to proceed was his. The tactical considerations identified, were that the jury was down to eleven and that this advantaged the defence, as it meant that there could not be a conviction if there were two jurors opposed to convicting.

7 In addition, even at that early stage of the trial, the defence had obtained a number of favourable rulings on issues of admissibility and there were indications that other rulings were also going to be positive from a defence perspective. Mr. O'Reilly's legal team pointed out to him that the judge assigned to the case, had extensive criminal defence experience and expertise, with the result which would ‘afford me (Joseph O'Reilly) as good a trial as I would ever get in Ireland’.

8 It would appear therefore, that following this discussion with his legal team, that Mr. O'Reilly was of the view that unless it emerged that the jury had read the book of evidence, that there were tactical and strategic advantages in allowing the case proceed before the jury which had been sworn to try the case, with the trial judge who had been assigned the case presiding.

9 What transpired when the court reconvened after the information about the document in the jury room had come to light forms the basis of Mr. O'Reilly's present application. It is necessary, therefore to quote from the transcript at some length.

‘In absence of jury legal argument:

Judge: Mr. Buckley, Mr. Gageby, as I have already advised you, apparently a portion of the book of evidence made its way into the jury room either overnight or this morning and the jury inquired of the Registrar as to whether or not the book was intended for them and the juror was advised that no, that it was not. It seems to me that it is appropriate at this stage that I make inquiry of the jury as to whether or not anybody read any portion of the book of evidence.

Mr. Gageby (Senior counsel for the defence): Yes judge.

Judge: It seems to me that if any member of the jury has read any portion of the book of evidence I will have to discharge this jury and if it...