The Court of Appeal granted the Director of Public Prosecutions’ motion to dismiss Joseph O’Reilly’s application under section 2 of the Criminal Procedure Act 1993, ruling that the application was an abuse of process and bound to fail.
O’Reilly had sought to challenge his 2007 murder conviction after a book of evidence, or possibly part of it, was found in the jury room on the fourth day of his trial. The jury alerted the registrar and the trial judge asked whether any juror had read any witness statement. The foreman replied that, to his knowledge, none had. The trial then continued.
The DPP asked the Court of Appeal to dismiss the section 2 application at a preliminary stage, arguing it did not rest on a new or newly discovered fact. The court said this power should be used sparingly and only where it was very clear that an application was bound to fail or did not rely on a qualifying new fact.
O’Reilly argued that the trial judge’s inquiry was inadequate. He said it did not establish exactly what document had been found, how long it had been in the jury room, where it came from, or whether each juror had read any of it. He also argued that the foreman answered without consulting the other jurors and that a more detailed inquiry was needed. He said he had not appreciated the significance of the incident at the time and that the issue was arguable and of public importance.
The DPP submitted that O’Reilly knew what had happened and, after discussing the matter with his legal team, had instructed them to let the trial continue. The defence had considered the jury’s reduced size and favourable evidential rulings among the tactical reasons for proceeding.
The Court of Appeal said the procedure had been discussed with and agreed to by O’Reilly’s senior counsel, and that O’Reilly had instructed the defence to proceed. It found the transcript showed the judge asking whether any individual juror had read the material, and that the judge had made clear the trial could not continue before that jury if anyone had read a statement. The court also noted the issue was not raised in the subsequent application for leave to appeal.
The court concluded that O’Reilly had made a conscious and deliberate tactical decision to continue the trial and could not later resile from it. It granted the DPP’s motion to dismiss the section 2 application. The judgment decided only that preliminary motion; it did not determine the merits of the complaint about the jury-room incident.