Supporting Documents:

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF SECTION 2 OF THE CRIMINAL PROCEDURE ACT 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

-V-

JOSEPH O’REILLY

RESULT: The Court refuses leave to the Applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1. Jurisdiction

1.1 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.

1.2 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.

1.3 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.

2. The proceedings

2.1 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.”

2.2 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.

2.3 On the establishment of the Court of Appeal the jurisdiction to hear the Applicant’s s. 2 Application vested in the Court of Appeal.

3. The order appealed against

3.1 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.

4. The contentions of the parties

4.1 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 judgment of the Court of Appeal, than is normally the case.

4.2 The following aspects of the judgment of the Court of Appeal assist in understanding the respective positions adopted on the application for leave by the Applicant and the DPP. First, it was stated in the judgment (at para. 2) that 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 McKevitt v. DPP [2013] IECCA 22 and it was stated that it was clear from that judgment that, while the jurisdiction to make such an order undoubtedly exists, it is a jurisdiction to be exercised sparingly and that the threshold to be crossed by the DPP when seeking such an order is a high one. It was stated that only if it was very clear that the application brought by the Applicant was one that was bound to fail and/or that the application was not grounded on a new fact or a newly discovered fact that the Court should consider making the order sought by the DPP. Secondly, it was stated that the Applicant’s s. 2 Application had its origin in what was described as “an unusual development” which occurred on the fourth day of the trial in the Central Criminal Court, 28th June, 2007, when it was brought to the attention of the trial judge that a copy of the book of evidence, or more likely a portion of the book of evidence, was found in the jury room. The inquiry conducted at the trial by the trial judge is outlined in the judgment, in part by quoting from the transcript of what happened in the court in the presence of counsel for both parties but in the absence of the jury and subsequently in the presence of the jury. That outline discloses the circumstances in which the trial proceeded. Thirdly, the submissions made on behalf of the Applicant and on behalf of the DPP respectively are outlined in the judgment. It is recorded (at para. 11) that the basis of the Applicant’s reliance on s. 2 of the Act of 1993 was his claim that during the course of his trial he did not appreciate, as he did subsequently, the significance of the book of evidence or any portion of it being in the jury room. The submissions made on behalf of the Applicant in support of his contention that the procedure followed on the fourth day of the trial was seriously deficient are also outlined. In response, it was submitted on behalf of the DPP that on the fourth day of the trial the Applicant was informed of the situation and that, acting on advice, he instructed his legal team that the trial should be permitted to proceed, it being contended that matters so well known could not possibly amount to a new fact or a newly discovered fact. Finally, in the judgment (at paras. 18 to 12 inclusive) the conclusion reached that the s. 2 Application amounted to an abuse of process is rationalised. The Applicant’s suggestion that he did not appreciate the significance of the book of evidence is effectively rejected. The procedure followed by the trial judge was not found to be defective. It was emphasised that the Applicant had given instructions to his counsel to proceed. The conclusion in the judgment was that it was absolutely clear that a conscious and deliberate decision was taken by the Applicant for tactical and strategic reasons to proceed with the trial. His attempt to resile from that election amounted to an abuse of process. The s. 2 Application was bound to fail.

4.3 On the first of the alternative criteria on which this Court must be satisfied before granting leave, namely, that the decision of the Court of Appeal involves a matter of general public importance, the reasons advanced on behalf of the Applicant as to why that criterion is met, in reality, go to the substance of the Applicant’s s. 2 Application. It is submitted that there is little or no guidance in case law as to the procedures to be followed when a jury irregularity is suspected and that it remains unclear as to what the duties of a judge are in such circumstances, the scope of any inquiry of the jury, and whether there are universal practical procedures which a judge should follow. It is submitted that effectively the Court of Appeal applied the principle that tactical decisions cannot normally be revisited and it is suggested that that principle is limited in scope in that it can never be used to ignore a fundamental injustice. It is submitted that there is clearly confusion being created by the dearth of jurisprudence in the specific context of jury irregularity about the significance of tactical decisions taken at trial. It is suggested on behalf of the Applicant that the matter of general public importance could be addressed through the medium of two certified questions formulated on behalf of the Applicant. Each assumes the existence of “jury irregularity”. The first question is whether the informed assent of prosecution and defence to proceed with what is described as “the potentially tainted jury”, conclusively determines the issue of whether a discharge is warranted. The second relates to the manner in which the presiding judge should conduct an inquiry in the case of jury irregularity “arising in the form of admissible documents being left in the jury room”.

4.4 The DPP’s response to those submissions is that the uncontroverted evidence before the trial court and the Court of Appeal was that no member of the jury had read the book of evidence or any portion thereof. It would appear to be implicit in that response that the position of the DPP is that no “jury irregularity” arose at the trial of the Applicant and, accordingly, a matter of general public importance does not arise from the decision of the Court of Appeal.

4.5 On the second constitutional criterion, the basis on which it is submitted on behalf of the Applicant that it is in the interests of justice that there be an appeal to this Court is that the Court of Appeal erred in failing to carry out any objective evaluation of whether the conviction was unsafe and unsatisfactory but instead erroneously and exclusively focused on the defence tactics at the jury trial. It is also submitted that what it is suggested was the central issue, namely, the duties of a trial judge in a criminal trial to inquire into jury irregularities and the procedures to be followed, was not considered or determined by the Court of Appeal, the Applicant’s application having been dismissed, it is suggested, effectively on an estoppel basis.

4.6 In response, the DPP makes four points, two of which appear to address the entitlement of the Applicant to invoke s. 2 of the Act of 1993 and the other two of which seem to be in support of the contention of the DPP that there was no jury irregularity and, in any event, the Applicant’s conduct at the relevant time precludes him from raising the point he raises now. On the Applicant’s entitlement to invoke s. 2, it is contended by the DPP that the grounds advanced by him do not and could not amount to a new or newly discovered fact within the meaning of s. 2. Further, the contention that the Applicant did not appreciate the significance of the book of evidence is not supported by the affidavit evidence. The other responses are that the procedure followed by the trial judge was agreed to in advance by the Applicant following legal advice. Further, no complaint was made at the time of the trial or during the conviction appeal.

5. Discussion

5.1 As is clear from a range of determinations made by this Court since the Thirty Third Amendment to the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. The text of the Constitution now makes it clear that an appeal to this Court, whether directly from the High Court under Article 34.5.4° or from the Court of Appeal under Article 34.5.3°, requires that it be established that the decision sought to be appealed against meets one or other of the two constitutional criteria outlined earlier. The application for leave in this case differs from the more usual type of application for leave to appeal from a decision of the Court of Appeal, which will normally be a decision on an appeal from a decision of the High Court at first instance. This application relates, however, to a decision made by the Court of Appeal at first instance. Nonetheless, one or other of the constitutional criteria has to be met.

5.2 Accordingly, the issue to be determined is whether either of the constitutional criteria has been met in this case.

5.3 One issue before the Court of Appeal on the application which led to the order which the Applicant seeks leave to appeal against was whether the Applicant had established compliance with the statutory requirement of s. 2 as to the existence of a new or a newly discovered fact showing that there had been a miscarriage of justice in relation to his conviction. The other issue was whether it was an abuse of process for the Applicant to initiate the s. 2 Application when, following advice, he agreed to the procedure adopted on the fourth day of the trial and he also agreed to the outcome. That outcome was that the trial would proceed. Further the Applicant did not raise the issue he now raises on the conviction appeal in the Court of Criminal Appeal.

5.4 The determination of each of those issues involved the application of established legal principles to the factual basis of the Applicant’s s. 2 Application. That was the approach which the Court of Appeal adopted. Having done so, the decision of the Court of Appeal does not involve any matter of general public importance. Moreover, having regard to the approach adopted by the Court of Appeal as outlined in this determination, it has not been established that it is not in the interests of justice necessary that there should be an appeal to this Court. Accordingly, the Applicant not having demonstrated that either of the constitutional criteria is met, this Court does not have jurisdiction to grant leave to appeal.

6. Conclusion

6.1 The Court therefore refuses leave to appeal under Article 34.5.3°.

AND IT IS HEREBY SO ORDERED ACCORDINGLY