The Court of Appeal has reserved judgment on whether Joe O'Reilly can apply to have his conviction for murdering his wife declared a miscarriage of justice.
In July 2007 Joe O’Reilly was convicted by a Central Criminal Court jury and sentenced to life imprisonment for the murder of his wife at their home in the Naul, Co. Dublin.
Rachel O'Reilly's badly beaten body was found in the bedroom of her home on October 4 2004.
Rose and Jim Callaly leaving court today.
The 42-year-old has lodged an application under Section 2 of the Criminal Procedure Act 1993 to have his conviction declared a miscarriage of justice.
However, counsel for the Director of Public Prosecutions, Brendan Grehan SC, asked the Court of Appeal today to dismiss O'Reilly's application as an "abuse of process" because it was not based on any new or newly discovered facts as required under the Act.
On day four of O'Reilly's trial for murder the court registrar was advised that a portion of the book of evidence had been left in the jury room.
Trial judge Mr Justice Barry White had made it clear, Mr Grehan said, that he would discharge the jury if any of them had read any portion of the book of evidence and the trial would continue if none of them had read any part of it.
The foreman of the jury was then asked whether any juror had read any portion of the book of evidence and his reply was: 'not to my knowledge, no'.
Mr Grehan said that exchange took place with 11 jurors, the trial judge, Mr O'Reilly and all counsel present in court. The suggestion that one of the jurors simply sat there and stayed dumb did not arise because the "eyes of everybody in court" would have been looking at their reactions.
Mr Grehan said O'Reilly met with his legal team before the court sat, he was informed of what had transpired and informed that if any of the jurors had read any part of the book of evidence the jury would be discharged.
Not only was no application made to discharge the jury but those were O'Reilly's instructions to his legal team - that if nobody had read any portion of the book of evidence the trial could proceed, Mr Grehan said.
It was "impossible to contemplate how the significance could not have been appreciated" by O'Reilly at the time and his case was "simply unstateable" and "bound to fail," Mr Grehan said.
Counsel said the "very experienced" Mr Justice White had rigorously assessed the evidence in the trial and O'Reilly had enjoyed favourable rulings up until that point. Mr Justice White had also ruled inadmissible O'Reilly's appearance on the Late Late Show, Mr Grehan said.
There should be finality to criminal trials, Mr Grehan said, not just for the Director or the accused but for victims and their families also.
Counsel for O'Reilly, Patrick McGrath SC, said the jurisdiction to dismiss miscarriage of justice applications "ought to be used sparingly".
Mr McGrath said this was an exceptional case - a prohibitive document had somehow found its way into a jury room and the inquiry of the jury was inadequate.
He said the DPP was seeking to close O'Reilly out of having his application determined at full hearing.
Mr McGrath said O'Reilly's case was more than stateable. There were no inquiries made as to how the book of evidence got into the jury room, no inquiries as to what portions of it were there, how long it was there and no inquiries as to whether individual jurors had read it.
He said O'Reilly had not applied to discharge the jury because he was advised not to.
His legal team had advised him not to lose "this judge" or "this jury" because 'we're down to 11 (jurors), some rulings have gone in your favour, it's likely some more rulings will go in your favour', Mr McGrath said.
Counsel said O'Reilly should be allowed to have his full application heard on all squares and the court should not "cut him off at the pass".
President of the Court of Appeal Mr Justice Seán Ryan, who sat with Mr Justice George Birmingham and Mr Justice John Edwards, said the court would reserve judgment to a date "as soon as possible".
O'Reilly lost an appeal against conviction in 2009 while in August 2012 he failed in a subsequent attempt to have his conviction quashed after arguing his detention in the Midlands Prison was unlawful.
In November 2012 O'Reilly was granted legal aid in his bid to have his conviction declared a miscarriage of justice after the State lodged no objection.
Section 2 of the Criminal Procedure Act 1993 states that a person who remains convicted after appeal may apply to the court to have their convictions quashed based on alleged new of newly discovered facts that show a miscarriage of justice occurred.