The Director of Public Prosecutions had sought to dismiss the 42-year-old’s application as an “abuse of process” and the three-judge Court of Appeal agreed in a judgment delivered yesterday.
In July 2007, O’Reilly was found guilty 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 by her mother on October 4, 2004, and in the intervening period, O’Reilly had appeared as a guest on the topic of her death on The Late Late Show.
Speaking on behalf of the Court of Appeal, Mr Justice George Birmingham said it was an “unacceptable strategy” to raise the arguments O’Reilly had raised at this point.
O’Reilly’s application was based on events that occurred on the third day of his Central Criminal Court trial when a portion of the book of evidence was found in the jury room, the judge said.
It was clear, from the way in which the issue was approached by the trial judge at the time, O’Reilly was fully informed and fully engaged with what was happening at the time.
Having been so aware and so engaged, to raise the argument now after the trial and after his earlier appeal, was an “unacceptable strategy”, said Mr Justice Birmingham.
Accordingly, Mr Justice Birmingham, who sat with president of the Court of Appeal Mr Justice Sean Ryan and Mr Justice John Edwards, dismissed the appeal.
As a result, O’Reilly’s application under section 2 of the Criminal Procedure Act will not now proceed to full hearing.
Counsel for the DPP, Brendan Grehan, had asked the Court of Appeal 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, otherwise the trial would continue.
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, 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”, said Mr Grehan.
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.
Rachel’s mother, Rose Callaly, was present in the Court of Appeal when judgment was delivered. Speaking outside, she told reporters Rachel’s family were “thrilled” that they had continued to get justice.
“It would make a huge difference if he admitted he did it. I don’t think he ever will. There’s not a doubt in my mind who done it,” she said.
“It’s quite a relief, thank God, that it’s turned out this way, so I’m delighted.”
She said it was one more step for her and “hopefully, please God, it’ll be the last. We’re very grateful that we’ve continued to get justice and that’s very important to us. It’s a very big thing that we got justice.”
“The next big thing I’d love him to do is to admit what he done but whether that will ever happen or not, I don’t know.”
When asked what difference that would make to her, she said: “A huge difference. I can’t tell you why but it really would and maybe, please God, he’ll come around to doing the right thing.”
Counsel for O’Reilly, Patrick McGrath, said the jurisdiction to dismiss miscarriage of justice applications “ought to be used sparingly”.