DPP -v- O’Reilly
Court of Criminal Appeal
Judgment was delivered by the Chief Justice, Mr Justice Murray, on March 6th, 2009. Composition of court: Mr Justice Murphy, Mr Justice McCarthy
Judgment
The applicant, Joseph O’Reilly, failed in his appeal against his conviction for the murder of Rachel O’Reilly, his wife, which he had appealed on five grounds relating to the admissibility of evidence.
Background
Following a lengthy trial, Joseph O’Reilly was convicted on July 21st, 2007, by a jury of the murder of his wife in their home on October 4th, 2004.
The grounds of the appeal were: that the trial judge had erred in allowing the prosecution to bring forward evidence of his interviews in custody which showed that he exercised his right to remain silent for most of the time; he erred in refusing to exclude from the evidence a statement O’Reilly made to gardaí at his mother’s house at a time when no caution was administered, contrary to Judges’ Rules; he erred in refusing to exclude evidence of telephone records and data without evidence that the mobile phone operator was at the time licensed to operate in the State; he erred in refusing to exclude evidence of CCTV footage of the area showing what could have been the applicant’s car; he erred in refusing to exclude evidence of e-mails found on the applicant’s computer which had dated from four months prior to the murder.
Decision
The first ground concerned a number of interviews with the applicant in Drogheda Garda station, which were videotaped, and of which notes were taken.
They each contained data concerning the place, date and time of the interview, including the time it concluded, as well as the brief exchanges between him and members of the gardaí.
Counsel for the applicant had submitted that, by including both the starting and finishing time of the interviews and the content, it was indicated to the jury that he had exercised his right to silence. The trial judge had pointed out that the jury could not draw any adverse inferences from this.
Mr Justice Murray said that it was not the law that any evidence from which it might be inferred that an accused exercised his right to silence should be excluded from the jury for that reason alone.
In the Finnerty case, referred to by counsel, the issue was that the jury had been invited to draw adverse inferences from the fact that the accused had declined to say anything during interviews, but later gave his account of events in court. That did not happen here.
Accordingly, the court was correct in admitting the portions of interviews, including their start and conclusions times.
The second ground related to an interview with the applicant at his mother’s home two days after the murder, as the bereaved husband of the victim.
The statement included the family background, how he met the victim, and general family activities. It also gave an account of his movements on the day of the murder, including his discovery of the murder. The statement was entirely exculpatory.
It was an important element in the prosecution case in that his account of his movements conflicted directly with the evidence from the mobile phone records.
Counsel for the applicant had said that at the time of the interview he must have been a “suspect”, yet he was not cautioned.
Mr Justice Murray said that the term “suspect” had an elastic meaning. After a serious crime the whole world is a potential suspect.
The Judges’ Rules state that when a garda makes up his mind to charge someone, he must caution him, and persons in custody must not be questioned without being cautioned.
Mr Justice Murray said that a breach of the Judges’ Rules does not automatically require a judge to exclude from evidence a voluntary statement made by an accused. This statement did not come within the ambit of the Judges’ Rules.
In the Breen case, referred to by counsel for the applicant, the person in question had been invited to make admissions without being cautioned at a time when he was troubled, afraid and in an agitated state. This did not occur here, where there was no suggestion that the applicant was on the threshold of admitting involvement in the crime.
The trial judge correctly exercised his discretion in not excluding the statement, he said.
The third ground related to the defence claim that, because it was not proved in evidence that 02 Ireland was a licensed operator within the meaning of section 7 of the Postal and Telecommunications Services (Amendment) Act 1999, evidence of mobile calls should not be admitted.
Evidence was given by the government liaison officer for 02 that the company was a licensed operator, which was not challenged. Mr Justice Murray said that whether or not 02 was a licensed operator was a matter of fact which may be proved by admissible evidence. This could be given by a competent officer of the company with knowledge of the fact. That was given and unchallenged, and there was no objection to the admissibility of the evidence. The premise of the applicant’s submission failed, and the phone records were admissible.
The fourth ground related to the evidence by a specialist in analysing CCTV evidence. Counsel for the applicant had argued that, because he did not carry out a comparison with footage containing a similar vehicle to the applicant’s car, it should not be admitted.
Mr Justice Murray said that the expert’s evidence did not establish that the applicant’s car was in the vicinity at the time in question, only that there was no evidence that no similar car was there. This was not incompatible with the mobile phone evidence. It was a matter for the jury what weight they gave to his evidence.
The fifth ground, concerning the e-mails between the applicant and his sister, revealed his state of mind with regard to his wife and their marriage. It was submitted that because they were sent four months before the murder, their probative value was outweighed by their prejudicial effect on a jury.
Mr Justice Murray said that the e-mails were manifestly admissible and relevant. The fact that they were dated four months earlier did not affect their probative value.
The application was refused.
The full judgment is on www.courts.ie
Patrick Gageby SC and Anne Rowlands BL, instructed by Garrett Sheehan and Co, for the applicant; Denis Vaughan Buckley SC and Dominic McGinn BL, instructed by the Chief Prosecution Solicitor, for the DPP