Saturday 22 October 2016

Dwyer appeal likely to centre on text messages and video evidence

Published 12/05/2015 | 02:30

Graham Dwyer
Graham Dwyer
Victim: Elaine O’Hara
Witness: Detective Sergeant Peter Woods

Text messages, mobile phone records and a decision to allow jurors to watch graphic videos of architect Graham Dwyer stabbing women during sex are likely issues to form the basis of the convicted killer's appeal.

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Last March, Dwyer (42), from Kerrymount Close, Foxrock, Dublin, was found guilty of murdering Elaine O'Hara (36), on August 22, 2012, at a remote spot in the Dublin Mountains.

The childcare worker's skeletal remains were found by a woman walking her dogs on Killakee Mountain, Rathfarnham, on September 13, 2013.

The married father of two, who also has an adult son from a previous relationship, was found guilty by a unanimous jury of stabbing Ms O'Hara to death for his own sexual gratification.

He received a mandatory life sentence and last week, in a highly anticipated move, initiated an appeal against his conviction ahead of a 21-day deadline for doing so.

Yesterday morning the State received formal notice of Dwyer's intention to fight his conviction following one of the most high-profile criminal trials in recent years.

The new Court of Appeal, which has been working through a backlog of criminal law cases, could hear Dwyer's appeal by the end of the year.

During the 10-week trial, Dwyer's defence raised a series of objections, primarily in relation to mobile phone evidence that formed the backbone of the prosecution's case.


Dwyer challenged the reliability of methods used by computer experts to forensically extract, examine and interpret text messages that formed the backbone of the prosecution.

The application failed.

However, had it succeeded, it could have led to many significant text messages - including those between Elaine O'Hara's iPhone and a prepaid 083 number used by Dwyer - being excluded from the jury.

Last year's Digital Rights Ireland ruling is also likely to feature in the appeal.

In April 2014, the European Court of Justice found the EU Data Retention directive was in breach of the EU charter of fundamental rights, especially in relation to privacy, and ruled it illegal.

Defence barrister Remy Farrell SC argued the ECJ ruling meant that Irish legislation implementing the directive was illegal and that data collected on Dwyer's phone was also, therefore, illegal.

However, prosecutor Sean Guerin SC argued that the Communications (Retention of Data) Act 2011 - which gave effect to the directive - was a continuation of retention legislation in 2005.

Trial judge Anthony Hunt found the State had passed primary legislation, which remained in place and gardaí are hopeful that a new Supreme Court ruling would permit use of the phone data even if the material was deemed to have been obtained unconstitutionally.

Members of the public were excluded as videos of Dwyer stabbing and pretending to stab women during sex were shown to the court.

It was argued by the defence that Dwyer's presumption of innocence could not survive the showing of the videos.

Irish Independent

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