Wednesday 28 September 2016

Legal issues that may form basis of Dwyer appeal

Indeopendent.ie Newsdesk

Published 12/05/2015 | 02:30

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

There are several legal issues that may form the basis of Graham Dwyer's appeal against his conviction.

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PHONES: TEXT MESSAGES

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 being excluded from the jury.

PHONES: CALL DATA RECORDS

Another key dispute related to the admissibility of call record data (CRD) held by various telephone service providers (TSPs).

Last year, the European Court of Justice (ECJ) declared the Data Retention Directive to be in violation of the rights to privacy and data protection enshrined in the EU Charter of Fundamental Rights.

In Ireland, the directive was implemented through the Communications (Data Retention) Act 2011, which obliges all service providers to store logs of customers' phone or internet records for two years.

Trial Judge Anthony Hunt ruled that the 2011 law was properly invoked and enforced despite the EU directive being struck down.

CAUSATION

There was no medical cause of Elaine O'Hara's death. As the trial drew to a close, Dwyer sought to have the court direct a verdict of not guilty on the basis that one of the constituent elements of murder - causation - had not been met. Judge Hunt refused to direct an acquittal on this basis.

APPLICATION TO DISCHARGE

The defence made an application late in the case to have the jury discharged based on a contention that the judge had glared at Dwyer during a difficult piece of evidence.

The defence may also focus on the judge's comments after the conviction in which he said he agreed "110pc" with the jury in finding Dwyer guilty.

'DUMPSTER DIVING'

In the absence of the jury, Detective Sergeant Peter Woods - who led the murder investigation and arrested and questioned Dwyer - came under pressure from the defence to explain a number of features about the arrest and detention of Dwyer.

This included an alleged 'off the books' operation conducted by his Chief Superintendent Diarmuid O'Sullivan who took a tin of Turtle Wax - and matched the DNA from it with DNA found on the mattress in Elaine O'Hara's apartment - weeks before Dwyer's October 17, 2013 arrest.

Chief Supt O'Sullivan told Judge Hunt that items retrieved during the early morning operation were retrieved covertly, but denied he had been involved in a covert operation.

Judge Hunt ruled there was sufficient evidence for Sgt Woods to make a lawful arrest despite Chief Supt O'Sullivan "dumpster diving" through Dwyer's bin without telling him.

SOLICITOR DURING QUESTIONING

Dwyer also sought to have his garda interviews excluded because he did not have a solicitor present during questioning.

The Irish Supreme Court ruled in 1999 that the right of reasonable access does not extend to having a lawyer present during questioning. But last year the court warned that it may find that the right to have a lawyer present during questioning is a constitutional right.

Judge Hunt ruled that there was nothing in Irish law that requires the presence of a lawyer during questioning.

Irish Independent

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