Tuesday 19 September 2017

Hotly-contested issues Graham Dwyer could pursue in appeal

Graham Dwyer
Graham Dwyer
Dearbhail McDonald

Dearbhail McDonald

SEVERAL issues hotly contested in the absence of the trial's jury could be raised in Graham Dwyer's murder conviction appeal.

TEXT MESSAGES - the backbone of the prosecution case

The first 'trial within a trial' occurred when 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.

'BINTELLIGENCE', MEDIA LEAKS & MIRANDA

The second major 'trial within a trial' related to the admissibility of Dwyer's garda interviews.

In the absence of the jury, Detective Sergeant Peter Woods - who led the murder investigation and arrested and questioned Dwyer - came under pressure from defence counsel Remy Farrell SC to explain a number of features about the arrest and detention of Dwyer, including what he [Mr Farrell] suggested was "some kind of 'off the books'" operation conducted by his boss, Chief Superintendent Diarmuid O'Sullivan.

On September 27, 2013 - weeks before Dwyer's October 17, 2013 arrest - Chief Supt O'Sullivan took part in an early-morning search of Dwyer's bin outside his Foxrock home.

The Chief Superintendent took a tin of Turtle Wax and matched the DNA from it with DNA found on the mattress in Ms O'Hara's apartment.

But he did not pass on the information to Det Sgt Woods. The "bintelligence" operation, as we dubbed it during the trial, was not recorded in the jobs books maintained at Blackrock Garda Station.

Chief Supt O'Sullivan told Judge Hunt the items, including the Turtle Wax tin, were retrieved covertly, but denied he had been involved in a covert operation.

Mr Farrell also complained heavily to the court about detailed media coverage of Dwyer's arrest in circumstances where Dwyer's solicitor Jonathan Dunphy could not secure certain information from gardaí at that time.

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.

However, the custody regime was turned on its head in March 2014, five months after Dwyer was arrested. This was when the Supreme Court issued a landmark ruling bringing our custody regime closer to the famous Miranda Decision of the US Supreme Court.

In a unanimous decision, the Supreme Court warned that it may, in a future case, find that the right to have a lawyer present during questioning is a constitutional right.

The question of the extent of the right of access to a solicitor during custody was one that vexed Judge Hunt, who took a number of days to consider it.

But he ultimately ruled that there was nothing in Irish law that requires the presence of a lawyer during questioning.

The judge also 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.

THE PHONES: CALL DATA RECORDS

Another key dispute related to the admissibility of call record data (CRD) held by various telephone service providers (TSPs), such as Vodafone and Three.

In April 2014, the European Court of Justice (ECJ) delivered a landmark ruling that posed a potentially mortal threat to another key aspect of the prosecution of Graham Dwyer.

In the so-called Digital Rights Ireland case, the 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.

Days of extensive legal argument followed.

But Judge Hunt ruled that the 2011 law was properly invoked and enforced despite the EU directive, which he described as the legal equivalent of a dead parrot, being struck down.

CAUSATION

There was no medical cause of Elaine O'Hara's death. As the trial drew to a close, Dwyer argued that there was no evidence that the offence of murder had actually been committed.

He 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, saying that it would be an affront to common sense to say there was no basis for causation to be inferred.

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 yesterday in which he said he agreed "110pc" with the jury in finding Dwyer guilty.

These, and other issues, could be challenged by Dwyer in his appeal against his conviction for the murder.

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