Dwyer appeal likely to focus on phone data and questioning
Grounds for appeal, to be heard within the year, were laid throughout trial
Graham Dwyer’s legal team is likely to focus on the procurement of telephone records and on questioning in custody. Photograph: Cyril Byrne / The Irish Times
Remy Farrell: Graham Dwyer’s lawyer. Photograph: Collins Courts.
Graham Dwyer’s appeal over his conviction for the murder of Elaine O’Hara is likely to be heard far sooner than appeals in the past and will focus on legal arguments made during the 46-day trial.
Since the establishment of the permanent Court of Appeal last October, criminal appeal cases, which had been heard on an ad hoc basis, are being systematically dealt with. A backlog of more than 500 in early 2014 is steadily being cleared.
While in the past an inmate could expect to wait upwards of two years before having an appeal heard, it is likely Dwyer’s appeal will be heard in closer to 12 months.
The grounds for his appeal were laid throughout the trial. Any additional arguments are unlikely to be countenanced.
According to barrister Seán Gillane SC, following a Supreme Court ruling in DPP v Cronin, arguments cannot be raised that were not raised in the trial.
“That’s not a complete shut-out but generally there is a prohibition on coming up with new ideas. You would want to have a very special reason to be allowed run a point you didn’t complain about in the court below,” he said.
Charge to jurors
It also means there can be no complaints raised about Mr Justice Tony Hunt’s lengthy charge to jurors because Remy Farrell SC, for Dwyer, made no complaints about it when it was delivered.
The legal issues thrashed out in Court 13 of the Criminal Court of Justice centred on trying to exclude five elements of evidence. There was also an attempt to prevent the case going to the jury on the basis there was no evidence Dwyer had caused Ms O’Hara’s death.
There was even a suggestion Mr Justice Hunt looked “gravely” at Dwyer and shook his head, and that was a reason to discharge the jury.
Though all grounds will probably be aired at appeal, Dwyer’s legal team is likely to focus on the procurement of telephone records and on Dwyer’s questioning in custody. The data collected from telephone companies was obtained under the Communications (Retention of Data) Act 2011.
This legislation requires companies to retain data on phone users for two years, including records concerning the date, time and nature of the contact between the phone in question and other phones. It also includes the particular phone mast cell through which the call or text was routed. It was a vital part of the case.
The Irish legislation was introduced following a European Union directive in 2005, the Data Retention Directive. In April 2014, after a case taken by Digital Rights Ireland, the European Court of Justice found the EU directive was in breach of the EU charter of fundamental rights, in particular in relation to privacy, and ruled it illegal.
Mr Farrell had maintained this meant the Irish legislation was illegal and by extension the data collected on Dwyer’s phone activity was illegal.
Seán Guerin SC, for the prosecution, said the Irish legislation stood on its own and was a continuation of retention legislation in 2005. He also said that since the charter applied only to implementing union law and the directive no longer existed, the Irish legislation was not open to charter scrutiny.
Mr Justice Hunt found the State had passed primary legislation and it remained in place. It enjoyed a presumption of constitutionality, and charter rights were “not at all engaged”, because the directive no longer existed.
Mr Farrell’s core argument around the questioning of Dwyer while in Garda custody was that the interviews should be excluded from evidence because Dwyer did not have a solicitor with him during questioning.
Right to solicitor
He based the right to a solicitor during questioning on a Supreme Court judgment, in DPP v Gormley and White, delivered in March 2014. It ruled a person is entitled to legal advice before questioning, which Dwyer got, but also suggested there may be a right to have a solicitor present during questioning.
Mr Farrell said that right pre-existed at the time of Dwyer’s arrest.
Mr Guerin argued the Supreme Court’s remarks on the presence of a solicitor during questioning were not binding because they were made as an aside and not as a ruling.
Mr Justice Hunt found there was no blanket right to have a solicitor present during questioning, but he did find, “on the basis of the trend and opinion in Gormley”, that there was a possibility of such a right being present in some cases. This was based on “the right being requested, being reasoned and being considered in a reasoned way”. Crucially, Dwyer did not request the right at the time of his questioning.
The other issues argued including the decision to allow American woman Darci Day give evidence by video link and the inclusion of text messages recovered from Elaine O’Hara’s computer are also likely to be raised by the defence.
The effect on jurors of viewing videos of Dwyer having sex and stabbing women, including Ms O’Hara, is also likely to be emphasised.
It will be for the Court of Appeal to decide if the judge made the correct decisions.