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The key grounds on which murderer Graham Dwyer’s appeal case will be fought

Dwyer’s long-awaited appeal against his murder conviction gets under way in front of the three-judge court today.

Shane PhelanIndependent.ie

Lawyers for Graham Dwyer will tell the Court of Appeal the case against him should never have gone to a jury because there was an absence of evidence as to what caused childcare worker Elaine O’Hara’s death.

The issue, as well as the lawfulness of the seizure of his mobile phone data, are among 12 grounds of appeal being advanced by the architect, the Irish Independent has learned.

Most of the focus in the run-up to the hearing has been on the 50-year-old killer’s successful challenge in the Supreme Court and Court of Justice of the European Union to the law under which his mobile phone metadata was seized and retained.

These findings will allow him to argue that the metadata evidence, which was crucial to establishing a link between him and Ms O’Hara (36), should have been excluded from his trial.

Ms O’Hara went missing in August 2012 after a secret sadomasochistic relationship with Dwyer, during which he fantasised about stabbing women.

Her remains were found 13 months later in a forest at Killakee in the Dublin Mountains.

While the metadata ground of appeal is the most significant, several other issues will be raised by Dwyer.

Victim Elaine O'Hara

Among the most prominent is a claim that the jury in his 2015 trial should have been discharged on the basis there was no proof of causation.

Defence counsel Remy Farrell SC argued during the trial that there was no cause of death and the prosecution had not proved Dwyer caused Ms O’Hara to die.

Prosecution counsel Sean Guerin argued that a jury could infer causation from the evidence.

Trial judge Mr Justice Tony Hunt dismissed an application to discharge the jury, finding that while there was no direct evidence of the cause of death, it would be an “affront to common sense” to say causation could not be inferred.

Dwyer, who is incarcerated in the Midlands Prison, is expected to attend the hearing. His appeal will be heard by Court of Appeal president George Birmingham, Mr Justice John Edwards and Ms Justice Isobel Kennedy.

Another issue to be raised is the playing of videos to the jury of Dwyer involved in sex acts with women, including Ms O’Hara. The videos were found on an external hard drive owned by Dwyer.

Mr Farrell had sought for descriptions of the videos to be read into evidence instead, arguing it would be impossible for his client to receive a fair trial if the videos were shown, but Mr Justice Hunt ruled they could be played.

In nine videos Dwyer was shown stabbing or pretending to stab three women, including Ms O’Hara, during sex.

In almost all the videos, the women were heard screaming and, in many cases, sobbing.

A further point of appeal relates to the fact Dwyer did not have his solicitor present when he was questioned by gardaí in October 2013.

At the time, it was not practice for a solicitor to be present in garda interviews.

Indeed, a 1999 Supreme Court ruling stated suspects were not entitled to have their lawyers present while they were being questioned, although they had a constitutional right to consult a solicitor during their detention.

The situation changed in May 2014 following another Supreme Court ruling that suspects who request a lawyer cannot be questioned until they get that legal advice.

In reaction to the ruling and emerging European Court of Human Rights case law, the DPP instructed gardaí to allow solicitors to attend interviews in garda stations with immediate effect.

During Dwyer’s trial, Mr Farrell argued the right pre-existed at the time of his client’s arrest due to the European Convention on Human Rights Act 2003.

However, Judge Hunt found it was not a blanket right and the detention was lawful.

Although the regime requested by the DPP has been in place ever since, it is still technically not a legal right in Ireland.

Many legal experts who have been watching the case agree that while the metadata ruling helps Dwyer’s appeal, he still faces an uphill battle to overturn his conviction.

Even if the Court of Appeal finds it should have been excluded, it will have to weigh up whether there was sufficient other evidence to prove the case against Dwyer.

Another Supreme Court ruling, this time in a case called JC, may also come into play.

This found that evidence obtained in breach of a person’s rights can still be deemed admissible if the breach was inadvertent, something the State could argue in the Dwyer case as the metadata was obtained under the law as it was at the time.


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