Graham Dwyer appeal may be heard by end of year

Graham Dwyer’s appeal against his conviction for the murder of childcare worker Elaine O’Hara may be heard before the end of the year.

Lawyers for Dwyer (42) on Monday served formal notice of his intention to fight his conviction for the 2012 murder.

The former architect was convicted of the crime in March following one of the most high-profile criminal trials in recent times.

His legal team will submit the grounds of appeal - the points of law on which it is seeking reappraisal in the courts - in the coming weeks, after which the prosecution will file its response.

Legal sources said a recent easing of the backlog of criminal appeals meant the case could be listed for hearing by the new Court of Appeal at the end of the year or early in 2016.

Dwyer, from Kerrymount Close, Foxrock, Dublin, was found guilty of murdering Ms O’Hara (36), on August 22nd, 2012.

Her remains were found on Killakee Mountain, Rathfarnham, on September 13th, 2013.

Sexual gratification

Dwyer had stabbed her to death for his own sexual gratification, the jury found. He was sentenced to life imprisonment.

Appellants generally must base their appeals on points raised during a trial, so Dwyer’s case will likely focus on issues thrashed out during the 11-week trial at the Criminal Courts of Justice.

For instance, there was an attempt to prevent the case going to the jury on the basis that there was no evidence Dwyer had caused Ms O’Hara’s death.

There was also a suggestion from the defence team that the trial judge, Mr Justice Tony Hunt, looked "gravely" at Dwyer and shook his head, and that that was a reason to discharge the jury.

Though multiple grounds can be aired at appeal, Dwyer’s legal team may 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.

Data Retention Directive

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.

Defence barrister Remy Farrell SC 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 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.

Core argument

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.

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.