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Graham Dwyer likely to lodge appeal against conviction

There were numerous legal arguments that Dwyer’s legal team could argue are grounds for appeal.

Image: Garda Press Office/PA

GRAHAM DWYER WAS found guilty of the murder of Elaine O’Hara last month. Today he is back in court to hear his sentence.

In murder trials in Ireland, there is an automatic life sentence applied on a guilty finding.

The sentencing means that Dwyer will spend his life behind bars until he is deemed fit for release by the Prison Service. In Ireland, time served for those released under life sentences averages out at around 14 years.

How does an appeal work? 

Dwyer is also expected to lodge an appeal against his conviction. So, how does that work?

Barrister of law, Venetia Taylor, explained that as Dwyer has been found guilty of murder, attracting a mandatory sentence, his appeal can only be on his conviction.

The appeal will not hear oral evidence and at the end of the appeal the judge may direct that there be a re-trial.

There has been speculation that the appeal could be heard a lot sooner than other cases that come before the courts. Taylor said that while the new Court of Appeal has been clearing a substantial backlog, there is still some delay in cases being heard.

However, an application for the appeal to be expedited could be made.

The new Court of Appeal gives an automatic right of appeal, where previously one had to apply for leave. This requirement has now been removed, said Taylor.

Under the new rules a Notice of Appeal must be filed by Dwyer’s legal team with the Registrar.

Dwyer cannot simply file an appeal for no reason. The Notice of Appeal must set out the grounds in which the applicant proposes to base his appeal.

Grounds for appeal

The grounds will be very much up to his legal team. There were numerous legal arguments raised throughout the trial. In an appeal, arguments cannot be raised that were not raised in the trial.

Taylor explained that as the case was based on circumstantial evidence, any piece of evidence, if broken away or dismissed, will lose its integrity or probative value.

She explains that circumstantial evidence has weight when it is taken together, and if one piece is to be lost then a judge could order a retrial as the verdict decision would be viewed as unsafe.

“I would expect them to contest the admissibility of the video footage of him having sex,” said Taylor, adding it could be seen as prejudicial to Dwyer and its prejudice may have outweighed its probative value.

The case was circumstantial and each element was inter-dependent, for example, the video footage showed he lied to gardaí when he said Elaine O’Hara was more into the stabbing then he was, so if either the footage or the interviews were ruled out, the significance of the remaining evidence would be much weaker.
That might be a problem on appeal as the DPP would have to hold a lot of the rulings.

There are speculations that the charge of the jurors and the phone mast data may also be grounds to appeal, however, this is very much up to Dwyer’s legal team.

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Evidence 

A recent judgment by Clarke J in DPP v J.C in the Supreme Court last week, 15 April, could also impact the case, says Taylor.

The evidence that gardaí secured from Dwyer’s bin and the leaks to media may be impacted on by the judgments in DPP v J.C.

The judgment for the new test on the exclusion of evidence states:

Where objection is taken to the admissibility of evidence on the grounds that it was taken in circumstances of unconstitutionality, the onus remains on the prosecution to establish either:-(a) that the evidence was not gathered in circumstances of unconstitutionality; or

(b) that, if it was, it remains appropriate for the Court to nonetheless admit the evidence.

The onus in seeking to justify the admission of evidence taken in unconstitutional circumstances places on the prosecution an obligation to explain the basis on which it is said that the evidence should, nonetheless, be admitted AND ALSO to establish any facts necessary to justify such a basis.Where evidence is taken in deliberate and conscious violation of constitutional rights then the evidence should be excluded save in those exceptional circumstances considered in the existing jurisprudence. In this context deliberate and conscious refers to knowledge of the unconstitutionality of the taking of the relevant evidence rather than applying to the acts concerned…

The judgement goes on to state:

Evidence which is obtained or gathered in circumstances where same could not have been constitutionally obtained or gathered should not be admitted even if those involved in the relevant evidence gathering were unaware due to inadvertence of the absence of authority.

So, what can the outcome of an appeal be?

The Court of Criminal Appeal could:

  • Dismiss the appeal 
  • Quash the conviction and release the defendant or,
  • Quash the conviction and order a re-trial or,
  • Quash the conviction and, if the person appealing their conviction or sentence is considered to be guilty of some other offence, substitute a verdict and impose a sentence which is not more severe than the original one.

Read: How long will Graham Dwyer be in prison for?>

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