Video evidence will be key in any appeal by Graham Dwyer

Should Graham Dwyer decide to appeal his conviction for the murder of Elaine O’Hara, several issues could be raised, including comments from the judge and the admissibility of evidence collected from two mobile phones.

Video evidence will be key in any appeal by Graham Dwyer

The main grounds, however, seem to lie with the decision to show the jury videos of a graphic nature, according to senior counsel Seán Gillane who says the issue will “undoubtedly” be raised in any appeal.

“The argument, as I understand it, was simply put by Mr Farrell, counsel for Mr Dwyer, which was these images were so graphic that my presumption of innocence, as it were, is not going to be able to withstand that once a jury sees it,” said Mr Gillane, speaking on RTÉ Radio One’s Today with Sean O’Rourke.

“It’s a straightforward prejudice argument that no one could treat the man fairly having seen what’s depicted on the images.”

Other aspects of the case could also be debated, including the admissibility of evidence gathered from two mobile phones retrieved from the Vartry reservoir in Co Wicklow.

The defence has already challenged the reliability of methods used by computer experts to extract, examine and interpret the retrieved text messages which form a key part of the prosecution’s argument. While the application failed in court, it could still be used as grounds for appeal.

“That’s probably going to be the real meat of the appeal although it’s very, very difficult from the outside looking in to predict that. This is a notoriously complicated area,” said Mr Gillane.

As for the comments made by Mr Justice Tony Hunt, while his support for the jury’s verdict sparked some controversy, he was speaking after the conviction so his words could not have influenced the outcome of the case. “As to your finding, verdicts are not my business, but if it’s any consolation I 110% agree with your verdict. The question of suicide wasn’t there. I don’t mind giving my view now,” the judge said.

Mr Gillane, however, said it is not uncommon for a judge to comment on a verdict after it has been delivered. “The bottom line about that that remark is that it came after the verdict was delivered so it’s very, very hard to see how you could suggest it affected the verdict.

“It’s not a unique thing for a judge to say, particularly after a lengthy trial where a jury have had to hear particularly sordid evidence. Sometimes it happens that in those cases, judges will make a remark of that class to effectively reassure people that they’ve done the right thing,” he said.

“That’s not to say the defence in this case won’t attempt to bring it into an appeal if they’re going to be making an argument that during the course of the trial the judge displayed some class of bias against the accused but its very, very hard to see how that could be successfully maintained.”

Dwyer’s legal team could also bring up that their client was questioned by gardaí without a solicitor present.

It is understood his legal team would have to show the court of appeal he sought a solicitor and that this request was not granted.

They could also question the admissibility of evidence collected from Dwyer’s home by a Garda superintendent and focus on the absence of the cause of death.

“Broadly speaking, and I suspect this case would be no different from any other, if you lodge an appeal against a conviction, you essentially lodge that appeal on the basis of all of the arguments you made in the trial which you lost,” said Mr Gillane.

“In this case it would appear that, broadly speaking, that appeal will relate to mobile phone evidence, objections taken to the admissibility of interviews with the accused while in custody, the graphic content of some of the video images that the jury saw and one might also suspect a ground of appeal based on the absence of any evidence in relation to cause of death.”

READ MORE: Graham Dwyer: Murderer lived a darker double life

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