Behind the scenes of the Graham Dwyer trial there were several attempts to exclude evidence from going to the jury.
The defence sought to have the case dismissed in the closing days of the trial, and prior to that, sought to exclude four vital elements of evidence.
Darci Day and the Christmas card
The prosecution applied to include evidence via videolink from Darci Day, a young American woman who had been in contact with Dwyer via websites.
Prosecuting counsel Seán Guerin produced a Christmas card sent by Dwyer to Day while he was incarcerated in December 2014.
The card said a woman had committed suicide and Dwyer was being charged with her murder, but there was no evidence.
Guerin said Day was now terrified to be in the same room as Dwyer. She also did not have a passport and could not be compelled to get one. Defence counsel Remy Farrell argued Day should attend in person or her evidence should be excluded.
Mr Justice Tony Hunt ruled the sending of the Christmas card alone was sufficient to allow video evidence. If Day lived at the "far end of Parkgate Street", it would have been sufficient.
“She hasn’t had access to this four-page document on his computer [Killing Darci, a graphic and violent description of her rape and murder]. Her fears mightn’t have been regarded as irrational if she had seen it,” he said.
Text messages recovered from O’Hara’s laptop
The defence applied to have text messages taken from O’Hara’s laptops excluded. The messages had been deleted, but remained on the computers’ hard drives and were extracted and decoded with the use of specialist software. The kernel of Farrell’s argument was that the software was novel, had not been properly tested or validated, and there was no error rating for it.
Guerin argued the method was industry standard, widely used and freely available and did not need to be verified.
Mr Justice Hunt said he was satisfied the method had been in use for many years and allowed the evidence. “Because it is novel for the courts, it doesn’t mean it is novel for the area involved,” he said.
Garda interviews and “dumpster diving”
On February 13th, an application was made to exclude Dwyer’s interviews with gardaí. It had two grounds. The first was that the entire arrest was tainted by a “covert operation”. The operation involved senior gardaí going “dumpster diving”, and removing a turtle wax tin from Dwyer’s bin so that his DNA could be tested.
The second ground was that Dwyer had been entitled to have a solicitor with him during questioning because of a Supreme Court judgment in March 2014, in DPP v Gormley and White.
Farrell argued the right pre-existed at the time of his client’s arrest due to the European Convention on Human Rights Act 2003.
Guerin argued the Supreme Court’s remarks on the presence of a solicitor were not binding because they were made as an aside in Gormley and White. He said details of the DNA collected from the turtle wax tin were not revealed to the investigation and were not being used in evidence, so had no impact on Garda interviews.
Mr Justice Hunt said, though he could not understand why he wasn’t told, the investigating officer, Det Sgt Peter Woods, was unaware of the turtle wax incident. He had made his own decision about the arrest and was not tainted by it, he said.
On the issue of the right to a solicitor during questioning, the judge said there was no blanket right. “I do find, on the basis of the trend and opinion in Gormley, that there is the possibility of such a right being present in some cases, but it is based on the right being requested, being reasoned, and being considered in a reasoned way,” he said.
The detention was lawful, and the fruits of it should be available to the court.
Telephone records
On February 23rd, Farrell sought to exclude evidence collected from telephone companies. The records had chiefly been obtained under the Communications (Retention of Data) Act 2011, which was introduced following an EU directive.
He said the European Court of Justice had subsequently found the directive was in breach of the charter on human rights and ruled it illegal, which meant the legislation, and by extension the data collected on Dwyer, was illegal.
Guerin said the charter only applied to implementing union law, and since 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.
Videos
On March 4th, the defence applied to prevent video evidence from being shown to the jury. It was of Dwyer having sexual encounters with women including Elaine O’Hara.
Farrell argued his client could not possibly receive a fair trial once the videos were shown. He said it was difficult to approach this material “without having a strong visceral reaction”.
“How can a presumption of innocence survive?” he asked. He wanted the detective in the case to instead read into the record a description of what was shown in the videos.
Guerin argued the videos were relevant and probative because they show the accused man stabbing the deceased and because they appeared to give the impression there was “some considerable reluctance” on O’Hara’s part and “some considerable enjoyment on his”.
Having viewed the videos in his chambers, Mr Justice Hunt ruled they could be played to the jury. They showed Dwyer “capable of passing from fantasy to reality”, he said.
It would also allow jury to decide if, as had been implied, Dwyer was only doing some things “as a favour” to O’Hara.
Only the actual sight of the videos would be adequate to convey “that very important point”, he said.
Lack of causation
On March 16th, after the prosecution had closed its case, Farrell made an additional application to have the jury discharged on the basis that there was no proof of causation.
He argued there was no cause of death and the prosecution had not proved his client caused O’Hara’s death.
A finding of guilt could only be reached on the basis that there was no other rational explanation than that the accused committed the crime, he said.
While not accepting Dwyer had been present at the time of O’Hara’s death, he asked how the prosecution could dispel the possibility that she had committed suicide in his presence.
“It’s not a hypothesis one can dismiss as unreasonable,” Farrell said.
Guerin argued a jury could infer causation from the evidence. The accused man unambiguously stated an intent to kill and elaborated a plan, including the pretence of suicide, the isolation of a vulnerable woman in remote locations, and the removal of phones.
“All I ask them to infer is that when the accused man said he was going to do those things, he meant it,” Guerin said.
Mr Justice Hunt said it was correct to say there was no direct evidence of the cause of death, but it would be an “affront to common sense to say there was a basis on which to say causation could not be inferred by the jury”.
He listed the evidence, including texts, videos and items from the Vartry reservoir, as well as the “silence of the master phone after 6pm on August 22nd”.
“I have no hesitation in rejecting this application,” the judge said.
An attempt to have the jury discharged on the basis the judge looked “gravely” at the accused and “shook his head”, was also dismissed.
