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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.
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:
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My wife is deaf and to see our 2 sons aged 3.5 and 22 months using sign to communicate with their mother is nothing short of amazing .my wife also has a sister and brother who are also deaf and a sister who is hearing and watching them in flow of conversation is unbelievable . ISL is a fantastic language and I consider it the most important language I have as without it I would not the woman I married in my life today .
To learn even basic ISL is so expensive, I know a group of friends who wanted to learn. I did basic level with seehear expressed interest in continuing to the next level but never heard back from them. I find it sad the excitement some deaf people express when I use even my basic ISL to help communicate its not that hard to learn or use. I know in transition year we did it and loved it and I could secretly communicate with my friends across the room, bus and in later years a pub/nightclub.
Helena, do you mean DeafHear? There are other places you could learn. Try the Irish Deaf Society.
ISL should be recognised as an official language and the Deaf community deserves this…..
I’ve worked with a deaf colleague and have, over many years, managed to pick up some sign language from what he’s shown me. I won’t say I’m fluent but we can communicate perfectly well and it has given me an insight to his world, noises we take for granted every day he obviously can’t hear. I’ve seen him stepping out onto a road when there was, to our ears, an obviously noisy car coming, I’ve heard him paged several times and while I doubt this was malicious, people genuinely forget. It can be extremely frustrating.
Maybe the pager also had vibration
Maybe paged as in bing bong bing bong can Joe come to reception, Joe to reception please.
I’m afraid it was paged as in Sandra’s version, which was why it was pointless but I don’t believe it was anyone being malicious but rather they simply forgot. He saw the funny side when told about it so, in a way, people genuinely saw past his deafness.
They just want to be heard
That’s terrible! Im a bad person! Please delete journal!
The sign language pic shown at the to of the article is clearly not ISL as only one hand its used for the alphabet in ISL. More than likely the UK Version which is totally different.
Hi Aideen,
It’s very hard to find images of ISL (which is possibly indicative of the larger issue) so hopefully you’ll excuse the use of a generic stock photo of sign language.
Yes Michelle you’re probably right that’s its an indication of the issues The Deaf Community have here in Ireland
Yeah agree with you
The sign language pic… it’s a shame that the Journal did not think to select one of the letters in the American Sign Language Alphabet that is also used in the Irish Sign Language alphabet. (only 8 letters differ between the Irish and American sign language alphabets.)
I recently designed an interactive website to learn basic ISL online for free. It can be found at http://www.learnirishsignlanguage.ie . The idea of the site was to tackle the problem this article presents and show how new media can offer more accessible means of learning this language. The site covers The Alphabet, Numbers, Days of the Week, Months, Colours, Greetings, School, Hobbies, Emotions, Prepositions, Transport, The House, and Weather. Please Explore, Share with friends and enjoy! To avail of all the site offers Chrome is a preferable browser but learning videos are available on all browsers :)
Great resource Kate. :)
Can you put all that into an app for iPhone or Android?
Thanks craig :). The site is created in HTML5 therefore the learning videos can be viewed on iPhones, iPads and android devices. It is not yet an actual mobile app though. I hope to develop a phone app for it in the future. This at least for the moment eliminates the problems of Flash. :)
It’s really good, I learned the ISL alphabet earlier, took me about half an hour! I’m going to keep practicing to get the speed up! Can’t believe how easy it is to memorise! Such a great thing to know! Will definitely pass whatever I learn on to my kids!
The App shown on Late Late show for signing was amazing
Michelle on Hands On was great! Hope you all saw it as we have very little voice in the media and the hearing world. We have huge problems in terms of equality which needs to be addressed badly which people are not aware about e.g a natural right to use ISL in education. This is just one example of many! Way too many problems and lack of awareness in this country.
Thanks a lot Michelle, I’m glad you liked it.
If anyone is looking for ISL Fetac accredited classes, we have them at the Irish Deaf Society http://www.deaf.ie
I personally as a mother would love to see sign language being thought in all schools as a important recognised language, I would love to learn it myself
Wow didnt realise 90k with hearing difficulties in Ireland that is alot of people.
@ Chrissy Buckley
I understand that some school does have ISL programme but it is not recognised by the dept of education. Would be nice if they did.
Just spent the last half hour learning the alphabet in sign! Purely out of guilt!
Well done Michelle you did brilliantly, hope you carry this experience forward.
Thanks a lot Laura!
5,000 ISL in Ireland ! Maybe some Irish deaf who emigrated it new life in England,Australia and USA it could more 10,000 ISL
You never hear them give out
Firstly, congratulations to you Michelle and The Journal for raising this issue and taking part in Hands On, well done. Yes, the pic is not ISL, tip for the future, you could take a photo of the hand of a person that uses ISL. The important thing here is ISL and Deaf awareness. Maybe our government will start listening and give ISL the recognition it rightly deserves.
Michelle, well done on Hands on and for addressing the issue. It was indeed an enjoyable clip to watch and hope to have our silent voices heard more often. Well done :-)
What’ s isl
FlopFlipU,
ISL = Irish Sign Language, the sign language used by Deaf people in Ireland who sign. No, it does not have any connection with spoken Irish.
Hi Michelle, I knopw it being a while however better late than never. I wana say many thanks for doing an article on the Hands on Program. We, Deaf people need allies like you to get the message across to the greater population. So in that way, it would produce positive perspectives on who we are as we are often underestimated despite our poor educational attainment but this does not inhibit our ways of thinking and contribution thanks to our beautiful language, ISL – Irish Sign Language
Good job Michelle
Thanks Pádraig!
When I was in first year in college I wanted to take ISL instead of a European one, and got a large group who wanted the same. At our induction there was a man signing so I though it might be easy enough to organise but no joy, unfortunately.
Hi Michelle
Contact me to meet my ISL learners ASAP.
People Power v Kenny’s Muppets
Let’s call a referendum whether the Rock and Rolling Itish Sign Language be recognised in this beautiful Emerald Isle as our third official language
have your say