Graham Dwyer sat impassively in court on Friday as his appeal against his conviction for the murder of childcare worker Elaine O’Hara was dismissed on all grounds.
There was “no basis” to consider that Dwyer’s trial before the Central Criminal Court in 2015 was unfair or that his conviction, by unanimous jury verdict was unsafe, the three judge Court of Appeal concluded.
The mandatory life sentence for murder imposed on Dwyer after his March 27th 2015 conviction was backdated to October 2013, when he first went into custody on the murder charge.
Ms O’Hara (36) was last seen on August 22nd 2012 in a public park in Shanganagh, south Dublin. Some of her remains were found on Killakee mountain just over a year later.
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A core ground of Dwyer’s appeal was that he was entitled to a retrial concerning whether mobile phone call data records admitted into evidence should have been excluded for reasons including that the 2011 Irish law under which the data was retained and accessed by investigating gardai was found by the High Court in 2018 to breach EU law.
Dwyer had successfully challenged the 2011 law in proceedings involving the High Court, Supreme Court and Court of Justice of the EU which were finally determined just last year.
On Friday, the COA, comprising court president Mr Justice George Birmingham, Mr Justice John Edwards and Ms Justice Isobel Kennedy, found the call data records were properly admitted into evidence and, in any event, were “not that significant at all” in the context of the prosecution case against Dwyer.
There were two elements to the phone evidence presented by the prosecution, it said.
The first element was of 2,620 text messages taken from mobile handsets themselves and from computer backups of the phones. There was no issue about the admissibility of this evidence, it noted.
The second element was data from records retained by mobile telecommunications companies for billing purposes and in accordance with the Communications (Retention of Data) Act 2011 – the Act declared in 2018 to breach EU law because it provided for general and indiscriminate retention of data for the purposes of investigating serious crime without appropriate safeguards or independent scrutiny.
The COA said the prosecution case related to five mobile phones, including two retrieved from Vartry reservoir in 2013. Only one of the five phones, referred to as phone A and as Dwyer’s work phone, was at issue in relation to the call data evidence.
While there was call data evidence of parallel movements of the work phone and other phones, including a ‘Master’ phone, phone D, attributed to Dwyer, such as lead to the conclusion of a link between the phones and that they had a common user, there was other evidence to the same effect that was as powerful and arguably more compelling”, it held.
This included details of the purchaser of one of the phones, phone B, including a phone number diverging by just one digit from Dwyer’s own phone number and an address being provided which was similar to the address of his sister.
Other evidence including text messages of March 2011 in relation to the birth of Dwyer’s daughter and text messages about the purchase of a new bike, including the effect that had on Dwyer’s commute time, something he had discussed in Garda custody.
A text sent from one phone to Ms O’Hara’s phone on May 25th 2011 said: “Good. Looking forward to getting new bike tomorrow to try and lose weight. Must get fit for the murder.” There was evidence that Dwyer purchased a bike on that occasion, the court noted.
There were several other text messages between March 2011 and August 2012, including a text sent on August 15th 2012 from the ‘Master’ phone to phone E, the ‘Slave’ phone attributed to Ms O’Hara, in relation to arriving at her apartment, for which there was CCTV footage of Dwyer.
A text on August 22nd 2012, the day Ms O’Hara disappeared, was sent from the slave phone to the Master phone. It said: " Sir. Can i ask a favour. Please don’t mention killin 4 a while just until i settle back to life. Please sir.” The Master phone responded: Fine. But tonights punishment will be like me pretending to do something for real ok?” to which a text from the Slave phone replied; Ok. Thank u sir.” A later text from the Master to the Slave phone just after 6pm that day instructed: “Go down to the shore and wait.”
This and other evidence lead the court to conclude that, even if the call data was not admissible, there was other evidence to support the case going to the jury and there was “no miscarriage of justice” arising from the admission of the call data evidence.
The prosecution position might be seen as a contention that, in the particular circumstances of this case, the call data records linked to phone A/the work phone, represented the “icing on the cake”.
It dismissed all other grounds of appeal, including that explicit videos of Dwyer being intimate with the deceased and other women should not have been shown to the jury. It upheld the trial judge’s ruling that the probative value of the videos outweighed their prejudicial value.
