Graham Dwyer has lost his appeal against his 2015 conviction for the murder of childcare worker Elaine O’Hara.
The Court of Appeal on Friday dismissed Dwyer’s case on all grounds of appeal, including in relation to the admissibility of mobile phone call data records.
“We have not been persuaded that the trial was unfair or that the verdict was unsafe,” the three-judge court held.
The court agreed with the prosecution that there was enough evidence, even if the disputed call data evidence had been excluded, to support the conviction. The “limited” call data evidence in controversy was “not very significant at all” and was properly admitted into evidence, it ruled.
There was evidence outside of the call data evidence to support the prosecution case that two of the phones that formed part of the prosecution case were linked to Dwyer, it noted. There was evidence to the same effect independent of the call data records that was “as powerful and perhaps more compelling”.
Dwyer was in the packed court and listened intently as the judgment was delivered by the court’s president, Mr Justice George Birmingham, who heard the appeal last December with Mr Justice John Edwards and Ms Justice Isobel Kennedy.
The mandatory life sentence for murder imposed on Dwyer in April 2015 was backdated to October 2013, when he first went into custody on the murder charge.
[ Murder trial of Graham Dwyer a dark episode in 2015 ]
Ms O’Hara, a 36-year-old childcare worker, was last seen in August 2012 in a public park in Shanganagh, south Dublin. Some of her remains were found on Killakee mountain just over a year later and she was identified from dental records. On March 27th, 2015, Dwyer was convicted of her murder by unanimous jury verdict.
He later took High Court civil proceedings successfully challenging an Irish law under which mobile phone metadata was retained and accessed by gardaí investigating Ms O’Hara’s death.
The duration of the civil proceedings, which went all the way to the Supreme Court and the Court of Justice of the European Union (ECJ), meant his separate conviction appeal was not heard until last December.
Phone in reservoir
Dwyer has consistently denied the murder of Ms O’Hara and being the person who bought and used a Nokia phone found in Vartry Reservoir in Wicklow in 2013.
That phone, the trial was told, was used to send a message about stabbing, as well as other messages to Ms O’Hara, culminating in a text dated August 22nd, 2012, the last day she was seen, to “go down to the shore and wait”.
Dwyer’s core grounds of appeal included that call data evidence related to his work mobile phone was inadmissible. His lawyers argued the metadata was used to link him to other phones and to messages sent to O’Hara.
It was argued the trial judge erred in his interpretation of a 2014 decision of the ECJ declaring that the EU Data Retention Directive 2006, on which the 2011 Irish law permitting retention and accessing of phone metadata for serious crime was based, breached EU law.
There was insufficient evidence against Dwyer to support a conviction and the trial judge should have directed the jury to acquit him, Remy Farrell SC, with Michael Bowman SC, for Dwyer, argued.
In exchanges with the court, the defence also argued the issue of the admissibility of the phone metadata evidence in itself entitled him to a retrial.
In opposing the appeal, Seán Guerin SC with Annemarie Lawlor, for the Director of Public Prosecutions, argued Dwyer’s side was significantly overstating the value of the phone metadata evidence and there was still “overwhelming” evidence to support the conviction.
Gardaí used old-fashioned detective work to read text messages, there were printouts of Dwyer’s bills from his workplace, showing extensive contact in earlier years between him and Ms O’Hara, and there were texts on Ms O’Hara’s phone that were backed-up on her laptop, counsel said.
The prosecution, he said, had established Dwyer was the author of the text messages at issue and connected to Ms O’Hara; that the desires expressed in the text messages were real and reflected the intention to kill; that the circumstances of Ms O’Hara’s disappearance and death could only be explained by the realisation of that intention; and that suicide was not an explanation.
He asked how Ms O’Hara’s keys, phone and some of her clothing could have got to the lake at Vartry Reservoir from the mountainside, where her body was found if she had taken her own life.
Mr Guerin read from other text messages, including one from Ms O’Hara that said: “You’re now a Daddy again.” It was “utterly implausible” that another person in the world had a child born on the same day as Dwyer’s child with the same name, bought a bike on the same day and got a pay cut on the same day as Dwyer, he argued.
Dwyer, who was in court for the appeal in December, interrupted the submissions twice, denying he sent the texts, and telling his solicitor he could not “listen to this”.