There was “overwhelming evidence” that Graham Dwyer was the author of text messages to murder victim Elaine O’Hara, ending in an instruction on the last day she was seen to “go down to the shore and wait”, the Supreme Court has been told.
That text message evidence, including texts concerning the birth of Dwyer’s daughter and his attendance at air shows, was independent of mobile phone cell metadata evidence analysing the movement of phones which the jury found were linked to Dwyer, Ann-Marie Lawlor SC said.
Michael Bowman SC, for Dwyer, argued the attribution of the phones to Dwyer was crucial in the trial.
The cell site analysis evidence was inadmissible but it formed the “baseline” for other evidence which the prosecution claimed linked various phones to Dwyer, he submitted. The prosecution could not say the jury accepted Dwyer was the author of the text messages independent of the cell site analysis, he argued.
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A seven judge Supreme Court, presided over by Chief Justice Donal O’Donnell, heard those and other arguments on Tuesday in Dwyer’s appeal aimed at overturning his 2015 conviction of the murder of Ms O’Hara. At the close of the one-day hearing, the court reserved judgment.
Members of Elaine O’Hara’s family, including her father Frank, brother John and sister Anne Charles, were in court for the hearing.
Dwyer has always denied the murder of Ms O’Hara who was last seen in August 2012 in a 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.
Dwyer’s trial was told a Nokia phone found in Vartry Reservoir in Co Wicklow in 2013 was used to send Ms O’Hara messages, including one about stabbing, culminating in a text dated August 22nd, 2012 – the last day she was seen – to “go down to the shore and wait”.
The prosecution argued that phone, and another phone found in the reservoir were secret phones, referred to as ‘Master’ and ‘Slave’ devices that Dwyer and O’Hara used almost exclusively to contact each other. The trial heard there were more than 1,300 messages between the phones and contact ended on August 22nd 2012.
Several complex legal issues in the Supreme Court appeal stem from the prosecution’s use of phone call data evidence at Dwyer’s trial to support its case that he murdered Ms O Hara.
Dwyer’s lawyers maintain this evidence was a crucial part of the prosecution case and it should not have been admitted because the phone data was gathered and retained under a 2011 Act, enacted here to give effect to an 2006 EU directive which the Court of Justice of the EU struck down in 2014 on the basis it breached of EU law concerning privacy and data protection rights.
They are relying on several decisions of the Court of Justice of the EU to the effect the general and indiscriminate retention of call metadata is impermissible without appropriate safeguards. Those decisions include one upholding Dwyer’s separate civil challenge to the lawfulness of the data retention regime here.
Last March, in dismissing Dwyer’s earlier appeal against his conviction, the Court of Appeal said the metadata evidence, which it described as “not very significant”, was admissible. Even if excluded, there was enough evidence to link Dwyer to two phones that formed part of the prosecution case, it held.
In arguments for Dwyer on Tuesday, Remy Farrell SC said Dwyer’s rights under the EU Charter of Fundamental Rights were breached by the gathering of the metadata evidence.
The Irish courts, whatever their own views, are obliged to apply rulings by the Court of Justice of the EU (CJEU) that such indiscriminate telecoms data retention is impermissible without certain safeguards, he said.
“The prosecution cannot be permitted to deploy in evidence material that should never have been admitted in the first place,” he said.
Responding to those arguments, Seán Guerin SC, for the DPP, argued that Dwyer cannot rely on a breach of Charter rights as the Charter does not have direct effect.
The Supreme Court, in deciding the appeal, had to strike an appropriate balance between the competing interests of protecting the constitutional rights of citizens and ensuring the administration of justice is not brought into disrepute by refusing to admit “highly probative” evidence, he submitted.
