Dwyer’s last-ditch attempt to have his conviction for murdering Elaine struck out
O’Hara family attend Supreme Court
DEPRAVED killer Graham Dwyer has made a final attempt to have his conviction for the murder of childcare worker Elaine O’Hara struck out.
The former architect has appealed to the Supreme Court, arguing that the Court of Appeal was wrong to say that data obtained from his work phone, contrary to EU rules, had only a ‘limited’ impact on the case.
Ms O’Hara’s father Frank, brother John and sister Anne Charles attended the hearing yesterday, but Dwyer himself remained in prison.
The seven judges of the Supreme Court heard that the data allowed gardaí to build up a picture of Dwyer’s movements over the 13 months
‘Icing enhanced the cake’
before the killing on August 22, 2012.
It also allowed investigators to demonstrate that Dwyer’s work phone ‘shadowed’ a burner phone he was using to contact Elaine O’Hara, and ultimately to lure her to her death in the Dublin mountains.
Last March, the Court of Appeal ruled that Dwyer’s trial was fair and his conviction was safe with Judge George Birmingham, Appeal Court president, dismissing every challenge brought by Dwyer.
In particular, he ruled that the ‘very limited call data evidence’, which formed the major plank of the killer’s appeal, ‘could not conceivably be regarded as giving rise to a miscarriage of justice’.
Barrister Michael Bowman, for Dwyer, said yesterday that the Court of Appeal had suggested that the Director of Public Prosecutions could have mounted her case without the cell site data from the work phone. ‘But that’s not what she did,’ he said.
He said she chose to introduce the data, knowing that it was likely to prompt a legal challenge later. ‘She must have concluded that the icing significantly enhanced the cake,’ he said. Mr Bowman said the 261-page report from analyst Sarah Skedd about the whereabouts of Dwyer’s work phone meant that ‘in closing the case, the prosecution was able to say that the phones shadow the defendant’.
He acknowledged that the link between Dwyer and the burner ‘master’ phone used to call Elaine O’Hara’s ‘slave’ phone could be verified through answers given by Dwyer in Garda interviews, which matched the content of text messages – such as his habit of flying model aeroplanes, or his daughter’s birthday. However, he said the attribution of the phones was ‘so inextricably interwoven in the tapestry of the case’ that it could not safely be said that Dwyer would still have been convicted even without the work phone data.
Barrister Remy Farrell, also for Dwyer, had earlier outlined how the work phone data had been obtained by gardaí under Irish law, which allowed for the indiscriminate retention of such data. Those laws should already have been updated to incorporate an EU directive, forbidding the retention of mobile phone data unless it was specifically being held to allow for the investigation or prosecution of crimes, or matters of national security.
Mr Farrell said the EU had ruled on the matter in 2006, to protect the privacy interests of every man, woman and child who carried a mobile phone.
Dwyer’s mobile data was retained in breach of the EU’s Charter of Fundamental Rights, and should therefore not have been deployed at trial in 2015, he argued.
Barrister Seán Guerin, for the DPP, argued that Dwyer’s rights had not been breached. Barrister Anne-Marie Lawlor, also for the DPP, supported the Court of Appeal finding that the content of the text messages on the ‘master’ phone and a second ‘Goroon’ phone used to contact Elaine O’Hara linked both of them to Dwyer ‘in clear and unequivocal terms’.
‘There was overwhelming evidence which associated Graham Dwyer to the phone used to contact Ms O’Hara,’ she said. The ‘master’ phone messages culminated in a text to Elaine O’Hara dated 22 August 2012 – the last day she was seen – to ‘go down to the shore and wait’, she said. She said the phone data ‘merely confirmed the inescapable truth’ that Dwyer was the author of that text.
The jury in Dwyer’s trial found he had stabbed Elaine O’Hara, 36, to death for his own sexual gratification, following a sadistic relationship in which he exploited her wish to be loved. The Supreme Court judges will give their decision on his appeal at a later date.
‘Confirmed the truth’