THE POWER OF A SILENT WITNESS
Graham Dwyer is a wicked and sadistic killer who preyed on the vulnerability of Elaine O’Hara to satisfy his depraved cravings. He was only caught because of a stroke of luck followed by the laborious and dedicated work of a team of brilliant detectives –
Mobile phone evidence is absolutely crucial Should the right to privacy be absolute?
IN September 2013, three men were standing on a bridge overlooking Vartry Reservoir in Co Wicklow. The water level was much lower than usual, just two feet deep instead of 20, and one of the men, William Fagan, spotted something he later recalled as ‘silver and shiny’. Between them, the men fished out a piece of clothing, a length of rope and a set of handcuffs. Disturbed by the find, Fagan took the items to the local Garda station the next day. His interest piqued, Garda James O’Donoghue went to the reservoir to see if he could find anything else. In the water, he discovered a set of keys with a number of loyalty cards attached, including one for Dunnes Stores.
His enquiries traced it to Elaine O’Hara, a 36-year-old woman listed on the Garda Pulse system as ‘missing’ since August the previous year. Between these first and second finds, a woman walking on Killakee Mountain in Rathfarnham, south Co Dublin, followed one of her dogs, who had broken away from the others, and discovered him sniffing around what appeared to be human remains. Within hours, gardaí knew they had found Elaine O’Hara.
With only 65% of her remains retrieved, that might have been that. There was no way of establishing the exact cause of death, and no evidence to suggest who might have killed her.
Indeed, given the fact that her family had long since assumed that Elaine, who had been hospitalised for depression, took her own life, lesser investigators might simply have made the evidence fit the theory.
Instead, in one of the most devastating assemblies of forensic evidence ever presented to an Irish court, gardaí made a case against Graham Dwyer, a 42-year-old architect living in south Dublin’s upmarket Foxrock area. He was a man who, on the surface, had the best of everything life had to offer — a lovely wife, three children (including an adult son with a college girlfriend), a beautiful home and several cars.
Far from taking the soft option and going with the suicide theory, gardaí had Vartry reservoir dredged and, in September and October that year, the lake yielded its darkest secrets, two mobile phones that would lift the veil on the secret, sadistic life of Graham Dwyer and see him sentenced to life imprisonment for the murder of Elaine O’Hara.
Both phones were unregistered. Dwyer had bought them in 2011, when it was not mandatory to give a name when buying pay-as-yougo phones, and he and Elaine used them to contact each other privately, using the names MSTR and SLV, ‘master’ and ‘slave’ without the vowels.
Sometimes, the two used their own phones to contact each other too, and detectives were able to cross-reference these calls to establish the users’ whereabouts by checking data on the masts the phones picked up. How they did it is a masterclass in detective work.
On September 18, 2013, State forensic scientist Dr Stephen Doak was given one of the Nokia phones. After opening the back of it, he retrieved a SIM card, cleaned it, dried both it and the phone with tissue, and put them into a warm incubator. Both items were then returned to gardaí. Sergeant Niall Duffy, of the telecommunications unit, said he received the Nokia 1616 phone from Dr Doak that same day.
After cleaning the circuit board, he used specialised software, and recovered 20 text messages, and one user number connected to the phone and one contact.
In court, crime and policing expert Sarah Skedd explained what happened next. She told how she analysed data relating to five mobile phone numbers and associated handsets. These phones were Ms O’Hara’s number, Dwyer’s work phone number, an 083 number, and two 086 numbers used by the two phones found in Vartry Reservoir.
Focusing on finding the user of one of the 086 numbers, and on July 4, 2012, she established this phone had been used early that day in Galway city and again in the Dublin 2 area on the same day. She also established the phone was linked to masts in Dublin 2 during the daytime on weekdays.
Believing that whoever owned the phone had travelled from Galway to Dublin on the motorway, she examined toll company records and noticed a 99 G 11850 registration plate on a small blue car. It was registered to Graham Dwyer.
She also established that calls between the two 086 phones ceased on August 22, 2012, the last time Elaine O’Hara was seen alive. There had been 1,380 communications between the two phones between December 1 and that date.
What happened next proved damning evidence against Dwyer. Sarah Skedd started crossreferencing the records of his work phone and the 086 phone and found that at times when both were switched on, they were using the same phone masts. This proved they were in the same location.
On one occasion, both were located near Johnny Fox’s pub in the Dublin Mountains at about 6.30pm. At the same time, Elaine O’Hara texted another phone, an 083 phone that never was recovered, saying: ‘I’m not finished till 6.30, by the time I get home will be 7.30.’ At five to seven, she sent another message to that phone, saying she actually was home and, at seven minutes past the hour, Graham Dwyer was captured on CCTV entering her apartment building in nearby Stepaside, where he stayed for 80 minutes.
The last sighting of Elaine was in Shanganagh park in Shankill, south Co Dublin, when she asked a passer-by for directions to the railway bridge that leads to the beach. A text sent to her that day gave instructions to ‘go down to the shore and wait’. That text, Sarah Skedd said, came from the 086 phone used by Dwyer — and it was sent from Shankill.
What all this proves is that mobile phone evidence is absolutely crucial to prosecution cases. That also was the case in the trial of Joe O’Reilly, who murdered his wife Rachel Callaly in October 2004.
On that occasion, data from phone masts showed that O’Reilly’s actual movements were at variance with the story he gave gardaí, and the evidence also led to his conviction because the data showed that he was in the vicinity of the family home he shared with Rachel and where she was beaten to death.
A mobile phone is a silent witness, endlessly logging our positions as we move from mast to mast. Indeed, after it emerged some years back that Apple was
Elaine received justice because of detective work
keeping this data, a programme to retrieve it was announced, and users all over the world were astonished to see that literally every place they had visited for years showed up on a map — their homes, their workplaces, where they socialised, even where they holidayed abroad.
Naturally, many were utterly horrified at what they saw as a Big Brother-style invasion of their privacy, and Apple committed to ending the practice.
But should the right to be privacy be absolute for those accused of crime and against whom gardaí need to build a solid case?
This week, Dwyer returned to court, this time to challenge the use of phone data in his conviction. He based his High Court challenge on a 2014 ruling by the European Court of Justice that invalidated an EU Directive demanding that service providers keep records of all calls for two years. In his ruling here, Mr Justice Tony O’Connor found that Irish legislation allowing for the retention of, and access to, mobile phone data breached European Union law and the European Convention on Human Rights, because such retention was general and indiscriminate and not subject to prior review by a court or independent authority before it could be accessed, and because there are no legislative guarantees against abuse.
The European Court decision was so specific as to state that even organised crime could not be targeted by trawling through old phone records, damagingly tying the hands of police forces in the EU to properly investigate cases.
Judge O’Connor said he believed his ruling would not affect ongoing trials, or that it would see convictions declared unsafe, but Dwyer intends to use this ruling in a forthcoming appeal, and is said to have reacted with ‘delight and glee’ to the ruling.
As reported in this newspaper yesterday, legal experts do not believe it will lead to Dwyer’s conviction being overturned, though that is by no means a foregone conclusion. Speaking in his judgment, Judge O’Connor warned that the State should tread carefully in matters that concerned people’s dignity and privacy in the sphere of telephony data retention and access.
‘Privacy and the rights of free expression by actual, feared and mandatory surveillance cannot be underestimated,’ he said.
And that indeed is a noble way to view the situation, one that might find favour with all of us who never have committed crimes and have no intention ever of doing so. Surely it stands to reason though, that anyone accused of a crime he or she did not commit would be anxious for such records to prove not guilt but rather innocence, and happily would consent to having their data examined.
The corollary, surely, is that anyone who refused very likely would have something to hide, in which case it seems hardly unreasonable to allow gardaí petition for the release of records.
As it happens, the drafting of a new Data Retention Bill is underway, and it is on the Government’s priority legislation list. We must hope it strikes the correct balance between allowing us to live our lives free from surveillance, while also granting the right to An Garda Síochána, under independent supervision if necessary to assuage the fears of those who believe such power might be abused, to trawl data in order to convict vicious, sadistic killers like Dwyer.
He harboured fantasies all his life of taking a life, and in the lurid subculture exposed during the trial, a world where pleasure and pain are a circle and not a straight line, he found a victim. He is locked up because his unnatural instincts eventually exploded into the ultimate act of violence against a vulnerable woman.
She received justice because, first of all, a lake gave up its secrets, and then because two phones filled in many of the blanks. Most of all, though, she received justice because of technically brilliant detective work that used technology against itself to build an unassailable case against a wicked man.
It would be the ultimate betrayal of Elaine O’Hara if such methods were to be denied to detectives in the future.