Graham Dwyer has lost his lengthy legal bid to secure his release from prison after the Supreme Court today unanimously dismissed his appeal against his conviction for the murder of childcare worker Elaine O’Hara.
There was “overwhelming and unanswerable” evidence, apart from outside disputed phone traffic and location evidence, to support the prosecution case against Dwyer, Mr Justice Maurice Collins said when delivering the court’s main judgment.
“The evidence established beyond any reasonable doubt that the appellant [Dwyer] met up with the late Ms O’Hara on the evening of August 22nd, 2012 for the purpose of killing her,” he said.
There was “a wealth of evidence”, including very graphic videos, that established that Dwyer and Ms O’Hara had been in a sexual relationship and the violent nature of that relationship, which included the use of knives by Dwyer on Ms O’Hara, he said.
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There was further evidence that Dwyer was “obsessed with knives” and with the prospect of torturing and stabbing a woman to death during sex, he said.
Dwyer, who was convicted and jailed for life in 2015, has been involved in proceedings before several courts in the nine years since in trying to have his conviction quashed.
The seven judge Supreme Court’s judgment on Wednesday is the final ruling in the saga.
Members of Elaine O’Hara’s family, including her father Frank, brother John and sister Anne Charles, were in court for the hearing. Afterwards, Frank O’Hara told The Irish Times he was “pleased” and “relieved” with the outcome. “It’s been a long journey,” he said.
Dwyer was not in court for the judgment.
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.
In a statement after the ruling, the O’Hara family said it was almost 12 years since her murder.
They said what was initially a missing persons case had turned into a murder investigation and a long arduous criminal trial, with many challenges to the jury’s verdict over the years. They said they were relieved the Supreme Court had upheld the Appeal Court’s verdict.
Saying they hoped Elaine could now, rest in peace, the family thanked members of An Garda Síochána, in particular the investigating team, the detectives and their family liaison officer, who they said had been by their side throughout.
They also thanked friends and family for their support over the years and said they would not be making any further comment.
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 ‘Master’ and ‘Slave’ phones Dwyer and O’Hara used almost exclusively to contact each other.
Following his conviction, Dwyer, in long-running civil proceedings that went to the High Court, Supreme Court and Court of Justice of the EU (CJEU), successfully challenged the validity of section six of the 2011 Communications (Retention of Data) Act which permitted phone metadata to be retained “on a general and indiscriminate basis”. In an April 2022 judgment, the CJEU found Ireland’s data-retention regime breached EU law.
In its March 2023 judgment dismissing an earlier appeal by Dwyer 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 the two phones that formed part of the prosecution case, it held.
For reasons including the general public importance of the phone metadata issues, Dwyer secured a further appeal before the Supreme Court.
During the appeal, heard last January with judgment reserved, the prosecution submitted there was “overwhelming evidence” Dwyer was the author of the text messages to Ms O’Hara. That text message evidence, including texts concerning the birth of Dwyer’s daughter, was independent of the metadata evidence analysing the movement of phones which the jury found were linked to Dwyer.
The Supreme Court’s rejection last June of similar arguments about the admissibility of phone metadata evidence in two separate appeals - the Smyth/McAreavey appeals - was perceived as a significant setback for Dwyer in his attempt to succeed in his appeal.
Giving the court’s judgment on Wednesday, Mr Justice Collins said the focus of Dwyer’s appeal was on the retention of the disputed phone traffic and location data, rather than any issue of access to such data.
The judge rejected Dwyer’s argument that the retention, because it was on a general and indiscriminate basis, was impermissible. He further dismissed arguments the admission of such evidence at Dwyer’s trial would bring the administration of justice into disrepute or undermine the integrity of the courts’ processes. Applying the court’s findings in the Smyth/McAreavey cases on the admissibility issue, he concluded the impugned data was properly admitted at Dwyer’s trial.
There was “substantial evidence” linking Dwyer to Ms O’Hara in various ways, the judge also said. The attribution of text messages to Dwyer was an “essential building block” of the prosecution case against him and the evidence linking Dwyer and Ms O’Hara to the ‘master’ and ‘slave’ phones had not been challenged or contradicted.
This meant, even without the impugned traffic and location data evidence, the remaining evidence available to the prosecution was “more than sufficient” to establish attribution beyond any reasonable doubt, he said. The evidence was in fact overwhelming and unanswerable.”
In a concurring judgment also dismissing the appeal, Mr Justice Gerard Hogan said while he had dissented from the majority view on the admissibility of phone traffic and location data in the Smyth/McAreavey judgments, he considered that question had essentially determined by the majority court in those cases and he was bound by it in Dwyer’s appeal.
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