Graham Dwyer will get a final ruling from the Supreme Court on Wednesday on his protracted legal bid to overturn his conviction for the murder of childcare worker Elaine O’Hara.
Dwyer has been involved in proceedings before several courts in trying to secure his release from prison since being jailed for life in 2015.
He 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”.
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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 judgment in March of last year 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 the two phones that formed part of the prosecution case, it held.
For reasons including the importance of the phone metadata issues, Dwyer secured a further appeal before a seven judge Supreme Court presided over by Chief Justice Donal O’Donnell.
Members of Elaine O’Hara’s family, including her father Frank, brother John and sister Anne Charles, were in court last January for the appeal hearing. Judgment was reserved and will be given on Wednesday.
During the appeal, the prosecution submitted there was “overwhelming evidence” that Dwyer was the author of the text messages to Ms O’Hara. The 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, 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 formed the “baseline” for other evidence which the prosecution claimed linked various phones to Dwyer, he submitted.
The Supreme Court’s rejection last June of similar arguments about the admissibility of phone metadata evidence in two separate appeals has been perceived as a significant setback for Dwyer in his attempt to succeed in his appeal.
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