A seven-judge Supreme Court will give a decision later on the last ditch appeal by convicted killer Graham Dwyer to overturn his conviction for the murder of Elaine O’Hara.
His lawyers told the court it was their case there was a breach of Graham Dwyer’s rights under the EU Charter of Fundamental Rights in the gathering of mobile phone data which was later used at his trial for the murder the 36-year-old child care worker.
But Counsel for the DPP submitted that there was a significant amount of evidence that allowed the jury in the Dwyer case to conclude that the former architect was the author of text messages including a special instruction to Ms O’Hara to “go down to the shore and wait".
The core of the prosecution case, Anne Marie Lawlor SC said was the exchange of text messages, and it led to the inescapable conclusion that Dwyer was the author of text messages to Elaine O’Hara.
Ms O'Hara’s father, Frank, her brother John and sister Anne were in court for the Supreme Court hearing which was heard over a day.
The Court of Appeal had last March dismissed another of Dwyer’s appeals against his 2015 conviction on all grounds, but a further final appeal to the Supreme Court was allowed.
Dwyer who is originally from Cork is serving a life sentence after he was convicted at the Central Criminal Court in 2015 of the murder of Ms O’Hara. He denied the charge.
The 36-year-old woman 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”.
This appeal is regarded as his last possible appeal against his conviction in the Irish courts, though there may be an application by the Dwyer side to refer further matters to the Court of Justice of the European Union (CJEU).
Opening the case before the Supreme Court on Tuesday, Remy Farrell SC for Graham Dwyer said the data retention issue is fundamental.
The Dwyer side contends the data should not have been admitted due to it being retained and accessed under a 2011 Irish law struck down in 2014 by the Court of Justice of the European Union (CJEU).
Counsel said it is obvious the Irish courts are bound by the ruling of the CJEU .
EU law he said is “not some esoteric system of parallel law.” He said it was integral, whether one likes the consequences of the CJEU rulings or not.
Mr Farrell said the question was whether the mobile phone evidence was lawful in the first place.
“We know the data should not have been retained. There was a system of mass retention that is impermissible,” counsel added.
In dismissing Dwyer’s appeal against conviction, the Court of Appeal agreed with prosecution arguments that there was enough evidence to support the conviction, even if the disputed call data evidence had been excluded. The “limited” call data evidence at issue was “not very significant at all” and was properly admitted into evidence, it ruled.
There was other evidence to link Dwyer to two phones that formed part of the prosecution case, the appeal court said. There was evidence to the same effect independent of the call data records that was “as powerful and perhaps more compelling”.
