'powerful proof' | 

Evidence against Graham Dwyer is ‘overwhelming’ even if phone data is excluded, appeal hears

Dwyer was warned by a judge he could be removed from the court if he continued with repeated interruptions

Shane PhelanIndependent.ie

Graham Dwyer’s appeal has heard that even if his mobile phone metadata had been excluded during his trial there was other “powerful” and “overwhelming” evidence which would have led to his conviction for murder.

Sean Guerin SC, for the DPP, said the insight given by the phone data records paled in comparison with that given by other evidence, including a huge volume of text messages discovered by detectives.

He made the comments on the second and final day of Dwyer’s appeal against his 2015 conviction for the murder of childcare worker Elaine O’Hara.

During the hearing at the Court of Appeal, the Cork-born architect, who lived in Foxrock, Co Dublin, was warned by a judge he could be removed from the court if he continued with repeated interruptions.

Dwyer interjected three time to take issue with things said by Mr Guerin.

The first interruption came after the barrister told the three-judge court Dwyer had used a “burner” phone to send a text to his victim saying: “I want to stick my knife in flesh while sexually aroused... blood turns me on and I’d like to stab a girl to death.”

Mr Guerin said the prosecution case was that Dwyer “meant what he said and did what he said he was going to do”.

Dwyer interjected from his seat at the side of the courtroom, saying: “I didn’t say any of that.”

After two more interruptions, the president of the court, Mr Justice George Birmingham, warned that Dwyer would be removed to the cells if he continued.

Dwyer (50) stopped interrupting after the warning and instead passed notes to his solicitor.

A key part of Dwyer’s appeal is an argument that there should have been a particular test applied to the admissibility of the metadata evidence during his trial and that, because this didn’t happen, he was entitled to a retrial.

The argument was advanced following Dwyer’s successful challenge, in a case that went all the way to the Supreme Court and the Court of Justice for the European Union, to the law under which his metadata was retained and seized.

The metadata helped detectives in building up a picture of Dwyer’s movements and routines and how they correlated with those of his victim, who he had been in a secret and abusive sadomasochistic relationship with.

In the appeal, Dwyer’s lawyers only challenged the use of metadata in relation to one phone, a handset he used for work.

There was no challenge in respect of two unregistered burner phones found by a garda in Vartry Reservoir in Co Wicklow just days after Ms O’Hara’s remains were discovered in September 2013.

Ms O’Hara had disappeared in August 2012, with her remains laying undiscovered in a forest in the Dublin Mountains for 13 months.

Dwyer denies he owned or operated the burner handsets, dubbed the “master” and “slave” phones, which the prosecution alleged he and Ms O’Hara used to communicate with each other from March 2011 onwards.

Mr Guerin said Dwyer was “significantly overstating” the value of the metadata to the prosecution case.

He said that at the same time as the data was being analysed, “an old-fashioned detective job being done at Blackrock Garda Station” reading texts retrieved from Ms O’Hara’s phones for information that might identify a suspect.

Mr Guerin said there were other “distinct routes” to identifying Dwyer as a suspect.

These included the matching of his DNA with semen found on Ms O’Hara’s mattress.

Retrieved texts also contained identifying features which pointed to Dwyer.

Taking the court through some of the text messages on the burner phones, which recorded various events, Mr Guerin said it was “utterly implausible” that there was another person in the world who could have had all of the same things happen to them on those particular days.

The texts referred to the birth of a child with the same name as one of Dwyer’s children, the purchase of a bicycle, a pay cut, coming fifth in a flying competition, and attending a reception for the Polish ambassador.

Mr Guerin said it was part of the prosecution case that the relationship between Dwyer and Ms O’Hara existed for years.

Before moving to a burner phone, Dwyer had used his work phone to communicate with her and this was evident from paper printed bills in his employers’ keeping.

Murderer Graham Dwyer is appealing his conviction. Photo: Collins Courts

Mr Guerin also said the majority of texts obtained by gardaí were retrieved from Ms O’Hara’s phone or from a laptop she had used to back up her phone.

As well as the metadata ground of appeal, Dwyer’s legal team also argued that the prosecution did not establish any cause of death or that Dwyer had caused Ms O’Hara to die.

Dwyer’s lawyers held out the possibility that Ms O’Hara, who had just been released from psychiatric care, could have committed suicide.

But Mr Guerin said the prosecution had sought to eliminate any other possible explanation, such as suicide.

“The text messages show he said he was going to take her to the woods, tie her up and stab her,” he said.

“And she said she was not going to commit suicide.

“The prosecution’s case is confirmed by the exchange of texts. The defence case is contradicted.

“If she did commit suicide, how on earth did her keys and her phone get to the lake.”

Another ground of appeal was that the trial judge, Mr Justice Tony Hunt, erred by admitting videos of Dwyer engaging in sexual acts with Elaine O’Hara and other women. In the videos, Dwyer could be seen stabbing or pretending to stab the women.

Dwyer’s lawyers contended that a narrative describing the videos should have been read to the jury instead as viewing the videos made it impossible for them to remain impartial.

However, Anne-Marie Lawlor SC, also for the DPP, said what the defence had suggested was that real evidence should have been veiled and diluted.

She said it was necessary to play the videos so they could be juxtaposed with “lies” told by Dwyer in Garda interviews in which he claimed he would never cut anyone with a knife while engaged in BDSM.

Ms Lawlor also rejected a ground of appeal that Dwyer was prejudiced because the trial judge allegedly glared at him and shook his head during a critical stage in the evidence. She said the complaint was “extremely nebulous”.

Ms Lawlor said the judge had repeatedly told the jury it was a matter for them alone to decide the case and they had to return a verdict in accordance with the evidence and nothing else.

Mr Justice Birmingham said the court would give its decision as soon as possible, but it should not be expected imminently.

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