Convicted killer Graham Dwyer is seeking a retrial because of the manner in which the trial judge in his case decided to allow phone metadata evidence obtained by gardaí to be put before the jury.
The 50-year-old Foxrock architect’s appeal against his 2015 conviction for the murder of childcare worker Elaine O’Hara finally got under way today following Dwyer’s separate and ultimately successful challenge to the law under which his metadata was retained and seized.
The challenge resulted in rulings in Dwyer’s favour by the High Court, Supreme Court and the Court of Justice for the European Union (CJEU).
The metadata proved crucial to establishing a link between Dwyer and his victim and also helped detectives to build up a picture of their secret and abusive sadomasochist relationship.
The evidence was included in Dwyer’s trial despite opposition from his lawyers at the time.
The Court of Appeal heard today that Dwyer’s was no longer arguing for the exclusion of the evidence altogether but believed it should have been the subject to an admissibility test, arising from a Supreme Court case called JC.
Dwyer’s counsel Remy Farrell SC agreed with the court’s president, Mr Justice George Birmingham, that the “high water mark” of his client’s position was that because they wanted a JC-type test and didn’t get one during the trial, they wanted a retrial.
In the JC case, which was ruled upon shortly after Dwyer’s conviction, the Supreme Court found by a narrow majority that evidence obtained unconstitutionally can be admissible, but only if the prosecution can show the breach was due to inadvertence.
Mr Farrell said his side had to make its case within the existing legal framework.
The barrister told the court that CJEU rulings prior to the seizure of Dwyer’s metadata signalled the “indiscriminate and general retention” regime in Ireland, where mobile providers were obliged to hold on to customer metadata for two years, was impermissible.
This view was reiterated by the CJEU in the challenge brought by Dwyer.
The metadata issue is the first of several grounds of appeal the three-judge court is being addressed on.
Wearing a navy suit, white shirt and navy tie, and with his greying hair tightly cut, Dwyer looked on attentively as his counsel addressed the court.
Dwyer’s father Sean watched proceedings from the public gallery, as did members of the O’Hara family.
Ms O’Hara (36), a vulnerable woman who had been receiving psychiatric care, went missing in August 2012.
Her remains were found 13 months later in a forest at Killakee in the Dublin Mountains.
Using the 2011 Communications Act, gardaí obtained data associated with Dwyer's work mobile phone and other handsets.
Using cell-site analysis, they were able to pinpoint roughly where Dwyer was at certain points in time based on the movements of his work phone.
This helped investigators establish his routine in the months prior to Ms O'Hara's disappearance.
Cell-site analysis was also able to link the movements of Dwyer's work phone to those of a Nokia mobile phone found in the Vartry Reservoir in Co Wicklow in September 2013.
When Dwyer went somewhere, he tended to bring both phones with him, his trial heard.
The prosecution case was that this second handset, known as the "master" phone, was used by Dwyer to communicate with Ms O'Hara.
She used another Nokia handset, known as the "slave" phone, which gardaí recovered during the investigation. Both the "master" and "slave" phones were detected in Shankill, Co Dublin, on the night Ms O'Hara disappeared.
Detectives were also able to "resurrect" text messages from phones and computers to reconstruct conversations between Dwyer and Ms O'Hara.
The court heard Dwyer was only challenging the seizure of the metadata for his work phone. He denies owning or using the other phones.
Mr Farrell said the retention regime could be characterised as “an opportunistic form of mass surveillance”, where a phone is “transformed into a sophisticated tracking device”.
He said the CJEU had repeatedly ruled that a system of general and indiscriminate retention of mobile phone data for law enforcement purposes was simply not allowed and that any retention or access had to be targeted.
Mr Farrell said the CJEU had made clear the 2011 Act, which was based on a 2006 EU directive that was later struck down, imposed on mobile providers obligations which were contrary to EU law.
He said Dwyer’s case was “particularly important” as he was not under suspicion at that point in time his data was being retained.
“With those records, gardaí built up an intensely detailed picture of everything in Mr Dwyer’s life,” Mr Farrell said.
Counsel said the view that the law under which Dwyer’s data was retained and seized was problematic was not universally held.
He said the Supreme Court clearly had reservations about targeted retention, believing it was not effective for the detection of crime.
But Mr Farrell said whether one liked the CJEU’s rulings or not, they had to be accepted and EU member states had to “fully internalise the result”.
“All State institutions are under a duty of loyal cooperation insofar as the CJEU is concerned,” he said.
“This court is bound by the judgment of the Supreme Court and the CJEU.”
Gardaí obtained the metadata for Dwyer’s work phone for the period between October 7, 2011 and November 30, 2012.
Mr Farrell said the long period involved served to underline the “wholly indiscriminate nature of the surveillance”.
He also said that, contrary to prosecution claims the metadata simply confirmed other evidence, the prosecution had intertwined the call data “into the tapestry of the evidence” and used it to “directly implicate” Dwyer.
“It is hard to credit the contention that is merely confirmatory,” said Mr Farrell.
Mr Farrell said the prosecution had submitted that the trial judge’s discretion to admit the metadata evidence could only have been exercised in favour of admitting it. But he said he was seeking to demonstrate the opposite.
The court is due to hear other grounds of appeal later.
These include a claim that the case should not have gone to the jury as no cause of death had been established and the prosecution had not proved Dwyer caused Ms O’Hara to die.
Other grounds include the playing of videos to the jury of Dwyer involved in sex acts with women, which his lawyers say made it impossible for him to get a fair trial, and the fact that Dwyer did not have his solicitor present when he was questioned by gardaí in October 2013.
The appeal continues before Mr Justice Birmingham, Ms Justice Isobel Kennedy and Mr Justice John Edwards.