Evidence against convicted murderer Graham Dwyer is “overwhelming” even if phone data is excluded, appeals court hears

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

During the Court of Appeal hearing, the Cork-born architect, who lived in Foxrock, Co Dublin, was warned by a judge that he could be removed from the court if he carried on with repeated interruptions. Dwyer interjected three times to contest Mr Guerin’s statements.

The first interruption came after the attorney told the three-judge court that Dwyer had used a “Burner” phone to text his victim, which said, “I want to stick my knife into flesh while I’m… I’m sexually aroused … Blood turns me on and I’d like to stab a girl.” Mr Guerin said the prosecution’s case was that Dwyer “meant what he said and did what he said he would do”.

Dwyer interjected from his seat at the side of the courtroom and said, “I didn’t say anything about it.”

After two more interruptions, the President of the Court, Mr Justice George Birmingham, warned that if he continued, Dwyer would be taken to the cells. Dwyer (50) did not interrupt after the warning and instead passed notes on to his lawyer.

An important part of Dwyer’s appeal is the argument that a certain test for the admissibility of the metadata evidence should have been applied at his trial and that he was entitled to a retrial because it did not.

The argument came after Dwyer’s successful challenge, in a case that went as far as the Supreme Court and the Court of Justice of the European Union, against the law under which his metadata was stored and confiscated.

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

On appeal, Dwyer’s attorneys only challenged the use of metadata relating to a phone, a handset he used for work. There was no disputing in relation to two unregistered Burner phones which were found by a garda in Vartry Reservoir in Co Wicklow just days after the remains of Ms O’Hara were discovered in September 2013.

Ms O’Hara went missing in August 2012, her remains lying undiscovered in a forest in the Dublin mountains for 13 months.

Dwyer denies that he owned or operated the burner handsets, referred to as the “master” and “slave” phones, which prosecutors allege he and Ms. O’Hara had been communicating with since March 2011.

Mr Guerin said Dwyer “substantially overstated” the value of the metadata for the prosecution’s case. He said that at the same time the data was being analyzed, “an old-fashioned detective job was being done at Blackrock Garda Station,” reading texts retrieved from Ms O’Hara’s phones to obtain information identifying a suspect could.

Mr Guerin said there are other “different ways” to identify Dwyer as a suspect.

This included matching his DNA to semen found on Ms. O’Hara’s mattress.

The found texts also contained identifying features that pointed to Dwyer.

Taking the court through some of the text messages on the Burner phones that recorded various events, Mr Guerin said it was “completely unlikely” that there was another person in the world to whom all the same things could have happened on these specific days.

The lyrics related to the birth of a child with the same name as one of Dwyer’s children, buying a bicycle, a pay cut, coming in fifth in a flying competition, and attending a reception for the Polish Ambassador.

Mr Guerin said it was part of the prosecution’s case that Dwyer and Ms O’Hara’s relationship had been going on for years. Before switching to a permanent phone, Dwyer had used his work phone to communicate with her, and this was evident from printed bills held by his employer.

Mr Guerin also said the majority of texts received from Gardaí were obtained from Ms O’Hara’s phone or from a laptop she had used to backup her phone.

In addition to the metadata appeal, Dwyer’s legal team also argued that prosecutors failed to determine a cause of death or that Dwyer caused Ms. O’Hara’s death. Dwyer’s attorneys considered it possible that Ms. O’Hara, who had just been released from psychiatric treatment, might have committed suicide.

However, Mr Guerin said prosecutors tried to rule out any other possible explanation, such as suicide.

“The text messages show that he said he would take her to the forest, tie her up and stab her,” he said.

“And she said she wouldn’t commit suicide.

“The case of the prosecution is confirmed by the exchange of texts. The defense is contradicted.

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

Another ground for appeal was that the trial judge, Justice Tony Hunt, erred in allowing videos of Dwyer engaging in sexual activity with Elaine O’Hara and other women. The videos showed Dwyer stabbing or pretending to stab the women.

Dwyer’s attorneys claimed that the jury should have been read a description of the videos instead because viewing the videos made it impossible for them to remain impartial.

However, Anne-Marie Lawlor SC, also for the DPP, said the defense had suggested real evidence should be obscured and diluted.

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

Ms Lawlor also dismissed an appeal alleging that Dwyer was biased because the trial judge allegedly glared at him and shook his head during a critical period of the evidence hearing. She said the complaint was “extremely nebulous”.

Ms Lawlor said the judge repeatedly told the jury it was their sole business to decide the case and they must reach a verdict according to the evidence and nothing else.

Mr Justice Birmingham said the court would make its decision as soon as possible but did not expect it to be immediate.