Lawyers for Graham Dwyer, who murdered vulnerable care worker Elaine O’Hara for his sexual gratification, have argued that suicide should have been considered as a cause of death and it was “live and large in the case”.
They also argued in the three-judge Court of Appeal yesterday that the retention of mobile phone data is an “opportunistic form of mass surveillance” that transforms phones into tracking devices. Remy Farrell SC, for Dwyer, said mobile phone data should not have been admitted as evidence in his client’s trial as the retention of that data was a breach of his rights under the European Charter of Fundamental Rights.
Mr Farrell said the Court of Justice of the European Union has said “again and again” that the retention of mobile phone data cannot be done and the Irish courts must now “internalise” what the European court has said. The court heard from Michael Bowman SC, also for Dwyer, who argued that the trial judge should have discharged the jury where there was no forensic evidence as to how Ms O’Hara died.
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He said that suicide was “live and large in the case and there is nothing in the case that takes it out”.
He further argued that at one point as evidence was being heard in front of the jury, the trial judge Mr Justice Tony Hunt “looked in a very disapproving manner at the defendant” and also “glared” at him. Mr Bowman said this was a non-verbal communication that “something has triggered the judge” and that a jury can pick up on non-verbal cues. Mr Bowman said the jury could also have been “overwhelmed” and “overborne” by nine videos of Dwyer being intimate with different women.
The videos were introduced in the trial to show the extent of his interest in bondage, discipline and sado masochism and to challenge his claim that he “wasn’t really into” BDSM and that it was more Ms O’Hara’s interest. Mr Bowman said a description of the videos would have achieved the prosecution’s aims. Showing the videos had introduced “something toxic” and could have “overwhelmed the ability of the jury to remain impartial”.
Dwyer, 50, a Co Cork-born architect with an address at Foxrock in Dublin, was convicted by a jury at the Central Criminal Court in 2015 of the murder of Elaine, 36, on August 22, 2012. The jury heard that Dwyer – who was led into court yesterday by prison officers – fantasized about stabbing a woman during sex and used Ms O’Hara to fulfil that wish.
After murdering her he disposed of some of her belongings in the Vartry reservoir in Co Wicklow and tried to make it look like she had committed suicide. He was alleged to have dumped her body in a forest where it was found in 2013.
Much of the evidence at Dwyer’s trial focused on text messages between a “slave” phone used by Ms O’Hara and a “master” phone used by Dwyer and on the movements of those phones. Mr Farrell said yesterday that he is objecting only to the retention of data in relation to a phone with a number ending in 407 which was referred to as Dwyer’s work phone. He said information from that phone was used by the prosecution to attribute the other phones to his client but should not have been admitted.
He said the Communications (Retention of Data) Act 2011 which required mobile phone firms to retain data relating to the use and movement of mobiles for two years, amounted to “general and indiscriminate” surveillance and did not target people suspected of criminal activity but “everyone who has a mobile phone”.
Dwyer, he said, was not under suspicion at the time that his mobile phone data was retained but that information was then used to “build up an intensely detailed picture of every aspect of (his) life.” Mr Farrell said “everything the Court of Justice is talking about” in relation to the dangers of data retention happened in this case.
Sean Guerin SC, for the prosecution, will respond today in front of the president of the court Mr Justice George Birmingham, who is sitting with Ms Justice Isobel Kennedy and Mr Justice John Edwards.
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