DPP v Dwyer

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 24 March 2023
• Neutral Citation: [2023] IECA 70
• Court: Court of Appeal (Ireland)
• Docket Number: [114/15]

Between

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Graham Dwyer

Appellant

[2023] IECA 70

The President

Edwards J.

Kennedy J.

[114/15]

THE COURT OF APPEAL

Conviction – Murder – Evidence – Appellant seeking to appeal against conviction – Whether the trial judge erred in admitting into evidence call data records in relation to the mobile phone of the appellant and other mobile phones attributed to him

Facts: The appellant, Mr Dwyer, following a trial in the Central Criminal Court, on 27th March 2015, was convicted of the murder of Ms O’Hara. He appealed to the Court of Appeal against his conviction. Initially, a large number of grounds were formulated, but these were grouped in a thematic way. So grouped, the issues on appeal were: (i) the admissibility of the interviews conducted with the appellant in the course of his detention; (ii) issues relating to reliance on certain call data evidence; (iii) a complaint about certain matters impacting on the fairness of the trial and prejudicing the appellant; and (iv) a complaint that there ought to have been a directed verdict of not guilty. Under the theme of the admissibility of the interviews, three topics were raised in the written submissions as follows: (i) the failure to provide sufficient information to the solicitor for the appellant; (ii) the fact that the solicitor was not permitted to be present throughout interviews; and (iii) an issue relating to the fact that information was leaked to the media during the course of the detention. Three issues were raised under the theme of prejudice in the trial: (i) an issue as to the admission of prejudicial videos; (ii) an issue as to adverse interventions by the trial judge; and (iii) an issue as to the extent of media publicity surrounding the trial. The question of reliance on call data evidence was to the fore during the course of the appeal hearing. This theme covered grounds (v) and (vi): (v) the trial judge erred in admitting into evidence call data records in relation to the mobile phone of the appellant and other mobile phones attributed to him in circumstances where the statutory regime governing the retention and access to such records was in breach of the appellant’s rights pursuant to Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and equivalent constitutional and European Convention of Human Rights (ECHR) rights; and (vi) the trial judge erred in the manner in which he approached the decision of the Court of Justice of the EU in the case of Joined Cases C-293/12 & C-594/12, Digital Rights Ireland, 8th April 2014 – in particular the trial judge erred in disputing the logic underlying same and substituting his own views in circumstances where he was bound by the decision.

Held by the Court that it was not prepared to uphold the grounds of appeal relating to the admissibility of the memoranda of interviews. The Court held that it had not been persuaded that any of the issues raised under the theme of prejudice in the trial, whether in isolation or when considered on a cumulative basis, rendered the trial unfair. For that reason, the Court rejected those grounds of appeal. In the Court’s view, the judge was entitled to conclude that the state of the evidence at the close of the prosecution case was such that a properly directed jury could conclude that Ms O’Hara had not met her death as a result of natural causes or as a result of suicide, but rather, that she had been the victim of a homicide. In those circumstances, the Court dismissed that ground of appeal. The Court was satisfied that the admission of the very limited call data record evidence that was admitted could not conceivably be regarded as giving rise to a miscarriage of justice, and so, even if it was the situation that the view was reached that the call data records should not have been admitted, the Court would dismiss the appeal, being of the view that there had been no miscarriage of justice, and that there had been no lost chance of acquittal.

The Court held that it was not prepared to uphold any ground of appeal. The Court had not been persuaded that the trial was unfair or that the verdict was unsafe. Accordingly, the Court dismissed the appeal.

Appeal dismissed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of the Court delivered on the 24 ^th day of March 2023 by Birmingham P.

Introduction

1 . Following a lengthy, high-profile trial in the Central Criminal Court, on 27 ^th March 2015, the appellant, Mr. Graham Dwyer, was convicted of the murder of Ms. Elaine O'Hara. He has appealed his conviction. Initially, a large number of grounds were formulated, but these have now been grouped in what has been described as a thematic way. So grouped, the issues on appeal are:

In the course of this judgment, we will address each of these themes. The question of reliance on call data evidence was to the fore during the course of the appeal hearing. We propose to deal first with the non-call data evidence issues, and then turn to the call data evidence issues. However, before doing so, we want to provide an overview to the background to the trial and subsequent conviction.

• (i) The admissibility of the interviews conducted with the appellant in the course of his detention.

• (ii) Issues relating to reliance on certain call data evidence.

• (iii) A complaint about certain matters impacting on the fairness of the trial and prejudicing the appellant.

• (iv) A complaint that there ought to have been a directed verdict of not guilty.

Background

2 . On 13 ^th September 2013, a French woman, Ms. Magali Vergnet, who was involved in dog training and dog walking, was walking dogs on private land in the Killakee area of the Dublin mountains. In a wooded area, she came across what appeared to her to be a quantity of bones. She was concerned about what she had found, to the extent that she made contact with the landowner. Together, they looked at the bones, thinking at first that they might be animal bones, but then they noticed what seemed to them to be a mandible or lower jawbone. At that point, they realised that what they were looking at were likely human bones. Contact was made with Gardaí, who came to the scene, and matters moved on from there.

3 . The discovery by the dog walker came some days after items were discovered at the Vartry Reservoir, near Roundwood, County Wicklow; this proximity in time was entirely coincidental. On 10 ^th September 2013, three friends with an interest in fishing, and linked to that, an interest in the reservoir, were in the area. The reservoir was unusually low; 2013 had been a particularly dry and warm summer, and the water was at a much lower level than would usually be the case. Their attention was drawn to something shiny that they saw in the water under a bridge. They had with them a tension strap, and with that, they raised articles from the water. At that stage, certain items, including an article of clothing, a length of rope, and some handcuffs were raised. Initially, the men put what they had retrieved on the bridge and went away. However, one of them, Mr. William Fegan, thought more about it and came back the next day because he thought something might be awry. He gathered up the items, put them in a plastic bag and brought them to Roundwood Garda station, where he handed the find over to Garda James O'Donoghue. Garda O'Donoghue, who is to be highly commended for this, went back to the reservoir on a number of occasions over the following days to ascertain if he could see anything else. On 16 ^th September, the conditions were more favourable, and he was able to reach in and pull further items out of the reservoir. He pulled out a set of keys and various other items, including a loyalty card for Dunnes Stores. Contact was made with Dunnes Stores and a representative there confirmed that the loyalty card had belonged to Ms. O'Hara. When Garda O'Donoghue entered Ms. O'Hara's details into the Garda PULSE system, it emerged that she was a missing person and had been so listed since August 2012.

4 . The remains found at Killakee were almost entirely skeletal. The scene was visited by Dr. Michael Curtis, the deputy State Pathologist, and he subsequently carried out a post- mortem examination. However, in circumstances where all that was available to him were partial skeletal remains, he was unable to determine the cause of death.

5 . Ms. O'Hara was 36 years of age at the time when she was last seen alive, which was on 22 ^nd August 2012. Ms. O'Hara worked as a childcare worker in a school and also had another job, working part-time in a newsagent. She had lived at a number of addresses in south Dublin, moving in 2010 to an apartment at Belarmine Plaza, a modern development in Stepaside. Since her teenage years, she had experienced mental health difficulties, requiring psychiatric care and medication, including by hospitalisation on occasion. She was an inpatient at St. Edmundsbury Hospital in Lucan for some five or six weeks prior to her disappearance. She was discharged from there on the morning of 22 ^nd August 2012. It may be noted that, during her time as a patient there, she was, to a considerable extent, in a position to come and go.

6 . Following her discharge, Ms. O'Hara visited her local pharmacy; she had been given a prescription prior to leaving the hospital. She had also been in contact with her place of work at the newsagent. One of her reasons for being in contact with her work was to establish what hours she would be working in the period ahead. She had a particular reason for wanting to know her schedule as she had volunteered to assist at the Tall Ships Festival in Dublin. It was established that she made an arrangement with her father's partner – her mother had died in 2002 – to be collected on the morning of 23 ^rd August 2012 to go into town to the Tall Ships Festival...