The Director of Public Prosecutions v Graham Dwyer

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins,Mr. Justice Gerard Hogan
• Judgment Date: 31 July 2024
• Neutral Citation: [2024] IESC 39
• Court: Supreme Court
• Docket Number: Supreme Court Record No: S:AP:IE:2023:045

Between

The People (At the Suit of the Director of Public Prosecutions)

Prosecutor/Respondent

and

Graham Dwyer

Accused/Appellant

[2024] IESC 39

O'Donnell CJ

Dunne J

Charleton J

O'Malley J

Hogan J

Collins J

Donnelly J

Supreme Court Record No: S:AP:IE:2023:045

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Conviction – Murder – Admissibility of evidence – Appellant seeking to appeal against conviction – Whether the trial judge erred in admitting the disputed traffic and location data into evidence

Facts: The appellant, Mr Dwyer, on 27 March 2015, following a trial in the Central Criminal Court, was convicted of murdering Ms O’Hara on 22 August 2012 at Killakee, Rathfarnham, County Dublin. He was sentenced to imprisonment for life. He appealed his conviction to the Court of Appeal. On 24 March 2023, the Court of Appeal gave judgment ([2023] IECA 70) dismissing all of the grounds of appeal. By determination of 4 July 2023 ([2023] IESCDET 88) the Supreme Court granted him leave to appeal from the Court of Appeal. The appeal presented two questions: (1) whether the trial judge erred in admitting the disputed traffic and location data into evidence; and, if so (2) whether the Court of Appeal erred in concluding, even if the evidence ought not to have been admitted, the appellant’s conviction should nonetheless be affirmed pursuant to s. 3(1) of the Criminal Procedure Act 1993 (the proviso) on the basis that it considered that “no miscarriage of justice [had] actually occurred”.

Held by the Court that it was evident from its judgment in People (DPP) v Smyth [2024] IESC 22 that it accepted many of the submissions advanced on the appellant’s behalf. The Court accepted that the evidence at issue was obtained in breach of the Charter of Fundamental Rights of the European Union and that it followed that the issue of admissibility fell to be determined by People (DPP) v JC [2015] IESC 31. However, for the reasons the Court set out in Smyth, it did not accept that necessitated a retrial. As Mr Farrell SC fairly accepted in argument, the Court found that there were no disputed issues of fact requiring a hearing. Applying JC, the Court held that the traffic and location data evidence was properly admitted at trial. The Court held that there was no question of any lost chance of acquittal and therefore no “miscarriage of justice” within the meaning of the proviso. Accordingly, had the Court concluded that the traffic and location data was inadmissible, it would have upheld the decision of the Court of Appeal to apply the proviso and would have dismissed the appellant’s appeal on that basis.

The Court dismissed the appeal.

Appeal dismissed.

Unapproved

No redactions needed

JUDGMENT of Mr Justice Maurice Collins delivered on 31 July 2024

INTRODUCTION

1 On 27 March 2015, following a lengthy trial in the Central Criminal Court, Graham Dwyer (hereafter “ the Appellant” or “ Mr Dwyer”) was convicted of murdering Elaine O'Hara on 22 August 2012 at Killakee, Rathfarnham, County Dublin. He was subsequently sentenced to imprisonment for life and continues to serve that sentence.

2 Ms O'Hara was last seen alive on 22 August 2012. She was reported missing shortly afterwards. On 13 September 2013, a member of the public out walking dogs on land in the Killakee area of the Dublin mountains found human remains later identified as those of Ms O'Hara.

3 At around the same time — and entirely coincidentally — a number of items were recovered from Vartry Reservoir, also in County Wicklow, which turned out to be connected to Ms O'Hara, including a store loyalty card which the Gardaí traced to her. Two mobile phone handsets, including SIM cards, were also recovered from Vartry Reservoir. Items of clothing later identified as having been worn by Ms O'Hara on the day of her disappearance were also found in the Reservoir, along with a bag which appeared to be a bag she had owned. Various other items were discovered also which, on investigation, appeared to be linked with Ms O'Hara.

4 The DPP's case against the Appellant relied, in part, on mobile phone evidence. In the first place, the prosecution sought to rely on the content of text messages between three mobile phones which it sought to attribute to the Appellant (particularly two phones which were not registered to him and which he denied knowledge of) and two mobile phones which it attributed to Ms O'Hara (including a phone which was not registered to her). 1 In addition, the prosecution case relied on traffic and location data relating to those phones. Traffic and location data includes data indicating the source/destination and duration of voice calls made to or received by a mobile phone and the source/destination (but not the content) of texts sent from or received by a mobile phone and data relating to the geographic location of a phone while connected to a mobile network. Traffic and location data are sometimes referred to as call data records or “ CDR” and were so referred to by the Court of Appeal here.

5 One of the phones attributed to the Appellant was his work phone (referred to in the Court of Appeal's judgment as Phone A) which was registered in the name of his employer but used by him. 2 There was no issue at trial that this phone was used by the Appellant. In this judgment, I shall refer to this phone as “ the work phone”. The other two phones attributed to the Appellant by the prosecution were Phone B (also referred to as the “ green” phone) 3 and Phone D. 4 Phone B was a pre-pay phone which had been bought by and registered to a man giving his name as “ Goroon Caisholm” (and, consequently, Phone B was also referred to as the “ Goroon Caisholm phone”). Goroon Caisholm was a fictional name which the prosecution sought to link with Mr Dwyer on the various grounds explained by the Court of Appeal at para 49 of its judgment and which are referred to later in this judgment. I shall refer

to this phone as “ the green phone”. 5 Phone D was an unregistered prepaid phone and was one of the phones recovered from Vartry Reservoir. 6 It was also referred to as the “ Master” phone and that is how I shall refer to it in this judgment

6 The two phones which the prosecution sought to attribute to Ms O'Hara was, firstly, the phone registered in her name which had been left in her apartment on the night she disappeared (referred to the Court of Appeal's judgment as Phone C). 7 There was no issue that this had been Ms O'Hara's phone. The other phone attributed to her was the other phone recovered from the Vartry Reservoir (Phone E). This phone was also referred to as the “ Slave” phone and that is how I shall refer to it in this judgment. 8 The “ Slave” phone was another prepaid unregistered phone which had been purchased in the same phone shop, at the same time, as the “ Master” phone. Remarkably, despite the fact that both phones had been submerged in Vartry Reservoir for an extended period, Gardaí were able to activate them and recover data from them.

7 Mobile telephony data indicating the location of the work phone at certain times was relied on by the prosecution for the purposes of connecting the Appellant with the other two phones it sought to link to him, thus connecting him to the text messages sent between those two phones and the phones attributed to Ms O'Hara. Those text messages – comprising in excess of 2,600 messages recovered from Ms O'Hara's phone (Phone C) and from the laptop on which she regularly backed up her phone, as well as from the “ Master” and “ Slave” phones/SIM cards but also including messages sent to and from the “ green” phone which were recovered from Ms O'Hara's phone/SIM card and/or her laptop – formed a critical element of the prosecution case against Mr Dwyer, establishing (so the prosecution said), that he was the person texting Ms O'Hara and also disclosing the nature of the relationship between them and revealing (it was said) the fact that he had intended to kill Ms O'Hara. The content of these messages was also relied on by the prosecution to identify the Appellant as the person communicating with Ms O'Hara by reason of matters disclosed in certain messages which corresponded closely with events in his personal and professional life.

8 There is no issue in this appeal as to the admissibility of the text messages. An issue was raised by the Appellant at trial about the manner in which the messages were recovered and dated during the extensive investigation into Ms O'Hara's death but that issue was determined against the Appellant and that determination was not appealed.

9 The traffic and location relating to the work phone was obtained by the Gardaí on foot of a series of access requests made pursuant to the Communications (Retention of Data) Act 2011 (“ the 2011 Act”), such data having been retained by the relevant service providers in accordance with the 2011 Act. The 2011 Act was enacted to give effect to Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks ( “the Data Retention Directive”), which amended Directive 2002/58/EC (“ the ePrivacy Directive”).

10 Those access requests were made in early October 2013. Cumulatively, the access requests covered the period from 7 October 2011 to 30 November 2012. October 2011 was as far back as access could be obtained given that the mandatory retention period prescribed by the 2011 Act was 2 years.

11 Only traffic and location data relating to the work phone (Phone A) is at issue in this appeal. There was other evidence led at trial regarding the work phone – including bills retained by Mr Dwyer's employer – but that evidence did not come within the scope of the 2011 Act. No issue arose at trial as to the traffic and...