“There was much more to this girl than the difficulties she had.”
So Mr Justice Tony Hunt observed at the Central Criminal Court in 2015 after a jury returned a unanimous verdict of guilty against Graham Dwyer for the murder of Elaine O’Hara.
The childcare worker was a person “broader” than the woman displayed during the trial, a likeable, ordinary person “who only wanted someone to mind her”, the judge said. Instead, she was “used and abused” by Dwyer whose exploit of her continued after her death, as he used her suicidal ideation when seeking to “slither out” of taking responsibility for her death.
The judge imposed the mandatory life sentence for murder on Dwyer, dating from October 17th, 2013, when he first went into custody.
On Friday, almost eight years after Dwyer’s conviction on March 27th, 2015, the Court of Appeal rejected another attempt by him to avoid responsibility for O’Hara’s death.
More than a decade has elapsed since August 2012 when 36-year-old O’Hara went missing, and her family’s suffering has been evident throughout that time.
“We have lost a daughter, a sister and a friend in the most brutal, traumatic and horrifying manner,” the family said in their victim impact statement read to the Central Criminal Court following Dwyer’s conviction.
“We also have many unanswered questions which we will carry with us for the rest of our lives.”
A picture emerges from the statement of O’Hara as “a very intelligent girl who never fully realised her potential due to her psychological difficulties”. She was much loved, helpful and generous, with a strong work ethic and loved working with children “as she could relate to them better than adults”.
She adored her young niece, who was also her goddaughter, but did not live to see the birth of two more nieces or to collect her BA in Montessori education, which would have made her “so proud and happy”.
O’Hara went missing from her home on August 22nd, 2012, and was last seen in a public park in Shanganagh in south Dublin.
A lack of evidence pointing to any other cause for her disappearance meant her family assumed she had died by suicide. A year later, they laid flowers in the sea at Shanganagh in her memory.
Less than a month later, on September 10th, 2013, two anglers spotted a bag in the water in Vartry Reservoir, near Roundwood, Co Wicklow, where the water was unusually low following a prolonged hot spell. The bag contained items including handcuffs and clothing and was handed into Roundwood Garda station.
Garda James O’Donoghue carried out further searches at the reservoir and found other items including a Dunnes Stores loyalty card belonging to O’Hara. A search of the lake by Garda divers located more items, including two Nokia mobile phones and a pair of glasses which matched an optician’s records for the missing woman.
On September 13th, 2013, O’Hara’s remains were found on Killakee mountain in south Dublin by a dog walker. Only 65 per cent of her skeleton, including a jaw bone, was recovered and she was identified through dental records.
A painstaking Garda investigation ultimately led to the arrest of Dwyer, an architect living in Foxrock, south Dublin, and to his being tried for murder.
The evidence included recovered text messages from the phones found in the reservoir. One text, dated June 2011, from a phone attributed to Dwyer, read: “I want to stick my knife in flesh while I am sexually aroused. I would like to stab a girl to death some time.”
Another text in 2011 stated: “My urge to rape, stab or kill is huge. You have to help me control or satisfy it.” Text messages from O’Hara included ones referring to repeated threats, sent from the phone attributed to Dwyer, to stab and kill her.
The O’Hara family said it was “heartbreaking” to hear, during the trial, the content of texts she had received from a “depraved, diseased mind” and said they could, in her texts, hear her voice “just wanting to be loved”.
Dwyer’s lawyer Remy Farrell SC argued there was “no screed” of evidence tying Dwyer to O’Hara’s death and no evidence that it was murder. Her cause of death had never been determined by pathologists and she disappeared after being recently released from a psychiatric hospital which she had entered with suicidal ideation, he said.
It was argued the violent language used in the texts was proof of nothing more than Dwyer’s sexual fantasies. The jury disagreed and returned a unanimous guilty verdict.
Dwyer then pursued a determined campaign over years to overturn his conviction, which has involved hearings before the High Court, Supreme Court, Court of Justice of the European Union (ECJ) and, most recently, the Court of Appeal.
Mobile phone text messages played an important role in securing his conviction, particularly texts exchanged between phones referred to as “Master” and “Slave” phones which the prosecution respectively attributed to phones used by Dwyer and O’Hara.
Traffic and location data from the phones was also part of the case against Dwyer and the law under which that call data was retained and accessed was successfully challenged by Dwyer all the way to the Court of Justice of the EU.
[ Graham Dwyer loses appeal against conviction for murder of Elaine O’Hara ]
The Court of Appeal found the call data was properly admitted into evidence at his trial. Even if it was not properly admitted, it “could not conceivably be regarded as giving rise to a miscarriage of justice” as the call data evidence was “limited” and there was other evidence against Dwyer, it said.
Dwyer’s data challenge has led to important decisions concerning the legality of Ireland’s regime for retaining and accessing mobile phone metadata, with far-reaching implications for criminal investigations.
His bid for release began with a successful outing to the High Court which ruled in 2018 that the 2011 Irish law under which his phone metadata was retained and accessed by gardaí breached EU law because it allowed for general retention of data without necessary safeguards or independent oversight.
The 2011 law was not formally struck down pending an appeal to the Supreme Court by the State, led by then attorney general Paul Gallagher. That court referred EU law issues in the case to the ECJ which heard the Irish case alongside related cases from the French and German courts.
The level of concern among EU states about the potential impact of the challenges was reflected by the fact that 14 member states made submissions when the cases were before the ECJ.
In a widely anticipated decision, the ECJ ruled last year in favour of Dwyer’s challenge when it confirmed that EU law precludes the general and indiscriminate retention of traffic and location data relating to electronic communications for the purposes of combating serious crime.
Emergency legislation has since been introduced here aimed at addressing the situation although data privacy lawyers believe the new law may itself be subject to challenge.
After the ECJ decision, the Supreme Court was told the State was consenting to the effective abandonment of its appeal over the High Court data ruling, with the effect the way was clear for Dwyer’s appeal against his murder conviction to proceed.
The Court of Appeal’s rejection may not mark the end of the legal saga as Dwyer may seek a further appeal to the Supreme Court.
Irrespective of whatever happens next, the O’Hara family look set to remain plagued by many unanswered questions.
“We will probably never know what happened in Killakee on Wednesday the 22nd of August 2012 but there are questions that trouble us,” their victim impact statement said.
When, they wondered, did O’Hara realise it was “not a game any more”, did she try to run, was she restrained, did she suffer much, could she – and did she – cry out and was she “left on the mountain to die alone”? “This is our life sentence. For us there is no parole.”