A Supreme Court judgment due on Monday about the admissibility of phone metadata evidence in criminal trials could have significant implications for Graham Dwyer’s separate bid to overturn his murder conviction.
The seven-judge court’s judgment on two linked appeals will address similar issues to those relied on by Dwyer in his separate, and possibly final, appeal against his 2015 conviction for the murder of childcare worker Elaine O’Hara.
Dwyer’s appeal was heard after the appeals brought by Caolan Smyth and Gary McAreavey, on which judgment will be given today.
It is expected the court’s judgment on Dwyer’s appeal will be delivered before the end of July.
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Smyth (31), formerly of Cuillean Court, Donore, Co Meath, appealed his conviction for the attempted murder of James ‘Mago’ Gately and possession of a firearm with intent to endanger life. McAreavey (56), formerly of Gort Nua, Castlebellingham, Co Louth, appealed his conviction for the offence of assisting an offender.
Mr Gately, who the Criminal Assets Bureau has alleged is involved with an organised crime group, was shot five times by the driver of a car that pulled up beside him at a petrol station on Clonshaugh Road on May 10th, 2017.
Smyth was alleged to be the shooter, and McAreavey was alleged to have purchased petrol to destroy the car used in the attempted murder. The prosecution case relied in part on retained phone data for the purpose of attributing a phone to Smyth and correlating the car’s movements with the cell sites used by that phone.
Both men denied the charges and neither conceded ownership of the phones in question. Both were convicted in January 2021 by the non-jury Special Criminal Court and later lost appeals to the Court of Appeal.
The Supreme Court agreed to hear their further appeals because they raised important issues concerning the admissibility of mobile phone metadata retained by gardaí under a 2011 law – the Communications (Retention of Data) Act.
Dwyer successfully challenged the 2011 law in civil proceedings here, and the High Court’s decision that the Irish telephony data retention regime was incompatible with EU law was upheld in 2022 by the Court of Justice of the European Union (CJEU).
The fact the 2011 law provided for no independent or judicial mechanism to regulate access to phone metadata was key to it being struck down.
The trial of Smyth and McAreavey took place before the CJEU delivered its judgment in April 2022. That judgment is a key legal authority relied on in their appeals, as it is in Dwyer’s.
The admissibility of phone metadata gathered and retained under the 2011 Act has been a crucial issue in Dwyer’s litigation over years aimed at having his conviction for the murder of Ms O’Hara quashed.
The childcare worker (36) was last seen in August 2012 in a park in Shanganagh, South Dublin. Some of her remains were found on Killakee mountain just over a year later and she was identified from dental records.
Dwyer’s trial was told a Nokia phone found in Vartry Reservoir, Co Wicklow, in 2013 was used to send Ms O’Hara messages, including one about stabbing, culminating in a text dated August 22nd, 2012 – the last day she was seen – to “go down to the shore and wait”.
After the Court of Appeal last year dismissed Dwyer’s appeal against his conviction, the Supreme Court said it would hear a further appeal because of the general public importance of issues relating to phone-data retention.
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