The Supreme Court has agreed to hear Graham Dwyer’s appeal against his conviction for the murder of childcare worker Elaine O’Hara.
The appeal contains seven grounds relating to the admission of mobile phone call data records at his criminal trial. A date has not yet been set for the appeal.
A three-judge Supreme Court panel said it is “in the interests of justice” to permit a further appeal. In the court’s view, “significant issues of general public importance arise” as to the admissibility of the call data evidence retained and accessed under a 2011 Irish law that was struck down by the Court of Justice of the European Union (CJEU) in 2014.
The court said it is also important to properly characterise the illegality involved, considering the data was obtained in compliance with the provisions of the 2011 Communications (Retention of Data) Act but where the Act itself was subsequently found to be inconsistent with EU law.
The scope and application of legislation governing courts’ directions in conviction appeals will also be considered by the Supreme Court.
Dwyer was convicted of murder by a unanimous jury verdict in March 2015 and sentenced to life in prison.
Ms O’Hara, a 36-year-old childcare worker, was last seen in August 2012 in a public park in Shanganagh, south Dublin. Some of her remains were found on Kilakee mountain just over a year later and she was identified from dental records.
Call data evidence
Last March, the Court of Appeal dismissed Dwyer’s conviction appeal on all grounds, including in relation to the admissibility of the call data evidence.
That three-judge court agreed with the prosecution that there was enough evidence to support the conviction, even if the disputed call data evidence had been excluded.
The “limited” call data evidence in controversy was “not very significant at all” and was properly admitted into evidence, it ruled.
There was other evidence to link Dwyer to two phones that formed part of the prosecution case, the court noted. There was evidence to the same effect independent of the call data records that was “as powerful and perhaps more compelling”.
Prior to his conviction appeal at the Court of Appeal, Dwyer took High Court civil proceedings that successfully challenged the 2011 Irish law under which the mobile phone metadata was retained and accessed by gardaí investigating Ms O’Hara’s death.
The civil proceedings progressed to the Supreme Court and the CJEU, meaning his separate conviction appeal was not heard by the Court of Appeal until last December.
Dwyer has consistently denied murdering Ms O’Hara. He also denies he bought and used a Nokia phone found in Vartry Reservoir in Co Wicklow in 2013.
His trial was told that phone 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”.
In seeking to appeal to the Supreme Court over his conviction, Dwyer’s lawyers submitted that the Court of Appeal misunderstood the CJEU’s decision regarding the 2011 law and incorrectly considered that the trial judge had a discretion to admit the phone call records.
They also submitted that the matter will probably require legal questions to be referred to the CJEU.
Dwyer’s application was opposed by the Director of Public Prosecution (DPP), who contended no matter of general public importance arises.
She submitted that two other Supreme Court appeals are already considering the question of what legal test should be applied when considering the admissibility of phone data acquired under the 2011 legal regime.
The DPP also emphasised the limited significance of the phone data evidence in securing the conviction and the availability of other evidence implicating Dwyer.
The Supreme Court panel, comprising the Chief justice, Mr Justice Donal O’Donnell; Mr Justice Maurice Collins and Ms Justice Aileen Donnelly, said Dwyer’s appeal appears to differ from the other Supreme Court appeals referenced by the DPP.
Further, the judges said, a refusal of leave to appeal would “give rise to a material risk of injustice” to Dwyer as his murder conviction would then be final and unappealable regardless of the ultimate outcome of the two other relevant appeals.
