Graham Dwyer case: Judges to consider whether to hear another appeal against murder conviction

An application by Graham Dwyer aimed at securing a further appeal against his conviction for the murder of childcare worker Elaine O’Hara will be considered next week.

A panel of three Supreme Court judges – Chief Justice Mr Justice Donal O’Donnell, Mr Justice Maurice Collins and Ms Justice Aileen Donnelly – will consider the application in chambers on Monday. That consideration, as is normal for such applications, will be based on written submissions sent in by lawyers for Dwyer and for the DPP.

The judges’ decision on whether or not the Supreme Court will hear an appeal will be set out in a determination to be published on a later date.

The criteria for securing a Supreme Court appeal against a decision of the Court of Appeal require an applicant to demonstrate their case raises a matter of law of general public importance or that an appeal is necessary in the interests of justice.

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Dwyer’s appeal against his 2015 murder conviction was rejected by the Court of Appeal earlier this year. The three-judge court ruled the limited admission of call data could not give rise to a miscarriage of justice.

Dwyer’s grounds for a further appeal include arguments that the Court of Appeal erred in how it approached the treatment of phone metadata evidence that formed part of the prosecution case against him.

Dwyer, in proceedings that went all the way to the Supreme Court and the Court of Justice of the EU (CJEU), had successfully challenged the 2011 law under which the phone metadata evidence was retained and accessed.

Legal sources believe that some of the issues being raised by Dwyer may be addressed by the Supreme Court in its judgment on another case appeal heard earlier this year.

Caolan Smyth (30) and Gary McAreavey (55) appealed to the Supreme Court arising from the Court of Appeal’s refusal to quash their 2021 convictions on serious charges. Smyth was jailed for 20 years for the attempted murder in May 2017 of James “Mago” Gately and possession of a firearm with intent to endanger life. Co-accused McAreavey received a three-year term for assisting an offender.

Mr Gately, who the Criminal Assets Bureau has alleged is heavily 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, formerly of Cuileann Court, Donore, Co Meath, was alleged to be the shooter. The car was later found burnt, and McAreavey, formerly of Gort Nua, Castlebellingham, Co Louth, was alleged to have purchased petrol for the purpose of destroying it. Phone data at issue in their case was retained and accessed under the Communications (Retention of Data) Act 2011, the same legislation successfully challenged by Dwyer

In its judgment on the Smyth/McAreavey appeals last year the Court of Appeal held the 2011 Act was still the law of the land when the investigation into the attempted murder was carried out and thus enjoyed a presumption of constitutionality. That was the first Court of Appeal decision on this issue following the CJEU’s ruling on the Dwyer reference.