The Supreme Court has fixed a date in January to hear another bid by Graham Dwyer to overturn his conviction for the murder of childcare worker Elaine O’Hara.
The Court of Appeal had last March dismissed Dwyer’s appeal against his 2015 conviction on all grounds.
His lawyers then applied to the Supreme Court to hear a further appeal and a panel of Supreme Court judges decided last July the issues raised were of general public importance and it is in the interests of justice they should be decided.
The court has now fixed January 16th next for the hearing of the appeal.
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The issues for decision include ones concerning the admissibility of mobile phone call data records at Dwyer’s criminal trial.
Dwyer’s lawyers contend the data should not have been admitted due to it being retained and accessed under a 2011 Irish law struck down by the Court of Justice of the European Union (CJEU) in 2014. They have also submitted that the matter will probably require more legal questions to be referred to the CJEU.
The Supreme Court panel, in agreeing to hear the appeal, said it is important to properly characterise the illegality involved because the data was obtained in compliance with the provisions of the 2011 Communications (Retention of Data) Act, enacted to conform with an EU Directive, 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 in the appeal.
Dwyer is serving a life sentence after he was convicted at the Central Criminal Court in 2015 of Ms O’Hara. He denied the charge.
The 36-year-old childcare worker 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.
In dismissing his appeal against conviction, the Court of Appeal agreed with prosecution arguments there was enough evidence to support the conviction, even if the disputed call data evidence had been excluded. The “limited” call data evidence at issue 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 appeal court said. 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, 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 State appealed the High Court decision to the Supreme Court which referred issues of EU law to the CJEU. After the CJEU upheld Dwyer’s arguments, the State conceded the appeal.
Dwyer’s trial was told a Nokia phone found in Vartry Reservoir in 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”.
The Director of Public Prosecutions had opposed Dwyer’s application for a Supreme Court appeal on grounds including the phone data evidence played a limited role in securing Dwyer’s conviction. The Director also argued the Supreme Court is already considering, in two other appeals, what legal test should be applied when considering the admissibility of phone data acquired under the 2011 regime and no issue of general public importance arises in Dwyer’s appeal.
In agreeing to hear an appeal, the Supreme Court panel said a refusal of leave to appeal could “give rise to a material risk of injustice” to Dwyer as his conviction would then be final and unappealable regardless of the outcome of the two other relevant appeals.
