Graham Dwyer's bid to overturn conviction may not be over
Graham Dwyer was convicted in 2015 of the murder of Elaine O'Hara. Picture: Collins Courts.
Graham Dwyer’s bid to overturn his conviction for the murder of Elaine O’Hara could persist for several more years, despite the Court of Appeal dismissing all grounds for his appeal yesterday.
If successful in future appeals, it may result in him facing a retrial for Ms O’Hara’s murder, legal experts said.
Furthermore, upcoming Supreme Court decisions in cases, such as Patrick Quirke’s appeal against his conviction for the murder of DJ Bobby Ryan, could point the way for how it may rule in Dwyer’s case.
Cork-born architect Dwyer, 50, who was convicted on March 27, 2015, had launched an appeal on numerous grounds, including the admissibility of mobile phone data evidence.
Delivering the decision, president of the Court of Appeal George Birmingham said the court was quite satisfied that the admission of very limited call data could not be perceived of arising to a miscarriage of justice in this case.
"There is no miscarriage of justice here," he said.
"We have not been persuaded that the trial was unfair or that the verdict was unsafe, and we dismiss the appeal."
Trinity College Dublin associate professor of law Eoin O’Dell said that, following this setback for Dwyer, he does have further legal avenues to explore, likening it to a soccer match that is only 60 minutes in.
“He has to apply for leave to appeal to the Supreme Court,” said Mr O’Dell.
“If they grant the appeal, it has to come on to Supreme Court. They might make a reference to the European Court of Justice, and that has to come back.
Last April, Dwyer won a case in Europe about the mobile data retention practices used in the case against him, and his appeal was heard in December.
Data held in Dwyer’s work phone was used in the trial to demonstrate how it placed the device at specific places at particular times and dates.
The Court of Justice of the EU ruled that EU law precludes the general and indiscriminate retention of traffic and location data relating to electronic communication for the purpose of combating serious crime.
In the judgement yesterday, Mr Justice Bermingham said that the “admission of the very limited call data evidence that was admitted could not conceivably be regarded as giving rise to a miscarriage of justice”.
On the request from investigators for the phone data, he said Garda actions were in full compliance of provisions of an act of the Oireachtas and "enjoyed a presumption of constitutionality".
He said while there was evidence from the parallel movements of phones at issue in the case, there was evidence of the same effect which was independent and "arguably more compelling".
He outlined alternative routes of the identification of the suspect through "traditional detective work" and other evidence.
Mr O’Dell said the issue of mobile phone evidence and how data is gathered will be significant in a number of upcoming cases.
“In other cases, where the mobile phone evidence is more significant and there’s less other evidence, these legal issues might be more important,” he said.
Furthermore, upcoming Supreme Court decisions such as in the Quirke case and a case involving a Kinahan hitman could highlight how it will rule in such cases before Dwyer’s comes to that court, Mr O’Dell added.
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