The Supreme Court has dismissed Graham Dwyer’s appeal against his conviction for the 2012 murder of Elaine O’Hara, ruling that traffic and location data from his work phone was properly admitted at trial. The court said that even if the data had been inadmissible, it would have dismissed the appeal under the statutory proviso because no miscarriage of justice had occurred.
The appeal concerned data obtained by gardaí under the Communications (Retention of Data) Act 2011. The Supreme Court held in earlier proceedings that the Act’s general and indiscriminate retention regime was incompatible with EU law and the Charter of Fundamental Rights. In this appeal, the court considered whether that breach meant the work-phone data should have been excluded from Dwyer’s murder trial.
Justice Maurice Collins, delivering the judgment on 31 July 2024, said the admissibility question was governed by the test set out in *People (DPP) v JC*. Applying that test, he concluded that gardaí had not deliberately or consciously breached the Charter by relying on the 2011 Act, which was in force when the data was retained and accessed. He also found that the type of data could, in principle, have been retained consistently with the Charter in some circumstances. The court therefore held that the evidence was properly admitted. It said no retrial was required.
The court also examined whether Dwyer’s conviction should stand even if the data had been wrongly admitted. Dwyer argued that the data helped link him to two phones the prosecution attributed to him, making it significant to the circumstantial case. The Director of Public Prosecutions argued that text messages and other evidence established that connection independently.
Justice Collins acknowledged that the work-phone data had assisted the prosecution’s case, including by showing that its location did not diverge from the locations of the other phones when they were in use. But he said the evidence linking Dwyer to those phones was not challenged at trial and was supported by the messages, phone top-ups, location evidence and other material. He concluded that, even without the disputed data, the remaining evidence left no reasonable doubt about who used the phones. He said there had been no lost chance of acquittal and, had the data been inadmissible, he would still have dismissed the appeal under the proviso.
The judgment’s conclusion was that the appeal was dismissed. Dwyer’s life sentence for O’Hara’s murder remains in place.