The Supreme Court has dismissed objections to the admissibility of phone data at a criminal trial in a ruling that could significantly influence the impending decision in Graham Dwyer’s murder conviction appeal.
Traffic and location data related to mobile phones that the prosecution sought to attribute to Caolan Smyth (31) and Gary McAreavey (56) was correctly admitted into evidence, even though the data was harvested pursuant to a now-invalidated law, the seven-judge court determined.
While the judges dismissed Smyth’s appeal against his conviction for the attempted murder of James “Mago” Gately and for possession of a firearm with intent to endanger life, they overturned Mr McAreavey’s conviction for assisting an offender.
Mr Gately, who the Criminal Assets Bureau alleges is heavily involved with an organised crime group, was shot five times by the driver of a Lexus that pulled up beside him at a petrol station on Clonshaugh Road on May 10th, 2017.
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The attempt by Smyth to murder Gately was one in a series of efforts by the Kinahan cartel to have him killed during the height of the Kinahan-Hutch feud.
When the Criminal Assets Bureau (Cab) targeted Gately it gave evidence to the High Court that the Dubliner was involved in armed robbery and drug dealing. It said he was a one-time member of the wider Kinahan cartel, but that changed when his friend Gary Hutch was murdered by the cartel in Spain in 2015. After his friend was shot dead, in an attack that effectively started the feud, Gately was regarded by the cartel as their enemy. The Kinahan cartel made a number of efforts to murder Gately.
Smyth was tasked by the cartel with finding and killing Gately after the cartel’s first choice of gunman - Estonian hitman Imre Arakas - came to Ireland in 2017 but was soon caught by gardaí.
Smyth put Gately under surveillance and tracked him to a Topaz garage on Clonshaugh Road, Dublin 17, in May 2017. He opened fire on Gately, who survived because of his bulletproof vest.
Smyth, formerly of Cuillean Court, Donore, Co Meath, was alleged to be the shooter. It was alleged Mr McAreavey, formerly of Gort Nua, Castelbellingham, Co Louth, purchased petrol to destroy the vehicle, which was later found burnt out.
Both men pleaded not guilty to their respective charges but were convicted by the Special Criminal Court in January 2021.
The non-jury court was not satisfied beyond reasonable doubt that Mr McAreavey assisted Smyth knowing he was guilty of the attempted murder but found he knew or believed Smyth had committed some arrestable offence and convicted him on this basis.
In a ruling on Monday, Mr Justice Maurice Collins said the Special Criminal Court “effectively inferred” from Mr McAreavey’s involvement in the burning-out of the Lexus that he must have believed Smyth committed an arrestable offence of some kind. He held that this was not a sufficient basis for conviction.
In a separate decision, Mr Justice Collins set out his reasoning for why it was correct for phone metadata to be admitted at both men’s trials. This was the key argument in Smyth’s appeal, so, the court held, his convictions should remain.
Both appeals unsuccessfully contended that certain telephone data evidence, obtained by gardaí under the Communications (Retention of Data) Act of 2011, was inadmissible because it was accessed and retained unlawfully. That is because the 2011 legislation was found to be incompatible with EU law in a challenge brought by Dwyer.
Mr Justice Collins rejected the Director of Public Prosecution’s (DPP’s) contention that Smyth and Mr McAreavey could not assert privacy breaches because neither conceded ownership of two unregistered phones used to correlate movements of a car with cell sites.
However, he held that the data was admissible for reasons including that there was no deliberate and conscious breach by gardaí in relying on the 2011 law in 2017, when it was still on the statute-book. An Garda Síochána was entitled to rely on it, he said.
The illegality arose as a result of a “subsequent legal development” in the form of the Court of Justice of the EU’s (CJEU’s) decision in Dwyer’s challenge, the judge said.
The community’s interest in the effective adjudication of Smyth and Mr McAreavey’s cases weighed decisively in favour of admitting the evidence, while excluding it would bring the administration of justice into “disrepute”, the judge said.
Mr Justice Collins was supported in his decisions by five of his six colleagues. Mr Justice Gerard Hogan agreed with the decision to overturn Mr McAreavey’s conviction, but would also have quashed Smyth’s on the ground that he found the phone data should have been excluded.
He held that, although as of June 2017 there was no formal finding that the 2011 Act breached EU law, the continued use of the data collection and retention regime was “reckless and grossly negligent”.
The decisions are likely to have an impact on the awaited judgment in Dwyer’s appeal against his conviction for the murder of 36-year-old childcare worker Elaine O’Hara, who was last seen in August 2012 in a south Dublin park.
His trial was told a phone found in a reservoir 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”.
He denies murder, and his lawyers argued before the Supreme Court last January that phone call data evidence should not have been admitted to his criminal trial because the 2011 was struck down.
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