A gunman for the Kinahan organised crime group who tried to murder a rival Hutch gang member seven years ago has today lost an appeal in the Supreme Court against the use of phone data to convict him.
Caolan Smyth, aged 33, from Cuileann Court, Donore, Co Meath, is serving 20 years in prison for shooting rival Hutch gang member James Gately five times on 10 May 2017.
The court found the use of phone metadata as evidence to secure convictions against Smyth, and a second man Gary McAreavey, was lawful.
McAreavey, aged 56, from Gort Nua, Station Road, Castlebellingham, Co Louth, who is not in a criminal gang, was jailed for three years after he was found to have helped Smyth burn out the getaway car.
We need your consent to load this rte-player contentWe use rte-player to manage extra content that can set cookies on your device and collect data about your activity. Please review their details and accept them to load the content.Manage Preferences
Mr Justice Maurice Collins found "the community's interest in the effective adjudication of the case against Mr Smyth and Mr McAreavey on its merits weighed decisively in favour of the admission of the (phone) evidence and it is the exclusion of that evidence rather than its admission that would bring the administration of justice into disrepute".
He also found that in both cases "the disputed traffic and location data was properly admitted in evidence".
However McAreavey's conviction was quashed on a different issue today after the court found the prosecution had failed to establish that McAreavey "knew or believed" that Smyth had committed a serious offence when he helped him burn the getaway car.
McAreavey has already served his prison sentence and the court ruled today that "any question of consequential orders should be the subject of further argument".
Five other Supreme Court judges agreed with Mr Justice Collins with one dissenting judgement from Mr Justice Gerard Hogan - a six-one majority.
Caolan Smyth is a proficient gunman with 36 previous convictions who has links to other Kinahan gang members and is a suspect in ten other shootings.
He had Hutch gang member James Gately under surveillance and followed him before shooting him five times at the Topaz service station near Dublin Airport on 10 May 2017.
Four of the bullets hit Gately's bullet proof vest as he sat in his Ford Mondeo but the fifth hit him in the jaw.
Gately was seriously injured but survived. A month before, the Kinahan gang had also hired Estonian hitman Imre Arakas to kill Gately but gardaí again intervened and Gately's life was saved.
When sentencing him at the Special Criminal Court, Mr Justice Tony Hunt described Caolan Smyth as a dangerous criminal who associates and acts with similar criminals, and was part of an organised conspiracy to commit murder.
Convicted murderer Graham Dwyer also challenging admissability of phone data evidence
The convicted murderer Graham Dwyer is also challenging the admissibility of phone metadata evidence which was used to convict him of the murder of Elaine O'Hara.
The 36-year-old childcare worker was last seen in August 2012 in Shanganagh in south Dublin.
Her remains were discovered over a year later on Kilakee mountain in Co Wicklow.
Dwyer's trial was told a Nokia phone found in Vartry Reservoir, Co Wicklow, in 2013 was used to send Ms O’Hara messages, including one about stabbing, culminating in a text dated 22 August 2012 - the last day she was seen - to "go down to the shore and wait".
The Supreme Court is expected to give judgement on Dwyer’s appeal by the end of next month.
