THE JURY in the Graham Dywer trial has been told if they are to find him guilty of murdering Elaine O’Hara they have to be satisfied that he stabbed her to death.
Mr Justice Tony Hunt told jurors that they could not convict the accused unless they found that Ms O’Hara’s death had been caused in the specific manner suggested by the prosecution.
He was continuing to deliver his charge to the jury this afternoon.
Judge Hunt told the jury members that they had on their issue paper one proposition to consider - that Mr Dwyer murdered Ms O’Hara at Killakee on August 22, 2012.
However, he said the prosecution’s case was highly specific and went beyond what was on the paper.
This was that not only did he murder Ms O’Hara, but he murdered her by stabbing her in pursuit of some “gratification.”
“There has to be evidence of causation, you have to be satisfied beyond reasonable doubt that Mr Dwyer caused Ms O’Hara’s death in the manner that is suggested… You have to be satisfied beyond reasonable doubt that this was a murder, that it was a murder committed by Mr Dwyer, and that it was committed using the agency of a stabbing,” Judge Hunt said.
The judge also told the jury about circumstantial evidence, and said the prosecution’s case was in a large part if not totally based on drawing inferences.
“It is a perfectly well-established proposition that a person may be convicted of a criminal offence on circumstantial evidence alone,” he said.
He said there was no direct evidence of what happened at Killakee on August 22, 2012, but there was a collection of independent facts and the prosecution said when taken together, their combined weight was sufficient to prove the principle fact.
However, he said circumstantial evidence never provided self-evident proof of guilt and must be treated with care.
He said the evidence must be inconsistent with any other rational conclusion.
Mr Dwyer (42), a Cork-born architect of Kerrymount Close, Foxrock, is pleading not guilty to the murder of Ms O’Hara (36), a childcare assistant, at Killakee, Rathfarnham on August 22, 2012.
Her remains were found by a dog walker in undergrowth in the Dublin mountains on September 13, 2013.
The prosecution maintains Mr Dwyer killed her to satisfy a sexual urge to stab a woman to death.
Earlier, Judge Hunt told the jurors their verdict must be rooted in the evidence and they were not entitled to speculate. They must leave emotion and sentiment out of it, he said, and reach an "antiseptic decision" based on facts.
The standard of proof was the highest in the courts - beyond reasonable doubt. The burden of proof was on the prosecution.
He said the starting point in viewing the evidence was with the continued presumption of innocence enjoyed by the accused.
Judge Hunt said he had never presided over a trial with more than 300 exhibits, but told the jury he would not be going over all of them.
“Knives, sex toys and mundane objects... they’re all there,” he said.
“You’ve got the pictures. If you want to look at any of them just ask.”
He also said that he believed there had been witnesses on about 20 different topics and said he will not go back over the evidence of many of those.
They include the Garda mappers and photographers, those involved in the initial missing persons investigation, those who found her remains at Killakee forest and the items in Vartry reservoir, and others like the man who installed CCTV at Belarmine Plaza and mechanics who carried out repairs on Ms Dwyer’s cars.
However he will remind the jury of the evidence given by members of the O’Hara family, people she worked with in a newsagents in Blackrock, patients and experts at St Edmundsbury’s Hospital, and the men Ms O’Hara had met on Alt.com, particularly two she met in person.
He will also deal with evidence given by deputy state pathologist Dr Michael Curtis and anthropologist Noreen Buckley as it forms part of the defence’s case, he said.
He reminded them that people connected with Mr Dwyer, including an old acquaintance Gordon Chisholm, his ex Emer MsShea and his wife Gemma Dwyer all testified.
“That was certainly a dramatic afternoon in the trial,” Judge Hunt said about Mrs Dwyer.
“You’ll have to examine her evidence generally and in relation to the spade.”
Judge Hunt said evidence was also given by people who recalled Mr Dwyer visiting Galway and Ballyshannon, Co Donegal, which he said was part of the prosecution’s case that Mr Dwyer was using two phones to contact Ms O’Hara.
“I’ll go through what the prosecution relies on. It’s for you to be satisfied beyond reasonable doubt that the phones are attributable to the accused man Graham Dwyer,” he said.
“It seems to me if the comments on the (Goroon) phone are not referable to Mr Dwyer they are referable to somebody who bears an astonishingly similarity to aspects of his life.”
Judge Hunt told the jury if they were not convinced by the circumstantial evidence on who purchased and used the phones beyond all reasonable doubt “I suggest you go no further in the case”.
“You need to rely on Mr Dwyer being the operator of those phones to bring him to the shore at 6pm on August 22, and if you don’t bring him there where are you going with the rest of it?,” he said.
“If your taste of circumstantial evidence doesn’t admit to that, then it won’t admit to a guilty verdict on a murder charge.”
Judge Hunt said the texts only gave a snap shot of Ms O’Hara’s relationship with the man who was texting her.
On her sexual relationship with Mr Dwyer he said it appeared to be an extra marital affair of a particular kind, which did not involve going out to pubs and restaurants and leaving the rest of the family behind.
“It appeared to revolve around sessions that took place around Ms O’Hara’s abodes,” he added.
He said Ms O’Hara had recalled that in one text when she said “you don’t really want to be seen with me”.
The judge added that he was not criticising Mr Dwyer for a lack of chivalry... “that’s what they were at.”
He said evidence given on the purchase of those phones, and top-ups bought, all link Mr Dwyer to the phones and he could remind them of the evidence if needed.
The judge said he could also remind them of the evidence given by computer expert Brid Wallace and crime analyst Sarah Skedd, but “that would waste a day, two days” and they had the evidence in document form.
However Judge Hunt said he will reflect on Ms O’Hara’s medical and psychiatric well being before her death.
“The prosecution have one take and the defence have a very different take,” he said.
The judge then picked up the first of seven large black folders on his desk and began to read back over the evidence given by Ms O’Hara’s father Frank who spent the day with her before she disappeared.
Mr Justice Hunt will resume charging the jury tomorrow morning.
Graham Dwyer Trial
THERE are few, if any, closing speeches in murder trials where the lead defence counsel begins by acknowledging that their client may be regarded as 'repellent', 'abhorrent', 'disgusting' and open to the possibility of being convicted by a jury irrespective of whether they are guilty or innocent.