THE jury in the murder trial of architect Graham Dwyer has been told by his defence counsel that if they acquit him, they will be "doing the unpopular thing".
Remy Farrell SC, Mr Dwyer's lead defence counsel, told the jury of seven men and five women that they might find his client "repellent" in his closing speech on day 41 of the trial.
And he told them that they were about to become the hardest working jury in the Criminal Courts of Justice as they had a "mountain to climb to simply apply the presumption of innocence".
Mr Farrell said that having seen videos of Mr Dwyer engaging in explicit sexual acts, some of the jurors might think that his client should be locked up irrespective of whether he's guilty or innocent.
But the lawyer told the jury that this was something that must be put aside because of the juror's oath and he said that they must try the case on the evidence.
Mr Farrell said jurors were being asked to "paper over the cracks" in the prosecution's case and were being asked to convict Mr Dwyer of murder without the evidence to do so.
Mr Dwyer (42) is charged with murdering Dubliner Elaine O'Hara at Killakee, Rathfarnham, Dublin on August 22, 2012, hours after she was discharged from a mental health hospital. The Cork-born father of three of Kerrymount Close, Foxrock in Dublin has pleaded not guilty to murdering the 36-year-old childcare worker.
Members of the public queued from 8.30am yesterday morning to hear the closing speeches of Mr Farrell and prosecutor Sean Guerin SC.
Mr Farrell told the jury that there was a gaping chasm in the prosecution case and that the State's evidence went only so far.
He said there was a distinction between reality on the one hand and fantasy on the other.
Mr Farrell said that the State was pointing the jury towards an extremely elaborate theory that was not based on evidence and was "attempting to do a backward somersault over the gap" in the case.
He said that the prosecution claimed that the various documents in the case represented not just his client's desires but his actual plans.
He then suggested that there was a deliberate attempt by the prosecution to adduce a strong emotional reaction from the jury. The lawyer said that the State "very deliberately put all of the evidence that was problematic" at the very start.
"Does anyone really remember the State pathologist's evidence now?" he asked. "Do any of you remember any of the evidence you heard before those videos?"
Mr Farrell spoke of the pathologist's findings of no bony injuries to Ms O'Hara's skeletal remains. "If Mr Dwyer stabbed Ms O'Hara on multiple occasions, it's inconceivable there wouldn't be bony injuries," he said. He said a deliberate decision was also made to leave the text message evidence to the end, even though it was clearly "all about the text messages".
Mr Farrell also said that the prosecution contended that the document, 'Killing Darci', was the template for the alleged murder. "Look at that document, distasteful and all as it is. Read it," he said. "If that's what happened here, where is the forensic evidence? They're trying to use the documents as a huge tub of Pollyfilla - to fill gaps in the case."
Mr Farrell said that the prosecution had opened its case describing the relationship between Mr Dwyer and Ms O'Hara as a manipulative one, where he was "normalising the idea and getting her used to the idea of suicide". "I suggest that cannot be so," he said. "Ms O'Hara needed no normalising or grooming. Her history discloses multiple and serious attempts at suicide."
He noted that her doctor had said that the period following release from hospital was difficult for a patient. He mentioned a conversation she had about suicide the night before she was discharged.
He said that on every occasion that the defence sought to raise the possibility of suicidal ideation, the prosecution sought to dispute it and establish that she essentially skipped out the hospital door that day.
Mr Farrell said there was "quite a remarkable degree of cherry picking" by the prosecution. He acknowledged that his client had "clearly told lies" in his garda interviews, but said that people could tell lies for all kinds of reasons.
He said that it was relevant to bear in mind that Mr Dwyer was being questioned about an extramarital affair, which he said was a "genteel" description of it.
"This is one of the points where you're going to have to put yourself into Graham Dwyer's shoes, difficult as that might be," he said.
Mr Farrell said this is a case where there is "not a screed of evidence in relation to the cause of death". He said the prosecution said it was a stabbing, but that the only evidence they had offered were fantasy documents.
"It is one of the most essential and basic elements in a murder case to actually decide whether there's been a murder in the first place," he said.
He said there was a gap in the evidence over which the jury was being invited to jump.
However, he said that everywhere they would turn, "the silent witness" that was the forensic evidence would turn up.
The trial continues on Monday with Mr Justice Tony Hunt's charge to the jury.