Judge clarifies the one question that the jury alone can answer
JUST before the jury in the Graham Dwyer murder trial rose to consider its verdict on Tuesday, the foreman of the jury asked a pertinent question.
The question, "What do we have to find the defendant guilty of?" suggested a degree of confusion about the single question on the issue paper that the jurors must resolve.
Trial judge Mr Justice Tony Hunt moved quickly to clarify the task that lies ahead for the jury of seven men and five women. And yesterday, the judge suspended their deliberations to elaborate on a number of issues to assist them in that task.
"First of all, you're not obliged to convict. On the contrary, you can only convict him of one thing and that is what is on the issue paper," said Judge Hunt, who said there were two options available, namely guilty or not guilty of murder.
"The charge is murder. It's very stark," he said, adding that the prosecution must prove the charge beyond reasonable doubt.
It is the prosecution's case that Mr Dwyer stabbed Elaine O'Hara to death in pursuit of sexual gratification, a charge the architect - a married father of three - denies.
Judge Hunt told the jurors that they are not being asked to consider accidental death or anything like it.
"It's murder by stabbing," the prosecution alleges, he said, reminding the jurors that the prosecution's case - largely based on circumstantial evidence - required them to exercise care. On the issue of circumstantial evidence, Judge Hunt corrected remarks he made on Tuesday during his initial charge to the effect that circumstantial evidence has the capacity to prove a case to a mathematical degree.
"Circumstantial evidence can, of course, prove things beyond reasonable doubt, but mathematical accuracy doesn't come into it," he said.
Human affairs, he observed, are not capable of proof to the extent of mathematical certainty.
The judge informed the jury that accident is out of the picture. So too is consent, which he said does not arise in relation to the charge of murder.
Judge Hunt told the jurors they could find Mr Dwyer guilty of murder by stabbing, unless they believed there was a reasonable hypothesis consistent with an innocent view of the facts.
If they consider suicide as a reasonable possibility, they must acquit, he said, adding that even if they reject the defence case, they still have to be satisfied with the prosecution case beyond reasonable doubt.
Armed with the evidence and their life experience, the jurors recommenced their deliberations and will continue to do so today.