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Judge tells jury sole question: whether or not Dwyer is guilty of murder

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Court sketch of Gemma Dwyer giving evidence

Court sketch of Gemma Dwyer giving evidence

Mr Justice Tony Hunt

Mr Justice Tony Hunt

Elaine O'Hara

Elaine O'Hara

Graham Dwyer

Graham Dwyer

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Court sketch of Gemma Dwyer giving evidence

THE question by the jury foreman caught everyone by surprise.

For two consecutive days, Mr Justice Tony Hunt - presiding judge in the murder trial of architect Graham Dwyer - was at pains to stress in his charge to the jury that the accused man was entitled to the presumption of innocence.

Judge Hunt has repeatedly hammered home, in robust terms, the need for the jury to apply the presumption of innocence to Mr Dwyer despite a "stark" case for murder set out by the prosecution and eight weeks of what he described as sometimes "horrific" evidence.

The "horrific" evidence includes video clips of Mr Dwyer stabbing and pretending to stab women during sex, Judge Hunt observing that the participants had agreed to take part in the painful activities.

The jury were just about to leave court to commence their deliberations yesterday afternoon when its foreman asked Judge Hunt: "What do we have to find the defendant guilty of?" The question, not an entirely unreasonable one given the huge responsibility placed on murder juries and the range of issues they must consider, started a mild ripple of panic in courtroom 13 as Judge Hunt moved quickly to quell any confusion about the sole question on the issue paper.

That is whether Mr Dwyer, who denies murdering Elaine O'Hara at Kilakee in the Dublin Mountains on August 22, 2012, is guilty or not guilty of murder in a case where there is no medical cause of death.

Judge Hunt reminded the jury that they must, in fact, start at the opposite end of the spectrum, namely innocence. "You don't have to find him guilty of anything," said Judge Hunt as nervous laughter rose in the courtroom as the judge explained that the jury's only options are a guilty or not guilty verdict.

It is Judge Hunt's first murder trial and he dedicated much of his charge yesterday to summarising evidence and offering his own comments on evidence which may or may not pass the test of proof beyond a reasonable doubt. The sole question on the issue paper is whether or not Mr Dwyer is guilty of murder.

But Judge Hunt told the jury that the issue of suicide is "fair and square" in the trial because of the evidence in the case. Judge Hunt reminded the jury of evidence of Ms O'Hara's medical history of borderline personality disorder, a condition, the court has heard, that lends itself to depression.

Judge Hunt also reminded the jury of Ms O'Hara's history of self-harm and suicidal thoughts which led to her admission to St Edmundsbury Hospital - an acute mental health facility - in July 2012, the first time she had been admitted since 2009. Judge Hunt told the jury that if there is a reasonable possibility of suicide on the facts of the case, they should acquit. "It's as simple as that," he told the jury, explaining that there was a contest on the issue of suicidality between the prosecution and the defence.

When he closed his speech for the defence, Senior Counsel Remy Farrell surmised that, in time, movies would be produced about the trial of Graham Dwyer. If they are, a mass-produced spade used by homeowners across Ireland could make a cameo appearance.

One of the most dramatic days of the trial was when Mr Dwyer's wife, Gemma Dwyer, testified. She said that a spade found at Kilakee was the spade from the garden of their family home in Foxrock.

Ms Dwyer said she recognised the spade because of a label and paint splatters arising from the painting of their garden fence. The issue of the spade has been a vexed one during the trial and yesterday Judge Hunt advised the jury that they had to apply the presumption of innocence to the spade.

In light of forensic evidence about the spade - a scientist said the paint on the spade did not match samples from the fence - Judge Hunt told the jury that they must be "very careful" with the spade.

On other matters, the Judge - who is legally entitled to comment on the evidence - was less circumspect about his views.

In relation to a Buck Special hunting knife that was ordered by Mr Dwyer and delivered - marked 'private and confidential' to his office the day before Ms O'Hara disappeared, Judge Hunt said he found it odd how a man strapped for cash would spend a hundred quid on a knife for no purpose whatsoever.

"Adopting the most innocent view possible of it, if it was received there on the 21st of August and remained there until Feb 2014, it's still an oddity, isn't it?" he suggested.

"He doesn't do hunting. Mr Fletcher (his boss) says it's not required for his architect work. It presumably wasn't used for model aeroplanes."

He told them to consider the bag found in Vartry Reservoir and its "striking similarity" to a bag that Mr Dwyer was seen carrying out of Ms O'Hara's home.

The judge also warned the jury about concluding that Mr Dwyer was guilty based on any lies he told in interviews with gardaí.

Mr Dwyer had told gardaí that phones they were attributing to him were not his. "If you accept that he's 'Goroon' and he's 'Master' or 'Sir', you have to take it that those denials are not true. They couldn't be," said Judge Hunt who has sought a unanimous verdict from the jury.

Judge Hunt implored the jury to arrive at its verdict logically and said it all boils down to three hours - between 6pm and 9pm - on August 22, 2012.

He told the jury that although the State's case involves circumstantial evidence, one thing is clear.

This is that two people met that evening, one came home, one didn't.

"The question is why did one person not come home? Is the person who came home responsible?" he asked.

The trial continues.

Irish Independent