Jury told they must be satisfied Graham Dwyer killed for sexual gratification
The judge in the Graham Dwyer trial has told the jury that in order to find the architect guilty of murdering Elaine O’Hara, it must be satisfied, specifically, that he stabbed her to death in pursuit of sexual gratification.
He also said that ‘we’ve all said our bad things about Mr Dwyer’ but that the issue the jury must decide is whether he’s guilty of murder, not whether he’s guilty of other things.
The 42-year-old is charged with murdering the Dubliner at Killakee, Rathfarnham, Dublin on 22nd August 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.
Mr Justice Tony Hunt began his charge to the jury today on the 42nd day of Mr Dwyer’s trial at the Central Criminal Court.
“We’ve all said our bad things about Mr Dwyer,” said the judge. “That fine. It’s ventilating. Get it out there at the start of your deliberations and blow it away. It will only obscure the road you have to travel, the journey you have to take.”
He said that the issue the jury must decide is whether he’s guilty of murder, not whether he’s guilty of other things.
“Manifestly he is - of misconduct of various kinds. That misconduct doesn’t constitute a criminal offence,” he said.
He said the jurors would be given an issue paper and the proposition they would have to consider was whether Graham Dwyer was guilty of murdering Ms O’Hara at Killakee on August 22nd, 2012.
However, he said that the case was opened and closed on a highly specific basis and went beyond what was stated in the issue paper.
“You have to be satisfied specifically, not just that she was murdered, but that she was murdered by being stabbed by Graham Dwyer in pursuit of sexual or some kind of gratification,” he said.
“The evidence the prosecution rely on in support of that proposition is of course entirely indirect. You’re asked to deduce it from a set of other circumstances.”
He said there had to be proof of a killing and causation.
“Self-killing does not constitute murder,” he said.
“You have to be satisfied beyond a reasonable doubt that Graham Dwyer caused Ms O’Hara’s death in the manner suggested,” he said.
“You’re not being asked by the prosecution to consider anything else.”
He said the question of causation was raised by the defence and the judge told the jury to be particularly careful when being asked to make a large inference or assumption about an issue as specific as that.
He said the defence laid particular emphasis on ‘the silent witnesses’ - the lack of anything on the remains consistent with a knife attack.
“It’s for you to assess what significance or weight that has,” he said.
He said the jurors were being asked to draw inferences as to both constituents of murder: the act and intent. To convict, he told them, they had to be satisfied beyond a reasonable doubt of both.
“If you’re satisfied it was a stabbing, that might ease the way in concluding what the accompanying intention was,” he said.
He said that the prosecution was relying on expressions in text messages and other behaviours, along with motive, to prove causation. He explained that motive wasn’t essential, but something they could take into account if satisfied it existed.
He said they were being asked to make a very large decision based on indirect evidence and had to be very careful and clinical.
Regarding videos the jury saw of Mr Dwyer stabbing Ms O’Hara and two other women during separate sex acts, he said they hadn’t been shown to make the accused look foolish or bad.
“What you saw was horrific and horrendous; there’s no getting away from that,” he said. “The reason we saw that was because of certain assertions made in the interviews (with gardai)… and to allow you to assess the content of the relationship.”
“There’s nobody really who would have heard or seen what you’ve seen who could have a good opinion of what you’ve seen,” he said.
He told the jurors to decide whether it was capable of making any contribution to the prosecution case.
“You’re going to have to decide whether what Graham Dwyer engaged in, whether it’s reasonably possible that all this was simply the product of an unusual mind, to use a neutral term, or was there something more to it?” he asked. “Your own feelings about him and his activities have no part to play in your assessment.”
He told them that the videos didn’t bring them all the way necessarily.
“They can certainly show Graham Dwyer was willing to take certain steps,” he said. “You have to ask can they show… that he was prepared to take the ultimate step.”
He said there were no thought crimes on which they could convict in this case.
He said they must be satisfied that material in the case was not just fantastical material but a blue print for action, a blue print that was followed. He was referring to documents and text messages attributed to the accused.
Regarding mobile phones that the State attributed to the accused, he said they had to be satisfied beyond a reasonable doubt of the connection.
“It seems to me that if they’re not referable to Mr Dwyer, they’re referable to someone whose life bears astonishing similarities to the life of Mr Dwyer,” he said.
“If the circumstantial evidence surrounding the mobile phones… doesn’t convince you beyond a reasonable doubt, I suggest you go no further with the case,” he said. “You need to rely on Mr Dwyer being the operator of those phones to bring him to the shore at 6pm on the 22nd of August and if you don’t bring him there, where do you go with the rest?”
He was referring to the last text message sent in the case, which the State said had been a direction from the accused to the deceased to ‘go down to shore and wait’.
The scene where Elaine O'Hara's body was found
“In essence, the prosecution have to bring you all along the road,” he said.
“If you get to the end of the case, as the prosecution say you should, if you get to 6 o’clock in the evening on the 22nd of August with Mr Dwyer as a player in the picture,” he continued.
“It’s important they have to bring him all the way up there, all the way to the end… It seems to me, if you’ve got to 6 o’clock on the evening of the 22nd of August,” he said. “You then have to consider what happened in the next three hours or so.”
He reminded the jury that Mr Dwyer’s work phone operated in the Foxrock area around 9pm, after a period of inactivity.
He spoke of the presumption of innocence that had to be given to the accused.
“It’s very easy to give things to people we like, who we approve of,” he said. “It’s much more difficult to extend the hand to someone who isn’t likeable.”
However, he said they couldn’t think in that way.
“The safeguards are as fully owned by Graham Dwyer as anyone else who faces a criminal charge,” he said. “I want you to make sure there’s no slippage by virtue of the nature of what you’ve seen… Where you have unpalatable features, it’s very easy to let it slip.”
He noted that Mr Dwyer himself didn’t give evidence in the case.
“Nothing turns on that. He enjoys the presumption of innocence and the option of not giving evidence,” he said.
“You must draw no adverse inferences from that fact.”
He said he was entitled to allow his barrister do the job, to cross examine the prosecution witnesses and make a case consistent with innocence.
He told them there wasn’t much law in the case, but that there was ‘an enormously important exposition about circumstantial evidence’.
“Circumstantial evidence is all about the drawing of inferences,” he said.
He also told them he’d give directions about how they should approach untruths.
He explained the burden of proof and that the prosecution had to prove all issues in the case beyond a reasonable doubt.
“They do it on evidence and inferences, not on speculation or guess work,” he said.
He said ‘the profound decision’ required of them in this case required the most profound standard of proof.
“Reasonable doubts must be resolved in his favour, like it or like it not,” he said of the accused.
“You can gamble with your affairs, even the important ones.”
He said they could not do this with Mr Dwyer’s affairs.
The judge said that he would remember this case as his first murder trial but probably for other reasons too.
He said the jurors would also not forget the past two months easily, but could never have any second thoughts about their verdict.
“You can’t condemn a man to a murder conviction while there are any lingering doubts in your minds,” he said.
He told them to blow away ‘all the hoopla and fuss’ that seemed to have attached itself to this case.
“It’s probably been pretty hard to avoid all that hoopla,” he said.
The trial has heard that Ms O’Hara was last seen in Shanganagh on the evening of August 22nd 2012.
A cause of death could not be determined when her skeletal remains were discovered at Killakee on September 13th the following year.
Mr Justice Hunt is continuing his charge to the jury of five women and seven men tomorrow morning.
They are expected to begin deliberating afterwards.