Jury requests knives, clothing and other exhibits be made available to them

Graham Dwyer
Graham Dwyer

The jury in the trial of Graham Dwyer has asked for the knives, some items of clothing and a number of other exhibits in the case to be made available in the jury room.

The foreman made the request for some of the exhibits this morning before resuming deliberations on the 45th day of the Central Criminal Court trial.

The five women and seven men had spent an hour and a half considering their verdict yesterday before going home for the evening.

Mr Dwyer is charged with murdering Dubliner Elaine O’Hara 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.

Elaine O'Hara

It’s the State’s case that he took Ms O’Hara up the mountain to Killakee and stabbed her to death in pursuit of sexual gratification.

The foreman handed in a note to Mr Justice Tony Hunt as soon as the court sat this morning.

In it, he asked for all the knives in the case, a runner found near Ms O Hara’s remains and a spade found elsewhere at Killakee. A backpack found in Vartry Reservoir in Wicklow was also requested.

The trial heard that two knives were found in the basement of Mr Dwyer’s workplace in February 2014. A rusty blade had been found at Killakee when Ms O’Hara’s remains were discovered the previous September. Knives were also found Vartry reservoir around that time.

After reading the note, the judge also told the foreman that he appreciated his desire for privacy but that he had to speak to him by name.

The jury resumed deliberations but sent through another request following a smoking break.

This time they requested the hoodie, white vest and a bondage mask found in the reservoir, along with tracksuit bottoms found near Ms O’Hara’s remains.

They were provided with these but were not given a letter they had requested that had been found in Mr Dwyer’s home.

The judge called the jurors back into court to explain why they couldn’t give it to them.

He said it was a letter about smoking from Mr Dwyer’s son, Sennan McShea, but that it was not in the case because it had not been shown to Mr McShea in the witness box.

The judge also asked the foreman if the other matter he had mentioned in his note was of some personal concern to him and the foreman nodded.

The jurors returned to the jury room and had deliberated for a total of three hours and 12 minutes before taking a break for lunch.

They will resume their deliberations this afternoon.

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 Tony Hunt called the jurors back into court yesterday morning to give some legal directions and read over some of the evidence heard during trial.

He told the members that the only verdicts open to them were guilty or not guilty of murder

He told them that the question of suicidality was important for both sides and he thought he should revisit it. He read out the evidence of Ms O’Hara’s treating psychiatrist, Dr Matt Murphy, who testified on February 12th.

“It shows Ms O’Hara’s condition over the years,” said the judge.

He noted that the defence was focused on the issue of suicidality and he said that they had to consider it.

“You have to assess both of these personalities and what you know of them,” he said.

He said they had to be satisfied that the parties were communicating by phone, and then decide whether the text messages represented fantasy or plans to do actual things.

He said that, when assessing Ms O’Hara as a person, her ongoing issues and thoughts of suicide were highly relevant. However, he said the thoughts of suicide were part of her mental health problems but not the full picture.

He also spoke about the forensic evidence and the defence position on that.

“Simply saying something’s present or not present doesn’t give you the full context. Everything depends on context,” he said.

He said the ‘Killing Darci’ document found on Mr Dwyer’s hard drive was part of the prosecution case, but he said the State was also relying on other documents and what was documented in videos and texts.

He said that, closer to her disappearance, the State also relied on the message it claims the accused sent to Ms O’Hara: ‘You’re going to get stabbed in the guts’.

He said they had heard how the pathologist had dealt with both propositions, by answering the defence’s question about bony injuries if stabbed in the ribs and the State’s about being stabbed in the abdomen.

He referred to a question asked by the jury yesterday: “What do we find him guilty of?”

“You are not obliged to convict Mr Dwyer,” said the judge. “You can only convict him of one thing on the issue paper. You’re asked to consider the offence of murder… The causation is stabbing.”

“The only two verdicts are guilty or not guilty,” he said. “Confine yourselves to the verdict that has to be returned, the evidence and what is reasonably inferred from the evidence. You have not been asked by the parties to consider any intermediate or different verdict. It’s guilty of murder or not guilty.”

He told them they were not asked to consider accidental death.

“It’s murder by stabbing beyond a reasonable doubt,” he added.

He said they had to ask if there was an innocent view of the case, which the defence said was contained in three sources.

These included the interviews, where Mr Dwyer said he didn’t do it and that it wasn’t him with the phones. They also included the two pieces of writing, he said, referring to letters Mr Dwyer wrote to his wife and son, in which he said Ms O’Hara had died by suicide and it was nothing to do with him.

“Ask again; is there a reasonable hypothesis on that evidence consistent with innocence?  You have to acquit in that case. It’s as stark as that,” he said.

“If you think suicide is a reasonably possible hypothesis, you acquit,” he said, adding that if they didn’t think so, they still had to be satisfied beyond a reasonable doubt that he stabbed her with intent.

It’s guilty or not guilty of murder, he added.

The foreman then spoke to the judge.

“I just wanted to say I did not mean it to come out like that yesterday,” he said, referring to his question about what to find the accused guilty of.

The judge replied that, when it came to things not coming out as they were meant to, ‘I have a first-class honours degree’.

The jurors restarted deliberations at 2.40pm, with the judge telling them not to give themselves a deadline.

He said that if it went beyond the end of this week, he would have to ask them to stay with it.

“There’s too much at stake,” he said.

The jurors returned to court at 4.08pm, having spent a total of one hour and 28 minutes in deliberations.

The judge said he assumed they hadn’t reached a verdict on which all 12 of them agreed, and the foreman shook his head.