The jury has begun deliberating in the trial of architect Graham Dwyer, who’s charged with murdering Dubliner Elaine O’Hara in 2012.
The five women and seven men retired to their jury room this afternoon on the 43rd day of the trial following an eight-hour charge from Mr Justice Tony Hunt.
He had told them that what they had heard over the past two months all boiled down to what they thought had happened between 6pm and 9pm on the day Ms O’Hara disappeared.
Mr Dwyer, aged 42, is charged with murdering Ms 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.
It’s the State’s case that the architect took Ms O’Hara up the mountain to Killakee and stabbed her to death in pursuit of sexual gratification.
Mr Justice Tony Hunt began his charge to the Central Criminal Court jury yesterday morning and finished at 3.30pm today.
He told the jury that the prosecution case was very stark: “This is not fantasy. This is fantasy turned into reality.”
He noted that the State’s case involved circumstantial evidence.
“It can be done but it requires care,” he said. “It requires watching out for inconsistencies.”
He told the jury it had to be satisfied that the phones in the case were Mr Dwyer’s and what was on the phones represented his authorship.
He said that, if satisfied of that, they had to ask what the accused intended: simply fantasy or something beyond that.
He said the prosecution relied on the evidence of Mr Dwyer’s former partner, Emer McShea, who testified that Mr Dwyer had a fantasy about stabbing women during sex. He said the State also relied on the fact that real targets were identified in text messages and documents.
“The prosecution say these are expressions of intent and this expression was carried out on the evening of August 22nd and it was death by stabbing in the circumstances described,” he said.
He said that, as well as examining the text messages in detail, it would be worth taking an overall look at them.
“What’s the kind of thing one person’s saying? What’s the sort of thing the other’s saying? Is one a fantasist? Are both fantasists?” he asked. “All sorts of combinations are available to you.”
He said to look at their exchanges.
“Who floats up mundane things and who doesn’t? Who keeps harping on about certain things and who doesn’t?” he asked. “Can it be taken seriously or regarded as daftness on both sides? It’s really up to yourself.”
He said that the video evidence suggested that the accused had found someone willing to submit to his fantasies in 2008, but that there was still a large distance to go beyond this.
“The prosecution says he wasn’t just going to stab someone for sexual gratification, but actually kill them,” he said.
He referred to the last message allegedly sent to Ms O’Hara telling her where to go at Shanganagh Park.
“If they bring you down to the shore at 6, they met. People who meet part. What do they do before they part?” he asked. “What was the purpose of this exercise? How did they part and in what circumstances?”
He moved onto to a Buck Special knife found in the basement of Mr Dwyer’s office, a knife that had been delivered to him there the day before Ms O’Hara disappeared.
“It’s odd. It’s the only thing I’ll say about it,” he said. “Even if you take the most innocent view possible, it is an oddity.”
He noted that the research of the knife was found in Ms O’Hara’s home and dated from the 11th of July.
“In August, he goes off and orders the knife. It’s purchased and sent not to his home where he was accustomed to receiving things,” he said, referring to Mr Dwyer having many items relating to his model flying hobby delivered to his home.
“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.”
“Why would a man who’s strapped spend €100 on a knife for no purpose what so ever?” he asked.
He said the place where the knife was found was also odd: a dormant or semi-dormant file in the basement of his workplace.
“Maybe it’s this: odd behaviour and Mr Dwyer are not distant bedfellows,” he said. “Maybe it’s nothing more than that, one of the many head shakers in the case.”
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.
“It’s for you to decide what the appropriate explanation for the bag is, given what it was found with,” he said, referring to items connected to the deceased.
He said the jury had almost five years of information about both people, their relationship, desires, tastes and behaviour.
“You’re being asked to use all that to come to a conclusion about what happened,” he said. “The texts will allow you to bring them together, there’s no doubt about that.”
He said the texts would also allow them to make judgements about the states of mind of the people who went down to the shore that evening.
“You have them at the shore. What happens after that? Did they meet only to part?” he asked.
“Did they go anywhere together? How did they go on from there? What did they do when they got there? How did the stuff end up in the reservoir and how did this all play out between 6 and 9 that evening?”
He said they had to consider it logically, and if they found an innocent explanation, they would have to acquit.
“The prosecution is saying that the past tells you everything about those three hours,” he said.
“Does fantasy become reality to the extent contended for or are there other things that point in different directions: someone else or some other cause of death?”
“The one thing we can say is that one came home and one didn’t. That’s for sure,” he said. “The question is why did one person not come home? Is the person who came home responsible?”
He said the last eight days of text messages were zeroing in on the end game.
“It all boils down to your view of three hours,” he said.
He told them that suicide had to be considered.
“If there’s a reasonable possibility of suicide, you have to acquit,” he said.
He also gave them a warning about lies in the context of Mr Dwyer’s interviews with gardai.
He had told gardai that the 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,” he said.
“The shock, horror he was expressing about that material can’t be related to that material if he was the author,” he said.
“The shock and horror in those circumstances may have something to do with those matters coming out from deep underwater after 13 months.”
He was referring to two phones in the case having been recovered from Vartry Reservoir in late 2013.
He also reminded the jury of what he said about his relationship with Ms O’Hara and what the jury had actually seen of this relationship in videos.
However, he said that they could take lies as supporting the prosecution case only if satisfied they were told to cover up guilt.
“You should not necessarily make a leap from finding he lied to an inference of guilt,” he said, explaining that there were many other reasons that a person would lie, including shame.
He also told the jury that the spade in the case was a good example of where it should be careful with circumstantial evidence. He said the jury must apply the presumption of innocence and presume the spade found near Ms O’Hara’s remains had nothing to do with Mr Dwyer.
He told the jury that evidence of a connection between the spade and the accused depended on the evidence of his wife.
Gemma Dwyer had testified that it was the spade missing from their garden. She said she recognised it from its label and from paint spattered on it during the painting of their fence.
“Obviously we’re talking about mass-produced items,” said the judge, referring to the label on the spade.
He also reminded them of evidence from a forensic scientist, who said the paint on the spade was not a match to the paint on the family’s fence.
“In the light of the evidence about the paint, you have to be very careful,” said the judge.
“You have to be satisfied beyond a reasonable doubt that the spade has something to do with Graham Dwyer.”
He agreed with the defence that the jurors might have thought that it was ‘game, set and match’ after Mrs Dwyer gave her evidence until they came in the following day and heard the forensic evidence.
He said it could be that the spade was out of the case and didn’t have any significance. He said it could be important or not important.
He said it was not enough that the paint on the spade was similar to the paint on the fence.
“It’s not beyond the realms of possibility that a large number of spades purchased years ago have paint spatters on them,” he said.
“I told you to be careful with circumstantial evidence,” he said, adding that this was a good example of this.
The issue paper was handed to the foreman just before 3.30pm, along with a number of folders and a laptop. The judge told him that when a verdict was reached to write the words ‘guilty’ or ‘not guilty’ on the issue paper and that the only acceptable verdict would be unanimous.
The foreman asked a few questions about exhibits before asking what they would find the defendant guilty of.
“You don’t have to find him guilty of anything,” replied the judge to much laughter throughout the court.
The jury returned just before 4.10pm and asked for a flip chart and for some documents to be enlarged. These included an overview of mobile phone contact and maps of cell towers used on August 22nd.
The jury then went home for the evening and will resume deliberations tomorrow morning.
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.