Dwyer Trial: ‘One came home and one didn’t’

A jury continues its deliberations in the trial of Graham Dwyer, charged with murdering Elaine O’Hara.

Dwyer Trial: ‘One came home and one didn’t’

Mr Justice Tony Hunt told the jury on day 43 of the trial 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, August 22 in 2012.

Mr Dwyer, aged 43, is charged with murdering Ms O’Hara at Killakee, Rathfarnham, Dublin.

Cork-born Mr Dwyer, from Foxrock in Dublin has pleaded not guilty.

Mr Justice Tony Hunt told the jury 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 Mr Dwyer had a fantasy about stabbing women during sex. He said the State also relied on the fact 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 22 and it was death by stabbing in the circumstances described,” he said.

He said the video evidence suggested 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 moved onto to a knife found in the basement of Mr Dwyer’s office, a knife 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 July 11.

“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 February 2014, it’s still an oddity, isn’t it?. 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 whatsoever?”

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 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 allow them to make judgements about the states of mind of the people who went to the shore 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. 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 that the spade found near Ms O’Hara’s remains had nothing to do with Mr Dwyer.

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.

The judge 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 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.”

The issue paper was handed to the foreman just before 3.30pm. The judge told him the only acceptable verdict would be unanimous.

The jury will resume deliberations this morning.

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