Graham Dwyer trial judge tells jury: Be careful with circumstantial evidence

The judge in the Graham Dwyer trial has 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 Elaine O’Hara’s remains had nothing to do with Mr Dwyer.

The 42-year-old is charged with murdering the Dubliner at Killakee, Rathfarnham, Dublin on August 22, 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 resumed his charge to the jury this morning on the 43rd day of Mr Dwyer’s trial at the Central Criminal Court.

He told the jury that evidence for a connection between the accused and a spade found near Ms O’Hara’s remains 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 trial has heard that Ms O’Hara was last seen in Shanganagh on the evening of August 22, 2012.

A cause of death could not be determined when her skeletal remains were discovered at Killakee on September 13 the following year.

Mr Justice Hunt is continuing his charge to the jury of five women and seven men this afternoon.

They are expected to begin deliberating this afternoon.