Video clips showing murder-accused Graham Dwyer having sex were "horrific and horrendous", but the shock they engendered should be let "drift away", a trial judge has told a jury at the Central Criminal Court.
In his closing address, Mr Justice Tony Hunt said Mr Dwyer had been seen in a "very harsh and unforgiving light".
“Nobody looks good in those situations,” he said.
The clips had a “visceral impact”, but they should leave that aside, he said. They were adults and probably had some practical experience.
He said it was clear from the videos, which showed Mr Dwyer stabbing Elaine O'Hara during sex, that what happened was painful. "Even if you want it to happen, if someone sticks a knife in you, you are going to flinch," he said.
The clips were not shown to prove Mr Dwyer had a sexual relationship with Ms O’Hara, he said. They were shown to allow the jury assess their relationship; “who enjoyed what and that sort of thing”.
The judge also said the videos didn’t bring the jury “all the way”.
“They can show Mr Dwyer was willing to take certain steps; you have to ask yourself if he was prepared to take the ultimate steps,” he said.
Mr Dwyer (42), an architect from Kerrymount Close in Foxrock, is charged with murdering childcare worker Ms O’Hara (36) on August 22nd, 2012. He has pleaded not guilty.
Ms O’Hara’s remains were found in forestry on Killakee Mountain, Rathfarnham, Dublin, on September 13th, 2013.
Mr Justice Hunt told the jury of five women and seven men that it was his first murder case. He also said they should ignore his facial expressions during the trial.
“I can’t sit here for 42 days like a dummy in Louis Copeland’s window; I react,” he said.
He told them the “misconduct” of Mr Dwyer, including videos and documents found on his hard drive, were “not an offence”, and the feeling they generated was “irrelevant” and should be put to one side.
“The only question is whether what you’ve seen and heard is capable of making any contribution to the prosecution case,” he said.
He advised the jury that if they get to 6pm, on the day Ms O’Hara disappeared, with “Mr Dwyer as a player in the picture”, they should ask themselves about the four years prior to that and if it was “reasonably possible all this is simply the product of an unusual mind, or was there something more”.
Unusual fantasies
Proof of thoughts and proof of having unusual fantasies did not constitute a crime, he said.
“There are no thought crimes on which you can convict in this case,” he said. He told the jury they had to be satisfied the material was “not just fantastical”, but was a blueprint for action and that the blueprint was followed.
Mr Justice Hunt said the jury had to consider one question: whether Mr Dwyer was guilty of the crime of murder.
He said that he would “certainly have views” about the significance of certain pieces of evidence. It was for the jury to accept or reject the significance of anything before them, however.
“You decide what to consider. You decide what to accept. You decide what to reject,” he said.
The judge also reminded the jury that Mr Dwyer retained the presumption of innocence and said they must not draw any adverse inference from the fact that he had not given evidence.
“That’s not an empty label. It’s a very real protection. You must regard Mr Dwyer and presume him to be innocent of the crime with which he is charged.”
Mr Justice Hunt said he thought one of the first things the jury would have to look at was whether there was a relationship between the defendant and Ms O’Hara, as well as what the content of that relationship was.
He also said they would have to presume that every item of evidence they considered had “nothing to do with Mr Dwyer”, unless proven otherwise.
The judge said there were positive aspects to the defendant and that the jury had to take him “in the round”.
Children
They had seen the two women with whom he had had children; he also worked for a “serious outfit”, had friends, and no one had said he was not a good parent.
Pointing to Mr Dwyer, the judge said he was innocent unless they found otherwise.
“A criminal case does not involve you returning a verdict based on speculation. You are not entitled to speculate in the case. Speculation is guesswork.”
The judge said other life decisions they would make could be changed if they went wrong.
“You cannot risk or gamble with a decision of the magnitude with which you have been trusted in this case. You cannot take a flyer with Mr Dwyer’s affairs. He’s entitled to a reasonable doubt. He gets it.”
Mr Justice Hunt noted the level of circumstantial evidence in the case and said a person could be convicted on circumstantial evidence alone.
He compared it to the strands of a rope, each of which on its own was insufficient to bear a lot of weight, but when tied together made a rope capable of bearing weight.
But he warned them to approach the circumstantial evidence with “ a degree of circumspection”, care and caution.
“You must weigh all of the circumstances and decide that you are more than certain beyond reasonable doubt of the person’s guilt.”
The judge said the jury had to decide whether Mr Dwyer had been proven guilty of murdering Ms O’Hara at Killakee on August 22nd, 2012.
The case was “opened and closed on a highly specific basis”, and they had to be satisfied she was murdered by being stabbed in pursuit of sexual gratification.
On the issue of causation, the judge said the jury had to look very carefully at any issue that pointed in the opposite direction. If there was something in the absence of marks or scoring of Ms O’Hara’s bones that left open a proposition consistent with a presumption of innocence, then they had to adopt that.
“You must be satisfied beyond reasonable doubt that the causation was a stabbing.”
The judge will continue his closing address today.
