A JURY in the Kearney case was told by his defence counsel to be particularly cautious of scientific and forensic evidence when deciding his client's guilt or innocence.
Closing his case at the Central Criminal Court in Dublin, Patrick Gageby SC, told the jury to be cautious of forensic and scientific evidence and suggested omissions in the prosecution case were more telling then had been presented.
"This is a prosperous couple, a hard-working couple who had come into marriage difficulties," Mr Gageby said.
While there was evidence of marriage difficulties, there was no evidence of a history of violence, a history of threats, drunkenness, jealousy, a bitter custody battle.
He asked the jury of eight women and four men to think through very carefully what was put forward by the prosecution as a motive in the case.
"The prosecution says Mr Kearney killed his wife because it would make his life difficult if she moved into the house next door.
"Ask yourself this. Does the evidence prove that he would be so broke by that, that it would put so much pressure on him, that he would decide it would make the difference between I shall kill my wife or I shall not kill my wife?" Mr Gageby asked.
He said evidence was given that Mr Kearney had access to ample funds. His family business had €1 million in the bank and if liquidated he stood to earn a substantial sum.
If the jury found the motive did not stick, it had to affect their overall decision on whether Mr Kearney made a cool decision to kill his wife, he said.
Mr Kearney had no previous convictions and while he agreed that Mr Kearney might have had opportunity to kill his wife, if the jury accepted that he was in the house, he asked why he had not pushed the possibility of his wife's suicide in interviews with gardaí.
He urged the jury to be cautious also with evidence from Ms Kearney's family.
"It was clear that day that the McLaughlin family had come to the view that Brian had murdered their daughter," Mr Gageby said.
He said members of the family were traumatised and the jury may think their recollection of events on the day was not very good.
"We have the accusation that he killed his wife and then contrived a hanging to cover it up," Mr Gageby said. "Why isn't he, on the day and the days after, spinning a story about suicide?
"If the suggestion is that he faked her suicide having killed her, why did he not make the case himself?" He said it was a "potent and pertinent" reversal of the central plank in the prosecution case.
He said the one thing that might be unusual was there was nothing in the history of the home's security alarm to suggest a break-in. The jury had not heard any evidence from neighbours or people who were in the area that morning.
"In a case of circumstantial evidence, the prosecution is here to exclude all reasonable alternative evidence."
He said DNA evidence stood in stark contrast to the rest of the evidence in the case.
While an initial test showed a major component of DNA on the hoover flex found with Ms Kearney's body came from her and a minor element could have come from Mr Kearney, a more advanced test carried out by forensic scientist Dr Dorothy Ramsbottom showed it was not Mr Kearney's DNA.
"Aren't I glad and isn't the defence glad that we have Dr Ramsbottom? It seems to me this is a huge area where you should be extremely careful."
He said evidence from retired forensic scientist Dr Michael Norton said the flex was cut with the insulation pulled back to expose the wires, which suggested it had been done by someone who knew what they were doing.
"Somebody like an electrician," he said. "Was it something sinister or an electrician doing his daily work?"
He said the prosecution contended the second knot in the flex could not reach the door handle to anchor it and it had held no weight or tension but no tests had been done to determine what the knot would look like if it had held weight.
The prosecution also never checked what weight needed to be placed on the flex to leave a mark on the top of the en-suite door and a mark on the flex itself. The court heard a number of knives had been seized as part of the investigation because Dr Norton had contended the flex had been cut.
"If ever there was a red herring introduced by the prosecution, that's it."
He told the jury to remember State Pathologist Dr Marie Cassidy had only said there was a suggestion that Ms Kearney had been manually strangled.
"We say that her findings are not inconsistent with low-level hanging, followed by a break [ in the flex] caused by the full weight of the body coming on the actual rope or flex."
He then said the jury should look at the vacuum cleaner itself, suggesting it was something to be stood on or to lean on to position oneself. "I want you to think about that very carefully."
The hidden passport and €500 note found in the house was not out of the ordinary.
He said the DNA did not match Mr Kearney's, the prosecution motive that Mr Kearney was going to kill his wife for financial reasons had collapsed, there was no history of violence and Mr Kearney himself was saying his wife would not commit suicide.
"Why would you do that? That doesn't make a titter of sense." The evidence of Dr Norton said the flex was cut and Mr Kearney had never committed any kind of offence before.
He said the jury should be worried to the point it could not convict Mr Kearney beyond reasonable doubt.
"If you say beyond reasonable doubt, you will reach over the DNA, you will put aside Dr Norton's evidence, or will you take it all on board and say this case just doesn't have the kind of certainty needed to convict that man."
Mr Justice Barry White will start his charge to the jurors this morning. He told them to bring their overnight bags. He said he expected his charge to finish about 3pm when the jury will retire to consider its verdict.