If there is a reasonable possibility Elaine O'Hara died by suicide, Graham Dwyer must be acquitted. "It's as simple as that," a judge has told a jury at the Central Criminal Court.
Mr Justice Tony Hunt said there was evidence "suicidal thoughts were there, and there very close to the end", in Ms O'Hara, and it was the extent of those thoughts and how they fed into the day she disappeared that the jury had to consider.
The prosecution said her disposition made her a good candidate for Mr Dwyer’s plan, the judge said, while the defence said suicide was a “working assumption” for gardaí until 2013, and then there was “unseemly haste to push that into the background”.
“It’s fair to say there are straws in the wind that blow both ways,” 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.
After a charge of eight hours over two days from Mr Justice Hunt, the jury in the trial was sent out to consider its verdict at 3.29pm yesterday.
Before leaving, the jury foreman asked the judge: “What do we have to find him guilty of?”
There was laughter in court and the judge said they didn’t have to find him guilty of anything and said the charge was murder, before asking the jurors to retire.
At 4.10pm, the jury returned and requested a flip chart, documents on phone activity and enlargements of some maps. They were then sent home for the night.
Earlier, Mr Justice Hunt told them to approach deliberations in a logical way and bring themselves to the shoreside at Shanganagh at 6pm on August 22nd, 2012.
“The one thing that you can say with certainty is that two people met that day, one person came home the other didn’t,” he said.
They had to ask themselves where they went, how they went and what they did when they got there. They also should ask “how does the stuff end up in the reservoir?” and how it all played out in the time under consideration: between 6pm and 9pm that evening.
“Why did the other one not come home? Is the person who did come home responsible?” he asked.
Mr Justice Hunt recapped evidence, including that given by Ms O’Hara’s family, by men she had met on website Alt.com, and that given by Deputy State Pathologist Dr Michael Curtis. He reread Dr Curtis’s evidence from the transcript, including questioning and cross-examination about what marks stabbing would leave on Ms O’Hara’s skeletal remains.
The pathologist had agreed self-harm wouldn’t exhibit bony injury, and strangulation frequently would not. Stabbing to the chest area would leave marks on ribs, he said, but he sometimes saw stabbings “when they go between the ribs”. Asked if a fatal stabbing to the abdomen would leave bony injury, he told the court “almost certainly not”.
The judge also recapped evidence given by Mr Dwyer’s wife, Gemma Dwyer, and her identification of a spade found in the mountains as being one that went missing from her home. He said Mrs Dwyer identified the spade from a label on it and from paint splatters. But forensic evidence found the paint splatters on the spade were not the same as on the Dwyers’ garden fence.
“The spade still went missing, sure, but is that the same spade?” the judge asked.
“You have to be very, very careful in light of the forensic evidence; similar is not enough.”
Mr Justice Hunt also referred to Mr Dwyer’s Garda interviews and said, if the jury believed Mr Dwyer lied, they should ask whether it was to hide his guilt or for other reasons.
“Few enough married men would easily own up to a consistent sexual relationship with someone other than his wife,” he said.
He also said if the jury was satisfied the phones, from which text messages had been sent to Ms O’Hara, were Mr Dwyer’s, then he had lied about that to gardaí. And it seemed to follow the “shock and horror” he expressed when the texts were read, could not be related to the material itself.
“It may have something to do with matters coming out from deep under water after 13 months,” he said.
The judge also referred to the hunting knife, purchased by Mr Dwyer and delivered to his office on August 21st, 2012, as “an oddity”.
He said Mr Dwyer didn’t hunt and apparently did not use it for model aircraft. It remained in the basement of his workplace, until he directed gardaí to it.
“So even on the most innocent view, why would a man spend €100 on a knife for no purpose altogether?” he asked. He told them they would have to draw their own conclusions.
“Odd behaviour and Mr Dwyer are not distant bedfellows; maybe it’s no more than that,” he said.
Mr Justice Hunt also said they should consider the bag found in the reservoir. He said it had a striking similarity to a bag seen on Mr Dwyer’s back in CCTV at Ms O’Hara’s home, Belarmine Plaza. He told them they should draw their own conclusions about it.
He also told the jury they had up to five years’ information about “these people” and they were being asked to use all of that to come to a conclusion about what happened after 6pm on the day Ms O’Hara disappeared.
He told them they would have to deal with the texts in detail and ask: “What is the kind of thing one person is saying, what is the other saying?”
They should take a look at the exchanges and ask: “Who keeps harping on about certain things and who doesn’t?”
They should form an assessment about whether they are to be taken seriously or if there is “daftness on both sides”.
He also said the texts should be taken along with the video clips. Those show “some capacity to act on fantasies”, the judge said, but the jury had “a much bigger mountain to climb”.
Mr Justice Hunt said the last 43 days all boiled down to the jury’s view of the three hours, between 6pm and 9pm on August 22nd, 2012.
He told them they had to be satisfied beyond reasonable doubt that Mr Dwyer murdered Ms O’Hara by stabbing her for his own sexual gratification.
“You cannot convict unless you are satisfied beyond reasonable doubt; if you are so satisfied, you are obliged to convict,” he said.
The jury will continue its deliberations today.