The gap in evidence against Graham Dwyer is a "gaping chasm" and the forensics entirely contradict the prosecution's thesis, his defence lawyer has told the jury at the Central Criminal Court in Dublin.
Mr Dwyer (42), an architect from Kerrymount Close in Foxrock, Dublin, is charged with murdering Elaine O’Hara (36) on August 22nd, 2012. He has pleaded not guilty.
Ms O’Hara’s remains were found on Killakee mountain, Rathfarnham, in September 2013.
In his closing statement, Remy Farrell SC said there was “not a screed of evidence one way or the other” about the cause of Ms O’Hara’s death. When the prosecution suggested they knew what happened on Killakee Mountain, they came up short.
“They are not trying to jump the gap, but do a backward somersault over it,” Mr Farrell said.
The prosecution suggested she was stabbed, but that was based on “fantasy documents”, he said, and the jury must decide if there was a murder in the first place.
Mr Farrell told the jury of seven men and five women the evidence could be described as “repellent in some aspects” and he did not disagree with the prosecution when they said it was “disgusting”.
He also told them they might regard Mr Dwyer as repellent, and the material as “deeply misogynistic”, but they had to sit in judgment in a cold and dispassionate fashion.
He said some might have the view that, with Mr Dwyer’s interests, he should be locked up irrespective of guilt or innocence, but that should be put aside, and the case should be tried on the basis of evidence.
Referring to videos of Mr Dwyer and Ms O’Hara having sex, Mr Farrell told the jury he recognised it was hard to take Mr Dwyer seriously after seeing him in his “private moments”.
He also said the legal team were “not glove puppets” and were not trying to convince the jury Mr Dwyer was “a nice guy”.
“You have a mountain to climb to regain the presumption of innocence before you begin deliberations,” he said.
He queried the structure of the prosecution’s case and said there was “a deliberate attempt” to cause a strong emotional reaction and push buttons. He queried why Senan McShea, Mr Dwyer’s son by an early relationship, was used to identify his father on CCTV. He also asked the jury if they remembered much of the evidence that came before the videos showing Mr Dwyer having sex.
He quoted TS Eliot, from The Waste Land: "After such knowledge, what forgiveness?"
He suggested the jury was less likely to consider earlier evidence because of the “emotional reaction”. He also suggested the text messages were left to the end “to obscure problems in the prosecution case”.
“Just because I tell you how the magician performs his trick doesn’t mean it isn’t a good trick,” he said.
He also said the prosecution were suggesting Mr Dwyer had an insatiable desire to stab and rape. But if Mr Dwyer stabbed Ms O’Hara in the way suggested in “Killing Darci”, a document found on his laptop, it was “inconceivable” that there would be no bone injuries, but forensics had found none.
He said certain aspects of the evidence given by the O’Hara family should be treated with caution.
Frank O’Hara, Ms O’Hara’s father, suggested she was not suicidal on the day she disappeared, but later admitted she had been crying at her mother’s grave, Mr Farrell said.
This chimed with evidence given earlier this week by Mary Crosbie, who saw a woman that evening crying in the graveyard, he said.
He also said whenever evidence “pops up that might suggest suicide”, gardaí either ignored it or forgot it. He suggested gardaí accepted Ms O’Hara committed suicide until 2013.
Mr Farrell also said there must have been an awful lot of blood if Ms O’Hara was stabbed in the same way as in the “Killing Darci” document. He asked where it was.
He reminded the jury a spade found in the mountains had been identified by Gemma Dwyer, Mr Dwyer’s wife, as their spade because of paint spatters on it caused when their fence was painted. But forensics showed samples from the fence did not match the spade.
He highlighted the “effort” gardaí put into investigating the issue of the dead sheep, mentioned in texts sent to Ms O’Hara. He said the idea of blood spurting out when a sheep was dead was difficult to credit, and the story was “a very elaborate and pretty infantile fantasy”.
He said the evidence was that Ms O’Hara’s tracksuit bottoms were on her when she died, but that did not fit with the theory that she must be naked. The prosecution were asking the jury to ignore the evidence.
He also said videos of Mr Dwyer having sex with Ms O’Hara and other women made it clear “it takes two to tango” and participants “came back for more and were active and willing”.
He questioned the value of evidence given by Darci Day and suggested US police had her “wound up” and some elements in the public domain had leaked into her statement.
He said the prosecution was using the “Killing Darci” document like “a huge tub of Polyfilla” to fill gaps in evidence.
He said text messages sent to Ms O’Hara’s phone were fantasy. He highlighted one message on August 22nd, 2012, the day Ms O’Hara disappeared, that said to take a painkiller at 5pm.
“This is the first time in history a murder victim is told to take a painkiller in advance,” he said.
He also said suggestions by the prosecution that Ms O’Hara was groomed into normalising the idea of suicide were not correct; she needed no grooming in that regard, having made suicide attempts in the past.
He also said there was an expectation “in the media and on the barstool” that the jury would convict, and if the jury acquitted they would be “doing the unpopular thing”. They needed to look beyond the evidence that would turn the stomach, and beyond leaps and flights of fantasy, to what the forensics was telling them.
Mr Justice Tony Hunt will begin his address to the jury on Monday morning.