Graham Dwyer trial: Jury can ‘go no further’ unless satisfied phones were used by Dwyer

The judge in the trial of Graham Dwyer for the alleged murder of Elaine O'Hara has told the jury if they are not satisfied that phones alleged to have been used by him were attributable to him, then they could "go no further" with the case.

Mr Justice Tony Hunt told the jury it seemed to him that if the phones, including the phone known as the 'Goroon' phone, were not referable to Mr Dwyer "they are referable to somebody who bears an astonishing similarity to aspects of his life".

But he said this was a matter for the jury. “If you can’t be satisfied that the phones [are attributable to him] I suggest you go no further with the case.”

“You need to rely on Mr Dwyer being the operator of those phones to bring him to the shore [at Shanganagh] at 6 o’clock on the 22nd of August. And if you don’t bring him there, where are you going with the rest of it?”

Mr Dwyer disputes that two phones found in the Vartry reservoir in 2013 were used by him. He also disputes that an 083 phone registered in the name ‘Goroon Caisholm’ was used by him. The prosecution in the case alleges the name is a corruption of the name Gordon Chisholm, a former acquaintance of Mr Dwyer’s.

The judge began his charge to the jury on Monday morning after an eight-week case at the Central Criminal Court. He told members of the jury they had to put their feelings to one side in the case.

Mr Dwyer (42), an architect from Kerrymount Close in Foxrock, is charged with murdering Ms O’Hara, who was aged 36, on August 22nd, 2012. He has pleaded not guilty. Ms O’Hara was last seen near Shanganagh cemetery at about 5.45pm on that date. Her remains were found in forestry on Killakee Mountain, Rathfarnham, on September 13th, 2013.

The judge told the jury Mr Dwyer’s activities, which they had seen on videos during evidence in the trial were “irrelevant in the context of any opinions that you form about them”. He said they had to put their feelings to one side.

“The only question is whether what you have seen and heard in an objective sense is capable of making any contribution to the prosecution case,” Mr Justice Hunt said.

Feelings about Mr Dwyer’s sexual activities or misconduct “have no part to play in the return of your verdict”, he said.

He told them to get any such feelings out of the way at the start of their deliberations.

They had certain assessments to make.

“The prosecution have to bring you all the way along the road,” he said.

This meant it was important for their deliberations that the prosecution kept Mr Dwyer “in the picture” all the way up to what happened at around 6pm on August 22nd, 2012, when Ms O’Hara is alleged to have been killed.

They would have to ask themselves about the four years prior to that and how they fed into this particular time slot, he said.

Was it reasonably possible that what had happened was “the product of an unusual mind” or was there something more to it than that?

The judge said proof of thoughts and proof of having unusual fantasies did not constitute a crime.

“There are no thought crimes on which you can convict in this case.”

Mr Justice Hunt said the issues paper the jury had to consider contained but one question and that was the question of whether Mr Dwyer was guilty of the crime of murder.

He said 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 he 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.”

“He who alleges, proves,” the judge said.

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 was the content of that relationship.

They would also have to look at the phones allegedly used by Mr Dwyer, which he has denied. The jury would also have to consider the knife found at Mr Dwyer’s office in February 2014, as well as the documents found on computers and hard drives.

The jury would have to presume that every item of evidence they considered had “nothing to do with Mr Dwyer”.

“You look at the evidence and you see where it leads you.”

The judge also said there were positive aspects to the defendant and that the jury had to take him “in the round”.

They had seen the two women with whom he had had children, he also worked for a “serious outfit”, had friends and gave flying talks.

“That’s all there just as surely as the other things are there.”

Pointing to Mr Dwyer, the judge said he was innocent unless they found otherwise. The defendant had to get the “full bounce of the ball” in respect of the burden of proof.

The basis of a verdict in a criminal case was the evidence.

“Whatever the verdict is, it’s rooted in the evidence,” the judge said.

“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, including borrowing money or even getting married could be addressed and 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.”

All other decisions “can be addressed and changed”, he said. “This one can’t.”

Mr Justice Hunt said: “A jury verdict is good for all time.”

The only time you would hear of a jury verdict being overturned was because of someone such as himself taking a wrong turn in a case.

It had to be right when the jury came back through the door, he said.

“There must be no possibility of second thoughts. Unless you have that fixed and high degree of satisfaction in your minds, ladies and gentlemen, the prosecution haven’t done what they set out to do.”

“Suspicions are no good. You can’t convict Mr Dwyer of murder because you suspect he may have committed murder.

“A feeling that the evidence demonstrates a possibility of his committing murder, that’s no good either. A feeling on your part that the evidence suggests he’s probably guilty of the murder of Ms O’Hara, that’s no good.”

Mr Justice Hunt told the jury it was “perfectly well established as a proposition that a person may be convicted of a criminal offence on circumstantial evidence alone”.

He described such evidence as a series of “interdependent facts”, each one in itself insufficient to prove the main fact, but when taken together as “links within a chain”, the combined weight of them was sufficient to prove the principal fact.

There was no direct evidence about what happened up the mountains at Killakee August 22nd, 2012, the judge said.

“So the prosecution evidence is based on proof of surrounding circumstances, which when put together as links in a chain, they are asking you to accept.”

He compared circumstantial evidence to the strands of a rope, each of which on its own was insufficient to bear a lot of weight, but when tied together they made the rope capable of bearing weight.

The judge said that as the jury were being invited by the prosecution to reach a highly-significant verdict based on circumstantial evidence they must “have a degree of circumspection” before acting on circumstantial evidence.

Because they were being asked to draw a very big conclusion, they should have a degree of circumspection, care and caution.

“Circumstantial evidence can be very compelling. It must be approached with care,” he said.

“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 added: “It’s the united force which gives strength to circumstantial evidence.”

He told the jury it was not “derogatory of evidence or of a case to say it’s only based on circumstantial evidence”.

“You must consider the weight to be attached to each piece of circumstantial evidence,” he said.

If the evidence led them to believe beyond reasonable doubt that the accused committed the offence, they should convict.

They had to be satisfied specifically that Ms O’Hara was murdered by Mr Dwyer and that she was murdered by being stabbed for the purpose of sexual gratification.

On the issue of causation, the judge said the jury had to look very carefully at any issue which pointed in the opposite direction.

Referring to the defence’s reference to “the silent witnesses” in the case, the lack of forensic evidence pointing to a knife attack, the judge said: “It’s for you to assess whether the silent witnesses speak loudly or not at all.”

Causation of Ms O’Hara’s death in the manner specified by the prosecution was something that had to be proved beyond reasonable doubt.

The judge said if there was something in the absence of marks, in the absence of scoring of bones in Ms O’Hara’s remains which left open to the jury 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.”

They were also being asked to infer the intention to kill or cause serious injury.

Mr Justice Hunt spent almost three hours addressing the jury on Monday morning and continued for just over two hours in the afternoon. He said he did not propose to go into detail on all the exhibits and witnesses in his charge to the jury. He had isolated about 20 different topics that the evidence had dealt with, which he intended to go into.

“I don’t think I’ve ever come across a case involving over 300 exhibits,” he said.

The judge will continue his charge to the jury of five women and seven men on Tuesday.

Some 194 witnesses gave evidence for the prosecution during the eight weeks of the trial. The defence side called three witnesses and concluded its case on Wednesday.

Senior counsel for the defence and for the prosecution concluded their closing statements in the trial on Friday.