Graham Dwyer, who is accused of the murder of Elaine O'Hara in August 2012 comes before the jury with no previous criminal convictions but he has been presented to them in a "very harsh light", the judge in the trial has said.
After defence counsel Remy Farrell SC concluded his closing statement on Friday, Judge Tony Hunt told the jury he would address them on Monday.
Mr Dwyer (42), an architect from Kerrymount Close in Foxrock, is charged with murdering 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, on September 13th, 2013.
The judge told the jury: “You have seen Mr Dwyer warts and all.”
He said some of the things they had learnt about him were “not particularly attractive”.
“He’s not on trial for those things – I want you to begin from that point of view.”
Judge Hunt said sometimes during trials a “sanitised” picture was put up and a jury was not told certain things, such as details of previous behaviour and convictions. It was one of the protections provided for defendants, he said.
“He comes before you with no previous criminal convictions but he has been presented to you in a very harsh light. You have an extra onerous responsibility because he appears before you in that way,” the judge said.
He said their responsibility as jurors was especially heavy in this case.
“You must be antiseptic.”
He said the evidence put to them was put to them for reasons to which he would return, and not to “make Mr Dwyer look bad”.
“It makes what I’m going to tell you on Monday all the more important.”
He said they were responsible jurors.
“It will be particularly difficult and particularly important in this case because Mr Dwyer is presented to you in an unvarnished way. You must not let that affect any rational calculations you have.”
Concluding a two-and-a-half-hour closing speech, Mr Farrell for the defence said the jury was expected to convict Mr Dwyer without looking at the evidence.
“That’s the public expectation in this case. That’s the media expectation in this case,” he said.
Mr Farrell said it was important to bear in mind that they could not reverse their verdicts and say they were wrong.
“What will I think a week from now, a month from now, a year from now and do I think I might have second thoughts? That is something you must consider,” he said.
Mr Farrell said the jury may take the view that aspects of the case were “distasteful”.
But he said they must take the view that if the defence case “might reasonably be true”, then that was it.
“It also follows that even if you reject the defence case, you must go on to consider whether the prosecution case is made beyond reasonable doubt,” he said.
Mr Farrell told the jury it was a case where there was “not a screed of evidence in respect of the cause of death” of Elaine O’Hara.
In addition, the only documents put to the jury by the prosecution were “fantasy documents and other material”.
They had to consider whether there had actually been a murder in the first place. This was what he had earlier referred to as a “gaping chasm” that the jury was being asked to jump over.
Mr Farrell said everywhere the jury would turn - including to the forensic evidence - they would see it “contradicts entirely the thesis that the prosecution put up”.
Everywhere you turn, the forensic evidence, the silent witnesses, everywhere you turn you will see that contradicts entirely the thesis that the prosecution put up.
The decisions the jury had to make were still individual decisions.
“It’s important when you engage in your deliberations that it is an individual decision,” Mr Farrell said.
There had been an “immense and unprecedented” degree of public interest in the trial and no doubt books would be written and films would be made.
It had everything “to titillate and stimulate the public imagination”.
There was lots of sex, kinky sex, dark secrets and forensic evidence that would have its place in CSI, a TV series, he said.
There was an expectation in the media and “for the very many barstool jurors sitting around the pubs in the city” that the jury should convict Mr Dwyer irrespective of any doubt they maintained.
Because he had unusual sexual interests, which might be described as deviant, the jury was expected to convict Mr Dwyer without looking at the evidence.
“That’s the public expectation in this case. That’s the media expectation in this case.”
“If you acquit Mr Dwyer you will be doing the unpopular thing,” Mr Farrell said.
He earlier noted that people fixated on things such as military games which they played in the woods.
But he said the idea that such details from fantasies, such as those outlined to the jury in the case, were “leaking into the real world in some kind of menacing and dangerous fashion” was “just nonsense”.
A recurring theme in the prosecution case against Graham Dwyer was that whenever something cropped up that suggested Elaine O’Hara may have died by suicide, gardaí either “ignored it” or pretended it didn’t exist, the defence counsel had earlier said.
He claimed the prosecution had sought to simply “close their eyes” to evidence that didn’t fit in with the theory.
During his summation Mr Farrell noted inquiries had been made by gardaí in the immediate aftermath of Ms O’Hara’s disappearance in 2012, including the examination of the contents of her flat.
Gardaí had “without any difficulty” found a PVC body suit, chains in a locker, and most significantly, a rope in the living room, he said.
He noted the detective who had found the rope had stated in evidence that it might have been “a washing line”, which was “very peculiar”.
Mr Farrell questioned whether it was any coincidence that Elaine O’Hara had been admitted to St Edmundsbury Hospital that it had been in connection with suicidal thoughts involving a rope.
He suggested the jury might take the view the O’Hara family were, “for legitimate reasons” rewriting history and that they may want to block out certain details.
There was also evidence emerging in 2012 that Elaine O’Hara had an interest in the BDSM lifestyle.
What had gardaí done with that knowledge at the time, he asked? “Little enough, it seems.”
Clearly there was a major development in 2013 when the remains of Ms O’Hara were found and yet it seemed there was an acceptance that Ms O’Hara was dead at the time.
Mr Farrell said the finding of two telephones in the Vartry reservoir did “give rise to concerns” and yet the content found on them was quite similar to material already available to the gardaí from 2012.
“Is it likely that the gardaí might have felt a bit defensive in 2013 of a lack of investigation that took place in 2012?” he asked.
Certainly, the family appeared to have accepted at that stage that Ms O’Hara had “committed suicide”, Mr Farrell told the jury.
“Maybe that defensiveness on the part of the gardaí is causing them to ignore other aspects of the case.”
He said the “most dramatic” aspect of this was to be found in relation to evidence about the knife.
There were a number of knives in the case, including the rusty blade mentioned by the dog walker who had discovered Ms O’Hara’s remains, the Buck Special found at Mr Dwyer’s office, and also the knives that were recovered from the Vartry reservoir.
Mr Farrell said the prosecution appeared to have ignored those knives in the reservoir “for reasons best known to themselves”.
There was also a question about whether the rusty blade at Killakee had been pointed out to gardaí.
The dog walker had said in her statement that it had been pointed out to them.
“We know that there were three gardaí present and none of them seemed to recall it. I suggest to you that it is very difficult on any rational basis to credit,” Mr Farrell said.
On evidence given by Det Sgt Peter Woods about the hunting knife, which was recovered from Mr Dwyer’s office in February 2014, Mr Farrell said it was “utterly absurd” that a senior detective would give evidence that it was “hugely significant” that the knife was clean.
Mr Farrell suggested prosecuting counsel Sean Guerin had also “put the prosecution car into reverse” by stating in his closing speech that he was not suggesting this was the knife used to kill Elaine O’Hara.
The prosecution was engaged in “florid speculation” and had been attempting to “ram square pegs into round holes” in the trial.
The prosecution sought to simply “close their eyes” to evidence that didn’t fit in with the theory.
“This mental agility is becoming slightly tedious,” he said.
Mr Farrell began his statement shortly after 12.30pm by reading from the document `killingdarcy’ found on Mr Dwyer’s computer equipment, in which he detailed his fantasy of killing a woman.
Mr Farrell said those words marked an “unpromising start” to a closing speech in a murder trial.
He acknowledged that the details of the case were “repellent in some aspects” but he urged them to keep an open mind.
Mr Farrell said the jury was about to become “the hardest working jury” in the courts building. He was not sure there had been any other jury in recent memory that had such a mountain to climb in terms of retaining the presumption of innocence for a defendant, he said.
He noted some of the “private” circumstances in which they had seen the defendant during the course of evidence, including in explicit sexual acts.
But he said however “aberrant, disgusting, wrong” the jury believed these to be, they were certainly “private moments”.
Mr Farrell said some of the jury members may have formed the view that Mr Dwyer “should be locked up, regardless of whether he is guilty or innocent”.
“If it’s something that you have entertained at any point, it needs to be put aside,” he said.
Their job was to deal with the case on the evidence only, and not as a “beauty contest”.
“Because if it’s a beauty contest, there is no way that Mr Dwyer is capable of getting a fair trial based on what you have seen.”
Mr Farrell said he was not there to sell the jury on the idea that Mr Dwyer was a “nice guy” or to sell them the idea of BDSM as a “lifestyle choice”.
He said they had heard a lot of evidence, but he wanted to address them on the question of what all this evidence meant when taken at “its very height”.
There was a “gaping chasm” in the prosecution case, he said.
“There’s a certain amount of evidence that brings the prosecution a certain distance but no further.”
There was a reason the prosecution evidence only went so far, and that was because there was a distinction between reality on the one hand and fantasy on the other.
“Every time they try to tell you what happened on Killakee mountain on August 22nd, they come up short,” Mr Farrell said.
“They are not so much attempting to jump the gap as they are attempting to do a backward somersault over it.”
He said the prosecution’s case resembled them saying: “It’s Colonel Mustard, it’s in the study and it’s with the candlestick.”
He also suggested there was a “strong attempt” on the part of the prosecution to adduce an emotional response from the jury - to a certain extent, the prosecution was “pushing your buttons”, he said.
They might want to balance carefully the importance and significance of the evidence given, for example, by Mr Dwyer’s son Sennan MacShea with the “the emotional impact for you of seeing a man’s son giving evidence against him and you might just ask who is pushing your buttons and why”.
If on any piece of the evidence there were two ways of looking at that piece of evidence, the jury must take the possibility that was more favourable to the defendant, unless the prosecution had proven the other beyond reasonable doubt.
Mr Farrell said it was undoubtedly a case which had had dramatic moments and also moments of sadness.
It had probably impacted the O’Hara family more than anyone else and it was impossible to have anything but the most profound sympathy for them. But Mr Farrell suggested there were certain aspects of the evidence given by the O’Hara family that the jury “must treat with caution”.
Mr Farrell said there appeared to be an “elaborate and pretty infantile fantasy” involved on the prosecution’s part about the killing of a sheep near Shankill Flying Club.
The owner of the so-called 474 mobile phone in texts to Elaine O’Hara decided “he has to lie low to avoid detection and possibly not use his telephone, lest that feature in an investigation into the sheep’s death”.
This was “extraordinary”, he said.
“Was there ever a sheep that was knifed or is this bizarre and infantile fantasy. I suggest when you pause and look at them you’ll see that this must be the answer.”
He said gardaí had been investigating this and yet nobody had ever bothered to go back to Mary Crosbie, the woman who gave evidence of having seen a woman crying on a grave at Shanganagh on the evening Ms O’Hara was last seen alive.
Mr Farrell also told the jury that evidence that Ms O’Hara had been wearing tracksuit bottoms at the time of her death was “rather a big problem for the prosecution evidence in this case”.
He suggested the prosecution had left the evidence of text messages between the various phones to the end of the trial in order to detract attention from the forensic evidence.
Mr Farrell said the so-called ‘killingdarci’ document was the document the prosecution “obsess about”.
“The document is the template for what they contend is murder. It cannot be beyond doubt that the document is a fantasy,” he said. He urged the jury to look at the document, “distasteful and all as it is”.
He said the prosecution was trying to use that document and others “like a huge tub of Polyfilla” in the case.
In relation to videos shown to the jury, Mr Farrell said the metadata showed they were from a time before the timeframe in the case, dating back to 2008.
He said: “Unattractive though those videos are, they do make one thing clear and that is that it takes two to tango.”
He noted the relationship with Ms O’Hara had continued. And in respect of the other women, the videos were clearly made on different and successive dates.