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Graham Dwyer judge: 'If you've reasonable doubt about the attribution of the phones, I think it ends there'

The jury of five women and seven men will soon have to deliberate on a verdict.

Image: Laura Hutton/Photocall Ireland

Updated 11.55 pm

THE JUDGE IN the Graham Dwyer murder trial said the jury had to be fully satisfied, beyond any reasonable doubt, that the ‘untraceable’ phones in the case belong to the accused.

Mr Justice Tony Hunt began giving his charge to the jury today, instructing them to leave “sentiment and emotion” aside when reaching the verdict.

Graham Dwyer, a 42-year-old architect from Foxrock in Dublin, is charged with the murder of Elaine O’Hara on 22 August 2012. He denies the charge.

The jury of five women and seven men heard closing arguments from the prosecution and defence last week.

Speaking about attributing the phones, the judge offered a comment to the jury, stating that it “seems to me if the comments on phone are not referable to Graham Dwyer, they are to someone who bears an astonishing similarity”.

He said that if another person owned the phones, then there were varying similar aspects of his life to Mr Dwyer’s own.

He told the jury if they could not conclude, beyond reasonable doubt, that Mr Dwyer purchased those phones, then they could really go no further with the case. He said the other circumstantial evidence could not stand alone, without the circumstantial phone evidence.

“You have to be satisfied with that,” he said, stating the owner of the phone brings him to the shore the evening of the 22 August 2012, the day Ms O’Hara was last seen alive.

Judge Hunt said the text messages give an insight into the relationship between Mr Dwyer and Ms O’Hara.

Their sexual relationship appeared to be an “extra marital affair of a particular kind” in which it did not involve going out to pubs and restaurants, and leaving the rest of the family behind. He said it seemed to be about sex alone, stating there were no texts between them about meeting up in secret locations so they would not be seen out together.

He said Ms O’Hara had recalled that in one text when she said “You don’t really want to be seen with me”.

The judge said he was not criticising Mr Dwyer for a lack of chivalry and wasn’t calling his a cheapskate but said “that’s what they were at”.

“A jury can convict on circumstantial evidence,” he told the jury, pointing them to the law that makes such a case.

He said that these are circumstances that on their own would be insufficient to prove the offence but taken together, their combined weight could prove the offence had been committed.

He said there was no direct evidence of what happened up the mountains on 22 August 2012.

The jury can draw inferences from circumstantial evidence, stating that this “is not speculative” as it based on facts.

Justice Hunt said there was one count on the issue paper in front of them – whether or not Mr Dwyer was guilty of the crime of murder.

“You have to be satisfied that she was murdered,” he said, but specifically that she was stabbed in some sort for sexual gratification, he added.

You have to be satisfied this was a murder committed by Graham Dwyer and carried out by a knife, you’re not being asked to consider any other matter.

He mentioned that the defence had raised the issue of the “silent witnesses” – the forensic evidence.

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He told the jury that it was up to them to decide and look carefully at the scenarios presented to them.

“There are no marks on Elaine O’Hara that would be indicative of frenzied knife attack says the defence… if the absence of the scoring of bones leaves open another hypothesis”, that it was not murder by stabbing with a knife, he said the jury were obliged to adopt that.

“If not satisfied, the onus is on you is to acquit.”

Evidence review

Elaine O Hara Court Cases Frank O'Hara Source: Mark Stedman/Photocall Ireland

He told the jury that he would review certain aspects of the evidence for the jury, particularly that which was heard at the beginning of the trial.

He read back over the testimony from Ms O’Hara’s father Frank O’Hara who gave evidence about his daughter, her life, her last day spent with him and the times she mentioned being in a relationship with a married man from Foxrock who would tie her up.

Mr Justice Hunt will resume charging the jury tomorrow morning.

- Originally published 5.57 pm

More: Graham Dwyer judge: ‘You can’t convict a man of murder and have any lingering doubts’

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