THE JUDGE IN the Graham Dwyer murder trial has told the jury that they have to leave “sentiment and emotion” aside when reaching the verdict.
Mr Justice Tony Hunt told the jury they were there precisely because they are not lawyers.
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 charges.
The jury of five women and seven men heard closing arguments from the prosecution and defence last week.
Giving instructions to the jury today, Justice Hunt said it was their job to reach a “true verdict”.
Many of the things heard in court would not make the jury think well of Mr Dwyer, Judge Hunt said. He urged its members to get all the bad feelings or thoughts towards Mr Dwyer out at the beginning of their deliberations, as it will only “obscure” their thinking, he said, urging them to push them to one side.
He said he wanted to hammer home to the jury that any feelings of dislike they have towards the accused have no part to play. “You have to take a big step back from that,” he said.
Justice Hunt said that although Mr Dwyer has “unusual” fantasies, this does not constitute a crime, “no matter how unpleasant,” he added.
Instructions
Judge Hunt said emotions had no part to play in their deliberations and their verdict must be reached on the evidence put forward by the prosecution.
The jury were also told that Mr Dwyer sits before them as an innocent man as he is presumed innocent until found guilty.
“That man over there, whatever you may think of him, is innocent,” Judge Hunt said, pointing out the onus of proof lies on the side of the prosecution.
He said that the “bad side” of Mr Dwyer had been shown to the court, adding that very few people are all bad. He said that the accused is a professional, who held a good job, is a father and has friends.
“It’s only fair to point out those things,” he said, stating that all things must be taken in the round.
The verdict has to be “fueled by evidence” and it is “nowhere good enough” to come back in and say that he ‘probably’ committed murder, he said.
He said that if there is a reasonable doubt it must fall in favour of Mr Dwyer.
Judge Hunt said that when New Year’s Eve rolls in at the end of the year ,”one thing you can’t have intruding on your thoughts is any sort of second thoughts” about the decision.
“Your verdict is unimpeachable – it has to be right,” he told the jury. He said they had to come back through the door and be happy with the decision they’ve reached.
“You can’t convict a man of murder and have any lingering doubts,” he said.
Justice Hunt said that they had seen Mr Dwyer in a very “harsh” and “unforgiving” light throughout the trial.
Evidence
Speaking about the graphic documents and videos shown to the jury, he said the prosecution showed them not to make Mr Dwyer look bad, but because they felt it was relevant to the case.
He said that whether the jury thought they were relevant or not was a matter entirely for themselves.
He said the videos would have had a very visceral impact on the jury. He said that while he did not watch them at the same time as the jury, it was not because he found them offensive or was squeamish, but because he had seen them prior to the jury, two or three times, he said.
He said the jury was warned about the nature of the case, and when the videos were played, it would have been clear why that warning was given to them.
Justice Hunt said he wanted to dwell on the content of the videos shown to them, namely the video of Mr Dwyer and Ms O’Hara having sexual intercourse, as well as the video of Mr Dwyer having sex with other women.
He told the jury acts of sexual intercourse can be found simply with a “few strokes on a keyboard” as it is easily accessible on the internet. He said that sex is a normal part of life, stating that like most people over the age of 18, he assumed they had practical experience in such matters.
“You know what having sex looks like,” he said. He said an erection and ejaculation is not an unusual part of the act of sex. He urged the jury not to get too carried away with the shock element of it.
He said it was not shown to them to show that Mr Dwyer was physically capable of having sexual intercourse. “He has children, you know that,” he said.
He pointed out the people participating in the videos all consented to the sexual acts. “Maybe you and I wouldn’t agree,” he said, but said this case shows that life is not simple or easy.
Judge Hunt said things have no doubt been learned in the case, but said the jury should let the shock of the videos drift away as Mr Dwyer is not on trial for taking part in those acts. The evidence was put forward as the prosecution thought it relevant, and it is up to the jury to deem if that is the case, he said.
‘No onus to prove innocence’
He told the jury they had to ask one question: has the prosecution proved what they have alleged?
Speaking about Mr Dwyer’s defence, Judge Hunt said they can sit back and tell the prosecution to prove the case, if they so wish, as the onus is on the prosecution. He pointed out that Mr Dwyer did not give evidence in the trial, but said that the jury must make no adverse judgements against him for this, as he does not have to.
“There is no onus on Mr Dwyer to prove his innocence… no adverse conclusions can be drawn from silence in court.”
The first rule the jury must remember is that the basis of a verdict in criminal case is based on the evidence, he said. “Whatever the verdict is – it is rooted in evidence.”
He said the jury were not entitled to speculate on the case. “That is guess work,” he said. “You can not convict on a speculative basis.”
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