The judge in the trial of Graham Dwyer for the alleged murder of Elaine O’Hara has told the jury that evidence of the accused telling lies during Garda interviews does not constitute evidence of guilt.
Mr Justice Tony Hunt was speaking during the second day of his summation of the evidence from the case to the jury. He later discharged the seven men and five women and asked them to consider their verdict.
Mr Dwyer (42), an architect from Kerrymount Close in Foxrock, is charged with murdering childcare worker Elaine O’Hara (36) on August 22nd, 2012.
He has pleaded not guilty.
Mr Justice Hunt recalled how part of the defence case rested on what they allege was inadequate investigation by the gardaí.
He said there was “no doubt some validity in the criticism” that detectives could have located the material on Ms O’Hara’s iPhone and laptop at the time of her disappearance.
“Perhaps that would have brought them to Graham’s Dwyer’s door sooner,” he said. “The question is how far that carries you as an issue.”
He said that had the gardaí come to Mr Dwyer’s door at that stage, without the evidence pulled from the Vartry reservoir, they “would have had much less to go on”.
Mr Justice Hunt noted that he had been required to tell a number of gardaí who gave evidence to the trial to “just answer” questions from Mr Farrell. “That’s up to you to reflect on,” he said.
Mr Justice Hunt also addressed the admission by Mr Farrell in his closing statement that Mr Dwyer had been untruthful to detectives during interviews after his arrest, and called for caution from the jury in terms of inferring guilt from this.
He said this could be used by the jury to form incriminating views of Mr Dwyer and as a building block in the context of the circumstantial evidence the prosecution’s case relies on, but that this is “only if certain conditions are met”.
“Lies can be powerful, but they don’t always point in the direction of covering up guilt,” he said.
“They might lie to protect someone else. They might lie – and this is particularly relevant in this case – because they are embarrassed or ashamed…There are many reasons why innocent lies may be told.”
He said it was important to note Mr Dwyer had spoken to the gardaí voluntarily and that what was said was what he “elected to tell them”.
“They are out of court statements that are not sworn,” he said. “People say things in police stations that are true, half-true, or not true at all…None of what Mr Dwyer said in the station had to be said.”
The judge also addressed the leaking of information about Mr Dwyer’s arrest to the media on the day in question.
“When someone is arrested and is presumed innocent, it’s not good enough to have a sign up saying ‘Graham Dwyer, architect from Foxrock, is here’,” said Mr Justice Hunt.
“When he found out what was happening in the outside world [while in the station], it was distressing and upsetting… It was undoubtedly capable of putting extra pressure on Mr Dwyer.”
He also said that if the jury believes Mr Dwyer to be the owner of the 083 phone, they would have to take it that “those denials aren’t true – they couldn’t be”.
Mr Justice Hunt reminded the jury that detectives had put it to Mr Dwyer that he was a man who had fantasies about knives and sex. They informed him that his former partner Emer McShea had made this assertion when interviewed by gardaí.
“Twice he said she was making that up,” said Mr Justice Hunt. “She was doing that out of spite, was effectively what he said. He put a little bit more on the slur by saying – and I’m paraphrasing here – that one of the guards pushed her buttons to say that.
“That is perhaps a general reflection of the approach to truthfulness in the interviews.”
He also noted that “even when he came clean about his relationship with Ms O’Hara, he did not do so in a full and candid sense”.
In relation to Mr Dwyer’s “shock and horror” during the interviews as the text messages were read to him, Mr Justice Hunt said: “If you accept he was in possession of the phones, it seems to follow that the shock and horror he was expressing can’t be related to the material itself, because he was the author of it.”
