'No crime' in unusual fantasies
An architect accused of murdering a childcare worker cannot be convicted on the basis of his thoughts or unusual fantasies, a jury has been told.
Judge Tony Hunt said the ingredients of murder have to be there if Graham Dwyer is to be found guilty of the murder of Elaine O'Hara, whose remains were found in the Dublin Mountains on September 13 2013.
Dwyer, 42, an architect from Kerrymount Close, Foxrock, south Dublin, has pleaded not guilty before Ireland's Central Criminal Court.
Charging the jury, Judge Hunt said the jurors were all adults and had been warned at the outset to stand down if they were squeamish, and they should not be shocked by sex scenes played in court.
They faced an odd situation as they would usually be shielded from certain aspects about the accused, to allow them make an objective finding.
But it was necessary for them to see and hear particular evidence which cast Dwyer in a "harsh and unforgiving" light because it was of potential relevance to the case, he said.
The judge said he wanted to dwell on this before the jury retires to consider its verdict.
Some of the video clips shown in court would have had a "visceral impact", he said.
Despite not having watched them in court, he assured the seven men and five women that he had watched them a number of times before.
These were not aired to have a "trousers down moment" designed to make the accused looked ridiculous, he said, but to allow the jury to assess the context of relations and motivations in the case.
The judge said any opinions or feelings about the activities involved had no part to play in a verdict.
"I want to triple underline that," he added.
Dwyer was manifestly guilty of certain misconduct but that was not a criminal offence, he said.
"I emphasise you have to put this to one side," he said.
Ms O'Hara was last seen on the day of her death, walking over a pedestrian railway bridge towards the sea near Shanganagh cemetery, outside Shankill, south Dublin, where her mother is buried.
At noon that day, she left St Edmundsbury Hospital, where she had about six weeks of treatment for psychiatric illness.
Her remains were discovered more than a year later on Killakee Mountain by a dog walker. Because they were so badly decomposed a cause of death could not be determined.
During the trial, jurors were shown evidence of text messages and video footage which the prosecution allege reveal a manipulative BDSM (bondage, domination and sadomasochism) relationship between the pair.
Defence lawyers say there is no evidence Ms O'Hara was stabbed to death and the prosecution case was based on "fantasy documents" and other material.
Judge Hunt said the jury would have to decide if it was reasonably possible that what Dwyer was involved in was the "product of an unusual mind or was there something more to it than that" and whether he was prepared to take the ultimate step in a fantasy.
"Proof of thoughts does not constitute a crime, proof of unusual fantasies does not constitute a crime," he said.
The jurors were told a crime could only be constituted if they were satisfied the ingredients of murder were there.
"There are no thought crimes you can convict in this case," he added.
During the trial, the jury was brought to events up to 6pm on August 22 2012 - the day Ms O'Hara went missing - and had to consider what happened in the following three hours or so, the judge said.
Mr Dwyer's work phone was operational in Foxrock just before 9pm, he added.
They needed to decide if the prosecution had proven its allegation.
"You can blow away all the fuss and hoopla that deems to have attached itself to this case," he said.
Dwyer remains innocent unless the jury finds otherwise and the jurors would have to clear their heads of the "fog and smoke that surrounds aspects of the case", he added.
"I'm asking you again to leave sentiment and emotion out of it," he said.