herald

Friday 18 August 2017

Killer in last-gasp bid to stop his trial because of 'glaring look' from the judge

Graham Dwyer (on the right)
Graham Dwyer (on the right)

NEAR the end of the prosecution’s case, Graham Dwyer’s defence lawyer asked Mr Justice Tony Hunt to discharge the jury because of the way the judge looked at the accused during a key piece of evidence.

Remy Farrell SC, defending, said Judge Hunt  had looked over at the accused, “glared” at him and shook his head when a map of mobile phone cell site analysis from the day Elaine O’Hara disappeared was handed in to court.

Refusing the application on the second last day of the prosecution’s case, Judge Hunt said while he may have looked at the accused, he could not sit through the trial with a “poker face”.

He also said there were legitimate ways he could influence the jury if he wanted to without using “nods and winks”.

The issue was one of several raised during legal argument while the jury was not present. Previously, the defence had tried to stop the shocking videos of him stabbing Elaine O’Hara being shown to the jury, arguing that they would be so horrified, they would be turned against the accused and he would not get a fair trial.

On the issue of the judge’s demeanour, Mr Farrell said he had been asked to point out that Judge Hunt had looked over at Dwyer in the dock and “glared” at him “in a particular

fashion”.

“It’s not something I saw myself, but it’s something that I am told happened,” Mr Farrell said.

“I look at people,” the judge said. “I look at the jury, I look at you, I look at people at the back of the court and very occasionally, I look at the accused.”

“It was put to me that you were glaring and shaking your head,” Mr Farrell said.

“I imagine that the jury are paying attention to things other than me,” Judge Hunt said.

“It has been a source of some concern that during some of the more difficult parts of the evidence, the (judge) has made certain facial expressions,” Mr Farrell said.

“I have no option but to apply for the court to discharge the jury.”

Judge Hunt told Mr Farrell he was entitled to “go quite far” in his charge to the jury so he was not sure “what’s behind all this apart from being a scrum down”.

Mr Farrell asked the judge to withdraw this remark, saying he was not in the habit of making silly applications and was raising a matter regarding his client getting a fair trial. He was not doing so for any “tactical” purpose, he said.

The judge withdrew his comment. “I am entitled to shake my head and have an expression. There are very serious things to be considered by the jury in this case and they don’t include anything to do with my opinions,” the judge said.

Objecting to the playing of the videos, Mr Farrell instead wanted their contents to be described.

Prosecutor Sean Guerin insisted that they had to see the look on Mr Dwyer’s face that showed how much he enjoyed stabbing Ms O’Hara, despite having told gardai he was “not into” it.

After seeing them in private, Judge Hunt ruled that he would allow the jury see them, but was doing so with “considerable regret and misgivings”.

“How can any presumption of innocence survive the jury seeing material of this sort?” Mr Farrell said.

He asked why it could not be done simply by means of a narrative by Det Sgt Peter Woods.

“In interview, (Dwyer) repeatedly and at length sought to maintain that these were things that he had no real interest in,” Mr Guerin said.

“It’s only by looking at the material and the look on the face of the accused that one can see how far from the truth all that is,” Mr Guerin said.

hnews@herald.ie

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