Two men accused of the murder of Barry Wolverston in Swords, Co Dublin, two years ago moved “in tandem” in the hours before and then after the shooting, prosecution lawyers have alleged in closing speeches at the Special Criminal Court.
The two men, one known as ‘AB’ for legal reasons, and Bernard Fogarty (34), with an address at Cromcastle Court, Kilmore, Coolock, Dublin 5, are both charged with the murder of Mr Wolverson at Madigan’s Yard, Kileek Lane, Swords, Co Dublin, at around midday on January 17th, 2020.
The two men were charged before the non-jury court in April of last year with the attempted murder of Mr Wolverston, who died on February 21st, 2021 after a lengthy spell in hospital in a comatose state.
Both men are also charged with assault causing harm to Gerard Wildman, who was also shot, at Madigan’s Yard on the same date.
Prosecuting barrister, Paul Greene SC, in his closing speech, said that the case against the two men was a “circumstantial” one but that the court would be in no doubt as to their guilt due to forensic evidence regarding gunshot residue and that the two were captured on CCTV moving “in tandem” on the day of the shooting.
Mr Greene also said that the collection of a jerrycan by Mr Fogarty and the purchase of firelogs, both caught on CCTV, used by the pair in burning out a Citroen C4 in Greenwood Estate, Dublin 13, minutes after the shooting, would convince the court of their guilt through circumstantial evidence.
He said that the amount of coincidences were so “overwhelming” that any belief in them to be so became “intolerable” due to the weight of evidence presented during the trial, which included lengthy mapping, photograph and forensic evidence.
Mr Greene said gardaí had viewed over 1,000 hours of CCTV footage in investigating the case, tracking the movements of Mr Fogarty’s Renault Megane and the Citroen C4.
He said Mr Fogarty was seen on camera buying three fire logs from a Circle K petrol station the day before, one of which was later found in Mr Fogarty’s Megane.
Mr Greene said that when Mr Fogarty was arrested at around 12.25pm after the shooting, there was a smell of petrol from his clothing.
The barrister said that after Mr Fogarty was arrested he attempted to wash his hands before forensic testing could be applied and that ‘AB’ had gunshot residue on his jacket.
Dean Kelly SC, for ‘AB’, said there was “nothing, not a single jot of clear evidence” to say that his client was at Madigan’s Yard at the time of the shooting. He said that a balaclava found at the scene of the burned-out Citroen C4 had the DNA of another person and had not been traced to either his client or Mr Fogarty.
Mr Kelly said that the prosecution were “leaping” to a theory of only two men being involved in the shooting, which was “not true”.
He said it was “not possible” to exclude another person being present throughout, that there was no identification of his client being in the Citroen C4 and that there was no CCTV inside or outside the car to prove so.
Mr Kelly said the prosecution’s case was made of “more holes than cheese”. He said there was no direct evidence of ‘AB’ being at the yard, no CCTV or DNA samples to that effect and no direct evidence, nor phone evidence, linking his client to being at the scene, “either on that date or any date”.
Mr Kelly said that no motive had been put forward by the prosecution against ‘AB’ regarding the shooting and that his client had no “animus” towards Mr Wolverston. He said that gunshot residue on his client’s jacket could have been there “infinitely” if the garment was not disturbed, as evidenced by forensic experts during the case.
He said that a transfer of gunshot residue was also possible, as it lingered on garments most effectively and that “contamination” of the jacket was also a possibility, when it was being transported in a Garda vehicle that might contain firearms.
Mr Kelly said that any inference putting his client at the scene “falls miles short” of the threshold demanded, adding that three bullets found at the yard also cleared both men when tested for DNA. He said that the company that manufactured the firelogs bought by Mr Fogarty were being supplied by Musgraves, which supplied every Circle K in the State.
Seamus Clarke SC, for Mr Fogarty, said that it was “unclear” from the evidence if there were one or two people in the Citroën used in the shooting and repeated that the balaclava found near the burned out Citroen had “no DNA present for either” accused.
He said that his client had smelled of petrol when arrested, but that there was no gunshot residue present on Mr Fogarty’s clothing, which was “no better holder” of such residues.
Mr Clarke said that while his client refused to answer questions by gardaí, other people also frustrated Garda processes but Mr Fogarty had legal advice to do so. He said that even if the evidence pointed to Mr Fogarty being present for the burning out of the Citroën that there was no evidence to show that Mr Fogarty had done so for a “murderous purpose”.
Mr Clarke told the court to “be wary of a bird’s-eye view” from the prosecution that discounted Mr Fogarty not being in the car and that even if he was guilty of being an “accessory after the fact”, regarding the burning of the Citroën, the court must return a not guilty verdict regarding his client being a “principal offender”.
Mr Justice Michael MacGrath, presiding, adjourned the cases to November 16th, for judgment.