Barry Wolverson died following a shooting in north Co Dublin after more than a year spent in a coma
The murder trial heard that at the time of the shooting, Mr Wolverson was a businessman who rented space at Madigan's Yard in Swords. His partner was expecting a child.
Mr Wolverson and Gerard Wildman were sitting in a car at the yard shortly before midday when Mr Wolverson was shot "several times". Mr Wolverson eventually died from cardiac arrest after being treated in a residential care facility while in a comatose state.
The two men, Robert Redmond (34) of Streamville Road, Kilbarrack, Dublin 5, and Bernard Fogarty (34), with an address at Cromcastle Court, Kilmore, Coolock, Dublin 5, were both charged with the murder of Mr Wolverson at Madigan's Yard, Kileek Lane, Swords, Co Dublin, at around midday on January 17, 2020.
The two men had originally been charged before the non-jury court in April of last year with the attempted murder of Mr Wolverston, who died on February 21, 2021 after a 13-month spell in hospital in a comatose state.
Redmond could only be known as "AB" during the trial as he had other matters pending before the courts that have since been dealt with.
Both men were also found guilty of assault causing harm to Gerard Wildman, who was also shot, at Madigan's Yard on the same date.
Mr Wildman, who was shot in the lower back, refused to make a statement to gardaí in the matter.
In delivering a lengthy judgement at the Special Criminal Court today, Mr Justice Michael MacGrath said there was no reasonable possibility of any other person other than the two men having been involved in the murder.
Mr Justice McGrath said the evidence when considered in its totality found no other conclusion but that the two men were guilty on all counts, which further included possession of a lethal firearm and possession of ammunition at Madigan's Yard on January 17, 2020, for both men.
Mr Justice McGrath said Redmond's hands and clothing were subjected to forensic analysis by gardaí, who found firearm-discharge residue on his jacket. Dr John O'Shaughnessy of Forensic Science Ireland had described this as "very strong" support for the position that Redmond was the shooter.
No firearm residue was found in relation to Fogarty, which Dr O'Shaughnessy said was "moderate support" for him not being the shooter.
The trial had heard from prosecuting barrister Paul Greene SC, who 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. Counsel also said that the two were captured on CCTV moving "in tandem" on the day of the shooting.
Today, Mr Justice MacGrath said he was satisfied with the evidence concerning 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.
Mr Justice MacGrath said gardaí had viewed over 1,700 hours of CCTV footage in investigating the case, tracking the movements of Mr Fogarty's Renault Megane and the Citroen C4 between Madigan's Yard and Greenwiew Estate on January 16 and 17, 2020.
He said he was satisfied that it was Mr Fogarty 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 while the other two were found partially burned in the Citroen, which had cloned plates.
Gardaí arrested Fogarty at around 12.25pm, half an hour after the shooting, and noticed a smell of petrol from his tracksuit bottoms and that he had a lighter in his hand.
The court also heard that after he was arrested, Fogarty attempted to wash his hands with Lynx shower gel when in Coolock Garda Station before forensic testing could be applied.
The judge said that the court was entitled to make inferences after Fogarty "deliberately" refused to account for his presence nearby the burn site or for the presence of the Zip firelog in his own car.
Judge MacGrath said the entitlement to make inferences from Fogarty's silence did not in of itself amount to his guilt but any inference made could be used to corroborate other evidence before the court.
The judge said the court accepted that there was no firearm ever recovered in the case and that there was no DNA from either man on bullets found at the scene. He added that any reasonable doubt in the case had to be resolved in favour of the accused.
Mr Justice MacGrath said the court had to "stand back to view the united force of all the circumstantial evidence" in the case.
He said that Fogarty and Redmond were arrested around 300 yards from the burning Citroen at around 12.25pm on the day and that he had to factor in their proximity and association to events on the day.
Mr Justice MacGrath said he was satisfied that Redmond and Fogarty were in each other's company on the day and present at the yard in the Citroen, which was caught on camera entering and then re-entering the yard after Mr Wolverson drove into it before midday.
He said he was satisfied that Fogarty was the driver on the day and that Redmond was his passenger with no other person present in the car.
Mr Justice MacGrath said the person who set fire to the Citroen did so deliberately and that Fogarty had been seen collecting the jerry can from his sister's home before gardaí arrested him near the scene and noticed he smelled of an accelerant.
In interview, Redmond had claimed he was being framed by people unknown for something he didn't do.
However, the judge said he was satisfied that firearms residue was discovered on Redmond's hoodie when he was arrested eight minutes after the burning car was discovered and the court would found him guilty of the murder of Mr Wolverson and guilty of the assault causing harm to Mr Wildman.
The judge said he had considered the level of involvement of Fogarty in the "joint venture of common purpose".
Mr MacGrath said Fogarty could not be considered to only be an accessory after the fact in burning out the car. The judge said Fogarty had prior knowledge of what was about to happen and had engaged in pre-planning with Redmond, which made him liable for the murder as much as his co-accused.
Fogarty was "very much involved in events before the shooting" and his role was "not confined to the aftermath when actively involved in the destruction of the Citroen," said the judge.
The judge said that both men were guilty of the common design of trying to kill or seriously injure Mr Wolverson and that there was "no reasonable possibility of another conclusion".
He then found both men guilty on all counts.
Dean Kelly SC, for Redmond, had 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 that no motive had been put forward by the prosecution against Redmond regarding the shooting and that his client had no "animus" towards Mr Wolverson. 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.
Seamus Clarke SC, for Mr Fogarty, said that it was "unclear" from the evidence if there were one or two people in the Citroen 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. He said that even if the evidence pointed to Mr Fogarty being present for the burning out of the Citroen, was no evidence to show that Mr Fogarty had done so for a "murderous purpose".
Mr Clarke had told the court to "be wary of a bird's-eye view" from the prosecution that discounted Mr Fogarty not being in the car. Counsel said that even if he was guilty of being an "accessory after the fact" regarding the burning of the Citroen, the court must return a not guilty verdict regarding his client being a "principal offender".