A man jailed for attempting to strangle a woman in a Dublin park has argued that DNA evidence found on a cigarette packet near the location of the attack should not have been introduced into his trial.
His legal team told the Court of Appeal on Thursday there was “a fragile circumstantial case” against Slawomir Gierlowski, (41) featuring “weak forensic evidence”.
Counsel for the State, however, argued that each piece of circumstantial evidence needed to be looked at together.
Gierlowski was previously sentenced in 2018 to 22-and-a-half years with four years suspended for random outdoor attacks on three other women between 2011 and 2016.
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After a Central Criminal Court trial in May 2019, Gierlowski, of Galtymore Drive, Drimnagh, Dublin, was convicted of attempted rape, sexual assault and assault causing harm of a fourth victim on the night of December 18th, 2010.
That attack took place in the city centre and is his first recorded attack. Sentencing for those offences was adjourned while Gierlowski appealed his 2018 convictions and the severity of the related sentence.
After the Court of Appeal dismissed the appeals he was sentenced to a further 10 years, consecutive to the earlier sentence.
Gierlowski was then found guilty by a jury in a Dublin Circuit Criminal Court trial of assault causing harm, false imprisonment and production of an article in relation to the attack on a young mother at Ballymount Park on May 30th, 2011.
The court heard he does not accept the verdict of the jury and maintains his innocence. Gierlowski’s DNA and fingerprints were taken as part of an investigation in 2016 into a separate assault and matched samples that were recovered from a flex and a cigarette box in this case.
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Having been convicted of this attack, Judge Elma Sheahan extended Gierlowski’s time in custody by a further six years.
In appealing this conviction on Thursday, Maurice Coffey SC said there was “a fragile circumstantial case” against his client featuring “weak forensic evidence” and an unreliable descriptive identification of the assailant.
He said there were two identification parades where the appellant was not picked out, and the description given was in broad terms.
Mr Coffey said that inferences were drawn in the prosecution case, with the appellant interviewed five years after the attack and asked about fingerprints on a cigarette box and flex found by gardaí.
Mr Justice John Edwards said that, while “cigarette boxes are ubiquitous” and discarded as litter all the time, a piece of flex with the plug attached that had been used in the attack was also discarded in the same place. He said that this was not a commonplace item, and as it bore a partial print matching Gierlowski’s, surely it called for an explanation.
Mr Coffey replied that the gardaí were asking someone to account for an item five years after the event. He said the flex was not found in a private crime scene but in a park, where anyone could have picked it up.
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Counsel went on to say that where inferences are helpful to the prosecution, the rationale for introducing that evidence is called for. Mr Coffey said that the danger of DNA evidence is that “for a jury, DNA equals guilt”.
“Juries love hearing about DNA,” he said.
Mr Coffey said that this piece of evidence was a strand in the prosecution case, which the jury may have given no, some or very high consideration. He argued that the prosecution sought to prove that at the time of the assault, a cigarette box was in the vicinity of the attack that had some connection with the appellant.
Counsel for the Director of Public Prosecutions, Karl Finnegan SC, said the cigarette box was not an isolated piece of evidence, so it was necessary to look at circumstantial evidence in a cumulative way.
Mr Finnegan said the issue of a Marlboro box found near the scene had been put to the appellant, with Gierlowski admitting that he smoked but saying he did not smoke Marlboro.
Counsel said that this meant nothing in its own right, but it was tied to the gardaí finding a box of Marlboro in the park with the appellant’s DNA on it.
He was subsequently arrested and his van searched, with a Marlboro box found. Mr Finnegan said this had to be tied in with his denial of smoking them, as well as the evidence of a witness who saw a man smoking near the location of the assault, and the description of the assailant given to gardaí.
Counsel also said the appellant’s fingerprint was on the flex that was found, as was the victim’s DNA, with the woman telling gardaí that the flex was used on her.
“The relevance of each piece of circumstantial evidence only becomes apparent when looked at together,” said Mr Finnegan.
Mr Justice Edwards said the court would reserve judgment in the case.
