Clare businessman Anthony Kelly, one of the three men cleared of the murder of a Limerick bouncer in November, has been denied his application for the cost of his defence at the Central Criminal Court.
Mr Kelly (50), Kilrush, Co Clare, was acquitted of the murder of Brian Fitzgerald on November 29th, 2002, at Brookhaven Walk, Mill Road, Corbally, Limerick. Brothers John (27) and Desmond (23) Dundon, both Ballinacurra, Weston, Co Limerick, were also acquitted after the 18-day trial. Gary Campion (24), Pineview Gardens, Moyross, Limerick, was the only one of the four accused convicted and has begun a life sentence.
James Martin Cahill, the chief prosecution witness in the trial, is already serving a life sentence for shooting Mr Fitzgerald as he returned home from work.
In his judgment Mr Justice Peter Charleton was critical of the defence case put forward by Mr Kelly's legal team, saying that it gave an inaccurate impression to a Dublin jury of the time it would take to drive from Limerick to Kilrush in Clare.
Cahill had maintained that Mr Kelly had provided him with the gun used in the killing.
During the trial, counsel for Mr Kelly, Michael O'Higgins SC, told the jury that Cahill could not possibly have travelled to Mr Kelly's house on the day of the murder.
Mr Justice Charleton said the court was "more than surprised" to learn during the application for costs that mobile phone evidence existed that placed the car Cahill was travelling in on the road to Kilrush at a time between 6pm and 6.10pm - a fact that would have backed up the prosecution case. He said that in his own experience of the roads in question, it would have been easily possible for Cahill to have completed the journey.
He also pointed out that there was a good dual carriageway between Limerick and Ennis and the road to Kilrush was "a good straight road". "It stretches the truth for Anthony Kelly to describe these main national thoroughfares to a Dublin jury without local experience as 'country roads'." He acknowledged that Mr Kelly's defence team was not obliged to volunteer evidence that would be damaging to its client if not put by the prosecution, but said that for the purposes of his judgment he was looking at all the evidence, not just that put before the jury.
He also said that Mr Kelly must have known what kind of a man James Martin Cahill was. "He was a man who had been in trouble all his life." In cross-examination during the trial the jury heard Cahill had pushed a teacher down the stairs on his first day in secondary school and had spent repeated spells in juvenile detention.
Mr Justice Charleton said he also had "an extraordinary sexual history involving child abuse, an incident of bestiality and some form of sexual assault on a baby."
Cahill had also admitted to rape, fraud, a number of armed robberies and having taken part in the planning of a number of murders, including those of a member of the British police and a garda called McDonagh.
During the trial the jury heard that Cahill heard screaming voices in his head but Mr Justice Charleton said that despite all this he was welcomed in the Kelly house. He had been friends with Mr Kelly's son and had gone out with Mr Kelly's niece, a relationship that ended in violence.
Mr Justice Charleton said the DPP and gardaí had acted properly throughout the trial and Mr Kelly's rights were at no stage infringed. He refused Mr Kelly any portion of his costs.