One of the three men cleared of the murder of a Limerick bouncer last month has appeared in the Central Criminal Court to apply to be relieved of the cost of his defence.
Anthony Kelly (50), a businessman in Kilrush, Co Clare, was one of three men acquitted of the murder of Brian Fitzgerald on November 29th, 2002, at Brookhaven Walk, Mill Road, Corbally, Limerick.
Gary Campion (24), Pineview Gardens, Moyross, Limerick, has begun a life sentence after being convicted at the same five-week trial of murder. The jury heard that he drove the motorbike used in the murder and was identified by Mr Fitzgerald's widow outside the house on the night of the murder.
James Martin Cahill, who was the chief prosecution witness in the trial, is already serving a life sentence for shooting Mr Fitzgerald as he returned home from work.
Michael Bowman, counsel for Mr Kelly, told Mr Justice Peter Charleton that there were a number of reasons why Mr Kelly should not have to bear the full cost of his defence.
He said that Mr Kelly had never given gardaí reason to suspect him and there were several other plausible explanations for where the gun used in the murder had come from. Cahill, who made the accusations against Mr Kelly, admitted during the trial to hearing screaming and voices in his head and described a range of other bizarre behaviour.
Seán Gillane, for the Director of Public Prosecutions, said that since Mr Kelly had refused to talk to gardaí when he was interviewed, the DPP had no option but to pursue a prosecution.
He said that the DPP had proceeded with Cahill as a witness because he had not only admitted a crime but had agreed to plead guilty to it and had volunteered to name his accomplices. His mental health was not part of that consideration.
However, Michael O'Higgins SC, also acting for Mr Kelly, said that every citizen had a right to silence. "The right to silence is a real right. No penalties should be visited on the accused for exercising that right." Mr Bowman also said that the DPP had disclosed evidence to the defence at the last possible moment and much of this evidence was initially in handwritten form which needed to be typed up.
Due to the urgency of preparing a defence, these costs were borne by Mr Kelly, even though the evidence was subsequently provided in typewritten form by the DPP. All this had increased the costs borne by Mr Kelly and could have been avoided.
He also said that Mr Kelly had been in custody for 13 months in the lead-up to the trial, despite appealing this in the Supreme Court. Mr Gillane said that the DPP should be regarded as a special case since he did not seek to set out his own point of view, acting instead on behalf of the people. Mr O'Higgins replied that the DPP's office did not act on an "altruistic or philanthropic" basis but instead was run in a professional capacity to provide a service.
Mr Justice Charleton reserved judgment on the matter to a later date.