DPP v Anthony Kelly

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 19 December 2007
• Neutral Citation: [2007] IEHC 450
• Court: High Court
• Date: 19 December 2007

[2007] IEHC 450

CENTRAL CRIMINAL COURT

BILL NO. 86/2006

DPP v Kelly

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR/RESPONDENT

AND

ANTHONY KELLY

ACCUSED/APPLICANT

CRIMINAL JUSTICE ACT 1984

CRIMINAL JUSTICE ACT 1964 S4

RSC O.99 r1

PEOPLE, AG v BELL & ORS 1969 IR 24

HEWTHORN & CO v HEATHCOTT 39 ILTR 248

DUNNE v MIN ENVIRONMENT & DUN LAOGHAIRE RATHDOWN CO COUNCIL UNREP SOPREME 6.12.2007 2007 IESC 60

COOPER-FLYNN v RADIO TELEFIS ÉIREANN (RTE) & BIRD & HOWARD 2004 2 IR 72

DPP v MCGINLEY 1987 IR 340 3 FREWEN 233 293 1987 6 1573

MCCORMACK v JUDGE OF THE CIRCUIT COURT & DPP UNREP CHARLETON 17.4.2007 2007 IEHC 123

PRACTICE AND PROCEDURE

Costs

Central Criminal Court - Jurisdiction -Criminal proceedings by indictment - Accused found not guilty - Application for costs of defence - Discretion of Central Criminal Court to award costs - Factors to be taken into account - Rules of the Superior Courts 1986 (SI 16/1986), O 99, r 1 - Costs refused (86/2006 - CCC - 19/12/2007) [2007] IEHC 450

People (DPP) v Kelly

1 1. This is an application by Anthony Kelly for costs, following on his acquittal on a charge of murder. The allegation by the prosecution was that he had taken part in a plot the purpose of which was to kill the late Brian Fitzgerald on Friday, 29 ^th November, 2002, just outside his house at 51 Brookhaven Walk, in a suburb of Limerick city. The trial took 18 days and, in addition, there were earlier applications for disclosure. On 15 ^th November, 2007 Anthony Kelly was acquitted by the jury and a co-accused of the applicant, Garry Campion, was found guilty. The jury had commenced deliberations on the afternoon of the previous day, had spent the night in a hotel and had delivered these verdicts shortly after lunch. Some twenty minutes later another co-accused, Desmond Dundon, was also found not guilty, but after the majority verdict charge, only possible under the Criminal Justice Act, 1984, after two hours of deliberation, had been given to them by this Court. John Dundon, another of the four co-accused, had earlier been found not guilty by direction of the trial judge.

2 2. The late Brian Fitzgerald worked in a night club called "Doc's" in Limerick City as director of security. His duties included maintaining order and anti-drug vigilance. He was a person of exemplary character. The victim left for home, having completed his work, at some time between 03.15 and 03.30 hrs. It is very likely that the earlier time is more correct. He first of all had to drop a member of staff home to a place outside the city and he then returned with other members of staff through Limerick city centre and the evidence was that he passed by the night club at 03.35 hrs. His wife heard the return of his jeep to their home at 03.50 his, because she was awaiting him and knew the engine noise. She then heard a door banging. This was followed by four shots, as she remembered it, and she then heard her husband shouting. Looking out of the sitting room window, she saw two men in motorcycle helmets, one of whom was, as she described him in evidence, "a big fat stocky guy". When she knocked on the window one of the men turned and faced her and, from the portion of his face that was visible through a motorcycle helmet, she saw someone who had jet black eyebrows which met in the middle. This described, to a degree, the accused, Garry Campion, who has now appealed his conviction. The second man was James Martin Cahill, the main witness at this trial and he was the actual killer. These men chased the late Brian Fitzgerald from his front door. James Martin Cahill brought the deceased victim down with some pistol shots and then murdered him by shooting him in the head. James Martin Cahill and Garry Campion then left the suburb riding on a motorcycle which was, according to James Martin Cahill, driven by Garry Campion. At 04.10 a taxi man got a message to pick up a fare near Dillon's garage in an area to the east of Limerick city near enough to the Parkway Shopping Centre. The man he picked up went back to an address associated with Garry Campion as a residence. While waiting for his fare, the taxi driver saw a blaze in the vicinity of Dillon's garage. This turned out, as it was later discovered, to have been a burning motorcycle and motorcycle helmets etc. James Martin Cahill was driven from that place to a house in east Limerick and, after having changed his clothes and hidden the pistol, made his way to Dublin and thence to. Belfast and then to the Diamond Hotel in Manchester. Along the way, mobile phones relevant to the case were thrown out of the car.

The case against Mr. Kelly

3 3. The only evidence against Anthony Kelly was that of James Martin Cahill. At the time of giving evidence, he had pleaded guilty to this murder and was serving the mandatory sentence of imprisonment for life. James Martin Cahill gave his evidence under unusual circumstances. He had been imprisoned for another offence when, in early 2005, he requested to talk to members of An Garda Síochána about the Brian Fitzgerald murder. He told the court that the offence, in relation to which he had been imprisoned, at that stage, was for possession of a machine gun in 2003. The official record of conviction would, in any event, have disclosed that fact. James Martin Cahill, in his evidence, went further and told the court that his purpose in carrying the weapon was to carry out a murder on a particular individual on the order of another person; a contract killing. He told this Court that back in 2002 he also had been contracted to murder Mr. Fitzgerald for the sum of €10, 000. Whereas the witness in his evidence apparently became reluctant to condemn anyone unless he could remember the precise circumstances of what had been said in terms of giving him instructions to kill, the thrust of his evidence was that he had gone to Dublin and met with an individual. Then, he and the individual had gone and discussed the possibility of another individual committing that murder or assisting in it. The murder victim was, as then, apparently unspecified. The sum of money was agreed. The witness indicated that the individual in Dublin had later paid him that money in the aftermath of the murder of Mr. Fitzgerald, as to one half of it, and had paid the balance to him in Spain. From Dublin, where this preliminary planning of the murder had taken place, James Martin Cahill and this individual drove to Portlaoise where they met up with another individual from Limerick city. That other individual, according to the evidence of the witness, and James Martin Cahill then travelled to Limerick, and thence to Kilrush, to Anthony Kelly's house, where James Martin Cahill collected the gun for the purpose of the murder and then returned to Limerick. In the course of his evidence James Martin Cahill said:

"[The individual] said Jim would look after me if I needed a few pound and stuff; and he would take care of me, and he would drop me to Anthony Kelly's to collect the gun … I went with [an individual] and we headed down to Limerick to Jim O'Brien's house … That is the gun I collected from Anthony Kelly … He is Anthony Kelly from Kilrush … That was after the meeting in Portlaoise, we drove down to collect the gun and [a person in the house] went off to get it, and Anthony said he would be a few minutes, and he come back and it was wrapped in a cloth … Yes, there was a spare clip with bullets in it … I had it in my hand, and I was like messing with it inside Anthony Kelly's house in the kitchen part, [an individual] was present and Anthony Kelly, and we had gloves on, and Anthony Kelly went and got some gloves out of his car … I am not sure whether he had them gloves on or plastic gloves … I got [the gun] from Anthony Kelly … [He was] clicking it back and showing me how to use it, and showing me the safety, and then I took it off him and I think I was messing with it as well, it was wrapped in a cloth, and there was a spare clip with it … there was a discussion from when I went outside Anthony Kelly's house, and he was saying he didn't want to know what I was doing, but not to mess up, or something like that."

4 4. There was then an objection from the defence to a question to the witness from the prosecution: "how do you mean he told you not to mess up?" That question was proper and the objection, that it was cross-examination of a State witness, was disallowed. The witness replied, after legal argument:-

"I am not sure… he didn't say, he just said don't mess around, don't mess up, I am not sure what was said there, that was the discussion outside the house, and then I left with [an individual] in the car with the gun."

The Defence Case

5 5. The defence case was that James Martin Cahill had never travelled to Kilrush to meet Anthony Kelly. Whenever this was put to him, he disagreed. This case was not based on any evidence of Anthony Kelly, or of the man who supposedly fetched the gun to Anthony Kelly's house, or of anyone who may have known what this former accused was doing at the relevant time. Clearly, it was based on Anthony Kelly's instructions. It was put to the witness that he could, hypothetically, have got the gun with which the murder was committed from either an individual who had come down from Dublin to supply a motorbike for the murder enterprise, and that he could as well have supplied a gun, or that he had gotten the gun from a friend of his with whom he had committed an armed robbery in Galway some few years prior to this. The gun identified in court was one recovered from a river to the east of Limerick city in Annacotty and it was forensically linked with the casings and bullet fragments found at the murder scene. The defence case, as put to James Martin...