High Court dismisses costs application for acquitted murder suspect due to prosecution's failure to disclose damaging evidence.

Neutral Citation Number: [2007] IEHC 450

CENTRAL CRIMINAL COURT

BILL NO. 86/2006

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF

PUBLIC PROSECUTIONS)

PROSECUTOR/RESPONDENT

AND

ANTHONY KELLY

ACCUSED/APPLICANT

Judgment of Mr. Justice Charleton delivered on the 19th day of December, 2007.

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, 29th 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 15th 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. 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 hrs, 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. 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. 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. 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 Cahill, was that with what one knew about the times when various individuals travelling with him had made mobile

phone calls, timed as being routed off various masts proximate to the journey, insofar as they were disclosed to the jury, it was

physically impossible for James Martin Cahill to have travelled from the meeting in Portlaoise out to Kilrush and then back to a meeting

at the Parkway Shopping Centre in Limerick prior to a relevant time that evening which was about 20.17. It was at that particular

location, according to the witness, and prior to that time, that it was decided that the individual from Dublin should not drive the

motorbike that was originally planned to be used for the murder, because it was defective. In the result, according to the witness,

Gary Campion, now convicted of the murder, was called to assist with another motorbike.

6. The witness’s account of the conversation he allegedly had with Anthony Kelly in Kilrush was clear in what it implied. The context

in which the witness said he was not sure “what was said there” was as to what the instruction alleged against Anthony Kelly “not to

mess up” meant. The witness never said that the conversation detailed above had not taken place. The matter was addressed in

cross-examination by the defence asking the witness as to whether he was sure what was said outside the house. The witness

replied that he was “not exactly sure what was said”. The matter was re-addressed as to whether the witness was “not sure what

was said outside the house?” The witness said that he was not. The witness was asked as to whether he was “attempting to ask the

jury to rely on anything you said outside the house?” He answered: “No, I am not”. To this must be added the contradictions in the

evidence of James Martin Cahill, both with his earlier statements to the Gardaí and with the Gardaí themselves. In some respects he

was in conflict with Garda witnesses: as to whether there was a conversation where they suggested that he might plead not-guilty

to the charge of murder; as to whether he had given them details of sexual offending, as opposed to the prison psychologist who

later contacted the Gardaí; and as to whether they had told him that they were looking for two individuals, one with joined up

eyebrows and one with an indicated hair colour. Then, as to errors, or claimed errors, in his statements, James Martin Cahill claimed to

have indicated at least some of those to the Gardaí, a matter which they denied by claiming that if a statement was to be corrected

that a standard procedure would be followed. There were serious errors, or claimed errors, by James Martin Cahill in Garda statements

and these included that people had told him before the murder to shoot the victim in the head, a matter that was later explained by

screaming voices and by an individual asking him after the murder about this and in those terms; and that he had found a gun in the

victim’s jeep when there was no gun but merely a number of the victim’s self-protection weapons, a matter explained by an imagined

television conversation, the set screamed back, about “own protection”, though it lead the Gardaí on a fruitless search of the place

where the witness had claimed that the victim’s non-existent gun had been hidden. These screaming voices had been ventilated at

length to the official prison psychological and psychiatric services, though not to the Gardaí. The sexual history of the witness, with

its core of criminal behaviour and unpleasant thought, had been candidly disclosed to those prison services. The witness said that he

expected charges over these disclosures and in addition he had written a lengthy account of his criminal conduct over many years. All

of this was used effectively in cross examination by the defence.

7. An engineer on behalf of Mr. Kelly was the sole defence witness for him or for any of the three accused whose case went to the

jury. This man gave evidence of driving in the year 2007 from the scene of the meeting at Portlaoise to Kilrush, leaving there at a

time consistent with the data recorded on a particular mast in respect of a phone call from an individual in the car that had earlier

travelled from Dublin, waiting there for 46 minutes and then returning to two places relevant in the case in Limerick much later than

the prosecution case required at 21.17 and at 21.32. The witness drove carefully and slowly in the context, never exceeding 55 miles

per hour, stopped for petrol and spent some time travelling through Limerick city at a congested time. Since 2002, the number of cars

on Irish roads has substantially grown so that for the first time, now in 2007, it exceeds two million vehicles. Limerick has been as

affected as anywhere by this trend.

8. According to an instruction given by Mr. Kelly to counsel during the course of the case, and put before the jury in the form of a

question, the route from Limerick to Kilrush is “along country roads”. This is a seriously misleading instruction for Mr. Kelly to put

before the court in circumstances where his counsel clearly had no knowledge of the roads between Limerick, Ennis and Kilrush. As a

matter of fact, there is, and has been for many years, a dual carriageway most of the way from Limerick city to Ennis town and, as

the engineer called on behalf of the defence, told me in the absence of the jury, there was a good straight road from Ennis to Kilrush.

On any part of that journey one could expect to exceed 55 miles per hour and on a substantial part of it one could, if one chose, pass

traffic at speed. That evidence as to the actual state of the roads on this crucial part of the journey was never put before the jury

by Mr. Kelly. Instead, the jury were left with the impression of “country roads”. Any information put in cross-examination as to the

data recovered as calls apparently relevant as to time and routed through mobile phone masts ended well before the witness, and his

companion in the car from Portlaoise, had reached Limerick city and seemed consistent with the scenario put of slow driving along

“country roads”.

Chronology

8. I now want to refer to relevant sections of the chronology of events put before the jury in evidence at the trial. On 26th

November, 2002 the security cameras in Dooradoyle Shopping Centre in Limerick closely observed Anthony Kelly conversing with

James Martin Cahill and walking along with him, and conversing with someone identified as one of Anthony Kelly’s sons for a period of

time. I allowed only a section of that to video evidence to go before the jury as it was obvious that whoever was in the control room,

and directing the cameras, had their attention focused on one or other or all of these individuals in a very particular way. Hence, the

evidence was edited to avoid the possibility of wrongly prejudicing the case.

9. The chronology on 28th November, 2002 is as follows. At 16.20, Sergeant Harran of Limerick, saw the individual travelling with

James Martin Cahill from Dublin, heading from Roscrea in the direction of Limerick. He could not in fact see if there was anybody else

in the car but everyone in the case operated on the basis that the person in the car with this individual was James Martin Cahill. I am

satisfied by the evidence of Sergeant Harran that there was a one hour journey from the place where this BMW car was spotted to

Limerick city, meaning that the protagonists arrived in Limerick at around 17.20. Sergeant Harran was questioned on the basis of a

journey time of one hour and twenty five minutes or one hour and fifteen minutes. I am also satisfied from the evidence of Sergeant

Harran that getting through Limerick at that time in 2002 could take between ten and twenty minutes; meaning, twenty minutes on a

bad day. The journey time from Limerick to Ennis can be comfortably accomplished, in my experience, in thirty minutes or under.

Throughout the case, reference was made through questions put to witnesses by counsel for the defence, to the times when various

mobile telephones bounced off particular masts, items which were in proofs of witnesses’ evidence who were never called to testify

due, I understand from what the prosecution told me during this application, to illness imminent to the trial. What I learnt after the

case was concluded, and during this application for costs, was that at either 18.00 or 18.10, a phone associated with James Martin

Cahill and/or the individual travelling in the car, bounced off a mast substantially on the Kilrush side of Ennis. Two different times have

been given. This would suggest that James Martin Cahill was well on his way to Kilrush, and well on the far side of Ennis shortly after

18.00, on the evening of the murder. In my experience, the good single-carriageway road from Ennis to Kilrush ends in the vicinity of

Lisseycasey, whereupon one then travels into Kilrush on what might properly be described for some few miles as a “country road”. If

the phone mast evidence is correct, and I have no reason to doubt it, it would mean that James Martin Cahill could readily have been

in Kilrush from 18.30 on the day of the murder. Thereafter, one wonders how long he spent there, if he was there. He gave variable

times to the Gardaí in his statements, including one hour, a half an hour and then varying times in answer to the defence in evidence

concerning how long the demonstration alleged against Anthony Kelly in respect of the gun took, amounting to a number of minutes.

What is clear, however, is that from the time the gun is alleged to have come to the house of Anthony Kelly, prudence would dictate

that no one would remain with the weapon in that house longer than necessary. There is no reason to doubt that James Martin Cahill

could have been returning to Limerick from 19.00, at a less congested time in respect of traffic in the city, even allowing for the fact

that a man had to come from the house, as was alleged, to fetch the gun for Anthony Kelly. At 20.17 a Ducati motor cycle was found

abandoned at the Parkway Shopping Centre by one of its employees. This was the motor cycle that, according to James Martin Cahill,

was originally going to be used for the purpose of the assassination but was found to be unsuitable even though an individual had

driven it down from Dublin.

Response to interviews

10. When the former accused Anthony Kelly was arrested for this murder and formally interviewed, he answered many questions put

to him by members of An Garda Síochána. When it came to anything to do with gun, or allegations that he had passed this gun over

to James Martin Cahill, or that he had any conversation with him about what was to be done with the gun, I am told by counsel for

the prosecution that Mr. Kelly declined to answer, stating “Nothing to say”. In addition to these matters, which I regard as potentially

relevant in exercising my discretion as to costs, there is a further important factor. No-one suggests that when Anthony Kelly, his son

and James Martin Cahill were seen chatting in Dooradoyle Shopping Centre at 15.19 hrs. on 26th November, they were discussing this

murder. In cross-examining James Martin Cahill, counsel for all the four accused men concentrated on his credit as a witness. He was

a man who had been in trouble all his life. On his first day in secondary school he had pushed a teacher down the stairs. He had spent

repeated periods of time in institutions of detention. He had an extraordinary sexual history involving child abuse, an incident of

bestiality and some form of sexual assault on a baby. In addition, he had committed rape, forms of fraud, a number of armed

robberies, and had finally been arrested in possession of a machine gun which he had in his possession, as we now know from his

admission in the witness stand, for the purpose of carrying out a different contract killing. In addition, he said that in discussions with

unnamed persons, some preliminary thought, at least, had been given to murdering a number of individuals. It is difficult to be exact

as to the count of how many people he may have been asked to murder, since families were named as distinct from individuals in

some cases, but there were certainly between five and ten. These included a member of the British police and a member of An Garda

Síochána called McDonagh. James Martin Cahill was a career criminal with a particularly vicious run of violent crimes behind him. Yet,

according to defence questions put to him on behalf of Anthony Kelly, he had “the run of” Anthony Kelly’s house. One of Anthony

Kelly’s sons was supposed to have been a friend of his. Why they might be friendly, and what they might possibly have in common, I

do not know. In addition, James Martin Cahill was, for a time, going out with a lady who was said to be a niece of Anthony Kelly. That

relationship had apparently ended in consequence of some form of violence by Anthony Kelly about two years before this murder.

James Martin Cahill then took up with another lady who was unrelated to Anthony Kelly. Within some two weeks prior to this murder

being committed that relationship had ended in a violent and seedy row. James Martin Cahill had then gone from the house they were

sharing in the village of Kilkee, some fifteen minutes drive from Kilrush, and put some of his clothes into Anthony Kelly’s house.

11. During the course of requisitions, following on my charge to the jury, counsel on behalf of the prosecution urged me to lay before

the jury the entire history of Anthony Kelly, together with the plans for the other murders that were revealed on him being cross-

examined as to his credit, and to instruct the jury that from this material it could be inferred that Anthony Kelly knew that James

Martin Cahill was potentially, at the least, a killer. The prosecution had earlier had a chance to make a speech to the jury and they

had not argued this proposition as part of their case. The defence had urged a requisition on me that if the jury were to find as a fact

that Anthony Kelly had given the murder weapon to James Martin Cahill that the context admitted of him supplying a weapon for a

multitude of crimes apart from murder, including armed robbery, for instance. The defence had not included this argument in their

closing address. I declined the prosecution requisition in its entirety and, as to the defence submission, acceded to it by reiterating

that the jury had to be satisfied beyond all reasonable doubt that the accused Anthony Kelly intended, if they found as a fact that he

had passed over the gun and had demonstrated it, that it be used to kill a person and not for any other purpose; in other words that

section 4 of the Criminal Justice Act, 1964, always applied as to the mental element of the crime of murder. That is as far as the re-

charge of the jury went. It is not for the trial judge to make a speech for the prosecution and it is not for the trial judge to make a

speech for the defence.

12. None of the accused persons gave evidence in their own defence. The single witness called on behalf of the defence was the

engineer to whom I have already referred.

Discretion

13. Order 99, rule 1 of the Rules of the Superior Courts provides:

“Subject to the provisions of the Acts and any other statutes relating to costs, and except as otherwise provided by

these rules:

1. The costs of and incidental to every proceeding in the superior courts shall be in the discretion of these courts

respectively.

2. No party shall be entitled to recover any costs of or incidental to any proceeding from any other party to such

proceedings except under an order or as provided by these Rules.

3. The costs of every action, question, or issue tried by a jury shall follow the event unless the court, for special

cause, to be mentioned in the order, shall otherwise direct.

4. The costs of every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered, follow

the event.”

14. In The People (Attorney General) v. Nuala Bell [1969] 1 I.R. 24, the Supreme Court held that this rule applied to criminal

proceedings. In that case, Kenny J. decided that costs were in the discretion of the trial judge following on the acquittal of any

accused. In that case there were six accused, all of whom were ladies who worked in Dunnes Stores here in Dublin. They were

accused of a conspiracy to engage in stealing from the shop and it was mentioned in the report that all of them had made statements

which, and if accepted by the jury as truthful, were of themselves sufficient proof as to the guilt of each of the accused. The

statements were made to members of An Garda Síochána who, and apparently this could happen at the time, were in the part-time

employment of Dunnes Stores. It was argued that this employment was so undesirable that costs ought to be given on the acquittal

of all of the accused for this reason alone. As to the six confessions allegedly made by the six accused, Kenny J. admitted five of

these in evidence. All of these accused were acquitted by verdict of the jury. In one case, however, Kenny J. decided that the

statement should not be admitted in evidence because that accused had at an earlier stage declined to make a statement to the

gardaí. This lady was acquitted on the direction of Kenny J. It is only in the case of that lady that Kenny J. awarded costs. All of

these other accused acquitted by the jury’s verdict were also bearing their own costs. In the Supreme Court, Walsh J. referred to

“the centuries-old rule” that an accused person who is acquitted was not be entitled to any costs of the trial. That rule had been

overturned by the relevant section of the Rules of the Superior Courts. At p. 52 of the report he said:

“…under the rule the High Court may impose a liability to costs on either the prosecutor or the defendant. For the reasons

I have stated in the early part of this judgment, any such order is subject to appeal to this Court. It is unnecessary in

this case, as the point has not been raised, to consider what are the principles which should guide a judge in making such

an order, as this appeal has been confined to the question of the jurisdiction of Mr. Justice Kenny to make the order he

did – rather than the reasons he gave for exercising his jurisdiction in the way in which he did.”

15. In a criminal case the prosecution undertake the burden of proving beyond reasonable doubt the guilt of the accused on particular

charges. In a civil case, each side undertakes the burden of proving the likelihood of their case. In a civil case, furthermore, both

sides of the case are normally heard by the trial judge. This assists in making a fair assessment to be made as to the merits of the

position of each side. For guidance as to the appropriate manner of exercising the discretion as to costs that is vested in a judge

trying a criminal case, I have found it of little assistance to discover how the courts in other jurisdictions, such as Canada and the

United Kingdom, exercise that power through practice directions. Criminal law is a matter peculiarly within national competence, even

under European law, and I therefore feel that the best guide to the exercise of my discretion has to be whatever indications are in

the authorities as they exist in this jurisdiction.

16. In Hewthorn and Company v. Heathcot 39 I.L.T.R. 248, Kenny J. stated:

“It is well settled law, as is shown by the authorities cited to me, that when costs are in the discretion of a judge he

must exercise that discretion upon the special facts and circumstances of the case before him and not be content to

apply some hard and fast rule.”

17. In Dunne v. The Minister for the Environment & Ors. [2007] IESC 60, the Supreme Court discussed an issue as to costs in the

context of public law issues being raised and determined, as was argued, to the benefit of clarifying for the community the law in an

important area. In the course of his judgment, Murray C.J. made the following remarks:

“The rule of law that costs normally follow the event, that the successful party to proceedings should not have to pay

the costs of those proceedings which should be borne by the unsuccessful party has an obvious equitable basis. As a

counterpoint to that general rule of law the court has a discretionary jurisdiction to vary or depart from that rule of law if,

in the special circumstances of a case, the interests of justice require that it should do so. There is no predetermined

category of cases which fall outside the full ambit of that jurisdiction. If there were to be a specific category of cases to

which the general rule of law on costs did not apply, that would be a matter for legislation since it is not for the courts to

establish a cohesive code according to which costs would always be imposed on certain successful defendants for the

benefit of certain unsuccessful plaintiffs.

Where a court considers that it should exercise a discretion to depart from the normal rule as to costs it is not completely

at large but must do so on a reasoned basis indicating the factors which in the circumstances of the case warrant such a

departure. It would be neither possible nor desirable to attempt to list or define what all those factors are. It is invariably

a combination of factors which is involved. an issue such as this is decided on a case by case basis and decided cases

indicate the nature of the factors which may be relevant but it is the factors or combination of factors in the context of

the individual case which determine the issue.”

18. The matter of the identification of the relevant factors, and the application of discretion based on them, is therefore peculiarly a

matter for the trial judge. I do not regard the trial judge in a criminal case, who is called upon to decide a defence or prosecution

application for costs, as being bound only to consider the evidence admitted before the jury. The issue as to costs being

discretionary, and not being an issue as to whether the prosecution have discharged the burden of proof on them beyond all

reasonable doubt, the exercise of that discretion requires the trial judge to inquire into the conduct of the prosecution and the

defence within the wider context as to whether it was reasonable to bring the prosecution and as to whether it is correct, the

prosecution having failed, not to follow the normal rule and order costs in favour of a successful defendant. The disclosure

documentation can, and in some cases where it may be relevant, ought to be looked at by the trial judge as can what used to be

called the book of evidence. I am satisfied as well, that the responsibility exercised as to this wide measure of discretion granted to a

trial judge, in this regard, is underlined by the decision of the High Court and the Supreme Court in Beverly Cooper Flynn v. Radio

Telefís Éireann, Charlie Bird and James Howard [2004] 2 I.R. 72. One of the issues that can arise is as to whether a losing party, in a

civil case, has gained a particular benefit, “something of value” as it has been called in some of the cases, in consequence of bringing

the proceedings, never mind that the plaintiff was unsuccessful. Any such principle is highly unlikely to arise in the context of a

criminal case since the jury will either simply direct an acquittal or convict the accused. It is hard to see what special benefit might

be gained by the Director of Public Prosecutions in consequence of an acquittal. However, the wide measure of discretion involved

was underlined strongly by Keane C.J. at p. 108 of the report when he stated:

“The order for costs in this case was essentially a matter within the discretion of the trial judge and this Court should only

intervene if satisfied that he proceeded on some erroneous principle of law in ordering the plaintiff to pay the costs of all

three defendants. I am satisfied that there was no such error of law in his approach. It is acknowledged that, prima

facie, the principle that costs follow the event applied and he was entitled, in my view, to hold that circumstances relied

on by the plaintiff did not constitute a “special cause” within the meaning of Order 99, rule 1(3).”

19. It is therefore important to examine the conduct of the prosecution and, in so far as that is possible, to examine the conduct of

the defence in the case to determine how the discretion as to costs ought to be exercised. Since the judgment of Clarke J. in Veolia

Water U.K. plc & Ors. v. Fingal County Council [2006] I.E.H.C. 240, this discretion as to costs has been exercised, in complex civil

cases, on the basis of considering the success or lack of success of parties within the individual issues argued within a such a case.

This is done out of fairness to the parties who need to expend time in meeting sometimes unmeritorious arguments and, thus, in order

to discourage parties from raising additional merit-less issues that may add to the length and expense of litigation. It seems that

these particular principles can rarely have an impact on criminal cases.

20. Apart from the Bell case, there is only one other reported case that I can find where a successful defendant was awarded costs

having been acquitted on a criminal charge. This was The People (D.P.P.) v. McGinley [1987] I.R. 340. The reason for the award of

costs does not appear in report of that case. The main evidence against the accused on charges of cattle stealing was his

accomplice. That accomplice had, prior to the commencement of the main case, pleaded guilty to spiriting away lorry loads of cows

and had been sentenced. During the course of the prosecution case, the defence attempted to open to the jury, by way of a

question to a senior Garda officer, a newspaper account of the sentencing hearing in respect of the accomplice; whereat it was

supposed to have been said on his behalf that he was going to co-operate with the prosecution and give evidence. The prosecution

objected to a newspaper being opened to the jury. The defence then asked the judge to require the prosecution to make available a

Garda witness, as part of the prosecution case, who had been at the hearing to answer questions from the defence as to

undertakings given on behalf of the accomplice by counsel defending him, but the prosecution declined. That was an error on behalf

of the prosecution, and one of a serious kind. The defence were entitled to explore what had been said by counsel on behalf of the

accomplice when seeking to mitigate his sentence on the same charge for which the accused was later tried. In that regard, the

statements of counsel were presumed to have been made on instructions. This would be the rule in every case and it is also an

important principle in this case. In overturning the conviction, on this ground, the Court of Criminal Appeal attributed fault to the

prosecution and awarded costs against the Director of Public Prosecutions.

Relevant questions

21. In considering the discretion as to costs, it seems to me, having considered the authorities, that without attempting to lay out a

definitive list, the trial judge might usefully ask the following questions:

(1) Was the prosecution justified in taking the case through it being founded on apparently credible evidence?

(2) Did anything within the investigation by the Gardaí give rise, of itself, to the existence of a serious inherent doubt as

to the guilt of the accused? I use this test, in distinction to a matter that might raise a reasonable doubt because, firstly,

the trial judge must distance himself or herself from the evidence and, secondly, it is for the jury to judge whether there

is any reasonable doubt about the guilt of the accused.

(3) Was there any indication that the case had been taken against the accused through being based on an abuse of his

rights through oppressive questioning, which contributed to a confession that was unreliable in law?

(4) Whether the accused was acquitted by direction of the trial judge or acquitted upon consideration by the jury? Then

one might go on to consider the reason for such acquittal by the trial judge, whether as to a failure in technical proofs or

if it was one of the rare cases of inherent weakness in evidence that had actually been offered.

(5) If there had been an acquittal by direction of the trial judge, was this one based upon a decision that required the

exclusion of evidence, and if so, whether that exclusion was based upon a serious, as opposed to a mistaken, abuse of

the accused’s rights? This is not a circumstance to apply the rule as to the exclusion of evidence based on a mistake that

accidentally infringes some constitutional right of the accused. What might be considered here is deliberate abuse by the

servants of the State.

(6) What answer had the accused given to the charge when presented with an opportunity to answer it? The purpose of

a Garda investigation is not to provide an opportunity to an accused person to state what his defence is; Kevin

McCormack v. The Judge of the Circuit Court and the D.P.P. [2007] I.E.H.C.123. The purpose of any fair investigation,

however, is to seek out the truth; sometimes according with an initial police view as to who is guilty and oftentimes

contradicting it. A fair interview upon arrest would naturally bring an accused person to the point that he or she is

expected to deal with the preliminary outline of the case inculpating the suspect and allow him or her an opportunity, if he

or she wishes, the chance to say what the answer to it is or might be, in a case based on circumstantial evidence.

(7) What was the conduct of the accused in the context of the charge that was brought, specifically in terms of who he

was associating with and on what ostensible basis? Sometimes an accused can be partly responsible for attracting

suspicion by dealing with and having close relations with those who are closely linked to criminal activity. Such a

relationship may be explained in evidence in an apparently reasonable way, but at other times the course of dealings may

be left untreated in any reasonable way in the evidence. Suspicion can arise against an accused in other ways, such as

by running away or apparently destroying what might be relevant evidence.

(8) What was the conduct of the accused in meeting the case at trial?

(9) Whether any positive case was made by an accused such as might reasonably be consistent with innocence and

whether any right was exercised to testify as to that case or whether an opportunity was used under the Prosecution of

Offences Act, 1974 to communicate with the Director of Public Prosecutions as to the nature of that defence?

(10) Have the prosecution made any serious error of law or fact whereby the case became on presented on a wrong

premise? The same question is applicable to the defence.

Decision

22. James Martin Cahill presented as a person who, in my judgment, did not treat the giving of evidence as being frivolous or an

opportunity for revenge. The only issue put to him as to a motive for blaming Anthony Kelly as an accomplice to this murder, when

otherwise he was presumed to be innocent, a presumption that has not been displaced, was the existence of a request for money

from Anthony Kelly while he was in jail. The answers of the witness to this issue were neither stressed nor inherently incredible and

the point was quickly departed from in cross-examination. In addition, the witness had issues that have been detailed above.

23. I must look at the positive case advanced by the former accused Anthony Kelly. The case there made on the time periods argued

for in evidence, on the basis of an engineer carefully driving at 55 miles per hour from Portlaoise to Kilrush, while stopping for petrol

for eight minutes along the way, and being delayed in traffic, do not meet with the court’s own experience of travelling in Limerick and

Clare and nor does it meet with the court’s experience of traffic jams in 2002 in Limerick city. The roads involved may run through the

countryside but, apart from the section from Lisseycasey to Kilrush, it stretches the truth for Anthony Kelly to describe these main

national thoroughfares to a Dublin jury without local experience as “country roads”. The court was more than surprised to hear

counsel for the prosecution say, on answering this application for costs, that the mobile phone evidence placed James Martin Cahill or

his companion in the car on the far side of Ennis and on the road to Kilrush at 18.00 or 18.10 on the day before the murder, the very

case that the prosecution were making. All of the mobile telephone evidence as to times and masts that might assist the defence

scenario was put through questions asked of prosecution witnesses. The defence is not obliged to give a complete picture of a

section of the evidence that the prosecution were unable to call. Portions can be put to witnesses that might be expected to know of

them to enquire as to their answers, provided these are not hearsay. But this is an application as to the exercise of my discretion on

costs and I am obliged to look at that entire section of the evidence and not just an isolated portion of it.

24. There was no scenario in this case where the accused was in any way abused as to his rights. Rather, he was given every

opportunity to meet this case. In answering, as he did, by declining to talk, on his arrest on this murder charge, about the very issue

which was uppermost in the minds of the responsible members of An Garda Síochána in investigating the case, the accused was

undoubtedly exercising a right. The court asks itself as to whether the exercise of that right brought on, or partially contributed to

the bringing of, the case against him. There was no reason for the accused, that the court can see, to decline to speak when

confronted with the central issue in this case. There is nothing to suggest that the accused came within the category of someone

who is stupid, ignorant or guilty on a collateral matter whereby it might have been possibly reasonable for him to decline to make any

positive case. I take into account that in the witness statement made to the Gardaí in the immediate aftermath of the murder the

accused claimed that he was at home on this night, apparently alone and training himself in an athletic way in his gymnasium room at

the relevant time.

25. There was no misconduct by the Director of Public Prosecutions in the conduct of this trial. There was nothing done by the

prosecution which indicated an oppressive attitude toward the accused, or a fixed attitude of assumed guilt on the part of the Gardaí.

Rather, the prosecution was co-operative with the defence, as it is obliged to be, in terms of discovery and making available any

piece of material from which the accused might construct a case. In contra-distinction, the allegation by the accused that one had

to travel between Limerick and Kilrush, and back again, on “country roads” was lacking in candour, given the accused’s obvious and

long-standing acquaintance with travelling times and conditions in this area, as I have been informed that he is a businessman based

in a major shop in Kilrush. The fact that a telephone call was revealed to have been made, associated with the car in which an

individual and the main witness in the case were travelling, at either 18.00 or 18.10 hours on the western side of Ennis, a fact not

revealed to the jury in contra distinction to all of the facts which might assist the accused, calls into serious issue the only positive

case as to timings for journeys made by the accused at trial. While this might not seem important, it seems to me to be correct for

the defence to strongly question any lack of candour in a prosecution case. If a case of a misleading kind were made on behalf of the

prosecution, of this dimension, it would rightly call down condemnation by the court. What principle, I ask myself, allows the former

accused Anthony Kelly to exercise an opportunity for unreality in his own favour? There is none.

26. It may be argued that the defence are entitled to test the prosecution case by putting sections of the disclosed material to

witnesses to see if they agree with it. The sections put in respect of the telephone evidence concerned the recording of telephone

calls from an individual apparently on the way back to Dublin after the Portlaoise meeting when James Martin Cahill was not even in

the car. This is an example of pure hearsay. But, such evidence may indicate a pattern despite its hearsay nature. In looking at the

issue as to costs, the court is concerned with the whole of the case and therefore the entirety of that pattern.

27. The character of James Martin Cahill was such that it must have been known, at least in substantial part, to any reasonable

person having an apparent relationship with him in 2002. On the material put to him by the defence in cross examination, he had

recently served a prison sentence; one of many. He had been involved in two armed robberies, one of which was in Galway and hardly

likely to escape the attention of anyone who was acquainted with him, especially someone in a neighbouring county. On that charge,

James Martin Cahill had given false evidence in his own defence. He had two relationships with women that had ended in nasty

circumstances and that included a woman who was a close blood relation of Anthony Kelly. He was a career criminal. That is

something that he now says that he regrets, but there is no evidence of him regretting it much before his arrest in 2003 whilst

carrying a machine gun on a contract killing mission. Much was made of his mental troubles and the frank admissions that he made to

prison psychiatric and psychological personnel in order apparently to seek healing. I can see no basis on which Anthony Kelly would

not have known the character of James Martin Cahill as it was in 2002. How it was that a friendship existed with Anthony Kelly’s son

and how it was that he was frequently in the Anthony Kelly house in Kilrush, even leaving clothing there after the last fight with his

girlfriend is unexplained. This was a case of suspicion being drawn by the conduct of the accused onto himself.

28. In all the circumstances, and for the reasons that I have given, I decline to award Anthony Kelly any costs.