Anthony Kelly has been refused his legal costs despite being acquitted of the murder of Limerick nightclub security director Brian Fitzgerald.
Mr Fitzgerald was shot outside his home at 51 Brookhaven Walk in the early hours of 29 November 2002. Kelly was prosecuted on the allegation that he had participated in the murder plot by supplying the gun used in the killing.
After an 18-day trial, a jury acquitted Kelly on 15 November 2007. Co-accused Garry Campion was convicted, while Desmond Dundon was acquitted and John Dundon had earlier been acquitted by direction of the trial judge.
The only evidence directly implicating Kelly came from James Martin Cahill, who had pleaded guilty to the murder and was serving life imprisonment. Cahill claimed he collected the gun from Kelly's house in Kilrush and that Kelly demonstrated its operation. Kelly's defence denied that the visit occurred and challenged Cahill's credibility and the prosecution chronology.
Mr Justice Charleton said an acquitted accused has no automatic entitlement to costs. The decision is discretionary and can take account of whether the prosecution was reasonably brought, the conduct of both sides and the evidence available beyond the material ultimately accepted by the jury.
The judge found no misconduct by the Director of Public Prosecutions or Gardaí. He also considered aspects of Kelly's defence presentation relevant. These included the description of the Limerick-to-Kilrush route as involving "country roads" and the selective use of mobile-phone timing evidence. The judge said fuller phone evidence placed Cahill or his companion west of Ennis shortly after 6pm, which was compatible with the prosecution chronology.
Kelly had also declined during Garda interviews to answer questions about supplying the gun, while having an established association with Cahill.
The court stressed that Kelly remained acquitted and the presumption of innocence had not been displaced. However, in exercising the separate discretion on costs, Mr Justice Charleton declined to make an award in his favour.