THE chief witness in a murder trial went shoplifting while being paid under the RUC's witness protection scheme, a defence law told the Court of Appeal in yesterday.
Ms Cheryl Kelly (21), stole a bottle of vodka from a supermarket in England, where she was being kept while waiting to give her evidence, said Mr Charles Adair QC.
Mr Adair said Ms Kelly's arrest in January, 1993, proved that she was still "thieving and lying" in the run up to the trial of five men, who were later convicted of the sectarian murder of Ann Marie Smith (26).
The Catholic mother of two from Armagh was found with her throat cut in East Belfast in February, 1992, after she had been "lured" from Hillfoot Glentoran Supporters Club.
Ms Kelly had been with Ms Smith and her killers, but after going to the police she was given immunity.
Four of the appellants are from Belfast - Samuel Cooke (29), of Cregagh Street, Stephen Manners (33), of Woodstock House, David Magee (26), of Pearl Street, and Philip Murray (30), of Kingswood Street. The other appellant is Graham Bingham (25), from Carmeen Drive, Rathcoole, outside Belfast.
Ms Kelly's arrest - she got off with a caution - was disclosed by the Crown to defence lawyers on the last day of the appeal two weeks ago.
The hearing was adjourned until yesterday when a formal application to admit new evidence was granted by the appeal judges, Lord Chief Justice Sir Brian Hutton, Lord Justice MacDermott and Mr Justice Campbell.
Mr Adair, who represents Bingham, said the trial judge, Mr Justice Higgins, had found Ms Kelly's evidence to be "truthful, reliable and convincing". But hiss assessment was now found to be fatally flawed by the revelation that she had lied in the witness box.
He said Ms Kelly had been asked if she had committed any offences since the murder and she replied: "No, no." If the judge had known she was lying, he might have taken a different view about her possible part as an accomplice and her general credibility, said Mr Adair.
He said that following Ms Kelly's shoplifting offence, an English police officer contacted the RUC witness protection unit and explained what had happened. "But nobody has admitted receiving that message," said Mr Adair.
Sir Brian Hutton interjected to say the English police officer had stated that she could not remember if she passed the message to the RUC or left it on a telephone answering machine.
Mr Adair replied that whatever was the case, the matter should have been disclosed to the defence prior to the trial.
"As a result of the non disclosure there was a material irregularity which makes the convictions unsafe and unsatisfactory," he said.
Sir Brian Hutton said shoplifting was far removed for being present in the house where Ms Smith was strangled.
Mr Adair argued that was not the point he was making. "The heart of this case is the judge's finding that Cheryl Kelly turned over a new leaf in March, 1992, and committed no further offences. That goes to the core of the judge's assessment of her credibility," he said.
Crown counsel, Mr Ronald Appleton QC, said that if the judge had known about Ms Kelly shoplifting it would have made no difference because it was outside the matters which he took into account in deciding that she had told the truth about the murder.
Mr Appleton said there were two or three occasions when Ms Kelly undoubtedly said she had committed no crimes since 1992. "But if this matter had been put to her we say she would have admitted it and it would have made no difference," he said.
The appeal continues today.