DPP v Fitzgerald

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 25 July 2016
• Neutral Citation: [2016] IECA 222
• Docket Number: No. 45/11
• Court: Court of Appeal (Ireland)
• Date: 25 July 2016

[2016] IECA 222

THE COURT OF APPEAL

Birmingham J.

No. 45/11

Birmingham J.

Sheehan J.

Mahon J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

V

JONATHAN FITZGERALD

APPELLANT

Conviction – Murder – Accomplice warning – Appellant seeking to appeal against conviction – Whether trial judge was in error in failing to deliver an accomplice warning

Facts: The appellant, Mr Fitzgerald, on the 7th February, 2011, was convicted of the offence of murder following a lengthy trial concerned with events that occurred on the 18th December, 2006, at 567 O?Malley Park, Limerick. The prosecution case was that shortly before 3.00 am, the late Mr Crawford was fatally wounded at his home by the appellant. The appellant appealed to the Court of Appeal against his conviction. A large number of grounds of appeal were formulated, but following a change in legal representation only one of the grounds as originally formulated which related to the admission of an out of court statement pursuant to the provisions of s. 16 of the Criminal Justice Act 2006, was argued. In addition, the appellant sought to argue a new ground relating to the failure of the trial judge to deliver an accomplice warning. Ms Kelly was a very significant prosecution witness at trial. It was the fact that the trial judge did not give an accomplice warning in respect of her evidence that gave rise to an application to argue an additional ground of appeal. She told the Court that she resided at 491 O?Malley Park, Limerick, and she explained that in the early hours of the 18th December, 2006, her nephew arrived at her home with two others, one of them the appellant. She described how these three youths spent some time in her home and that at one stage a petrol bomb was produced, but later discarded. She also described how two of the youths, one of them the appellant, put on bullet proof vests and left her house with a shotgun. She subsequently heard the sound of gunshots and moments later the same two youths returned. According to her evidence, the appellant said ?I got him, I got Paul Crawford?. She described seeing the appellant washing himself in the sink, seeing a shotgun on the kitchen table and seeing the appellant put his clothes in a pile on the kitchen floor and dressing in other clothes that he had with him. She said that he burnt some of the clothes and also burned his trainers. Ms Kelly also gave evidence of a telephone conversation that the appellant had with an unknown party that she was in a position to overhear. Her evidence was that she overheard the appellant saying that he was okay and that they had got Mr Crawford. She also gave evidence of rewinding CCTV footage and doing this at the behest of one Mr O?Callaghan. Ms Kelly?s admitted role in rewinding the CCTV tape, in refusing to admit gardaí to the house and misleading the gardaí by suggesting to them that the appellant came up to her house after her windows had been shot in, and so at a time subsequent to the murder, were all of significance in the context of the appellant?s arguments in relation to an accomplice warning. The appellant was critical of the approach taken to the issue by the trial judge, and said that he exceeded his remit in engaging in fact finding, in particular in indicating that he accepted the evidence of Ms Kelly when considering the issue of the reliability of the statement sought to be admitted. The appellant said that the evidence of Ms Kelly was in dispute and that being so the judge was not entitled to make findings of fact, findings of fact being exclusively for the jury.

Held by Birmingham J that, having noted that the defence at trial did not by way of evidence, or submission, or cross examination raise the issue of whether Ms Kelly might be regarded as an accomplice, the judge could not be faulted for putting before the jury the actual case presented by the defence and not putting before the jury a case, which while one that was open on the papers, was one in which the defence had shown no interest whatever.

Birmingham J held that the judge?s charge, together with his willingness to address issues raised by way of requisition, dealt comprehensively with the real issues in the case. That being so, the Court dismissed the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered on the 25th day of July 2016 by Mr. Justice Birmingham

1 On the 7th February, 2011, following a lengthy trial the appellant was convicted of the offence of murder. A large number of grounds of appeal were formulated, but following a change in legal representation only one of the grounds as originally formulated which related to the admission of an out of court statement pursuant to the provisions of s. 16 of the Criminal Justice Act 2006, has been argued. In addition, and this has been the primary focus of attention on the appeal hearing, the appellant now seeks to argue a new ground relating to the failure of the trial judge to deliver an accomplice warning.

Background

2 By way of background it should be explained that the trial was concerned with events that occurred on the 18th December, 2006, at 567 O'Malley Park, Limerick. The prosecution case at trial was that in the early hours of the 18th December, 2006, shortly before 3.00 am, the late Noel Crawford was fatally wounded at his home at 567 O'Malley Park, Southill, Limerick.

Evidence at trial

3 Laura Kelly was a very significant prosecution witness at trial. It is the fact that the trial judge did not give an accomplice warning in respect of her evidence that has given rise to an application to argue an additional ground of appeal. She gave evidence by video link from a court in Britain during the course of the trial. She told the Court that she resided at 491 O'Malley Park, Limerick, and she explained that in the early hours of the 18th December, 2006, her nephew Raymond arrived at her home with two others, one of them the appellant, Jonathan Fitzgerald. She described how these three youths spent some time in her home and that at one stage a petrol bomb was produced, but later discarded. She also described how two of the youths, one of them Jonathan Fitzgerald, put on bullet proof vests and left her house with a shotgun. She subsequently heard the sound of gunshots and moments later the same two youths returned. According to her evidence, the appellant said ?I got him, I got Paul Crawford?.

4 She describes seeing Jonathan Fitzgerald washing himself in the sink, seeing a shotgun on the kitchen table and seeing Jonathan Fitzgerald put his clothes in a pile on the kitchen floor and dressing in other clothes that he had with him. She says that he burnt some of the clothes and also burned his trainers. Ms. Kelly also gave evidence of a telephone conversation that Jonathan Fitzgerald had with an unknown party that she was in a position to overhear. Her evidence was that she overheard Jonathan Fitzgerald saying that he was okay and that they had got Paul Crawford. She also gave evidence of rewinding CCTV footage and doing this at the behest of Michael O'Callaghan.

5 At approximately 4.00 am shots were fired into 491 O'Malley Park, gardaí came to the scene, but were not admitted by Ms. Kelly.

6 The three youths left her home shortly thereafter, apparently to go and spend the next few hours in the house next door, but then returned the following morning.

7 Ms. Kelly's admitted role in rewinding the CCTV tape, in refusing to admit gardaí to the house and misleading the gardaí by suggesting to them that Jonathan Fitzgerald came up to her house after her windows had been shot in, and so at a time subsequent to the murder, are all of significance in the context of the arguments in relation to an accomplice warning.

8 Jonathan Kiely, partner of Laura Kelly did not, when called to give evidence, offer testimony similar to that of Ms. Kelly as the prosecution would have hoped, but instead in direct evidence indicated that he could not recall or remember anything attributing his inability to recall to drug taking, claiming to have been ?heavy on drugs, taking heroin, hash and tablets?. Mr. Kiely's claim to have experienced a memory loss, precipitated an application under s. 16 of the Criminal Justice Act 2006, which was acceded to by the trial judge and his ruling in that regard is now an issue on this appeal.

9 There were a number of other elements to the prosecution case. There was, the evidence of a taxi driver, Thomas Maloney, the driver of a fourteen seater mini bus who gave evidence of receiving a call to make a pick up from Garryowen and picking up three young males wearing dark clothes, hoodie's with the hoods up and bringing them to O'Malley Park, where he stopped at the rear of 491 O'Malley Park. Another element of the prosecution case related to interaction by gardaí with Mr. Fitzgerald at 491 O'Malley Park and then during the course of his subsequent detention following on an arrest. The trial judge upheld defence objection to the admissibility of certain remarks made by Mr. Fitzgerald to one member of An Garda Síochána, Garda Lynch, but allowed the jury hear evidence from another, Detective Sergeant Treacy. He described arriving at 491 O'Malley Park at around 7.56 am on the 18th December, 2006, when Jonathan Fitzgerald was present. Detective Sergeant Treacy gives evidence of taking a mobile phone from Jonathan Fitzgerald and records that Jonathan Fitzgerald was wearing a bullet proof vest. There was no issue at trial in relation to the arrest and detention of Mr. Fitzgerald. During the course of his detention Mr. Fitzgerald gave an account of his movements at relevant times and that account puts him at his mother's home at the critical time. He stated that he was in bed, there was a small child in the same bed, that he was ?stoned out of his...