The Supreme Court has dismissed Jonathan Fitzgerald’s appeal against his murder conviction, ruling that the trial judge was not required to give the jury an accomplice warning about a witness where the defence had chosen not to raise that issue at trial.
Fitzgerald was convicted by a Central Criminal Court jury on 7 February 2011 of murdering Noel Crawford in Limerick on 18 December 2006. He was sentenced to life imprisonment. His appeal concerned the evidence of Laura Kelly, who described events at her home before and after the shooting. The trial judge warned the jury to treat another witness, Jonathan Kiely, with caution as a possible accomplice, but gave no such warning about Kelly.
The Supreme Court judgment, delivered by Mr Justice Peter Charleton on 29 November 2018, said the defence had not suggested in cross-examination that Kelly was an accomplice, either before or after the murder. The prosecution had raised the possibility of an accomplice warning before the judge’s charge and invited the defence to consider its position. The defence did not seek a warning then or when it later challenged parts of the judge’s charge.
The defence case at trial was that Fitzgerald had arrived at Kelly’s house after the murder and was wrongly identified as having been there beforehand. Defence counsel challenged Kelly’s account and suggested her evidence was motivated by a desire to curry favour with gardaí. The Supreme Court said an allegation that she was an accomplice would have conflicted with the defence account that Fitzgerald had no involvement with her around the time of the crime.
The court explained that where accomplice status is in issue, the trial judge should hear submissions outside the jury’s presence and rule whether there is evidence capable of making a witness an accomplice. The jury then decides that factual question and, where the warning applies, considers whether independent evidence supports the accused’s involvement. The judgment said the defence has a role in raising and addressing the issue.
The court did not decide whether an accused can never waive a particular legal protection. It said the trial judge and prosecution must still ensure fairness and comply with constitutional standards. Finding that no public-interest concern or other basis for intervention arose in this case, the Supreme Court dismissed the appeal.