The Court of Appeal has dismissed Jonathan Fitzgerald’s appeal against his conviction for murder, rejecting a challenge to evidence admitted at trial and a proposed ground concerning an accomplice warning.
Fitzgerald was convicted on 7 February 2011 after a lengthy trial. On appeal, his counsel pursued one original ground, concerning the admission under section 16 of the Criminal Justice Act 2006 of a recorded interview with Jonathan Kiely, and sought to add a ground about the trial judge’s failure to give an accomplice warning in relation to prosecution witness Laura Kelly.
Kiely had told the trial court that he could not remember events around the killing. After a hearing, the trial judge treated him as a hostile witness and admitted his earlier interview. The Court of Appeal said the judge had carefully addressed the statutory requirements and that admitting the interview was a conclusion open to him. It rejected that ground of appeal.
The proposed new ground concerned Kelly’s conduct after Noel Crawford was fatally wounded at his home in Limerick in December 2006. The appeal court said her role in refusing to admit gardaí to her house, rewinding CCTV footage and misleading gardaí about when Fitzgerald arrived made a warning appropriate. It said a warning, if given, appeared likely to have been unconditional, but did not reach a final conclusion on that point.
The trial judge had warned jurors to be wary of Kiely’s evidence and to look for corroboration, but gave no such warning about Kelly. The appeal court noted that the issue had been raised by the prosecution before the jury charge, with the defence invited to consider its position. No request for a warning followed, including when the defence later requisitioned the judge on other aspects of Kelly’s evidence.
The court said the defence had focused at trial on the argument that Kelly was seeking favour from gardaí, rather than raising whether she might be an accomplice. It held that the judge could not be faulted for addressing the case the defence had actually presented. The appeal was dismissed.