Gaeilge

Title:	Director of Public Prosecutions -v- Fitzgerald
Neutral Citation:	[2018] IESC 58
Supreme Court Record Number:	138/16
Court of Appeal Record Number:	2011 45
Central Criminal Court Record Number:	2010 CC68
Date of Delivery:	11/29/2018
Court:	Supreme Court
Composition of Court:	Clarke C.J., MacMenamin J., Charleton J., O'Malley Iseult J., Finlay Geoghegan J.
Judgment by:	Charleton J.
Status:	Approved
Result:	Appeal dismissed

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Clarke CJ
MacMenamin J
Charleton J
O’Malley J
Finlay Geoghegan J

Between

Judgment of Mr Justice Peter Charleton of Thursday 29th of November 2018

1. This appeal concerns the warning to a jury trying a criminal case that the evidence of an accomplice to a crime is to be treated with particular circumspection because it is dangerous to act on it alone unless corroborated. Experience has shown that an accomplice may put people in the frame as perpetrators of a crime who may not have been involved at all, or may exaggerate the role of a particular accused, perhaps out of the kind of bitterness that typifies relationships within a criminal gang. Hence, where an accomplice gives evidence, the jury trying a person accused of a crime are warned in general terms of that danger. At the trial of Jonathan Fitzgerald for the murder of Noel Crawford in Limerick on 18 December 2006, one witness was made the subject of such a warning by the trial judge but another was not. Both witnesses were in the house to which the accused and others were alleged to have had resort after the murder and from which he and others had set out to the victim’s residence shortly before.

2. At the trial, in the cross-examination of the witness not made subject of an accomplice warning, it was never suggested to her that she was an accomplice, either before or after the fact, to the murder. The issue on appeal, therefore, is whether the accomplice warning is always to be given, even where the point is not relied upon by counsel for the accused. This accused was convicted of murder by a jury in the Central Criminal Court on 7 February 2011 and later sentenced to life imprisonment by White J, the trial judge.

Background
3. In December 2006, Laura Kelly was living in a house in O’Malley Park, a large housing estate in Limerick city, with her partner Jonathan Kiely and four young children. Before retiring for the night on Sunday the 17th of that month, approaching midnight, a phone call came from Raymond Fitzgerald, her nephew. He was asking to come over and stay at the house. He arrived shortly after, accompanied, unexpectedly it seems, by Jonathan Fitzgerald, the accused, and Michael O’Callaghan. All had travelled over to O’Malley Park in a white minibus. Conversation among them was overheard by her about a possible attack on Paul Crawford, who also lived in the estate, with reference to making a petrol bomb, one of them saying “[Expletive] the car, throw it at the house, in the window and when one of them comes out, we’ll get them.” On hearing this from the upstairs part of the house, she shouted to her partner, who kept petrol for his brushes because of his job as a house painter, to throw it away. The accused Jonathan Fitzgerald and Michael O’Callaghan only stayed in the house for about twenty minutes and then left. Her nephew Raymond Fitzgerald remained when they had gone. She had told them that she wanted them “out of my house.” In the back garden, she next saw these two men putting on bulletproof vests. Some little time later, she and her partner heard two shots. Then, shortly after, there was banging on the door. Her nephew opened the door to Michael O’Callaghan and Jonathan Fitzgerald. The latter said: “I got him, I got him, I got Paul Crawford.” In fact, it was Noel Crawford who had been shot dead.

4. Jonathan Fitzgerald, according to her account, was very bloodied and went to the kitchen sink to wash himself. She saw a shotgun on the kitchen table. Michael O’Callaghan was, meanwhile, washing upstairs. Jonathan Fitzgerald took off his clothes and put them into the fireplace to burn them in the fire. She asked them to leave. By this stage, one of the children had woken up. The couple had closed circuit television cameras as a security measure in their house and Michael O’Callaghan, because these would show their comings and goings, asked her to rewind the tape, thus erasing it. Her attitude was “I mean, I had to do it, didn’t I?” She described her state of mind as “[p]anic and my God, like, you know, like, absolute fear.” Thus she claimed to have acted under duress.

5. Meanwhile the clothes were burning in the fire and, on her narrative, there was a great deal of smoke which Michael O’Callaghan said would draw attention to the house. The men drank a Baileys Irish Cream liqueur. Shortly after that, shots were fired at the house and some of the windows came in. Gardaí from the armed response unit then arrived but she would not let them in. She told them that she had been shot at because of some kind of cooperation with them as police officers, not due to the murderous attack that had earlier been carried out. Asked why she said this she said: “I couldn’t; I was told not to … [by] Jonathan Fitz.” She shouted to the gardaí to leave. More of the children had by then woken up. On going upstairs, she found a bullet on top of her daughter in her bed. As she put it “I was absolutely boiling.” She then went downstairs and told the two men to get out. They did not leave and were there when the gardaí returned some hours later in the morning. She described her reaction to the men being in her house as ““What are you doing here …” -- you know: “What are you doing here?” I was, like, terrified, like, I didn’t know what to do.”” Her instructions from Jonathan Fitzgerald as to what to say to the gardaí as to any question about the men in her house were “We came up after your window got shot in, right? Do you hear me?” Her reaction she described as feeling “[t]he way anyone would, I suppose. I was afraid that I’d be body number two.”

The Trial
6. While there was other evidence putting the accused in O’Malley Park at around the time of these events, and some relevant mobile telephone records, it is clear that the evidence of Jonathan Kiely and of Laura Kelly regarding conduct consistent with the commission of the murder and of admissions afterwards was a central building block of the prosecution case. As regards Jonathan Kiely, he had given a witness statement to the gardaí, but at the trial he then had claimed to be a drug addict. Consequently, he testified that he had no recollection of anything; not even of ever having been interviewed by detectives. His evidence was admitted by the trial judge through his prior recorded statements under section 16 of the Criminal Justice Act 2006. The jury were played video recordings of his interviews, in addition to written statements by him. The trial judge, in respect of him, warned the jury that when he was arrested in the aftermath of the murder, under section 30 of the Offences Against the State Act 1939, he had been a suspect. Rightly, the trial judge left to the jury the issue of fact as to whether he had been an accomplice of the accused. He warned them to be “very wary of his evidence” and that the jury “should look for corroboration of his testimony.” What that was, the trial judge defined and pointed to the pieces of evidence which the jury might properly regard, if accepted by them, as evidence independent of that witness tending to show that the accused had committed the crime.

7. Counsel for the prosecution, on the day prior to the judge’s charge, had addressed the judge “out of an excess of caution”, and asked that counsel for the defence might “consider this overnight, whether there’s a need for an accomplice warning” pointing out that in their earlier statements to the gardaí “Laura Kelly and Johathan Kiely … might have been accessories after the fact and that might bring into view the accomplice warning”. The defence made no such application either that day or the next or ever. The trial judge decided of his own consideration of the evidence that Jonathan Kiely might be regarded as that of an accomplice “insofar as he was arrested on suspicion of possession of that particular firearm”, referencing the shotgun. In the absence of any defence submission, he did not put to the jury any issue as to whether Laura Kelly might be an accomplice or attach any warning as to that issue.

Court of Appeal judgment and submissions on appeal

8. It is useful to briefly summarise the submissions on each side. For Jonathan Fitzgerald, it is claimed that no matter whether counsel for the defence has put it to a prosecution witness in cross-examination that he or she may have acted in support of the commission of a crime or its later concealment, as an accomplice in other words, once any circumstance gives any possible indication that a witness may be an accomplice, then an accomplice warning should be given by the trial judge to the jury. This, it is contended, is an absolute rule and is not dependent on whether the matter has been raised or put to any witness on the instructions of the accused. Rather, it is argued on behalf of the accused, the duty to control the trial and to give the accomplice warning, being a matter of law, falls to the judge and not to counsel. Rules of law, it is claimed, are not dependent on the adversarial ebb and flow of a trial but, rather, are contended to be constant.

9. For the Director of Public Prosecutions, it is countered that the manner in which defence counsel approach a trial is not to be second-guessed by the trial judge. Rather, the prosecution contention is that since the duty of counsel is to put to a witness such matters as may be argued which tend to undermine that witness’s testimony, it is a matter of professional judgement as to whether an allegation that might give rise to any special warning by the trial judge might be of benefit to the accused. In that regard, counsel is, on the accused’s submissions, acting on instructions. Thus if the factual account of the accused is not to the effect that a witness was an accomplice to the commission of a crime, there is no basis for such an argument being put forward. As a matter of fact, it is contended, any view in retrospect as to whether someone might or might not have been an accomplice is very much secondary to the view taken by counsel on the instructions of the accused at the trial. Here, the view was that one of the witnesses might be an accomplice, that is to say someone in possession of a gun in the aftermath of a murder, whereas, counsel for the prosecution argue, the other witness was not so regarded by the accused Jonathan Fitzgerald and the case was not so run a trial.

10. The judgment of the Court of Criminal Appeal, given on 25 July 2016, by Birmingham, Sheehan and Mahon JJ concurring, was to the effect that the prosecution submissions were correct. Particular emphasis was laid on the dropping of a point at trial and the unsatisfactory nature of a point first being argued on appeal. The nature of the decision emerges from paragraphs 25 to 30 of that court’s judgment:

The real issue in the case arises from the fact that the judge was not requested to give such a warning notwithstanding that the question of whether a warning would be appropriate was specifically raised by the prosecution and the defence were invited to considered their position. At the conclusion of this charge, the judge was requisitioned in respect of a considerable number of matters by the defence. A number of those requisitions related to how the evidence of Ms. Kelly had been dealt with. The trial judge agreed to recharge and he did so in relation to a number of the points raised in relation to Ms. Kelly’s evidence, but none of the requisitions were directed to the issue of an accomplice warning.

The prosecution submit that the appellant should not be permitted to raise the issue of an accomplice warning as it had not been raised by the defence at any stage during the trial, relying in that regard on the case of DPP v Cronin (No.2) [2006] 4 I.R. 329. Now, it must be acknowledged that the factual background to Cronin was an unusual one. The case involved a fatal shooting in a disco. At trial there was one defence and one defence only which was that Mr. Cronin never had a gun and still less had he fired one in the disco. At no stage, whether by way of evidence by or on behalf of the appellant or by way of submission or by way of cross examination or in any other way was an alternative defence of accidental discharge of the gun raised. Following a change of the legal team, the appellant argued that the trial judge’s charge was deficient in not addressing the issue of accident or mistake and so the possibility of a manslaughter verdict. The Supreme Court ruled that it was only in circumstances where an appellate court was of the view that due to some error or oversight of substance, a fundamental injustice had occurred, should the court allow a point not raised at trial be argued on appeal. In addition, an explanation must be furnished as to why it was not raised at trial.

In this case, there can be no question of the parties and in particular the defence having lost sight of the accomplice issue. The issue was raised by prosecution counsel with a request that the defence consider their position overnight. On the following morning, although there was a debate in the absence of the jury relating to aspects of the ballistics evidence, nothing whatever was said about the desirability of an accomplice warning. This was despite the fact that the judge’s response to counsel the previous evening must have put everyone concerned on notice that the judge felt that there was a distinction to be drawn between the position of Mr. Kiely and Ms. Kelly.

Again, there can be no question of the issue being overlooked as the judge charged the jury. He did give a warning, albeit in modified form in the case of Mr. Kiely and did not do so in the case of Ms. Kelly. In that regard, he was following through on the indications that he had given when the issue was raised with him before the Court rose on day 18. The charge was the subject of detailed requisitions from the defence including a number of requisitions directed to the treatment of the evidence of Ms. Kelly. So, it is abundantly clear that all involved, including the defence, were aware of the fact that the judge had adopted a different approach to the evidence of Ms. Kelly than he did to the evidence of Mr. Kiely and no objection was raised.

In this case, the defence pursued a particular strategy in seeking to undermine the evidence of Ms. Kelly. They did so by suggesting she was currying favour and seeking advantage from the gardaí in respect of transgressions that she had been engaged in. The defence at trial did not by way of evidence, or submission, or cross examination raise the issue of whether she might be regarded as an accomplice. The judge in the course of his charge, while choosing not to address the issue of whether Ms. Kelly was an accomplice and what the significance of that would be, an issue in respect of which the defence had shown no interest whatever, was assiduous in putting before the jury the actual basis for the challenge to Ms. Kelly’s evidence which had been advanced by the defence.

In the Court’s view, the judge cannot 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. It must be recognised that introducing warnings in relation to issues which had not featured at trial can serve to dilute the impact of what is said and to divert attention from the actual case being put forward.

Accomplice evidence

11. Rather than any analysis based on what is not advanced at trial, but which may seem appropriate as an appeal point in its wake, the proper approach on this appeal concerns the responsibility which counsel have as to the limits of their instructions. In that regard, a brief reiteration of the rules as to the accomplice warning may be useful.

12. According to Archbold’s Pleading, Evidence and Practice in Criminal Cases (26th edition, London, 1922), an accomplice is “always a competent witness” and an accessory “is a competent witness against his principal, and the principal against the accessory.” But, the “fact of a witness being an accomplice, accessory, or principal detracts very materially from his credit”; see page 455. In the same passage, the rules for dealing with accomplices are set out in a manner consistent with modern practice:

The uncorroborated evidence of an accomplice is admissible in law : R. v. Atwood, 1 Leach, 464 ; but it has long been the practice at common law for the judge to warn the jury of the dangers of convicting a prisoner on such uncorroborated evidence of an accomplice or accomplices, and, in the discretion of the judge, to advise them not to convict on such evidence, though at the same time pointing out that it is within their legal province to convicted upon it if they choose. R. v. Stubbs, Dears. 555 : In re Meunier [1894] 2 Q.B. 415. This rule of practice has become virtually a rule of law : R. v. Farler, 8 C. & P. 107 : R. v. Tate [1908] 2 K.B. 680 ; and in the absence of such a warning by the judge the conviction will on appeal be quashed by the Court of Criminal Appeal. R. v. Tate, supra. Where there is a proper caution, in considering whether the conviction should be allowed to stand, the Court of Criminal Appeal will, on appeal, review all the facts of the case, bearing in mind that the jury had the opportunity of hearing and seeing the witnesses, and will quash the conviction if it thinks the verdict unreasonable one that cannot be supported by the evidence. R. v. Baskerville [1916] 2 K.B. 658 ; 86 L.J. (K.B.) 28 ; 25 Cox, C.C. 524 ; 12 Cr. App. R. 81 ; R. v. Bryant, 13 Cr. App. R. 49. Where there is insufficient warning and no corroboration evidence the Court of Criminal Appeal will on appeal quash the conviction. R. v. Norris, 12 Cr. App. R. 156.

The kind of corroboration required is not corroboration by independent evidence of everything the accomplice relates, as his evidence would be unnecessary if that were so. R. v. Mullins, 3 Cox, 526, 531. What is required is some independent testimony which affects the accused by tending to connect him with the crime ; that is, evidence, direct or circumstantial, which implicates the accused, which confirms in some material particular not only the evidence given by the accomplice that the crime has been committed, but also the evidence that the accused committed. R. v. Baskerville, supra.

13. Whenever any issue as to an accomplice warning arises at trial, two matters are usually not in dispute. Firstly, save for the necessarily very delicate issue of consent in sexual violence cases, whether a crime was committed or not is rarely disputed. In sexual violence cases, where consent is an issue, save for those rare cases where it is the identity of the assailant that is in contest, physical marks consistent with a non-consensual encounter can support the testimony of a person complaining of having been assaulted in a sexual manner. In other cases, while the fact of the crime should be proved by the prosecution, the run of the testimony will show that it is rarely contested that the theft of cattle has taken place or that a bank has been robbed or that an unfortunate person was kidnapped. Hence, it is normally unnecessary for corroboration to show that a crime has been committed. Rather, the nature of corroboration is to show a link between the accused and the commission of the crime. Secondly, with the nature of accomplice evidence, it is almost never the case that there is any doubt but that the person giving evidence from within a criminal enterprise had in some way aided the commission of the crime and was going to be subject to the accomplice warning by the trial judge. That kind of situation constitutes the ordinary experience of these kinds of cases.

14. While in this case the actual commission of the crime was not in contention, in the sense that once the pathology evidence had been given, no one doubted or thought to contest that a man had been murdered, there were serious questions as to whether anyone might regard the evidence of Laura Kelly as coming from an accomplice to the crime. The answer to those questions is not a facile one that she was in any way an accomplice.

15. For a start, on her own account she had acted at all times as a mother of young and vulnerable children, one of whom had had a bullet placed on her bed as, it is safe to assume, a threat. Her household was invaded by men intent on violence when the only permission which she had given was for her nephew to sleep there overnight. The rewinding of the closed circuit television tape was by coercive direction of the accused, on her account, and the excuse given to police to leave on the first occasion they called was in the context of the strain which she was under from those two unwelcome visitors whom she had told, on a number of occasions, to leave. In that context, counsel for the defence had the option of pursuing with Laura Kelly such dangerous issues as the truth of her testimony as to threats, in other words whether she acted under coercion, as to seeing men girding themselves with protective armour and of hearing shots and of those men burning clothes and washing off blood in the aftermath of a shooting. Any such line of cross-examination was more than dangerous for the accused to pursue. He chose not to.

16. What was referred to in the 1922 edition of Archbold as a “rule of practice” that judges should warn juries on the dangers of convicting on the uncorroborated evidence of an accomplice has undoubtedly now crystallised into a rule of law; AG v O’Connor (No 2) [1936] Ir Jur Rep 37. In that case, Kennedy CJ stated: “That rule is that a judge is bound … to warn the jury that it is not safe to convict on the uncorroborated evidence of an accomplice.” In Dental Board v O’Callaghan (1969) IR 181 at 184, Butler J stated:

There is no rule of law to the effect that the uncorroborated evidence of an accomplice must be rejected. The rule is that the tribunal of fact, be it District Justice or jury, must clearly bear in mind and be warned that it is dangerous to convict upon the evidence of an accomplice unless it is corroborated; but that having borne that in mind and having given due weight to the warning, if the evidence is nonetheless so clearly acceptable that the tribunal is satisfied beyond doubt of the guilt of the accused to the extent that the danger which is generally inherent in acting on the evidence of an accomplice is not present in the case, then the tribunal may act upon the evidence and convict.

17. Circumstances will usually make it obvious to everyone in court that an accomplice to a crime is to give evidence. The rules of practice on dealing with accomplices make it clear that this is the case. Thus, the ordinary situation is that where the prosecution seeks to undermine a criminal gang by calling evidence from inside it; for instance see The People (DPP) v Meehan [2006] 3 IR 468. Of its nature, such an exercise will show that the witness proposing to testify against others involved in the crime charged will have more than the usual compulsion of shame and evasion in minimising his or her own involvement. This makes sense. After all, it follows that where one person’s share of criminal complicity is minimised, then, consequently, the involvement of some other participant is likely to be exaggerated. See for example DPP v O'Reilly [2017] IECA 89. It may also be that, given the nature of the exercise, those planning crime meet in secret and operate through concealment, an accomplice can falsely add in an individual at a meeting or allege that he or she supplied a weapon or somehow otherwise acted in order to aid the commission of the crime.

18. Thus, it is in the participation in a crime that the danger arises. In Cosgrave v DPP [2012] IESC 24, Hardiman J analysed the situation thus:

It appears to me that the rationale for the rule requiring a corroboration warning relates, at least in part, to the character of the person who is an accomplice, and not to his precise degree of participation in any particular crime which he alleges. If the character of the witness is an indication for caution in regard to his evidence, that character is a permanent attribute of the witness and does not vary from one part of his statement to the other. Accordingly it appears to me that, once a person has been identified as an accomplice in any crime (or at least any crime arising out of the same sequence of facts of which he gives evidence) he is a witness whose evidence requires a corroboration warning.

19. This decision referred to the origins of the rule and its rationale, from cases such as R v Green (1825) 1 Craw and Dix Circuit Cases 158 at 159, wherein it was stated that corroboration was required: “… because [the accomplice] stands in so degraded a state, from the crimes of which he confesses himself guilty, that but little credit is due to him… unless corroborated in some material circumstances”. The rule as to the accomplice warning and corroboration, however, is related to participation in a crime. Where a witness participates in a crime and later gives evidence against those who are co-participants, he or she by nature is a suspect witness. The necessity to warn the jury, in that regard, comes from the composition of the tribunal of fact, the randomly selected jury of citizens, not being exposed to that of which a judge will be aware, namely the temptations of exaggeration and substitution that are sometimes beyond the normal inclination of a person confronted with their own conduct. The essence of an accomplice is that they have been a participant in the crime with which an accused is charged and to which they are a witness. To participate in a crime requires some act of positive assistance, coupled with the realisation that such assistance will assist in the commission of that crime. Hence, supplying a weapon in the realisation that it will be used for an assault is to participate in an assault. To participate in murder, that weapon has to be supplied with the intent that it be used to cause death or serious injury; section 4 of the Criminal Justice Act 1964. Any lesser state of mind, for instance of simply aiding an assault, however, renders the person an accomplice to that crime. The distinction between felonies and misdemeanours having been abolished, knowing or reckless assistance in the commission of a crime through some act such as providing encouragement or supplying some physical tool that might assist suffices to render someone an accomplice. Section 3 of the Criminal Law Act 1997 provides that the law and practice in relation to misdemeanours is of general application. In that regard, being aware that a crime has been committed but taking steps to ensure the escape of the perpetrators, whether through hiding them or destroying evidence, can draw a person previously innocent into being an accomplice after the fact; in this regard see the speech of Lord Simonds LC in Davies v DPP [1954] AC 378 at 400.

20. Most obviously, a person will be shown to be an accomplice where he or she has been charged with the same offence as the accused. A co-accused is not competent to be called at the behest of the prosecution against a fellow accused. The ordinary practice is for the person proposing to turn State’s evidence to be first tried, or, more usually, to first plead guilty. Thus, prior to him or her being called to give evidence, an accomplice should have been found guilty or have pleaded guilty or the Director of Public Prosecutions should have decided not to charge the accomplice; R v Richardson [1969] 1 QB 299 and R v Conti (1973) 58 Cr App R 387. Insofar as it is possible, it may be desirable that the prosecution should minimise the incentive for an accomplice to damnify the accused and to understate his or her own role. That is why that procedure is desirable. Thus in R v Pipe (1967) 51 Cr App R 17 at 21, Lord Parker LCJ stated:

In the judgment of this court, it is one thing to call for the prosecution an accomplice, a witness whose evidence is suspect, and about whom the jury must be warned in the recognised way. It is quite another to call a man who was not only an accomplice, but is an accomplice against whom proceedings have been brought which have not been concluded. There is in his case an added reason for making his evidence suspect. In the judgment of this court, the well-recognised rule of practice is one which must be observed, and, accordingly, in the circumstances of this case there is no alternative but to quash the conviction.

21. Some authorities go so far as to state that in the event that the practice of disposing of the accomplice and sentencing him or her prior to being called to give evidence against an accused as a fellow participant is not followed, the trial judge has a discretion to exclude the evidence; see May on Criminal Evidence (6th edition, London, 2015) at paragraph 17-13. Sentencing prior to the accomplice being called certainly removes the appearance of control by the prosecution, or the suspicion that might arise of testifying for reward. In R v Turner (1975) 61 Cr App R 67, the defence argued that it had become a practice for judges to not admit accomplice evidence where the accomplice still had ongoing proceedings in respect of them, and that Pipe was a rule of law. The court rejected this, with Lawton LJ stating at pages 78-79:

There is nothing either in the arguments or the judgment itself to indicate that the Court thought it was changing a rule of law as to the competency of accomplices to give evidence which had been followed ever since the 17th century …. Its ratio decidendi is confined to a case in which an accomplice, who has been charged, but not tried, is required to give evidence of his own offence in order to secure the conviction of another accused. Pipe on its facts was clearly a correct decision. The same result could have been achieved by adjudging that the trial judge should have exercised his discretion to exclude [the accomplice’s] evidence on the ground that there was an obvious and powerful inducement for him to ingratiate himself with the prosecution and the Court and that the existence of this inducement made it desirable in the interests of justice to exclude it. … it does not follow that in all cases calling a witness who can benefit from giving evidence is ‘wholly irregular’. To hold so would be absurd. Examples are provided by the prosecution witness who hopes to get a reward which has been offered ‘for information leading to a conviction’ or even an order for compensation, or whose claim for damages may be helped by a conviction. … If the inducement is very powerful, the judge may decide to exercise his discretion; but when doing so he must take into consideration all factors, including those affecting the public. It is in the interests of the public that criminals should be brought to justice; and the more serious the crimes the greater is the need for justice to be done.

22. Turner was also applied in R v Pentonville Prison Governor (1981) 73 Cr App R 200 at page 212 by Boreham J:

It is clear that, despite the strong words of Lord Parker C.J. in Pipe's case, the Court in Turner's case … took the view that an accomplice is a competent witness and that the admissibility of his evidence is a matter of practice and discretion.

It seems to us that the following conclusions can properly be drawn from this line of authority: (a) that an accomplice is a competent witness—save, perhaps, when he is both indicted and tried with the defendant. Certainly there is no authority for the proposition that an accomplice who has been charged but not dealt with is not competent. Indeed Winsor v. R. … remains an authority against that proposition; (b) that there is no rule of law which renders the evidence of an accomplice—even one who has been charged but not tried—inadmissible. The rules referred to in Pipe … and Turner … are rules of practice and not rules of law. All the authorities from Winsor v. R. … onward—with the possible exception of Pipe —are to the same effect. In our view there is no conflict of principle between the decisions in Pipe and Turner. If there is, then we consider Turner to be more in line with the earlier authorities and we would follow it.

23. The form of the warning in relation to an accomplice is exemplified by the present case. The jury is entitled to convict on the evidence of an accomplice, but because of the fact that there is complicity in the crime and the accomplice has something to gain by giving evidence as and from the time of arrest onwards, the jury should treat that evidence with suspicion. When the evidence is not backed up by corroboration, independently tending to show the involvement of the accused against whom the accomplice gives evidence, in the crime, that danger arises from the ease with which the actions of another participant can be exaggerated or whereby it can be alleged that someone is a participant who is not. Because of the bitterness and deceit inherent in criminal activity, it is necessary to treat accomplice evidence as dangerous unless it is so corroborated; see for example The People (DPP) v McGinley [1987] IR 340 at 343.

24. In that regard, there is a procedure to be followed. Since a criminal trial is one where the role of a tribunal of fact and tribunal of law is bifurcated, in cases where there is an issue about the matter, it is for the trial judge at the end of the evidence both for the prosecution and the defence to rule as a matter of law whether there is any evidence that a particular witness is an accomplice. While this direction, given in the absence of the jury, is not often called for because of the nature of the way accomplice cases run, that responsibility remains with the trial judge. Similarly, in the absence of the jury, the trial judge should seek submissions from counsel for the prosecution as to what particular pieces of evidence it is contended by the prosecution could amount to corroboration. That latter argument should happen in every accomplice case. It should be clarified by the trial judge as to what pieces of evidence counsel on each side may address themselves as to whether corroboration may be found by the jury or not. The defence, in that regard, also have a role to play in making submissions in the absence of the jury. The defence may make submissions as to whether there is evidence that a witness is an accomplice, in the rare case where that is in issue, and, in every accomplice case, as to whether any particular piece of evidence could amount to independent testimony tending to implicate the accused in the commission of the crime. The judge, in the absence of the jury, will then rule, if necessary, as to whether there is evidence that a particular witness is or is not an accomplice and will also rule which pieces of evidence can as a matter of law, if accepted by the jury, independently of the accomplice support the commission of the crime by the accused. Clearly, the practice of ruling if a witness is or is not an accomplice will not be necessary in the event that the witness has pleaded guilty to the same event as the accused. Then, it will be obvious. What will always be necessary, however, is a discussion in the absence of the jury as to what elements of the prosecution case can amount to corroboration.

25. The judge will rule as a matter of law that a witness is capable of being regarded as an accomplice. The judge, in the charge to the jury, should tell the jury this about the witness and tell them what, related to the facts of the case at trial, may demonstrate that he or she is an accomplice. That can be as simple as pointing out that the accused and the accomplice were, on the accomplice’s account in testimony, or by a guilty plea or jury finding, involved in the same crime. As to whether a witness is an accomplice is then a question of fact for the jury. The accomplice warning will be given where that issue is left to the jury. The judge will then go on to point to those pieces of evidence, or item of evidence, which, as a matter of law, if accepted by the jury, can amount to evidence independent of the testimony of the accomplice and which tend to implicate the accused in the commission of the crime. It is then for the jury to make a decision as to whether, in fact, the witness was an accomplice, in those rare cases where that issue is in doubt, and in all accomplice cases to then consider whether they accept the evidence that might amount to corroboration. Then, in the light of that decision as to whether there is or is not corroboration proven, the jury should proceed to analyse whether they accept the evidence of the accomplice. That order is confirmed by the case decisions.

26. In AG for Hong Kong v Wong Muk Ping [1987] AC 501 at 512, at issue was the startling proposition that the jury might review the evidence of the accomplice independent of any view which they took as to corroboration. In which case, reviewing the corroboration would be a pointless exercise since, then, the jury would have already decided in the absence of corroboration as to whether they accepted the evidence of the accomplice even despite the warning. The warning would then be rendered completely pointless. Lord Bridge said:

Where the prosecution relies on the evidence of an accomplice and where (in contrast with the instant case) the independent evidence capable of providing corroboration is not by itself sufficient to establish guilt, it will have become obvious to the jury in the course of the trial that the credibility of the accomplice is at the heart of the matter and that they can only convict if they believe him. The accomplice will inevitably have been cross-examined to suggest that his evidence is untrue. The jury will have been duly warned of the danger of relying on his evidence without corroboration. Their Lordships can see no sense in the proposition that the jury should be invited, in effect, to reject his evidence without first considering what, if any, support it derives from other evidence capable of providing corroboration.

27. This brief review of the law indicates that in cases where there is an issue as to whether a witness is an accomplice or not, the trial judge should hear submissions in the absence of the jury and rule on the issue. The trial judge should also rule on which pieces of evidence contended for by the prosecution to be corroboration could amount to evidence independent of the testimony of the accomplice which tend to show the commission of the crime by the accused. It is then a matter for the jury to decide, where this is an issue, (a) if a particular witness is an accomplice and, (b) in all cases whether they accept beyond reasonable doubt the independent testimony tending to show the commission of the crime by the accused and (c) in the light of that, whether they accept beyond reasonable doubt the testimony of the accomplice implicating the accused, bearing in mind the warning they have been given.

28. Given the central role of counsel in this process, particularly that of debating which items of evidence independent of the accomplice could amount to corroboration, the issue remains as to whether the trial judge, where counsel do not raise any accomplice point, could unilaterally make a decision that a witness was in fact an accomplice, warn the jury in that respect of the dangers of convicting on his or her uncorroborated testimony, and then proceed to put items to the jury as potential corroboration to be accepted by them. Any such step would have to be taken by the trial judge without submissions, a step always taken by counsel for the prosecution and defence in the absence of the jury on the issue of what, as matter of law, may or may not amount to corroboration. Such a unilateral decision in the absence of submissions from counsel for the prosecution and counsel for the defence would tend to undermine the role of counsel. That, however, is not the procedure. This review of the ordinary steps in dealing with accomplice cases makes it clear that counsel for the defence have a role in raising the issue and in addressing it. This is part of the burden of adducing evidence and this is borne by the accused; see in that regard the judgment of Walsh J in The People (AG) v Quinn [1965] IR 366 at 382 and DPP v Clarke [1994] 3 IR 289.

29. In this case, the issue was not raised. Instead, the run of the trial indicates that, as regards Laura Kelly, there were other matters which it was decided by the accused might more profitably be raised against her.

This trial
30. Allegations arising on the instructions of an accused in a criminal trial should be put to a witness in order that he or she can have a fair opportunity to deal with same. In McNamee v Revenue Commissioners [2016] IESC 33 the judgment of Laffoy J applies the decision of the House of Lords in Browne v Dunn (1893) 6 R 67 at 76-77 which is encapsulated in the following statement of Lord Halsbury:

To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity often to defend their own character, and not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.

31. This was most recently affirmed by the Supreme Court in McDonagh v Sunday Newspapers [2017] IESC 46. At this trial, counsel for the defence assiduously pursued this rule and did so in a way which demonstrated that the accused had absolutely no interest in accusing Laura Kelly of being an accomplice but, instead, had other issues of interest. As it happens, defence counsel pursuing those issues would not bring into contention whether the witness was under coercion and would not emphasise the instructions which she said came from the two men that they had only appeared in her house at a much later time in the night or morning than before the shooting and in the immediate aftermath of hearing the shots ring out.

32. All of that happened in this trial and happened in such a way as made it obvious that the accused had no interest in accusing Laura Kelly of being an accomplice. In fact, to do so would have been contrary to his narrative of fact in defence. It was put to her by counsel for the accused that her domestic partner had been involved in a dangerous driving causing death incident. While this would not impact directly on her credibility, it was put before the jury. More importantly, it was alleged that on 1 February 2008, she was driving a car accompanied by three of her children and that the allegation against her was that she was “accompanied by a stash of drugs”. To this she answered “[n]ow, there’s that brilliant words that you just said there, “alleged”.” It was put to her that she was a “drug dealer” and that she would be “contesting these charges” and that she had failed to turn up in the District Court on occasion in consequence of which a European arrest warrant had been issued against her. While references were made to a witness protection programme as a reason for her leaving Ireland, in fact her evidence was given over a video link from Westminster, it was alleged that her statement putting the accused in the picture for the crime was made in consequence of an attempt to curry favour with the gardaí because of the trouble she was in. Laura Kelly was also asked about a criminal conviction for “threatening and abusive and insulting behaviour and assault” on 11 July 2001.

32. As to the sequence of statements, it was put to this witness by counsel for the accused that on two occasions she had given statements to the gardaí but, contrary to her later accounts, had not named the accused Jonathan Fitzgerald as being one of the men in her house who had gone off in a bullet-proof vest in the context of the shortly after occurring gunshot noises.

Counsel put his case on behalf of the accused as follows:

Now it doesn’t quite end there though, Ms Kelly, because the problem that we have with your evidence is that, when you say that a man called Jonathan Fitzgerald came to your house in the way that you described it with two other people, we say that you’re wrong there, when you say he came in with your nephew Raymond and the other man, we say that you’re wrong there? … But you see the problem is you’ve given different accounts of what happened and in the accounts near the days you never mention him, you do say in the second account, and all of this matter will be proved by other witnesses, that a man identified as Jonathan Fitzgerald came -- you came downstairs and found him there in the morning, do remember saying that in court today? … [The] accused person disagrees [with you on] your allegation that he came to your house with other persons before the shooting, that’s what we disagree with; we say you’re wrong about that?

33. To this the witness indicated that she was telling the truth. It was also alleged against her by counsel for the accused that any evidence in respect of making petrol bombs was also of a kind with the other allegations and, referring to the drugs charge against her, “very consistent with somebody who is just trying to get off the hook” themselves. To this, she pointed out that she was “very afraid” of the men in her house, the accused in particular.

Accused’s case
34. On the run of this case, as disclosed by the transcript, counsel had clearly taken instructions which were not to the effect that Laura Kelly was an accomplice to the crime, or that she had done anything after the crime, either at the behest of the accused or spontaneously, in order to conceal the perpetrators, such as telling the police to go away or rewinding the closed circuit television video, but rather that the accused had no interaction at all with her in relation to the crime. That was what the accused wished to have put across to the jury through the cross-examination of this witness by counsel. On his case, Johathan Fitzgerald had arrived at the house well after the murder of Noel Crawford had taken place. Thus, on his instructions, which are admirably clear from the manner in which counsel for the defence put his questions on behalf of the accused, he had arrived in the house at a time when there was no question of him needing to be burning bloodied clothes in the aftermath of a murder, or washing himself, or intimidating anyone, but, rather that he was an innocent person caught up in suspicion merely because he had sought a place to sleep or of refuge independently of any crime that he had committed.

35. The decision not to run any accomplice point was that, therefore, of the accused. Counsel acted properly in putting his matrix of fact to the relevant witnesses. The case made by the accused was one which, as a matter of fact, distanced himself from any involvement with Laura Kelly or her domestic partner in arriving in the house shortly after midnight, and distanced himself from putting on bullet-proof vests, making a petrol bomb or bombs or arriving back and making admissions that they had shot someone and requesting that evidence of their arrival back at the house, recorded on videotape, should be erased. This was the case of the accused. Any intrusion of a rule of law which would have made it necessary for the accused Jonathan Fitzgerald to somehow allege that Laura Kelly had become an accomplice after-the-fact would have been an intrusion into his entitlement, basic to every criminal trial, to assert through counsel the facts which he claimed to be true and which, as he was entitled to contend, amounted to his defence.

Result

36. That being so, it is unnecessary to make any ruling as to what elements of the law can never voluntarily be foregone by an accused. Since the Constitution in Article 38.1 guarantees to all accused persons a trial in due course of law, it may be postulated as a matter of principle that an accused person cannot waive, for instance, the burden of proof beyond reasonable doubt in favour of postulating that he or she should be convicted if the evidence merely pointed to his or her probable guilt. Beyond that, it is difficult to be definite, save that no matter whatever the attitude of the accused, it is the duty of the trial judge and the prosecution to conduct the trial with dignity and fairness and in accordance with fundamental constitutional norms. On the issue of whether the trial judge should interject and raise a point which an accused has clearly decided not to pursue, it would seem that the exception most often noted in the relevant textbooks is that of public interest as a basis for the exclusion of evidence.

37. Nothing of that kind arises in this case. The appeal is therefore dismissed.