Supporting Documents:
Respondents Notice.doc.docxApplication for Leave to Appeal.doc

THE SUPREME COURT

DETERMINATION

RESULT: The Court does grant leave to the applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1. Jurisdiction

This determination relates to an application by Jonathan Fitzgerald (the Applicant) who was the appellant in the underlying appeal to the Court of Appeal, for leave to appeal under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal (Birmingham J., Sheehan J., Mahon J.) being a judgment delivered by Birmingham J. on the 25th July, 2016, on foot of the Applicant's appeal in respect of his conviction on a charge of murder contrary to common law and s. 4 of the Criminal Justice Act 1964, dismissing his appeal against conviction and the order of the Court of Appeal made on the 25th day of July, 2016 on foot of the said judgment (perfected on the 1st day of November, 2016).

As is clear from the terms of the Constitution and from the many determinations made by this Court since the enactment of the Thirty Third Amendment, it is necessary in order for this Court to grant leave, that it be established that the decision sought to be appealed against either involves a matter of general public importance, or that it is otherwise in the interests of justice necessary that there be an appeal to this Court.

The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted any issue in respect of which leave is granted will in due course be disposed of in the substantive decision of the Court.

2. The proceedings

The history of the proceedings is outlined in s. 4 of the Applicant's application for leave, which is published on the Courts Service website along with this determination. There is an issue raised in the Respondent's Notice as to the completeness of the information provided in the Applicant's application for leave and thus further information by way of background is set out in the Respondent's Notice filed on behalf of the Director of Public Prosecutions (the Director), which is also published on the Courts Service website along with this determination.

The following is a summary of the background leading to the decision of the Court of Appeal which it is sought to appeal:

(a) The Applicant was convicted of murder on the 7th February, 2011 after a lengthy trial. The victim, Noel Crawford, was shot dead shortly before 3am on the morning of the 18th December, 2006 at 567, O'Malley Park, Southill, Limerick, the Crawford family home. Witnesses described hearing two shots being fired.

(b) Laura Kelly was a significant prosecution witness. She resided at the time of the offence at 491, O'Malley Park. She gave evidence to the effect that the Applicant and two other men were in her home prior to the killing, that they first prepared a petrol bomb but then discarded it. Ms. Kelly described how two of the youths, one of them the Applicant herein, put on bullet proof vests and left her house with a shotgun. She subsequently heard the sound of gunshots and moments later, the three men, including the Applicant, returned and the Applicant said "I got him. I got Paul Crawford". She then described seeing the Applicant washing himself in the sink, of seeing a shotgun on the kitchen table and seeing the Applicant 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 his clothes including his trainers. Later she said she heard a telephone conversation between the Applicant and a third party in which she overheard the Applicant say that he was ok and that they had Paul Crawford.

(c) Other evidence at the trial included a taxi driver who gave evidence that three individuals got a taxi to the home of Laura Kelly at 491, O'Malley Park, a short time before the murder.

(d) Following the shooting dead of Mr. Crawford, at approximately 4am, shots were fired into 491, O'Malley Park. Evidence was given by a member of the Gardaí that he together with other Gardaí attended at the house to investigate same but were initially refused entry by Ms. Kelly. Later in the day, the Gardaí were admitted to the property on foot of a search warrant and the Applicant was arrested at Laura Kelly's house on the morning of the shooting. Evidence was given by Detective Sergeant Treacy that the Applicant was wearing a bullet proof vest and was agitated.

(e) Nicola Hartigan was a further prosecution witness who gave significant evidence at the trial. She described how the Fitzgerald family and subsequently the Applicant made her aware of the abduction of his sister, allegedly by Paul Crawford, on the same date as the murder of his brother, Noel Crawford. She gave evidence that on the 18th December the Applicant told her that his sister, Jennifer, had been kidnapped and had nearly been shot, adding "they didn't get her, but we got them". Her evidence was independent of the evidence given by Laura Kelly and supported and/or corroborated her version of events.

(f) Jonathan Kiely was also a prosecution witness. He was a partner of Ms. Kelly at the material time and they lived together at the same address. Having taken the oath at the trial he said he could not remember the facts about the incident that he had given in a statement made to the Gardaí. A statement of his witness evidence was then introduced pursuant to s. 16 of the Criminal Justice Act 2006. That evidence was consistent with what had been stated in evidence by Laura Kelly, namely, that there was a gun in the kitchen, then the preparation of a petrol bomb and the burning of clothes in the aftermath of the fatal shooting.

(g) Subsequent to the conviction, the Applicant retained a new legal team who sought to advance a new ground of appeal, namely that the evidence of Laura Kelly was such that she ought to be viewed as an accomplice and that accordingly an accomplice warning should have been given to the jury in relation to the evidence of Laura Kelly. An accomplice warning was given to the jury in relation to the evidence of Jonathan Kiely.

(h) It is the case that at the trial, the prosecution at the closing stages of the trial and before the judge charged the jury, invited the defence to consider overnight whether they wanted to make an application in relation to giving an accomplice warning in respect of Ms. Kelly. No indication was given as to what the prosecution's attitude would be to such an application if it were to be made. On the following day no such application was made on behalf of the Applicant.

(i) Following his conviction, the Applicant appealed to the Court of Appeal on a large number of grounds but given a change in legal representation, only one of the grounds as originally formulated in relation to s. 16 of the Criminal Justice Act 2006 was pursued but in addition the Applicant sought to argue a new ground relating to the failure of the trial judge to deliver an accomplice warning in respect of the evidence of Ms. Kelly. That issue was considered fully by the Court of Appeal and the Court dismissed the appeal.

The Applicant stated that his legal team argued before the Court of Appeal:

(a) That the evidence as given by Laura Kelly of her participation in the circumstances of the offending was such that she ought to have been viewed as an accomplice.

(b) That there is legal authority to support the proposition that where evidence of participation by a witness in the circumstances giving rise to the offence is such that the witness ought to be treated as an accomplice, there is in law a requirement that the trial judge give the jury a warning ("an accomplice warning"). The Applicant relied on the fact that it was accepted that on the facts as adduced, Ms. Kelly was in law an accomplice, as was stated by the Court of Appeal:


"There can be no doubt that Ms. Kelly's role in refusing to admit the Gardaí, in rewinding CCTV footage and in misinforming the Gardaí that Jonathan Fitzgerald had first come to her house after the windows had been shot, it meant that a warning was appropriate. Indeed while it is unnecessary to express a concluded view on this, it very much appears that a warning, if given, ought to have been in unconditional form."

(c) Nevertheless the Court of Appeal concluded that in the circumstances where the trial judge was not requested to give an accomplice warning in respect of the evidence of Ms. Kelly, there was no error on the part of the learned trial judge in not giving an accomplice warning. It is contended that this gives rise to an issue of public importance which warrants consideration by this Court, namely: Whether a trial judge is required to give an accomplice warning, even where the trial judge is not requested to do so by counsel for the defence.

It is contended on behalf of the Director that the decision in respect of which leave to appeal is sought does not involve a matter of general public importance and that it is not in the interests of justice necessary that there be an appeal to the Supreme Court. It is contended that there is no novel legal issue to be determined as the case falls within the established jurisprudence dealing with grounds of appeal not raised at trial. Although it is argued by the Applicant that there was an obligation on the court of trial to give an accomplice warning, even where no such application is made on behalf of the accused, no authority is advanced to support the contention that an accomplice warning ought to have been given despite a fully informed decision having been made by the defendant not to seek one. The Director relies on the decision in the case of DPP v. Cronin (No. 2) [2006] 4 I.R. 329. Reference was made to the judgment of the Court of Appeal in which it was concluded:

". . . 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."

5. Discussion

As is clear from a range of determinations made by this Court since the Thirty Third Amendment of the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court, or another Court from which the Court of Appeal has appellate jurisdiction prescribed by law, has simply been in error in some material respect, the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes it clear that an appeal to this Court, whether directly from the High Court under Article 34.5.4° or from the Court of Appeal under Article 34.5.3°, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interests of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interests of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court.

Likewise, a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more, the interests of justice will not require a further review on appeal to this Court.

It is against that background that the question of whether leave to appeal should be granted must be considered. In the circumstances of this case, it is clear that the Court of Appeal viewed Ms. Kelly as an accomplice; notwithstanding that view, having regard to the way in which the defence was conducted, it concluded that no corroboration warning was necessary in respect of her evidence. The question therefore arises as to whether such a warning is required or not. The Court is satisfied that the Applicant herein has raised an issue of general public importance, namely:

"Whether a trial judge is required to give an accomplice warning, even where the trial judge is not requested to do so by counsel for the defence."

The Court therefore grants leave to appeal under Article 34.5.3° of the Constitution.

AND IT IS HEREBY SO ORDERED ACCORDINGLY