In this judgment, Director of Public Prosecutions v Fitzgerald, the Supreme Court held that it is the defence’s burden to raise the issue with the court as to whether a witness should be viewed as an accomplice. A trial judge cannot unilaterally decide to issue the jury with an accomplice warning.
Background
A jury convicted Fitzgerald of murder. At trial, Kelly gave evidence for the prosecution that Fitzgerald had been in her home prior to the killing; that he was in possession of a shotgun; that he left her home with the shotgun; that she heard shots fired at a neighbouring house; and that Fitzgerald returned to her home with the shotgun claiming to have killed the victim.
Fitzgerald was represented at trial by a solicitor, barrister and senior counsel. The trial judge inquired whether Fitzgerald wanted the jury to be given an accomplice warning. Fitzgerald’s legal team did not request a warning.
After his conviction, Fitzgerald changed solicitor and appealed his conviction to the Court of Appeal. Among other grounds, he claimed that his conviction was unsound due to the trial judge not giving the jury an accomplice warning on Kelly’s evidence. The Court of Appeal accepted that Kelly was an accomplice but dismissed his appeal on grounds that the trial judge was not required to give a warning where the defendant had not requested one. Fitzgerald applied to the Supreme Court for leave to appeal.
Supreme Court
The State objected to Fitzgerald’s application, arguing that the law in this area is clear and no issue of general importance arose. Also, it argued that Fitzgerald chose to undermine Kelly’s evidence by other means, and if the trial judge had done so it would have been an interference with Fitzgerald’s right to conduct his defence in the manner of his own choosing.
But the Court determined that:
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.”
Judgment
Charleton J wrote the judgment for the unanimous five judge panel. He reviewed the case law on accomplices as witnesses and concluded:
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.
The Court dismissed Fitzgerald’s appeal.
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