Gangland thug who killed innocent father-of-six appeals conviction
A Limerick man jailed for life for the murder of a father-of-six in a case of mistaken identity almost 10 years ago, has moved to appeal his conviction.
Jonathan Fitzgerald (26), of South Claughan Road, Garryowen, Limerick, had pleaded not guilty to the murder of Noel Crawford outside his parent's home in O'Malley Park, Southill, Limerick on December 18, 2006.
The Central Criminal Court heard that Mr Crawford, a father-of-six, was gunned down in a case of mistaken identity on his 40th birthday.
A jury found Fitzgerald guilty of Mr Crawford's murder and he was given the mandatory life sentence by Mr Justice Barry White on February 9, 2011.
Opening an appeal against conviction today in the Court of Appeal, Fitzgerald's barrister, Hugh Hartnett SC, said one issue went to the very core of the trial.
In an application to amend the original grounds of appeal, Mr Hartnett said chief prosecution witness Laura Kelly ought to have been treated as an accomplice by the trial judge and, accordingly, the jury ought to have been warned about the dangers of convicting on her evidence.
Mr Hartnett said the only real evidence in the case was from Ms Kelly and her partner Jonathan Kiely.
It was the trial judge who indicated a basis for finding Jonathan Kiely as an accomplice, Mr Hartnett said, because he had been arrested under section 30 of the Offences Against the State Act on suspicion of possessing a firearm.
But Laura Kelly was also arrested under section 30 on suspicion of having information relevant to the shooting, Mr Hartnett said.
"What was the difference" between them, Mr Hartnett asked rhetorically. She was on the same footing as Mr Kiely before even considering further evidence, counsel submitted.
He said Ms Kelly was aware that two people who left her house on the night in question intended to carry out a criminal act. She said she saw them donning bulletproof vests, counsel said.
She rewound CCTV footage and when the gardai arrived at the house after the shooting, she refused to let them in knowing she was "harbouring somebody who had just committed a murder", Mr Hartnett said.
The failure to give a warning where it was warranted rendered Fitzgerald's trial unfair and unsatisfactory, Mr Hartnett said, adding that his client's conviction "must be quashed".
Counsel for the Director of Public Prosecutions, Kerida Naidoo SC, opposed Mr Hartnett's application to amend the original grounds of appeal.
Mr Naidoo said the trial judge had not been requested to give an accomplice warning in respect of Ms Kelly's evidence and no explanation had been given in the appeal as to why the issue wasn't raised at trial.
He said it wasn't for the Court of Appeal to "second guess" why it wasn't done. Fitzgerald had changed his legal team since the trial and this was the kind of "retrospective analysis of a trial" that case law, known as 'Cronin', was designed to prevent.
Mr Naidoo said the trial judge had indeed warned the jury that there were other reasons why Ms Kelly's evidence "might be self serving".
He said the evidence against Fitzgerald was strong and, in the event that arguments in relation to accomplice warnings were accepted, he asked the three-judge court to consider imposing a lesser verdict rather than ordering a retrial.
Mr Justice George Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice Alan Mahon, said the court would reserve judgment.