Judgment Title: DPP -v- Martin Morgan
Composition of Court: Finnegan J., Hanna J., McGovern J.
Judgment by: Finnegan J.
Status of Judgment: Approved
COURT OF CRIMINAL APPEAL
Record No. CCA101/08
THE DIRECTOR OF PUBLIC PROSECUTIONS
Judgment of the Court delivered on the 5th day of July 2011 by Finnegan J.
The applicant was found guilty of the following offences before the Circuit Criminal Court Dublin:-
Count No. 2
Statement of Offence
Brothel managing contrary to section 11(a) of the Criminal Law (Sexual Offences) Act 1993.
Particulars of Offence
Martin Morgan, between the 23rd day of September 2005 and the 10th day of October 2005, both dates inclusive, within the County of the City of Dublin, acted or assisted in the management of a brothel.
Count No. 3.
Statement of Offence
Organising prostitution, contrary to section 9 of the Criminal Law (Sexual Offences) Act 1993.
Particulars of Offence
Martin Morgan, between the 22nd day of August 2005 and the 10th day of October 2005, both dates inclusive, within the County of the City of Dublin, organised prostitution by controlling the activities of more than one prostitute for that purpose.
The applicant’s grounds of appeal can be dealt with under the following headings which were adopted by counsel for the applicant in argument before this court:-
Admissibility of documents.
Applications to discharge the jury
The Search Warrant
Search Warrants were obtained in respect of three premises:-
The warrant was executed on the 10th October 2005. Gardai delayed executing the warrant until such time as the applicant was on the premises.
The witness in cross-examination said that he did not take any notes of the evidence which he gave to the District Judge. The District Judge read the information. The application for this warrant was dealt with separately from that of the second warrant which was sought on the same occasion.
On behalf of the applicant it is submitted that the failure by the prosecution to make or keep any record of the applications amounted to a failure to vindicate the fair trial rights of the applicant in that the applicant is thereby hampered in his ability to test the scrutiny to which the District Judge subjected the application. The District Judge must himself be satisfied by information on oath that facts exists which constitute reasonable grounds for suspecting that an offence has been or is being committed: Byrne v Gray  I.R. 31, D.P.P. v Kenny  I.L.R.M. 569. The information contained in the informations is insufficient to enable to the District Judge to form the view that there were reasonable grounds for the Garda suspicion that an offence had been committed. In the case of 59 Herbert Lane the warrant was applied for on the basis of a suspicion that an offence had been committed under section 31 of the Criminal Justice Act 1994, which section in fact creates three distinct types of offence none of which is specified in the information: the District Judge ought to have been told which offence was contemplated. The statutory form of information completed in each case contains the following:-
it is not practicable to communicate with any person entitled to grant entry to the premises because they may destroy items of evidential value to the investigation;
entry to the premises will not be granted unless a warrant is produced because persons involved in the alleged offence may be residing therein;
the investigation for the purpose of which this application is made might be seriously prejudiced unless a member of An Garda Siochána arriving at the said premises could secure immediate entry to the same;
delete (a), (b) or (c) as appropriate.”
It is submitted that the failure to delete even one of these formulae is an indication of the failure on the part of the applicant for the search warrant to address his mind to the basis of the application and the factual matters underpinning it. In relation to the premises 59 Herbert Lane and Apartment 4, Malton House, the warrants do not disclose that the judge of the District Court who issued the warrant was assigned to the district.
In supplemental written submissions the applicant relies upon Redknapp & Anor v Commissioner of Police for City of London & Anor  1 All ER 229 as authority for the submission that a note of any oral evidence given on the application for a warrant should be recorded in a note.
For the respondent it was submitted that the applicant, well in advance of his trial, had been furnished with both the informations and the warrants and which set out more than adequately the grounds upon which the warrants were sought and the grounds upon which each was granted. Oral evidence was available as to the oral evidence given and as to the questions raised by the District Judge and the answers given. In the circumstances of this case there was no prejudice to the applicant in that full information was available to his counsel to cross-examine. The warrants constitute evidence that the District Judge was satisfied that there were reasonable grounds for the suspicion. In each case, in the warrant the District Judge stated that he was satisfied that the grounds for the Garda’s suspicion are reasonable. There was in this case sufficient evidence before the District Judge upon which he could be so satisfied. In contrast in Byrne v Gray the only information offered by the Garda to a Peace Commissioner was his belief that an offence was being committed at the premises in question and there was no indication as to the basis for the belief. Reliance is placed on People (D.P.P.) v Tallant  4 I.R. 343 and Berkeley v Edwards  I.R. 217.
In relation to the submission that the warrant issued in respect of 59 Herbert Lane refers only to an offence under the Criminal Justice Act 1994 section 31 and not to any of the three individual offences created by that section the respondent submits that the statutory provision requires only that a District Judge be satisfied that there are reasonable grounds for suspecting that an offence under section 31 has been committed and there was sufficient evidence before the District Judge to so satisfy him in relation to each of the three offences. Reliance is placed on McNulty v D.P.P.  IEHC 74 unreported the High Court Murphy J. 15th March 2006 and on appeal  IESC 12, unreported, Supreme Court 18th February 2009. There can be no suggestion of a “rubber stamping operation” by the District Judge in the present case. The search warrant in respect of 59 Herbert Lane refers to section 31 Criminal Justice Act 1994 and it is not necessary to indicate which particular offence under that section is in issue. The sworn information provides sufficient evidence for the District Judge to be satisfied that an offence under section 31 was committed. Insofar as the statutory form of information suggests the deletion of (a), (b) or (c) as appropriate this has no relevance to the present case as each of these statements is capable of applying in the present case having regard to the information set out in the sworn information. That being so it is appropriate to specify all three criteria.
Finally while the warrant in each case does not disclose that the District Judge who issued the warrant was assigned to the district in question it is not necessary that the warrant should do so.
The court now proposes to consider each of the issues raised in relation to the search warrants. It is accepted that no note was taken of the questions asked of and answers given by the applicant or of the oral evidence given to the District Judge. There is no statutory requirement that such a note should be taken but if taken, it should be made available. In the present case, however, very detailed informations were sworn in each case and in the view of the court the informations alone were sufficient to enable the District Judge to be satisfied that there were reasonable grounds for the suspicion relied upon. The applicant has failed to identify a real prejudice resulting from the absence of a note. The warrants themselves constitute evidence of the fact that the District Judge was satisfied that there were reasonable grounds for the suspicion held and the warrant so records. The presumption of regularity applies on application for a search warrant. Gardai are entitled to rely on confidential information, enquiries and surveillance. In People (D.P.P.) v Tallant. Fennelly J said:-
The court then distinguished Byrne v Gray as follows:-
The court adopts the approach of Fennelly J. as set out above in the present case and the court is satisfied that the District Judge had evidence before him, both in the sworn information and on the evidence given by the Gardai who applied for the warrant, which entitled him to form the opinion which caused the warrant to be issued. This was no rubber stamping operation.
Insofar as the applicant relies in relation to the search warrant in respect of 59 Herbert Lane on the suspicion that an offence had been committed or was being committed under section 31 of the Criminal Justice Act 1994 rather than by specifying which of three offences created by that section was the basis of a suspicion, the court rejects the submission. The three offences in terms of the facts necessary to establish the same are very closely related. A search warrant is applied for as part of the process of investigation. It is clear from the information that the Gardai had grounds for suspecting that the proceeds of the brothel enterprise were being received by the applicant but in advance of a search being carried out there could be no certainty that the same was being dealt with by the applicant in a manner which contravened one rather than another of the three offences. Indeed until the directions of the Director of Public Prosecutions should be received, in the event that there should be a prosecution, the Gardai could not be certain whether any, one, two or all three offences might be laid in an indictment. The court is satisfied that the manner in which the application was brought fully complies with the reality of the situation at that stage of the investigation. It also complies with the provisions of the Act: section 64(1) reads as follows:-
Finally in relation to the submission that the failure to delete one of the three statutory formulae in paragraph 3 in the information is concerned, the court does not accept the applicant’s submission. Having regard to the detailed information contained in the information the applicant in each case could reasonably be satisfied that all three applied. The failure to delete one or more of the same does not suggest to this court that either the applicant for the warrant or the District Judge did not apply his mind in a judicial manner to the application for the warrant having regard to the detailed information set out in the information in each case.
Admission of Documents
On foot of the search warrants documents were retrieved from the premises searched. The applicant categorises the documents relevant to this ground in submissions as follows:-
documents purporting to be spread sheets re internet advertising;
documents purporting to be work rosters/documents containing lists of named individuals and monetary sums;
internet printouts re sexual services containing phone numbers matching the mobile phones found in the course of the search at Malton House.
the spread sheets;
internet printouts showing availability of prostitution services from a wide range of agencies and individual escorts unconnected to the case.
The respondent relies upon Archbold, Criminal Pleading, Evidence and Practice 2009 Ed. At p.1356:-
The authors cite from the decision of Cox J. in R v Romeo  30 A.S.R. 243:-
The applicant also relies upon R v Lydon  85 Cr. App. Rep. 221 and R v Owens  EWCA Crim 2206. In the former Wolfe L.J. at p.224 said:-
This approach to the probative value and relevance of the evidence can be readily illustrated by examples where it could not be suggested that the evidence was inadmissible as being hearsay. If instead of the word ‘Sean’ appearing on the paper the paper had blood upon it and it could be linked to the gun by other evidence or the gun also had blood upon it and both samples were the same blood group as that of the appellant, or again if the gun was proved to have been used in the robbery, the samples could provide evidence which the jury could perfectly properly be asked to take into account, albeit that the appellant’s blood group was one which was extremely common. The rarity of the blood group would only go to the weight of the evidence and not its admissibility.
Much closer to the present case are the facts in R v Owens where two brothers were convicted of counts of conspiracy to fraudulently evade excise duty on hydro-carbon oils. Among the documents relied upon were the following:-
a black/red notebook recovered from the brothers home which contained lists of figures on a page headed ‘G + M’ and ‘J + L Desmond’;
on another page of the notebook under the heading ‘G + M’ carrying over a figure of ‘STG + £55,321’ from the page referred to at 2 above, there appeared the entry ‘£13,582.96 21/11/01’ which is identical to the amount for which Booths wrote a cheque payable to the appellants’ company, which cheque was dated 20th November 2001 and was credited to the Kinlar account on 23rd November 2001;
a Booths cheque payable to the appellants company dated 13th July 2001 for £13,684.13 paid through the Kinlar Limited account and stamped ‘Kinlar’ on its reverse also had written in manuscript on its reverse G + M’
The respondent did not seek to allow the jury to rely on the Book of Evidence in order to prove that ‘Lisa’ was a gorgeous ‘Caribbean’ or that ‘Jessie’ was a ‘curvy Austrian brunette’. Many of the documents simply recite facts such as telephone numbers and names. The documents themselves are not relied upon ‘testimonially’ as establishing some fact narrated by the words. The documents were introduced as real evidence and as part of the circumstantial evidence that tended to prove that the applicant and Ms Edridge had been involved in the business of brothel keeping.
As to the submission that the documents in such cases relate to a period outside that set out in the indictment the respondent relies on the Attorney General v Joyce and Wash  I.R. 526 where evidence was led of a previous attempt to poison the deceased on the trial of the defendants for the later murder of the deceased. The evidence was admitted as indicating the attitude of hostility of the two accused towards the deceased.
In this case there was a co-accused, Ms Edridge, with the applicant and Ms Edridge was being tried separately and pleaded guilty. There was evidence that Ms Edridge managed the brothel at Bachelors Walk and that girls working there paid to her one half the money which they received each day. The prosecution case was that Ms Edridge handed over the takings, work sheets and other documents relating to the girls, to the applicant and that Ms Edridge and the applicant were acting in concert in respect of the offences with which the applicant is charged. The documents which are in issue are relevant to the connection between Ms Edridge and the applicant. Insofar as the contract is concerned the court is satisfied that the same is circumstantial evidence of a relationship between Ms Edridge and the applicant. It is irrelevant that the contract is unsigned in that the names of the parties are set out in the same and that is sufficient to show a connection. Accordingly it had probative value and the fact that it predated the date span in the indictment does not render it inadmissible for the reasons which the court will hereinafter set out.
The spread sheets showed the receipt of payments from a large number of escort agencies and individual escorts for advertising of prostitution services. They did not relate specifically to Bachelors Walk. The spread sheets objected to related to a period up to July 2005 and so to conduct which predated the date span in the indictment. The remaining documents show availability of prostitution services from a wide range of agencies and individual escorts unconnected to the case.
The manner in which, on the evidence, the applicants operation was conducted was that advertisements were placed for escorts giving a mobile phone number. The number changed frequently and different trade names were used for the advertisements. Any one ringing that number would be directed to the premises at Bachelors Walk. The spread sheets and documents constitute circumstantial evidence of the applicant operating in this manner and on this basis are relevant and admissible unless otherwise precluded.
All the documents to which objection is taken predate the offences charged in the indictment. This per se does not render them inadmissible: see Attorney General v Joyce and Walsh  I.R. 526 where the evidence of a previous attempt at poisoning a long time before the deceased met his death the evidence was admitted notwithstanding that it constituted evidence of another criminal offence and of previous bad character. See also Attorney General v Kirwan  I.R. 279. The law on the admission of such evidence is well established. The courts have consistently applied Makin v Attorney General from New South Wales  A.C. 54 where Lord Herschell at p.65 said:-
The extent to which such evidence may be admitted has been the subject matter detailed analysis and comment in the United Kingdom. In R. v Ball  A.C. 47 evidence of previous criminal conduct was admitted on the basis that it was given to enable the jury to draw the proper inferences as to the sort of business or transaction the persons were carrying on. Such evidence was admitted as background evidence in the United Kingdom in R v Bond  2 K.B. 389, R. v Pettman (unreported 2nd May 1985) and in R v M  1 All E.R. 148. In R v Bond at p.400 Kennedy L.J. said:-
In R v Pettman Purchas L.J. stated:-
Thus such evidence may be admissible where it is necessary to complete the account of the circumstances of the offence charged so as to make them comprehensible to the jury or to disclose a relationship between an accused and other persons involved in the circumstances of the offence. The court is satisfied in the circumstances of this case that the documents constitute such background evidence and so are admissible notwithstanding the fact that they tended to disclose previous bad character or the commission of other offences.
This ground of appeal arises in relation to the evidence of one witness, Ms Rogan. Ms Rogan’s evidence was that in response to an advertisement in the Evening Herald she applied for a job as a receptionist and subsequently met Ms Edridge for interview. Subsequent to the interview Ms Edridge phoned her and told her that the job related to chat lines. She accepted the job offer and commenced working. She worked from 4 Malton House, an apartment. There were some fifty mobile phones to answer. In short persons who called the phones were directed by her to the premises at Bachelors Walk and then to ring back for further directions. On occasions the caller would request a girl to be sent to an hotel or to his home. Having done that she would text or ring Ms Edridge or “Martin” and give them details.
At the conclusion of the evidence counsel for the applicant submitted that having regard to the witness’s involvement in the enterprise and her state of knowledge as to what was going on she could have been charged with offences in the case although she was not so charged and that accordingly she is an accomplice and an accomplice warning should be given. The learned trial judge held that she was not an accomplice in respect of the offences with which the applicant was charged and declined to give the warning.
The applicant’s written submissions did not at all deal with this ground and in consequence neither did those of the respondent. In oral submissions however counsel for the applicant submitted that an accomplice warning was appropriate in circumstances wider than those envisaged by the learned trial judge and that such a warning was appropriate in this case: as the warning was not given the conviction should be set aside.
For the respondent it was submitted that Ms Rogan was not an accomplice as she could not be convicted of any of the offences with which the applicant was charged.
It is settled law that it is dangerous to convict upon the evidence of an accomplice unless it is corroborated and that an appropriate warning should be given to a jury in respect of such evidence: Dental Board v O’Callaghan  I.R. 181. The basis for the requirement of a warning is that there is a danger that an accomplice might give false evidence or falsely implicate an accused in an attempt to transfer blame or to minimise his own role in the crime. Again the accomplice may hope to obtain more favourable treatment by co-operating with the prosecution.
An accomplice is a person who is chargeable either as a principal or accessory. In Davies v D.P.P.  A.C. 378 Lord Simmons focused on the liability of the witness to prosecution for the offences charged against the accused. However in many cases a broader definition has been given to accomplice. In R. v Ling  6 A. Crim. R. 429 a passage from McNee v K.  V.L.R. 520, as follows, was approved and applied:-
In Attorney General v Carney, O’Byrne J. went on to say that:-
The court is satisfied that Ms Rogan is not an accessory in respect of the particular offences with which the applicant is charged. The objection at the trial was on the basis that she was such an accomplice. Before this court it has not been suggested that she could be charged with an offence other than as accessory to the offences with which the applicant was charged. Thus it seems to this court that, however liberal a definition is given to accomplice for present purposes, Ms Rogan falls outside that definition. Her involvement was limited to directing callers to the premises at Bachelors Walk. She was aware of the purpose for which the callers were being there directed. It would be impossible to implicate her in the offences under section 11(a) and (b) of the Criminal Law (Sexual Offences) Act 1993 or an offence under section 9 of the same Act. She was not the tenant or occupier of the premises at Bachelors Walk, she had no involvement in the management of the brothel which operated there and she did not organise or control the activities of a prostitute there. Extending the definition of accomplice as suggested on this application by counsel for the applicant would not be warranted as it is difficult to see an incentive for the witness to lie and indeed in the course of her evidence she spoke highly of “Martin”.
Having regard to the foregoing the applicant fails on this ground.
On this application counsel for the respondent relies on three applications made in the course of the trial.
A second question was asked to which objection was taken:-
Not at this time. I may have to in the future if it goes to court I will have.”
This court is satisfied that the basis of the evidence may well have been (on the basis of the other evidence given by the witness) her own observation. On her evidence there is nothing to suggest that it was either hearsay or opinion. She was dealing consistently by telephone with “Martin”. She texted or telephoned him with details of assignments undertaken by the girls. On one occasion he paid her wages. She was also dealing consistently with Ms Edridge. She was accordingly in an ideal position to form a view as to the relationship between “Martin” and Ms Edridge. Counsel for the applicant’s concerns were matters which could and should have been addressed in cross-examination. The court is satisfied that the learned trial judge was correct to refuse the application.
The court having reviewed the evidence is satisfied that there was evidence of the system in operation which included such matters as advertising, the fixing of prices and so forth. The objection on a review of the evidence is totally without basis. The explanation given by the trial judge is satisfactory and the learned trial judge was correct not to revisit his answer to the question in response to the objection taken.
The court is satisfied that the learned trial judge’s response to each of the applications made and relied upon on this appeal was correct and unobjectionable.
The court is satisfied that on each of the grounds relied upon the applicant must fail. In these circumstances the court refuses the applicant leave to appeal against his conviction.
DPP v Morgan (2)