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Cite as: [2011] IECCA 36

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Judgment Title: DPP -v- Martin Morgan

Neutral Citation: [2011] IECCA 36


Court of Criminal Appeal Record Number: 101/08

Date of Delivery: 05/07/2011

Court: Court of Criminal Appeal


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

Finnegan J.
Hanna J.
McGovern J.
THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

and

MARTIN MORGAN

APPLICANT



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:-
      The search warrant.

      Admissibility of documents.

      Accomplice warning.

      Applications to discharge the jury

      Requisitions.

The Search Warrant

Search Warrants were obtained in respect of three premises:-
      322 Bachelors Walk Apartments
          Inspector Pat Lordan gave evidence that on the 26th September 2005 he went before District Judge Scally with a sworn information and obtained a search warrant. He informed the District Judge that he believed that the premises were operating as a brothel. Surveillance had been carried out at the premises. A number of men had been stopped on leaving the premises and they admitted that it was a brothel and that they had paid for sex at the premises. Statements were obtained from these men. The majority had accessed the brothel by way of the internet from which they obtained phone numbers which brought them to the premises. He obtained the warrant pursuant to the Criminal Law Amendment Act 1935 section 19. District Judge Scally asked whether the information was his own personal information and the witness told him that it was and that he was satisfied with the information that was given to him. The warrant was dated, signed and issued.

          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.
      59 Herbert Lane
          Inspector Pat Lordan gave evidence that these premises were leased by the applicant under a false name. He believed that evidence in relation to money laundering would be found at the premises and for that reason sought a warrant under the Criminal Justice Act 1994 section 64. He swore a detailed information for that purpose. He attended before District judge Clyne on the 8th October 2005 and made the application. In addition to the sworn information he gave oral evidence as follows. The apartment at 322 Bachelors Walk had been rented by Dina Edridge on the 8th December 2004 and she paid rent in respect of the same. Large sums of money were handed over on a daily basis by customers paying for sex with prostitutes who worked there. The brothel was advertised on various websites on the internet. From reliable information in his possession from sources which he did not reveal and from surveillance he was satisfied that the applicant was involved in the large scale organisation of prostitution and derived large sums of money from the same which is a criminal activity of organisation of prostitution. He believed that the proceeds of the brothel ended up with the applicant and that he was laundering that money. He believed that evidence to that effect would be found at these premises. He was aware that the applicant did not work in the jurisdiction and that he had no obvious income. He believed that documentation would be found at the premises which would link back to the brothel, together with computer records, information on internet websites, bank accounts and financial records.
      Apartment 4 Malton House, Mayor Street Lower, Dublin 1.
          The warrant in respect of these premises was applied for by Detective Garda Ken Donnelly before District Judge Clyne on the 8th October 2005. He swore a detailed information. He gave oral evidence and answered questions asked by the District Judge. In the information he swore that material of substantial value to the investigation in relation to the brothel at 322 Bachelors Walk and offences under section 31 of the Criminal Justice Act 1994 could be found at the premises. The basis of his belief was the investigation and confidential enquiries which had been set out in the information.
It was established in the course of evidence that no notes were taken by either applicant for the search warrants on the applications to the District Court: no record was kept of oral evidence given or of any questions asked by the District Judge or of the answers given.

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 [1988] I.R. 31, D.P.P. v Kenny [1990] 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:-
          “I say and believe that:
          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 [2009] 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 [2003] 4 I.R. 343 and Berkeley v Edwards [1988] 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. [2006] IEHC 74 unreported the High Court Murphy J. 15th March 2006 and on appeal [2009] 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:-
      “Now what should be the standard to challenge an order of the District Court in these circumstances, since it is an order made by a court of record and verified by a warrant issued, in each case, under the hand of the District Judge on behalf of the District Court?. The court must look at the totality of the evidence given in the District Court at the time and that is what the Circuit Judge did, and it is quite apparent that he did it very carefully and discriminated and decided that he was not satisfied that a second part of the sworn evidence of Garda Gavin had, in fact, been given because there was a variation between the evidence that he gave in court and the statement of evidence that he had given in the Book of Evidence.
      In these circumstances, one has to look at the quality of the evidence that the District Court is entitled to act on in this situation. This is not an inter-partes matter: it is not a criminal prosecution in itself. It is an administrative procedure in the first instance insofar as An Garda Siochána set it in motion. It is a judicial procedure of a very particular kind, namely, one where An Garda Siochána has to satisfy the District Court that there is sufficient reason to search the premises of the person named in the warrant and, just to make it absolutely clear, in Byrne v Gray [1988] I.R. 31 and The People (Director of Public Prosecutions) v Kenny [1990] 2 I.R. 110, and it is accepted by this court, the constitutional protection of the integrity of the home of the individual immediately comes into play and the court must be vigilant to ensure that there is not any undue or improper invasion of that constitutional right to the sacrosanct character of the home of the person who is an individual citizen. On the other hand, of course, the Gardai are engaged in carrying out their public duty to investigate crime and a proper balance has to be struck between those two objectives. So in collecting evidence all proper respect has to be accorded to the protection of the constitutional right of every individual citizen in respect of his home and, therefore, any invasion of that must take place only on the basis that proper judicial procedures have been carried out.”


The court then distinguished Byrne v Gray as follows:-
      “It is not suggested, nor could it be, that the Gardai are not entitled to go before the District Court and ask for a warrant on the basis of confidential information, that is to say that they cannot go before the District Court and tell the District Court judge that there is confidential information on which they have acted or there is information upon which they have formed a suspicion that there is a controlled drug in a particular premises. Nor is it suggested and, of course, it is a corollary of that, that hearsay evidence, and it is in effect hearsay evidence, may not be given in that particular situation. Therefore the position in this case is that the District Judge had before him evidence and there is the further indication that he acted judicially. He did not simply take it and rubber stamp it which is, I suppose, in effect the complaint made in the case of Byrne v Gray [1988] I.R. 31. He asked the officer in each case whether he believed the information to be correct or words to that effect. That is not a rubber stamping operation; that is a District Judge taking care and ensuring that he will not issue a warrant unless the minimum question of reasonable basis for belief is addressed and he is entitled to take the evidence of a member of An Garda Siochána. In order to quash the decision of the District Court on this sort of basis it would be necessary to show that no reasonable District Judge could reasonably have formed the opinion that there was a basis for suspicion which entitled him to form the opinion which caused the warrant to be issued. For those reasons, the court is not satisfied that any ground has been shown to challenge the validity of the warrants issued by the District Court and that being in effect the only ground of appeal the court refuses leave to appeal.”


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:-
      “64(1) A member of the Garda Siochána may, for the purpose of an investigation into drug trafficking or an offence under section 31 of this Act or an investigation into whether a person has benefited from drug trafficking or an offence in respect of which a confiscation order might be made under section 9 of this Act, apply to a judge of the District Court for a warrant under this section in relation to the specified premises.”
All that is required is a suspicion on reasonable grounds that an offence under section 31 has been or is being committed.

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:-
      a typed contract between the applicant and Ms Edridge which was unsigned;

      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 prosecution, it is submitted, sought to introduce the documents as ‘real evidence’. The documents were admitted into evidence and became exhibits having been the subject matter of considerable legal argument. On the appeal categories of documents objected to were restricted to the following:-
          the contract;

          the spread sheets;

          internet printouts showing availability of prostitution services from a wide range of agencies and individual escorts unconnected to the case.
All of the documents predated the offences on the indictment. In relation to the contract of employment it is objected that the same is hearsay, has no probative value but enormous prejudicial value. The purpose of admitting the document into evidence was to allow the jury to rely on the contents thereof. This is true also of the spread sheets. These showed receipt of payments from a large number of escort agencies and individual escorts for advertising of prostitution services which were advertised nationwide rather than just relating to the Bachelors Walk premises. The spread sheets suggested that the applicant was involved on earlier dates organising prostitution throughout the country over a sustained period: they were not probative of the charges which he faced. They represented evidence of previous bad character. The same is true of the documents showing the availability of prostitution services from a wide range of agencies and individual escorts unconnected to the case. If documents were to be admitted they should have been admitted only in relation to the time period covered by the indictment.

The respondent relies upon Archbold, Criminal Pleading, Evidence and Practice 2009 Ed. At p.1356:-
      “The presence of a document at a particular location together with the word or words upon it may often be of evidential significance.”


The authors cite from the decision of Cox J. in R v Romeo [1982] 30 A.S.R. 243:-
      “Sometimes it is possible to avoid the hearsay rule by showing that a statement made in a document has been used as an original and dependant fact – for instance, that a person who made use of the document had certain information in his possession at a relevant time – and not as evidence of the facts stated. It is always important therefore, whenever an objection is taken on hearsay grounds to ascertain for precisely what purpose the evidence is being tendered. It may be hearsay for one purpose and not, and therefore admissible, for another.”
The prosecution did not seek to rely on the documents as evidence of the truth of their contents but rather as circumstantial evidence which tended to prove that the applicant had been involved in the commission of the offences in question. Circumstantial evidence is evidence of any fact from which the judge or jury may infer the existence of a fact in issue. An out of court statement may constitute circumstantial evidence where one can infer from the statement a fact which is in issue or relevant to the proceedings.

The applicant also relies upon R v Lydon [1986] 85 Cr. App. Rep. 221 and R v Owens [2006] EWCA Crim 2206. In the former Wolfe L.J. at p.224 said:-
      “In dealing with the distinction between writing which is admissible and which is not admissible in these circumstances, Cross on Evidence (6th ed. At p.464) states:
          ‘In these cases it seems that the writing when properly admissible at all, is relevant not as an assertion of the state of facts but as itself a fact which affords circumstantial evidence upon the basis of which the jury may draw an inference as it may from any other relevant circumstance of the case.’
      The inference that the jury could draw from the words written on the piece of paper is that the paper had been in the possession of someone who wished to write ‘Sean rules’, and that person would presumably either be named Sean himself or at least be associated with such a person, and thus it creates an inferential link with the appellant. By itself it could not possibly satisfy the jury that the appellant was the other robber, but it could be circumstantial evidence which could help to satisfy the jury that the Crown’s case was correct.

      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.
      Similarly if the gun had been wrapped in a local paper normally only circulating in Neasden that again, having regard to the fact that the appellant admittedly came from Neasden, would have been relevant circumstantial evidence. If there had been written on the piece of paper the appellant’s full name, then clearly that would have been much stronger circumstantial evidence, but, although the name ‘Sean’ may be fairly common, it is still material to which the jury could have regard. In the view of the court therefore the learned recorder was entitled to rule as he did, since the evidence was not unduly prejudicial”


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 diary kept by the brothers in which the names ‘Gary and Mark’ with a telephone number appeared. The name ‘Gary’ and the same telephone number had also appeared in the diary of one John Desmond, who had pleaded guilty to both conspiracy counts and from whose company the chemicals used in the fuel laundering process had been purchased;

      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 Court of Appeal concluded that all these documents constituted real evidence and not inadmissible hearsay.

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 [1929] 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 [1929] 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 [1943] 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 [1894] A.C. 54 where Lord Herschell at p.65 said:-
      “It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused had been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence upon which he is being tried. On the other hand the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence that would otherwise be open to the accused.”
In R. v Boardman [1975] A.C. 421 Lord Hailsham said:-
      “It is perhaps helpful to remind oneself that what is not to be admitted is a chain of reasoning and not necessarily a state of fact. If the inadmissible chain of reasoning is the only purpose for which the evidence is adduced as a matter of law the evidence itself is not admissible.”
It is the purpose for which the evidence is adduced which will render it inadmissible. It is impermissible to decide on the guilt or innocence of the accused by a reasoning process based on previous bad character. Evidence of propensity to commit an offence is inadmissible. Such evidence may, however, be adduced, notwithstanding that it tends to show that the accused is of bad character, for the purpose of tending to prove something that is in issue in the case. In the present case the documents in question are supportive of the account given by witnesses as to fact as to the manner in which the brothel at Bachelors Walk operated – the advertising of telephone numbers, the direction of persons who called those numbers to Bachelors Walk, the payment for sexual services at the premises and a connection between the applicant with a particular operation carried on at those premises. They are an essential illustration of the manner in which the premises operated and necessary to enable the jury to understand the involvement of the applicant from the day to day operation of the premises conducted by Ms Edridge.

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 [1911] AC 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 [1906] 2 KB 389, R. v Pettman (unreported 2nd May 1985) and in R v M [2000] 1 All E.R. 148. In R v Bond at p.400 Kennedy L.J. said:-
      “The general rule cannot be applied where the facts which constitute distinct offences are at the same time part of the transaction which is the subject of the indictment. Evidence is necessarily admissible as to acts which are so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances, and so could not be excluded in the presentment of the case before the jury without the evidence being thereby rendered unintelligible.”

In R v Pettman Purchas L.J. stated:-
      “Where it is necessary to place before the jury evidence of a part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence.”


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.

Accomplice Warning

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 [1969] 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. [1954] 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 [1981] 6 A. Crim. R. 429 a passage from McNee v K. [1942] V.L.R. 520, as follows, was approved and applied:-
      “(A person) who is chargeable, in relation to the same events as those found in the charge against the accused, with an offence (whether the same offence or not) of such a character, and who would be if convicted thereof liable to such punishment, as might possibly tempt that person to exaggerate or fabricate evidence as to the guilt of the accused.”
In Attorney General v. Carney [1955] I.R. 324 the Supreme Court approved the following passage from the judgment of the Court of Criminal Appeal in Attorney General v Linehan [1929] I.R. 19:-
      “We do not think that in the case of a rule of caution concerned with the credit of accomplice witnesses and the weight of their uncorroborated evidence, a narrow or precise definition of ‘accomplice’ should be, or indeed can be laid down. We think, however, that a person implicated either as principal or accessory in the crime under investigation is an ‘accomplice’ within the rule, though the degree in gravity of such complicity may vary, and in as much as the extent of the effect of such complicity upon the credit of the witness or the weight of his uncorroborated testimony will vary accordingly so should the degree in gravity of the warning measured.”


In Attorney General v Carney, O’Byrne J. went on to say that:-
      “A very slight degree of complicity, either as principal or accessory, in a crime charged is sufficient to render a person an accomplice for the purpose of the rule.”


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.

Applications

On this application counsel for the respondent relies on three applications made in the course of the trial.
    On day 10 evidence was given of an interview conducted with the applicant after his arrest. The applicant answered some questions relating to his personal circumstances. In opening to the jury the interviews, counsel for the prosecution by agreement left out a number of questions to which the answer was “no comment”. One question was in error opened to the jury. The applicant was asked had he ever been at 322 Bachelors Walk before and the answer given was:
“I can’t remember. No comment.”

A second question was asked to which objection was taken:-
          “(a) Do you wish to give any explanation as to why you were in apartment 322 Bachelors Walk to night?
          Not at this time. I may have to in the future if it goes to court I will have.”
      It was submitted that this was effectively a “no comment” answer of no probative value and ought not to have been led. No accused has to give an explanation for anything. The learned trial judge considered the context in which the questions were asked and answered and declined to discharge the jury. It is sufficient for present purposes to say that the court considers the learned trial judge’s decision to have been absolutely correct taking the matters complained of in their context.
    This relates to the evidence of Ms Rogan which has been summarised above. The Book of Evidence contained a statement from Ms Rogan which contained the following:-
          “Chloe (Ms Edridge) was running the business and she ran it for Martin.
          Counsel for the prosecution objected on the basis that this was hearsay or opinion. The learned trial judge refused an application to discharge the jury. He took the view that the basis upon which the witness gave that evidence could be tested in cross-examination.


          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.
    On day 17 the jury asked a question of the learned trial judge seeking a further explanation of Count No. 3, organising prostitution. The learned trial judge dealt with the question as follows:-
          “…the accused is charged with organising prostitution. Any person who, for gain, that’s reward, income, money, or monies worth, organises prostitution by controlling or directing the activities of more than one prostitute for that purpose is guilty of an offence. In other words where a person organises, which just means what you understand it to mean, sets up or oversees in a structured way he is the person, or she, is the person who is in charge of the various activities in the organisation so that more than one prostitute is, the activities are controlled or directed. If the evidence is to be believed, then you must be satisfied that 322 Bachelors Walk was, in fact a brothel – and you will have no difficulty with that. We know that it was not stand alone, but you have got to be satisfied that the call centre, where it is alleged people were referred from the call centre to the brothel, was part of the operation and that the person controlling the activities of the prostitutes there. Controlling, in the sense of, directing or controlling in the sense of telling them who they may take, what hours they may operate, what fees they may charge; directing people there; call outs; that the person was doing all of that in an organisation, recruiting, as it were to a certain extent, but he is the person, or she is the person, who is in overall charge of the operation. Not may be, in the day-to-day charge, but could be in charge day-to-day as well. That is what organising is. If you think of a business that is being run where the activities of the individuals there are being controlled by the management, may be not the day-to-day management, may be not the hands-on management, but the major decisions are made; about the advertising; about the fees; about the people who are to be called; where the call outs are to be made. Someone who, or someone who just sets up that structure, and oversees it could be the organiser. The effect of which is to control or direct the activities of more, so you have got to be satisfied that there were, there was more than one prostitute; that their activities were controlled or directed, in the sense that I have explained to you, where there is an organisation of, organisation of prostitution, which is the overall thing. Does that help you? Yes? OK.”
Counsel for the applicant objected that in answering the question the learned trial judge had mentioned to the juries matters in respect of which there was no evidence in the case to support, but that the manner in which the question had been answered left the jury under the impression that there may be such evidence in the case. Matters such as advertising, it was submitted, had nothing to do with active controlling the activities of more than one prostitute.

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.

Conclusion

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)


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