Irish Court of Criminal Appeal

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

The search warrant.

Admissibility of documents.

Accomplice warning.

Applications to discharge the jury

Requisitions.

322 Bachelors Walk Apartments
Inspector Pat Lordan gave evidence that on the 26^th 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 10^th 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 8^th 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 8^th 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 8^th 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.

“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.”

“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.”

“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.”

“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.”

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 contract;

the spread sheets;

internet printouts showing availability of prostitution services from a wide range of agencies and individual escorts unconnected to the case.

“The presence of a document at a particular location together with the word or words upon it may often be of evidential significance.”

“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.”

“In dealing with the distinction between writing which is admissible and which is not admissible in these circumstances, Cross on Evidence (6^th 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”

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 20^th November 2001 and was credited to the Kinlar account on 23^rd November 2001;

a Booths cheque payable to the appellants company dated 13^th 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’

“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.”

“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.”

“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.”

“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.”

“(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.”

“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.”

“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.”

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:

“(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.”