IECCA 36 · Court of Criminal Appeal

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 E.R. 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] I.E.H.C. 74 unreported the High Court Murphy J. 15th March 2006

and on appeal [2009] I.E.S.C. 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] E.W.C.A. 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] 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 [1906] 2 K.B. 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)