DPP v Morgan
| Jurisdiction | Ireland |
| Judge | Finnegan J. |
| Judgment Date | 05 July 2011 |
| Neutral Citation | [2011] IECCA 36 |
| Court | Court of Criminal Appeal |
| Date | 05 July 2011 |
[2011] IECCA 36
COURT OF CRIMINAL APPEAL
Finnegan J.
Hanna J.
McGovern J.
and
CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S11(A)
CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S9
CRIMINAL LAW AMDT ACT 1935 S19
CRIMINAL JUSTICE ACT 1994 S64
CRIMINAL JUSTICE ACT 1994 S31
BYRNE v GREY & ORS 1988 IR 31 1988/4/949
DPP v KENNY 1990 2 IR 110
R (REDKNAPP) v CMSR OF THE CITY OF LONDON POLICE & ANOR 2009 1 WLR 2091 2008 1 AER 229 2008 EWHC 1177 (ADMIN)
DPP v TALLANT 2003 4 IR 343 2003/20/4591
BERKELEY v EDWARDS & ORS 1988 IR 217 1988/4/907
MCNULTY v DPP UNREP MURPHY 15.3.2006 2006/36/7769 2006 IEHC 74
MCNULTY v DPP 2009 3 IR 572 2009/36/8942 2009 IESC 12
CRIMINAL JUSTICE ACT 1994 S64(1)
RICHARDSON & ORS ARCHBOLD CRIMINAL PLEADING EVIDENCE & PRACTICE 2009 1356
R v ROMEO 1982 30 SASR 243
R v LYDON 1987 85 CR APP R 221 1987 CRIM LR 407
R v OWENS UNREP 6.9.2006 2006 EWCA CRIM 2206
AG v JOYCE & WALSH 1929 IR 526
AG, PEOPLE v KIRWAN 1943 IR 279
MAKIN v AG OF NEW SOUTH WALES 1894 AC 57
DPP v BOARDMAN 1975 AC 421 1974 3 WLR 673 1974 3 AER 887
R v BALL 1911 AC 47
R v BOND 1906 2 KB 389
R v PETTMAN UNREP EWCA CRIM 2.5.1985 (EX TEMPORE)
R v M (T) & ORS 2000 1 WLR 421 2000 1 AER 148
DENTAL BOARD v O'CALLAGHAN 1969 IR 181
DAVIES v DPP 1954 AC 378 1954 2 WLR 343 1954 1 AER 507
R v LING 1981 6 ACR 429
MCNEE v KAY 1953 VR 520
AG, PEOPLE v CARNEY & MULCAHY 1955 IR 324
AG v LINEHAN 1929 IR 19
CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S11(B)
CRIMINAL LAW
Search warrant
Record of application - Failure to keep record - Effect - Whether sufficient evidence District Judge satisfied reasonable grounds for suspicion - Whether search warrant constitutes evidence District Judge satisfied reasonable grounds for suspicion - Whether presumption of regularity applies to application for search warrant - Whether search warrant issued under must specify which of three offences therein was basis for the suspicion - Whether documentation admissible - Whether prejudicial effect outweighed probative value - Whether admissibility determined by purpose of admitting evidence - Whether accomplice warning required - Definition of accomplice - Whether trial judge correct to refuse to discharge jury - - People (DPP) v Tallant [2003] 4 IR 343, Attorney General v Joyce and Walsh [1929] IR 526 and Attorney General v Kirwan [1943] IR 279 followed; Makin v Attorney General NSW [1894] AC 54 applied; R v Bond [1906] KB 389, R v Pettman (Unrep EWCA CRIM 2/5/1985), R v M [2001] 1 All ER 148 considered; Attorney General v Carney [1955] IR 324 applied - Criminal Justice Act 1994 (No 15), s 31 - Appeal refused (101/2008 - CCA - 5/7/2011) [2011] IECCA 36
People (DPP) v Morgan
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
Brothel managing contrary to section 11(a) of the Criminal Law (Sexual Offences) Act 1993.
Martin Morgan, between the 23 rd day of September 2005 and the 10 th 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.
Organising prostitution, contrary to section 9 of the Criminal Law (Sexual Offences) Act 1993.
Martin Morgan, between the 22 nd day of August 2005 and the 10 th 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:-
1. The search warrant.
2. Admissibility of documents.
3. Accomplice warning.
4. Applications to discharge the jury
5. Requisitions.
Search Warrants were obtained in respect of three premises:-
(a) 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.
(b) 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.
(c) 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.
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: "
(a) 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;
(b) entry to the premises will not be granted unless a warrant is produced because persons involved in the alleged offence may be residing therein;
(c) the investigation for the...
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