Director of Public Prosecutions -v- Gleeson,  IESC 53 (2018)
|Party Name:||Director of Public Prosecutions, Gleeson|
An Chúirt Uachtarach
The Supreme Court
Finlay Geoghegan J
Supreme Court appeal number: 2017 no 000024
 IESC 000
Court of Appeal record number: 2014 no 34
 IECA 332
Circuit Criminal Court bill number: 2010 KE67
The People (at the suit of the Director of Public Prosecutions) Prosecutor/Appellant
- and -
Judgment of Mr Justice Peter Charleton on Thursday 1st of November 2018
This appeal concerns duress as a defence to a criminal charge. It emerges in this way. The accused Trevor Gleeson was a prison officer in the Midlands Prison when, on 22 December 2009 in Kildare town, he was found by gardaí to be in possession of €6,000 worth of various controlled drugs. While charged with both possession for the purpose of supply and possession, he was convicted of simple possession only at Naas Circuit Criminal Court in December 2012. The jury disagreed on the counts of possession for supply, which were in respect of such controlled drugs as benzylpiperazine, diamorphine and cannabis. In July 2013, a subsequent trial on those counts ended in the jury being discharged because of the late disclosure of video footage from a supermarket three months after the accused had been found in possession of the drugs. He was not subsequently tried on the possession for supply counts. Thus only the conviction for simple possession is in issue. On his arrest, Trevor Gleeson maintained to the detectives who interviewed him that he had been in possession of the drugs solely due to threats and intimidation from criminals at his place of work and from their associates outside the prison. The sentence imposed by the trial judge on 31 January 2013 for simple possession was 18 months’ imprisonment suspended for three years.
Trevor Gleeson appealed his conviction. The Court of Appeal overturned the conviction on grounds related to the adequacy of the trial judge’s charge as to reminding them of his occupation as a prison officer and as to the directions given to the jury on the defence of duress. What this judgment is concerned with are the subjective and objective elements of the defence. By determination of this Court, dated 6 December 2017, leave to appeal from the judgment and order of the Court of Appeal was given to the Director of Public Prosecutions on this issue:
Where an accused person seeks to rely on the defence of duress, by what standards are the accused’s actions to be judged? In particular, should their actions [be] judged according to i) an entirely objective test; ii) an entirely subjective test; or iii) a test which includes both an objective and a subjective element?
On 22 December 2009, Trevor Gleeson was observed parking his car at Lourdesville, a residential part of Kildare town. A convicted criminal, known to the gardaí, was seen getting into the passenger seat. Both men drove together for a short distance and then the passenger got out. Gardaí followed the car. As they did, a plastic bag containing drugs was thrown out of the car by Trevor Gleeson. The car was then stopped and he was arrested. Under questioning, he asserted the defence of duress; that his possession of the drugs in the bag only occurred because of serious threats from criminals inside the Midlands Prison and from those on the outside. The task imposed on him through duress, he claimed, was to supply controlled drugs to particular inmates of the prison. He asserted, nonetheless, that at all times he intended to dump these particular drugs rather than take them into the jail and supply them to prisoners.
In so far as any encounter captured on closed circuit television in a supermarket on 29 March 2010, three months later, might be relevant, this wordless image simply shows a brief discussion taking place between Trevor Gleeson and two men. These individuals, he claimed, were part of the several people previously intimidating him. These individuals apparently had criminal convictions. A prison officer may not, perhaps, be immune from the exchange of words with those whom he had once known in a professional setting. As to the detail of how he asserted he was acting under duress, Trevor Gleeson claimed during police interviews to have been approached some months prior to the incident that led to his arrest in December 2009. He asserted that he had at that time received a parcel for transmission to the prison on a promise of money but, instead, had dumped it. He had no idea, he claimed, why he of all the staff in the prison had been approached to smuggle drugs into the prison. He had not reported any of these threats to the gardaí or to the authorities in the prison because, as he told detectives, referring to his superiors, “they wouldn’t ever listen to you.” That earlier incident of possession, which did not lead to detection and with which he was not charged, was again put down by him to intimidation. His state of mind as to the drugs for which he was arrested in December 2009 was explained by him to the interviewing officers as follows:
I have been followed home, been intimidated by people from Limerick both inside the prison and outside. It’s going on months, being pressured and pressured and being followed. I don’t know why I agreed to meet this lad tonight and get it and throw it in a bin. That was basically it. And this man came in behind me [the detective]. I knew obviously what was in the bag, I knew it was drugs; I threw it out when this man came in behind me. … He saw I was petrified when I got out. I don’t know why I agreed to meet him tonight. I was afraid for my family, and now I will have no family. … they are the most dangerous criminals from Limerick. Being followed is not a nice thing. … I never touch drugs. I just did it to get my family out of it, out of their lives, when certainly criminals are telling you that there are people looking for you inside the prison. … I am a nervous wreck. I can’t sleep.
Judgment of the Court of Criminal Appeal
The trial judge had asked the jury to consider the defence of duress on the basis of what “a reasonable person, being a sober person of reasonable firmness of the accused[’s] age and gender … would … have done in the circumstances?” She clarified that by posing this test: “Would he have felt compelled to act in the manner in which he did?”. There were also directions as to the immediacy, or not, of any threat under which the accused Trevor Gleeson claimed to have acted.
While one ground of appeal to the Court of Appeal claimed an error by the trial judge “in instructing the jury as to how they deliberate in respect of the defence of duress”, in point of fact, the rationale for overturning the conviction, at paragraphs 26 and 27, was for an alleged failure on the part of the trial judge to point out, when dealing with the defence of duress, that the jury should take into account that the accused was a prison officer and that prisons were dangerous places:
In the view of this court, the appropriate test to determine whether the duress complained of is sufficient to acquit an individual of a criminal act attributed to him is neither entirely subjective or entirely objective. It has to include an element of both, as it needs to take into account the particular circumstances of the person seeking to invoke the defence. For example, a wealthy person capable of moving himself and his family out of the jurisdiction to avoid threats made against him and his family should not be entitled to benefit from the defence of duress in the same way as somebody without the means to escape. Some people will be, because of their individual or personal circumstances, more vulnerable to duress, than will others. It is reasonable therefore that a jury should consider allegations of duress in the context of the individual and personal circumstances of the accused person.
Accordingly, it was appropriate for the learned trial judge to incorporate into her charge to the jury a requirement that the jury would consider the defence of duress on the basis of what the appellant, as a prison officer working in a prison inhabited by dangerous criminals ought to have reacted to the threats made against him in those particular circumstances. Her failure to do so constitutes an error of principle. It may well be the case that the appellant … as a prison officer, used to dealing with criminals on a daily basis, ought to have been better able than most to have withstood such threats. Equally, it is arguable that a prison officer, because of his work, might feel particularly vulnerable to such threats. It is, however, a matter for the jury to consider which is the case in the circumstances as presented to it.
It must however be pointed out that everyone knew that the accused was a prison officer. That was what the entire case was about: him, his work, the people he met there and the pressure he claimed he was put under to import drugs into a centre for the rehabilitation of convicts. It is not part of the function of a trial judge to repeat what is obvious. Counsel for the defence and counsel for the prosecution had both approached their arguments on the premise of the pressures under which the accused worked by virtue of his post, on the one hand, and on the other, the basis of his responsibilities and ability to seek the help of State authorities if genuinely worried.
Directions by a trial judge
The general duty of the trial judge in charging a jury is to explain concisely their respective roles, the burden of proof, and the elements of the offences faced by the accused. A succinct but accurate summary of the main evidence and arguments on both sides should follow and it is desirable to refer to such areas of contradiction between witnesses as are essential to the resolution of the case, together with an explanation of facts and inferences and the duty of the jury to only draw inferences that arise...
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