DPP v Gleeson

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 14 November 2016
• Neutral Citation: [2016] IECA 332
• Docket Number: Appeal No.: 34/14
• Court: Court of Appeal (Ireland)
• Date: 14 November 2016

The People at the suit of the Director of Public Prosecutions

Respondent

- and -

Trevor Gleeson

Appellant

[2016] IECA 332

Appeal No.: 34/14

THE COURT OF APPEAL

Conviction– Possession of drugs– Duress– Appellant seeking to appeal against conviction– Whether the trial judge erred in law in instructing the jury as to how they deliberate in respect of the defence of duress

Facts: The appellant, Mr Gleeson, was found guilty of five counts of simple possession of certain drugs contrary to s. 3 of the Misuse of Drugs Act 1977 at Naas Circuit Criminal Court on 12th December 2012 following a six day trial. These counts related, separately, to Benzylpiperazine (Count 2), possession (Count 4), Diamorphine (Count 6), Cannabis (Count 7) and Cannabis (Count 8). These convictions were by way of a majority verdict of the jury. The jury disagreed in relation to four counts of possession contrary to s. 15 of the 1977 Act. On 23rd July 2013 a second trial of the appellant took place in relation to the four s. 15 counts in respect of which there was a disagreement in the first trial. In the course of this second trial, the prosecution disclosed to the defence the existence of CCTV footage, at the end of the second day of the trial, showing the appellant being approached by two men whom he claimed were intimidating him at a supermarket premises on 29th March 2010. Because of the late disclosure of the CCTV footage, the trial judge discharged the jury. A full account of the confrontation between the two men and the appellant and his young son was given by the appellant to the Gardaí in a statement dated 20th April 2010. The visual content of the CCTV footage was consistent with part of that statement. On 31st January 2013 the appellant was sentenced, in relation to the convictions in the first trial, to a term of imprisonment of eighteen months. The entire term was suspended for a period of three years. The appellant appealed to the Court of Appeal against conviction on the following grounds: (i) the trial judge erred in law in instructing the jury as to how they deliberate in respect of the defence of duress; (ii) the verdict of the jury in convicting the appellant of counts 2, 4, 6 and 8 (the s. 3 offences) was perverse in all the circumstances and against the evidence, and in contravention of the charge of the trial judge; (iii) the investigation of the offences by the prosecuting gardaí was flawed, unsatisfactory and improper as to the complaint of duress as alleged by the appellant upon his arrest; (iv) the gardaí suppressed or withheld evidence in the first trial (which they had in their possession) which was detrimental to the defence of the appellant; and (v) the conviction in respect of the drug Benzylpiperazine count was in error as it was an offence unknown to law.

Held by Mahon J that: (i) the charge to the jury by the trial judge wrongly emphasised the test relevant to the defence of duress as being solely and entirely objective; and (ii) the CCTV footage ought to have been made available to the defence in the course of the first trial of the appellant, as it was possible and indeed probable that a viewing of the CCTV footage by the jury might have confirmed (or confirmed to a greater degree) the fact that the appellant had acted under duress. In the circumstances, Mahon J held that it was unnecessary for the Court to make any determination in relation to those grounds of appeal which maintained that the verdict of the jury in relation to counts 2, 4, 6 and 8 were perverse, or that the investigation of the offences by the gardaí was unsatisfactory and improper in relation to the complaint of duress or that the conviction in respect of the Benzylpiperazine count was in error because the offence was one unknown to law.

Mahon J held that he would allow the appeal.

Appeal allowed.

Judgment of the Court delivered by Mr. Justice Mahon on 14th day of November 2016

Mr. Justice Mahon

1 This is an appeal against conviction by a jury at Naas Circuit Criminal Court on 12th December 2012 following a six day trial. The appellant was found guilty of five counts of simple possession of certain drugs contrary to s. 3 of the Misuse of Drugs Act 1977, as amended. These counts related, separately, to Benzylpiperazine (Count 2), possession (Count 4), Diamorphine (Count 6), Cannabis (Count 7) and Cannabis (Count 8). These convictions were by way of a majority verdict of the jury. The jury disagreed in relation to four counts of possession contrary to s. 15 of the Misuse of Drugs Act 1977, as amended.

2 On 23rd July 2013 a second trial of the appellant took place in relation to the four s. 15 counts in respect of which there was a disagreement in the first trial. In the course of this second trial, the prosecution disclosed to the defence the existence of CCTV footage, at the end of the second day of the trial, showing the appellant being approached by two men whom he claimed were intimidating him at a supermarket premises on 29th March 2010. Because of the late disclosure of the CCTV footage, the learned trial judge discharged the jury.

3 A full account of the confrontation between the two men and the appellant and his young son was given by the appellant to the gardaí in a statement dated 20th April 2010. The visual content of the CCTV footage is consistent with part of that statement.

4 On 31st January 2013 the appellant was sentenced, (in relation to the convictions in the first trial), to a term of imprisonment of eighteen months. The entire term was suspended for a period of three years.

Background facts

5 The appellant was a prison officer at the Midlands Prison. On 22nd December 2009 he was observed parking his car in the Lourdesville area of Kildare town. Robert Dillon, who is a convicted criminal, was seen getting into the appellant's vehicle whereupon the car was driven a short distance when Mr. Dillon then left the car. The observing gardaí then followed and stopped the appellant. Before stopping the vehicle, the gardaí witnessed a plastic bag being thrown from the car. That plastic bag was retrieved and found to have contained Diamorphine and cannabis with a total street value of approximately €6,000.

6 The appellant was duly arrested, detained, questioned and charged with the various counts. From the outset, the appellant maintained that he had been threatened and intimidated by known criminals both inside and outside the Midlands Prison, his place of work, for the purposes of bringing illicit drugs into the prison for use by prisoners. He maintained that it was his intention at all times to dump the drugs rather than bring them into the prison. The issue as to whether the appellant was acting under duress was central to the trial.

The appellant's grounds of appeal

7 The appellant's written grounds of appeal are:-

(i) The learned trial judge erred in law in instructing the jury as to how they deliberate in respect of the defence of duress.

(ii) The verdict of the jury in convicting the accused of counts 2, 4, 6 and 8 (the s. 3 offences) was perverse in all the circumstances and against the evidence, and in contravention of the charge of the learned trial judge.

(iii) The investigation of the offences by the prosecuting gardaí was flawed, unsatisfactory and improper as to the complaint of duress as alleged by the appellant upon his arrest.

(iv) The gardaí suppressed or withheld evidence in the first trial (which they had in their possession) which was detrimental to the defence of the appellant.

(v) The conviction in respect of the drug Benzylpiperazine count is in error as it is an offence unknown to law.

The duress issue

8 It is submitted on behalf of the appellant that the learned trial judge erred in law in respect of the standard against which the accused's actions were to be judged. It is maintained by the appellant that the learned trial judge erred in charging the jury that the test to be applied in relation to the appellant's claim that he had acted under duress was an objective test rather than a subjective test.

9 It is contended on behalf of the appellant that the learned trial judge should have adopted an approach in accordance with the decision inDPP v. Dickey (Unreported, Court of Criminal Appeal, 7th March 2003), and invited the jury to consider the reactions of the accused taking into account his particular circumstances. It is contended that the jury should have been expressly directed not to consider what they would have done in the circumstances that confronted the appellant at the relevant time, but what the appellant, with all his characteristics did, and ask themselves whether the appellant's power of resistance was overborne by the alleged threats. In essence it is argued that by failing to appreciate the inherently subjective and theoretical nature of the defence, the learned trial judge erred in her direction to the jury.

10 For the respondent, it is contended that the appellant's interpretation and understanding of the decision inDickey is wrong. It is contended by the respondent that it is incorrect to suggest that the judgment in Dickey represents a change or shift in Irish law on duress towards a purely subjective test.

11 The learned trial judge charged the jury on the duress issue as follows:-

‘You should apply your own experience and knowledge of the ways of life and perhaps ask yourself the question as to what you would have done in the circumstances in which the accused found himself. This is what is described as an objective test, in that it does not depend on what the particular accused regarded as appropriate in the circumstances, which would be described as a subjective test. It is an objective test, decided by reference to objective criteria and not to the accused subjective perceptions, because it is proper that in any rational system of law should take into account the standards of honest and...