DPP v Gleeson

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 01 November 2018
• Neutral Citation: [2018] IESC 53
• Court: Supreme Court
• Docket Number: [S.C. No. 24 of 2017],Supreme Court appeal number: 2017 no 000024 [2018] IESC 000 Court of Appeal record number: 2014 no 34 [2016] IECA 332 Circuit Criminal Court bill number: 2010 KE67
• Date: 01 November 2018

[2018] IESC 53

An Chúirt Uachtarach

The Supreme Court

Charleton J.

Clarke C.J.

MacMenamin J.

Charleton J.

O'Malley Iseult J.

Finlay Geoghegan J.

Supreme Court appeal number: 2017 no 000024

[2018] IESC 000

Court of Appeal record number: 2014 no 34

[2016] IECA 332

Circuit Criminal Court bill number: 2010 KE67

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Appellant

- and -

Trevor Gleeson

Accused/Respondent

Conviction – Simple possession – Duress – Appellant seeking to appeal from the judgment and order of the Court of Appeal overturning the respondent's conviction – Where an accused person seeks to rely on the defence of duress, by what standards are the accused's actions to be judged?

Facts: The respondent, Mr 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. He was convicted of simple possession at Naas Circuit Criminal Court in December 2012. On his arrest, he 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 was 18 months' imprisonment suspended for three years. Mr 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. By determination of the Supreme Court, dated 6 December 2017, leave to appeal from the judgment and order of the Court of Appeal was given to the appellant, the Director of Public Prosecutions, on the following 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?"

Held by the Court that no characteristic of any kind was pleaded before the court of trial or argued on appeal; the trial judge's direction to take into account the respondent's "age and gender" was the only one which she could properly have given. The Court held that there could have been no misdirection by the trial judge; she gave the standard direction in accordance with such existing decisions that were relevant and there was nothing to which she could have referred whereby the requirement that the respondent show ordinary courage might be modified by his nature. The Court noted that there were multiple occasions for the respondent to have resort to the authorities. The Court held that it was a question for the jury as to whether these should have been taken in the circumstances of constraint under which the respondent claimed to have been acting; by their verdicts of guilty of simple possession of various controlled drugs, there was a finding of fact in this case that reasonable resort to avoiding the crimes charged was available to the respondent, but was not taken.

The Court held that the decision of the Court of Appeal should be reversed. The Court held that the consequences of such order, including possibly the reinstatement of the convictions of the respondent, should be subject to discussion with counsel before the Court made a final order.

Appeal allowed.

Judgment of Mr Justice Peter Charleton on Thursday 1st of November 2018

1 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.

2 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?

Background

3 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.

4 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

5 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.

6 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...