Supporting Documents:
24-17 Rspndts Notce.pdf24-2017 AFL DPP.doc

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

1. This determination relates to an application for leave to appeal to the Supreme Court from a judgment of the Court of Appeal (Birmingham J., Mahon and Edwards JJ.) delivered on the 14th November, 2016, and from the resulting Order of that Court made on the 5th December, 2016, and perfected on the 20th January, 2017.

2. The Director of Public Prosecutions, referred to as “the DPP” or “the applicant”, seeks leave to appeal to this Court from the said judgment and Order of the Court of Appeal.

3. Trevor Gleeson opposes the application for leave to appeal, and is referred to in this Determination as “the accused” or “the respondent”.

Jurisdiction

4. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° thereof and from the many determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court.

5. Any ruling in a determination is a decision particular to that application and is final and conclusive only as far as the parties are concerned. The issue calling for the Court’s consideration is whether the facts and legal issues meet the constitutional criteria as above identified. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value relative to the substantive issues, if and when such issues should further arise in a different case. Where leave is granted on any issue, that matter will in due course be disposed of in the substantive decision of the Court.

Background and Procedural History

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

7. The respondent was duly arrested, detained, questioned and charged with five counts of possession of controlled drugs contrary to section 3 of the Misuse of Drugs Act 1977, as amended (“the 1977 Act”), and four counts of possession of controlled drugs for unlawful sale or supply contrary to section 15 of the 1977 Act (“the section 15 counts”).

8. From the outset, the respondent maintained that he had been threatened by known criminals both inside and outside the Midlands Prison 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 respondent was acting under duress was central at his trial. In the course of her charge to the jury on this issue, the learned trial judge stated, inter alia, that:

“[The test for duress] 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’s subjective perceptions, because it is proper that any rational system of law should take into account the standards of honest and reasonable persons. … In judging what a reasonable person would do you are not expected to imagine a saint or a particularly weak or a particularly tough or hard individual, and therefore you should adopt the posture of a reasonable person, being a sober person of reasonable firmness of the accused’s age and gender. Pose the question: ‘what in your judgement, as judges of fact, would such a person have done in the circumstances? Would he have felt compelled to act in the manner in which he did?’”

9. The respondent was convicted, by a majority verdict, by a jury at Naas Circuit Criminal Court on the 12th December, 2012, of the five counts of simple possession contrary to section 3 of the 1977 Act (“the section 3 convictions”). He was later sentenced to a term of imprisonment of eighteen months in respect of those convictions, with the entire term suspended for a period of three years.

10. The jury at the respondent’s first trial disagreed in relation to the section 15 counts. On the 23rd July, 2013, a second trial of the respondent took place in relation to those counts. During the course of this second trial, the prosecution disclosed to the defence the existence of CCTV footage showing the respondent being approached by two men whom he claimed were intimidating him at a supermarket premises on the 29th March, 2010. A full account of the confrontation between these two men and the respondent and his young son was given by the respondent to the gardaí in a statement dated the 20th April, 2010. The content of the CCTV footage is consistent with that part of that statement. Because of the late disclosure of the CCTV footage, the learned trial judge discharged the jury.

11. The respondent appealed the section 3 convictions to the Court of Appeal. He raised five grounds of appeal, though it was only necessary for the Court to address two of them in its judgment. The issue relating to duress is the sole point of continuing relevance for the purposes of this application for leave to appeal. The Court’s judgment was delivered by Mahon J. on the 14th November, 2016 ([2016] I.E.C.A. 332). The Court first considered what it termed “the duress issue.” The respondent relied upon DPP v. Dickey (Unreported, Court of Criminal Appeal, 7th March, 2003) and maintained that the trial judge had erred in charging the jury that the test to be applied in relation to duress was an objective test rather than a subjective test. He submitted that the jury should have been expressly directed not to consider what they would have done in the circumstances that confronted the respondent at the relevant time, but rather what he, with all of his characteristics, did. The question was whether the respondent’s power of resistance was overborne by the alleged threats.

12. The Court of Appeal stated that while the law on duress has, for over seventy years, been governed by the decision in The People (AG) v. Whelan [1934] I.R. 518, the oft-quoted passage of that decision does not assist in identifying the criteria on which duress is to be assessed. The Court referred to DPP v. MacEoin [1978] I.R. 27, a case dealing with the defence of provocation, to DPP v. Dickey, and to the Australian case of R v. Lawrence (1980) 32 ALR 72. The Court concluded that the appropriate test for duress is neither entirely subjective nor entirely objective, but rather must include an element of both in order to take into account the particular circumstances of the person seeking to invoke the defence. The Court was of the view that “[s]ome people will be, because of their individual or personal circumstances, more vulnerable to duress, than will others”. It is therefore reasonable that a jury should consider allegations of duress in the context of the individual and personal circumstances of the accused person. The Court concluded as follows on the issue:

“27. 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 suggested by Mr. Hanahoe to the learned trial judge, 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.”

13. The respondent’s appeal to the Court of Appeal was also successful on his ground of appeal concerning the non-disclosure by the gardaí, prior to the respondent’s first trial, of the CCTV footage of the above-described incident in the supermarket. The Court was of the view that the verdict in the first trial suggested that the jury was not convinced by the respondent’s attempted reliance on the defence of duress. The Court noted that had the jury viewed the footage in question, it was likely to have been of “considerable impact” and, at a minimum, to have provided a “significant degree of credibility” to the duress argument. The Court concluded that the footage may have swayed the jury towards an acquittal on all charges and thus allowed the appeal on the basis of the footage had not been made available to the defence ahead of the first trial. No appeal is taken by the appellant in relation to the CCTV point.

Appeal to this Court

14. The DPP seeks leave to appeal against the said judgment and Order of the Court of Appeal. She seeks an Order setting aside that part of the judgment and Order of the Court of Appeal whereby the respondent’s appeal in respect of the charge of the trial judge on the defence of duress was allowed. The applicant is not seeking a retrial of the respondent.

15. The reasons submitted by the applicant in support of this application are set out in detail in her Application for Leave and Notice of Appeal document. The respondent’s reasons for opposing the granting of leave are likewise set out in his replying document. These documents are available with this determination on the Courts Service website; accordingly, the parties’ reasons are set out here in summary form only.

Application for Leave and Notice of Appeal

16. The applicant submits that the judgment of the Court of Appeal involves a matter of general public importance as to the nature of the test to be applied by a Court or jury in assessing the defence of duress in respect of criminal charges. In particular, it is submitted that that Court’s conclusion that a jury “should consider allegations of duress in the context of the individual and personal circumstances of the accused person” has the potential to affect a significant number of trials in which the defence of duress is raised, and is likely to affect the scope and application of the defence.

Respondent’s Notice

17. The respondent opposes the application for leave to appeal and asks the Court to dismiss the appeal. He submits that it is not, in the interests of justice, necessary that there be an appeal to this Court. It is submitted that the judgment of the Court of Appeal is specific to the respondent and the particular factual circumstances pertaining to his case. The respondent submits that the decision of the Court of Appeal is a proper finding under Irish law and is consistent with the defence of duress.

Decision

18. The central issue raised on this application concerns the standard against which an accused person’s actions are to be judged when he or she seeks to rely on the defence of duress. The nature of the test to be applied in determining whether the accused person’s reaction to the threat entitles them to rely on the defence of duress is a matter which requires clarification. This point transcends the facts of this particular case, with the potential to affect every case in which the defence of duress is raised.

19. It thus follows that the Court is satisfied that the constitutional threshold for leave to appeal to this Court has been satisfied. The Court, accordingly, grants leave to appeal on the following point of general public importance arising out of the judgment of the Court of Appeal, subject to possible modification during case management:

“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 by 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?”

AND IT IS HEREBY SO ORDERED ACCORDINGLY.