Supreme Court rules prison officer's drug possession conviction should not have been overturned
A prison officer's conviction for possession of €6,000 worth of drugs should not have been overturned over how the jury was instructed concerning his claim of being under duress from persons associated with a Limerick criminal gang, the Supreme Court has ruled.
Because Trevor Gleeson's conviction had been overturned on additional grounds of prosecutorial failure to comply with disclosure obligations, which were not appealed, the court will decide later the consequences of its findings and whether his conviction remains overturned.
The five-judge court's unanimous judgment this week focused on the proper treatment of the subjective and objective elements of duress as a defence to a criminal charge.
Mr Gleeson (aged 39), whose address was previously listed as Mountrice, Monasterevin, Co Kildare, had not contested he was caught with drugs in his possession in Kildare town on December 22, 2009.
He claimed he was under threat from associates of the McCarthy-Dundon criminal gang to play a role in getting the drugs into the Midlands Prison where he worked.
He told gardaí he was a "nervous wreck" due to alleged threats and intimidation and feared for his family. He said he had not reported the alleged threats to gardaí or the prison authorities and felt his superiors would not listen.
The DPP appealed to the Supreme Court after the Court of Appeal (COA) overturned his conviction of simple possession of the drugs on December 22, 2009.
Giving the Supreme Court judgment, Mr Justice Peter Charleton said the COA found an error of principle by the trial judge over her alleged failure to point out, when dealing with the duress defence, the jury should take into account the accused was a prison officer and prisons are "dangerous places".
Everyone knew the accused was a prison officer, "that was what the entire case was about", the nature of his work and the alleged pressure he was under and it was not part of a trial judge's function to "repeat what is obvious".
Duress excuses criminal conduct where unwished for constraint compels an accused of "reasonable firmness", of the age, sex and other relevant fixed and permanent characteristics of the particular accused, into criminal conduct. That coercion should, on a reasonable view, be so serious as to overcome the resistance of the particular accused.
Duress is a defence provided that person genuinely feels under threat of death or serious violence from a threat directed against them or someone close to them, he said. The defence only applied where that person has no available resort to any lawful alternative through any reasonable means, he added.
By the verdict of guilty of simple possession, there was a finding of fact in this case that reasonable resort to avoiding the crimes charged was available to the accused but was not taken, he said.
No special or fixed characteristics such as mental illness, age, illness or serious infirmity were engaged and no characteristic of any kind was pleaded before the trial or in this appeal.
In the circumstances, the trial judge's direction to the jury to take into account Mr Gleeson's age and gender was the only one she could properly have given, he found.
Earlier, the judge noted Mr Gleeson was an officer in the Midlands Prison when seen by gardaí parking his car at Lourdesville, Kildare on December 22, 2009. A convicted criminal got into the passenger seat and the two drove together for a short time before the man got out.
As gardaí followed Mr Gleeson's car, a bag of various controlled drugs, including cannabis and diamorphine, was thrown out of it by Mr Gleeson.
He was charged with possession and supply but convicted of simple possession only at Naas Circuit Criminal Court in December 2012 after the jury disagreed on a count of possession for supply.
An 18-month sentence, suspended for three years, was imposed. The conviction was later overturned by the Court of Appeal.
