Duress

Table of Contents

Cases

Jonathan Dunne v The Director of Public Prosecutions

06/15

Supreme Court

11 May 2016

unreported
[2016] IESC 24
Ms. Justice O’Malley

May 11, 2016

JUDGMENT
1. On the 19th January, 2012, the appellant was convicted of the murder of Ian Kenny. It is common case that Mr. Kenny was shot in the head and arm with a sawn-off shotgun on the 4th July, 2007; that, although he survived the initial trauma, he was left in a vegetative state; and that he died in hospital two years later on the 31st July, 2009.

2. The appellant has, since an early stage of the investigation, admitted that he shot Mr. Kenny twice at close range on the 4th July, 2007, as they sat together in a car in the Stillorgan area of County Dublin, and that in so doing he intended to kill him. He pleaded guilty to a charge of attempted murder and has been sentenced for that offence. However, he has contested the subsequent charge of murder.

3. The indictment, in its statement of the offence, charged the appellant with murder. The particulars of the offence alleged that he murdered Mr. Kenny at Lakelands Park, Stillorgan, County Dublin on the 31st July, 2009.

4. In brief, the appellant’s case is that, having regard to certain decisions made in relation to the medical treatment of Mr. Kenny, the prosecution has not proved beyond reasonable doubt that his actions on the 4th July, 2007, brought about the death on the 31st July, 2009. The appellant had also claimed at all material times that he had carried out the shooting under duress, but pursuant to a ruling made in the trial he was not permitted to put that defence for consideration by the jury.

5. In his appeal against conviction the Court of Criminal Appeal has certified, pursuant to s.29 of the Courts of Justice Act 1924 as amended, the following two questions for determination by this Court:

i) Where the date of death alleged in an indictment for murder occurs at a point in time removed from the incident and actions alleged against the accused and after the intervention (itself lawful) of a third party, may the accused be convicted of murder?

ii) May duress be raised as a defence (whether full or partial) to a charge of murder?

The admissions made at the trial

6. At the opening of the trial the following admissions were formally made on behalf of the accused in the following terms:

“It is admitted on behalf of the accused who was born on the 17th of April 1985 that he was lawfully arrested on the 4th of July of 2007 and subsequently charged with the attempted murder of Ian Kenny on that date at Lakelands Road, Stillorgan, in the County of Dublin. It is further admitted that on the 7th April 2008 before this Court, the accused pleaded guilty to that charge of attempted murder of Ian Kenny and an associated charge of possession of a firearm on the same date. It is further admitted that, following a sentence hearing before Mr. Justice Carney on the 28th May 2008, a sentence of 12 years imprisonment was imposed on the attempted murder charge and a 10-years sentence on the firearms offence, both sentences to date from the 7th July 2007 when the accused was first charged and he has been serving those sentences since that date. It is further admitted that, subject to one issue that the Court will have to rule upon, the principal issue in the case will be one of causation of death.”

QUESTION 1 – CAUSATION
Evidence relating to medical treatment

7. The debate on the first certified question centres on the evidence as to the medical treatment of Mr. Kenny and in particular on the fact that, at a certain point, a decision was taken not to engage in aggressive or invasive treatment. The decision was made in consultation with Mr. Kenny’s father. The appellant does not take issue with the lawfulness, ethics or propriety of what was decided. However, he says that the consequences which flowed from it cannot be attributed to him, in that the death of Mr. Kenny, at the time it occurred, cannot be said to have occurred as a result of the shooting.

8. Following the shooting, Mr. Kenny was brought to St. Vincent’s Hospital. His pulse and blood pressure were normal but he was comatose. He was intubated and placed on a life support machine with artificial ventilation. The head wound was packed to control bleeding.

9. CT scans and X-ray images of his injuries at that stage showed widespread scattering of pellets throughout the brain, with penetration of both hemispheres. He had a fracture of his right humerus. Mr. Kenny had also suffered a stroke involving the right side of the brain. He went on to develop a pneumothorax, or collapse of his lung.

10. The view taken was that neurosurgical intervention to remove the pellets from the brain was not feasible, and would have caused more damage.

11. The evidence was that typically, an injury of the sort suffered by Mr. Kenny would affect the brainstem to the point where the person would be unable to breathe. However, because he was a young man, Mr. Kenny’s condition was stabilised with aggressive life support in St. Vincent’s. He began to breathe spontaneously with the aid of a tracheostomy and was taken off the ventilator. It became clear that he was not going to immediately succumb to his condition. The wound in the head, from which dead portions of tissue had been removed, then became the priority. The medical view was that the open wound was not “compatible with life” and would have to be closed.

12. Follow-up scans on the 13th July, 2007, showed that Mr. Kenny had developed brain atrophy. This was described by Mr. Pidgeon, the neurosurgeon, as meaning that the “the bits of brain that had died were replaced by holes”.

13. Mr. Kenny was transferred to Beaumont on the 16th July, 2007, for surgery and was operated upon on the 17th. According to the evidence of the neurosurgeons, the operation involved the removal of dead tissue and the investigation of the wound to ensure that there were no pockets of infection and to remove any easily accessible pellets. There were pellets in the skin, the muscle and the brain itself. The plastic surgeon closed the wound by rotating a flap of skin to cover it.

14. Asked about the purpose of the operation, Dr. Martin Murphy agreed that the initial view had been that there would be no point in surgical intervention given the seriousness of the head injury. However, the patient had survived for two weeks and it was considered that the operation would limit the chances of infection and prevent him from developing meningitis or an abscess. The prognosis after the operation was still to the effect that Mr. Kenny was likely to die in the short term and that if he survived he would have a very poor quality of life. Dr. Murphy said that he would always warn families that the patient would either die or develop an infection which might well cause death. The latter would be one of the main causes of morbidity or mortality in this type of case.

15. Mr. Pidgeon said that he had felt that it would be prudent to close the wound from an infection point of view. It was also desirable from a cosmetic point of view, for the sake of the family. He agreed that Mr. Kenny might not have survived the operation, and that his short term and longer term prospects were extremely poor.

16. There was a difficulty with leakage of cerebro-spinal fluid, and a drain was put in to deal with that on the 1st August, 2007. A PEG tube, for feeding, was inserted into Mr. Kenny’s stomach on the 15th August.

17. Mr. Kenny was transferred back to St. Vincent’s on the 26th October, 2007. As of that date, the medical view was that he was severely brain damaged. The prognosis was “extremely poor” and he was not expected to survive. The reason for this was that patients in a persistent vegetative state, who are unable to clear their own airways and unable to eat or drink, inevitably succumb to infectious problems. Mr. Kenny did in fact survive for longer than expected, although he never regained consciousness.

18. Mr. Pidgeon said that Mr. Kenny had sustained a devastating injury to the head which was not compatible with any form of survival of quality.

19. In October, 2008 Mr. Kenny was transferred to St. Doolagh’s, a specialist nursing unit for patients with brain injury. The evidence was that the care available to him there was the same standard of care as in hospital and that it was a suitable alternative. Mr. Kenny’s condition had not altered. He was breathing himself through the tracheostomy and was fed through the PEG tube. He was on various medications for spasm, to prevent seizures, and to protect his stomach. He also received physiotherapy to keep his limbs mobile.

20. While in St. Doolagh’s Mr. Kenny suffered from recurrent infections, chiefly in his lungs and urinary tract. These infections, which were said to be expected in someone in his condition, were treated satisfactorily with antibiotics. Dr. Veale, the treating doctor, said that the inability of Mr. Kenny’s body to respond because of his injuries meant that he was extremely prone to infection.

21. On two occasions, in April 2009 and again at the end of May 2009, Mr. Kenny aspirated some of the feed from the PEG tube into his lungs due to vomiting. He was admitted to Beaumont on each of these occasions, for treatment by intravenous antibiotics.

22. Professor Shane O’Neill, respiratory physician, gave evidence about the admission to Beaumont on the 18th April, 2009. He said that Mr. Kenny had, during that admission, a mild to moderate pneumonia with upper gastro-intestinal bleeding. Susceptibility to pneumonia was a consequence of vomiting, an inability to clear secretions pooling in the tracheostomy and discharging into the lungs, and a poor cough reflex. Mr. Kenny was treated with intravenous antibiotics, acid suppressant medication and intravenous steroids. He was discharged back to St. Doolagh’s, with the treatment by intravenous medication to be completed by the community intervention team.

23. A statement by Mr. Frank Murray, gastroenterologist in Beaumont, was read to the jury pursuant to the provisions of s. 21 of the Criminal Justice Act 1984. This dealt with the admission from the 31st May, 2009, to the 12th June, 2009. Mr. Murray said that Mr. Kenny was admitted with symptoms of hypothermia, an oozy tracheostomy, intermittent fever and an episode of rigors. He had findings suggestive of a chest infection, anaemia and thrombocytopenia, probably related to sepsis. He was treated with intravenous fluids, intravenous antibiotics and physiotherapy for the chest infection. He made a reasonable recovery and was transferred back to the nursing home.

24. Mr. Murray’s statement concluded:

25. On the 29th July, 2009, Mr. Kenny was again admitted to Beaumont. During the course of that day he had suffered a number of epileptic seizures, which were seen as indicative of an underlying infection.

26. The primary evidence relating to this admission was that of Dr. Deepak Gopinathan, a consultant physician in Beaumont. He said that Mr. Kenny had features of sepsis, meaning a form of infection with a focus commonly in the lungs or in the kidneys. His temperature was quite low, indicating a severe infection, and he also had low blood pressure and low oxygen levels. A chest x-ray confirmed an infection in both lungs. Dr. Gopinathan described it as bilateral pneumonia with features of severe sepsis.

27. Treatment with intravenous antibiotics was commenced. He was also given intravenous fluids for his blood pressure and supplemental oxygen to raise his oxygen levels. Because there were copious and quite prevalent secretions in the tracheostomy tube, regular suctioning was required.

28. Dr. Gopinathan said that he was concerned regarding the severity of the sepsis. Looking back at the notes from the previous admissions, he saw that a decision had been made in June that Mr. Kenny should not be resuscitated in the event of respiratory or cardiac arrest. He contacted Mr. Kenny’s father, and met with him in the ward subsequently.

29. It was explained to Mr. Kenny Senior that his son had severe pneumonia in both lungs, that he had been commenced on a broad spectrum antibiotic, and that the next 24 to 48 hours would be crucial. The medical view was that if Ian Kenny did not respond to the antibiotics; or if his blood pressure or oxygen levels dropped further; then, having regard to the serious underlying condition, he should not be put on a ventilator, or have inotropes (blood pressure drugs) administered. The latter treatment would require the insertion of a catheter through one of the arteries in Mr. Kenny’s wrist, which would be considered invasive. Mr. Kenny Senior was also told that the doctors considered that, given the serious brain damage, there should be no further resuscitation in the event of sudden cardiac or respiratory arrest. He agreed with these views.

30. Dr. Gopinathan explained the context of this advice. Ian Kenny was in a persistent vegetative state. In a short span of time he had had three episodes of pneumonia. Apart from that he had a tracheostomy, a gastrostomy for feeding and a urinary catheter. He was fully dependent on nursing care.

31. Over the following 24 hours Mr. Kenny’s oxygen levels, blood pressure temperature and pulse rate all dropped. There was constant secretion in the tracheostomy. He became tachypneic and his breathing became more laboured.

32. On the morning of the 31st July Mr. Kenny was very septic. His oxygen levels had dropped to 80%, despite the administration of oxygen. His breathing rate was between 30 and 35 per minute. A stronger antibiotic was administered, and the fluids, oxygen and suctioning continued.

33. Mr. Kenny was transferred to a single room at about 12 midday. He was gasping for breath at that stage. At 12.30 he was noted by the nursing staff to be pale, with no pulse, no blood pressure and no breathing. He was pronounced dead by a registrar at 14.15.

34. Dr. Gopinathan agreed that a decision had been made not to transfer Mr. Kenny to intensive care, not to resuscitate him, not to put him on a ventilator and not to administer inotropes.

Evidence relating to the cause of death

36. The post-mortem was carried out by Dr. Michael Curtis, Deputy State Pathologist. He said that he found evidence of widespread bilateral bronchopneumonia, that is, pneumonia involving both lungs. He concluded that the cause of death was bronchopneumonia, due to persistent vegetative state, due to brain injury caused by a shotgun wound. The shotgun wound to the arm was a contributory factor.

37. Dr. Curtis said that it was to be expected that Mr. Kenny might die of pneumonia. People in persistent vegetative state are at risk of developing infections. They can be kept alive for several years, with high quality modern medical and nursing care, but the usual situation is that they succumb to an infection, and the most usual infection is pneumonia. He was asked in cross-examination whether death was more likely if a decision was made to withhold certain forms of treatment and he agreed that it was.

38. At the request of Dr. Curtis, Dr. Michael Farrell, a consultant neuropathologist, carried out an examination of Mr. Kenny’s brain.

39. Dr. Farrell found a number of pellet shots in both hemispheres of the brain. The ones in the left hemisphere had just caused a little bit of tissue loss, but those in the right hemisphere had caused a large area of tissue loss. One pellet was lying right up against the middle cerebral artery, embedded in the wall of the artery by dense scar tissue. If a pellet had penetrated the artery one would have expected the patient to bleed to death. However in this instance the damage to the artery had instead caused it to go into spasm, resulting in the shutdown of the blood supply to the right hemisphere. The result was a big stroke, causing the death of that area of the brain.

40. This was, according to Dr. Farrell, a very serious injury but not one that would in itself account for the patient being in a persistent comatose state for the following two years. However, he also found a hole in an area of the brainstem involving the reticular activating system. Damage to this system removes the drive to the neocortex that is critical for consciousness. The patient therefore lapsed into a condition of being neither awake nor asleep.

41. Dr. Farrell said that the hole had not been caused by a piece of shot going through the brainstem. In his opinion, the damage to the middle cerebral artery had caused the death of brain tissue. That process involved the swelling of the tissue, which in turn caused the stretching of the smaller arteries supplying the reticular activating system. The hole formed because the blood supply to that area was compromised. This was the cause of the persistent vegetative state.

The ruling of the trial judge on causation

42. At the close of the prosecution case, counsel for the accused applied for a direction on the issue of causation.

43. It was accepted by counsel that if a victim developed a complication due to his weakened state after having been injured, the line of causation would not be broken. Similarly, it would not be broken if the victim was treated negligently or mistakenly. He was not, therefore, suggesting that the initial decision against operating in Mr. Kenny’s case could give rise to a defence.

44. The argument made was that in this case there was

45. It was submitted that if Mr. Kenny had been treated with ventilation and/or inotropic medication, he might not have died when he did. It might well have been in the best interests of the patient not to provide that treatment. However, such a decision could not give rise to a criminal liability on the part of the accused.

46. The prosecution argued, on this aspect, that what Dr. Gopinathan had said was that Mr. Kenny would not be given certain types of treatment. On the evidence, the need for the particular treatment had not arisen. This was not accepted by the defence, who pointed to the evidence that Mr. Kenny had been gasping for breath.

47. In holding against the defence on this issue, the learned trial judge ruled (by reference to The People (DPP) v. Murphy [2005] 4 I.R. 504) that the required causal link can be inferred from circumstantial evidence, even where the precise cause of the result could not be shown. He applied the test for causation set out in the judgment of the Court of Criminal Appeal in The People (DPP) v. Davis [2001] 1 I.R. 146, where it was said to be sufficient

“if the injuries caused by the applicant were related to the death in more than a minimal way.”

48. On that basis he held that there was ample evidence to go to the jury.

The decision of the Court of Criminal Appeal on the causation issue

49. In relation to this issue, the Court of Criminal Appeal found no basis for distinguishing Davis.

50. The Court also referred to Re A Ward of Court (withholding medical treatment) (No. 2) [1996] 2 I.R. 79, which concerned the lawfulness of the withdrawal of artificial feeding for a patient, who had suffered catastrophic brain injury in the course of a minor operation over twenty years earlier and had been in a condition similar to PVS since that time. It was said in two of the Supreme Court judgments that if the withdrawal took place and the ward died, death would be due to the earlier injuries.

51. The ruling of the Court of Criminal Appeal in the substantive appeal on the issue was, therefore, that causation had been established, and that the decisions made in respect of the medical treatment of Mr. Kenny, which were accepted to be lawful and proper, were not such as to completely break the connection between the appellant’s action in shooting Mr. Kenny and the death of Mr. Kenny.

52. In its ruling granting a certificate pursuant to s. 29, the Court said:

“The Criminal Justice Act 1999 abolished the common law one year and one day rule familiar to generations of law students, and which can be said to have offered a typically pragmatic response to some of the problems caused when victims die at some considerable time after an incident for which it is alleged the accused is responsible. Now however, courts are required to grapple with issues of causation which can raise notoriously difficult problems in other fields of law, all the more so when advances in medicine have made it possible to sustain life much longer than would have been possible even a generation ago, and in circumstances which could hardly have been imagined then. This can give rise to difficult questions of ethics and, on occasions, law. Counsel for the Applicant points to the somewhat anomalous form of the indictment here which charged the accused with having murdered Mr Kenny at Lakelands park, Stillorgan County Dublin (where the attack occurred on the 4th of July 2007) but on the 31st of July 2009 when the death occurred (in Beaumont Hospital) more than two years later.”

Submissions on causation

53. The argument made on behalf of the appellant originally included a submission that the correct test for causation was whether the actions of the accused contributed in a substantial way to the death, and that the Court of Criminal Appeal in Davis erred in substituting a de minimis test. However, at the hearing of the appeal counsel accepted that no matter which test is applied to the facts of this case the appellant would be found to have caused the death of Mr. Kenny. The issue relates to the timing of the death, and whether the accused can be said to have brought about the death on the date it occurred.

54. It is also accepted that if there had been a positive medical intervention, whether that was properly or negligently carried out, and death had occurred, the chain of causation from the appellant’s acts to the death would not have been broken.

55. However, it is submitted that if there had been a positive intervention in this case Mr. Kenny might have survived and the murder charge would not then have arisen. The argument is that third parties made an independent, positive decision as to medical treatment “but for” which he might have lived. The conviction of the appellant fixed him with criminal responsibility for the consequences of a decision made by others, as opposed to his own actions. This was said to be so, notwithstanding that the decision was made in a proper fashion and in the best interests of the patient. The prosecution had therefore failed to discharge the burden of proving that the appellant caused the death to occur on the date specified in the indictment.

56. The appellant contends that the observations in Re A Ward of Court should be seen as applicable in a civil context only, without having implications for criminal liability.

57. It is suggested that the abolition of the common law “year and a day” rule (by virtue of which a murder charge could not be brought if the victim of an assault did not die within a year and a day of the event) by s. 38 of the Criminal Justice Act 1999 has left a lacuna, in that the legislature did not make provision for the situation of potential long term survival and the implications of decisions on medical treatment for criminal liability.

58. The respondent says that at no stage was there a decision to withdraw treatment from Mr. Kenny. He would not have been in hospital, and in the condition that he was in on the date of death, had he not been shot by the appellant. On the test applied in The People (Director of Public Prosecutions) v. Davis the appellant must be considered to have caused the death.

Statutory definition of murder

59. Section 4 of the Criminal Justice Act 1964 provides in full:

(2) The accused person shall be presumed to have intended the natural and probable consequence of his conduct; but this presumption may be rebutted.”

Statutory provisions relating to indictments

60. Section 4(1) of the Criminal Justice (Administration) Act 1924 provides as follows:

“Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.”

61. Section 4(2) provides for rules in relation to the form and content of indictments, and stipulates that an indictment will not be open to objection if it conforms to those rules.

62. Rule 4 deals with the mode in which offences are to be charged. In so far as is relevant here, it provides that a count on an indictment is to commence with a statement of the offence charged. Sub-rules (3) and (4) read as follows:

(4) After the statement of the offence, particulars of such offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary:

Provided that where any rule of law or any statute limits the particulars of an offence which are required to be given in an indictment, nothing in this rule shall require any more particulars to be given than those so required.

64. An appendix to the rules sets out forms to be followed, or followed “as near as may be”, for particular charges. The first of these is for a charge of murder. The statement of offence as set out is simply “Murder”, although it must be remembered that the Indictment Rules date from 1924 and it is usual now to add the words “contrary to s.4 of the Criminal Justice Act, 1964”. The particulars of offence are: A.B. on the blank day of blank in the County of blank murdered J.S.

Authorities on causation

General principle

65. The issue of causation in murder is addressed in the following terms in Charleton, McDermott and Bolger Criminal Law (1999, Butterworths) at p. 503 under the heading “ General statement ”:

66. In their discussion of the issue the learned authors refer to Wong Tat Chuen [1997] HKLRD 433 and to Smithers (1977) 34 C.C.C. (2d) 427. The former was a decision of the Hong Kong Court of Appeal in which it was held that a jury should be told that it was sufficient if the accused’s act contributed “significantly” to the death and that it need not be the sole or principal cause. In Smithers the Supreme Court of Canada had ruled that the accused should be held liable for the death where his or her act or acts were “a contributing cause…;outside the small de minimis range”.

67. In this jurisdiction the test was settled by the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Davis [2001] 1 I.R. 146. The evidence of the pathologist in that case was that the death of the victim was due to heart failure secondary to severe shock, which was itself the cumulative result of injuries alleged to have been inflicted by the applicant. The applicant had suggested that she might have been assaulted by two other men earlier in the day, and that she had subsequently fallen down some stairs. Having regard to the evidence, the Court observed that it seemed “overwhelmingly probable” that the attack on the deceased by the applicant was the sole cause of all significant injuries. The judgment continues (at p. 149):

“In point of law, however, it is unnecessary to go so far: it is sufficient if the injuries caused by the applicant were related to the death in more than a minimal way.”

68. The appellant has not in this appeal pursued the argument that the Davis test was incorrect.

Novus actus interveniens

69. In R. v. Pagett (1983) 76 Cr. App. R. 279 the appellant had been using his girlfriend as a “human shield” while firing at policemen. They returned fire and she was killed by their shots. In his appeal against a conviction for manslaughter, it was argued inter alia that the trial judge should have ruled that where the act which immediately resulted in fatal injury was the act of another person, albeit in legitimate self-defence, then the ensuing death was too remote or indirect to be imputed to the original aggressor. It was submitted that there either was, or as a matter of policy should be, a rule of English law that no man should be convicted of homicide unless he himself, or another person acting in concert with him, carried out the act which was the immediate cause of the victim’s death.

70. The argument was rejected by the Court of Appeal, which considered that it had no basis in either authority or principle. It was stated that the question whether an accused person could be held guilty of either murder or manslaughter of a victim, the cause of whose death was the act of another person, must be determined on the ordinary principles of causation. In certain circumstances, although an act of the accused constitutes a necessary condition for the death, the intervention of a third party may be regarded as the sole cause of death and thereby relieve the accused of criminal responsibility. To have this effect, the intervention must amount to a novus actus interveniens – that is, an act so independent of the act of the accused that it should be regarded in law as the cause of death. A reasonable act performed for the purpose of self-preservation, being an act caused by the accused’s actions, does not operate as a novus actus interveniens. Nor does an act done in execution of a legal duty, where it was caused by the accused’s action.

Medical intervention as novus actus interveniens

72. I propose to begin with consideration of the judgments of the Supreme Court in Re A Ward of Court. That case was not, of course, concerned with questions of criminal liability. Rather, the Court was dealing with the lawfulness of a decision to withdraw medical treatment involving antibiotics and artificial feeding, which would necessarily result in the death of the ward. The judgments are not, therefore, directly related to questions of causation or attribution of responsibility. However, certain passages are pertinent to the issue before this Court.

73. Hamilton C.J. stressed (at p. 120) that the case was not about euthanasia, and stated that the courts could never sanction steps to terminate life. In this regard he quoted Taylor L.J. in Re J. (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33 at p. 53:

74. Hamilton C.J. stated that this principle applied with even greater force in this jurisdiction, and that any course of action aimed at terminating life or accelerating death would be unlawful.

75. At p.124, as part of a discussion of the content of the constitutional right to life, he said:

“As the process of dying is part, and an ultimate, inevitable consequence, of life, the right to life necessarily implies the right to have nature take its course and to die a natural death and, unless the individual concerned so wishes, not to have life artificially maintained by the provision of nourishment by abnormal artificial means, which have no curative effect and which is intended merely to prolong life.

This right, as so defined, does not include the right to have life terminated or death accelerated and is confined to the natural process of dying.”

76. On the evidence, Hamilton C.J. found that without the benefit of the artificial feeding, the ward would die within a short period of time and in this regard had to be regarded as terminally ill. Had she been mentally competent, she would have had the right to forego treatment or have it discontinued. By virtue of her incapacity she was unable to exercise that right for herself, but she was entitled to have the right respected and vindicated by the High Court exercising its wardship jurisdiction. In exercising that jurisdiction, the first and paramount consideration was the well-being, welfare or interests of the ward. The proper test, which had been applied by the High Court judge in that case, was “whether it was in the best interests of the ward that her life should be prolonged by continuance of the particular medical treatment which she was receiving”. This was to be considered from the standpoint of “a prudent, good and loving parent”.

77. In the circumstances, the withdrawal and termination of the abnormal and artificial means of nourishment would cease to prolong the life of the ward to no useful purpose and would allow her to die.

78. At p. 128 he said:

“The true cause of the ward’s death will not be the withdrawal of such nourishment but the injuries which she sustained on the 26th April, 1972.”

79. O’Flaherty J. agreed that the case was not about euthanasia, saying (at p. 130)

“[E]uthanasia in the strict and proper sense relates to the termination of life by a positive act. The declarations sought in this case concern the withdrawal of invasive medical treatment in order to allow nature to take its course.

The ward may be alive but she has no life at all…;”

81. Blayney J. considered that the following passage from the judgment of the High Court was fully compliant with the constitutional obligation to respect the ward’s life:

82. Denham J. noted that the situation had arisen because of the application of advanced medical science. If it were not for that, the ward would not have survived a catastrophe that had occurred over 20 years earlier. She said (at p. 146):

“The case illustrates the problems arising out of modern medical technology and consequent legal issues. These matters have not been addressed by the Oireachtas so it falls to be decided by this Court in accordance with the Constitution and the common law.”

83. At p. 158 Denham J. referred to the decision to be made – whether to continue the medical treatment or not – and observed that to continue it would be as much a decision as not to do so. She went on:

“It is not pertinent whether the treatment is ordinary or extraordinary medical treatment. Consent of the adult with capacity is necessary for either ordinary or extraordinary medical treatment.

However, the nature of the medical treatment here is pertinent to the ward’s condition. The medical treatment is invasive. This results in a loss of bodily integrity and dignity. It removes control of self and control of bodily functions…;Whilst an unconscious patient in an emergency should receive all reasonable treatment pending a determination of their best interests, invasive therapy should not be continued in a casual or ill considered way.”

84. Having analysed the constitutional aspects of the issue and found that what was at stake was a personal right of the ward, Denham J. moved on to the issue of causation. At p. 165 she said:

“Twenty three years ago, the ward suffered major injury to her brain during a minor gynaecological operation. If it were not for modern medical technology, utilised after the catastrophe, she would have died long since. She has been kept alive by modern medical science and the dedicated care and skill of the medical and nursing professions…;

If this Court determines that the order of the High Court be upheld then, those acts so ordered being lawful, the ward would die shortly as a result of the medical catastrophe which occurred 23 years ago…;”

85. In the criminal law context, the Court has been referred to a number of authorities dealing with the effect of medical intervention on the question of causation.

86. In R. v. Smith [1959] 2 Q.B. 35, the victim of stabbing in an army barracks had been dropped twice while being brought for medical treatment. He had then been given treatment described in court as “thoroughly bad”, which “might well have affected his chances of recovery”. He died about two hours after being stabbed. There was evidence that if he had received immediate and different treatment he might not have died. If a blood transfusion had been available he would have had a 75% chance of survival.

87. In the appeal against a conviction for murder it was argued that there had been a break in the chain of causation. The Court of Appeal said:

88. The Court in Smith contrasted what had occurred with the facts of R. v. Jordan (1956) 40 Cr. App. R. 152, where there was evidence that the deceased had been treated with a medication to which he had already shown intolerance, at a time when the original injury had mainly healed. In the latter circumstances a reasonable jury properly directed could not say that there had not been a break in the chain. In the case before the Court in Smith, the facts could lead only to one conclusion: that the death resulted from the original wound.

89. R. v. Blaue [1975] 1 W.L.R. 1411 raised the problem of a victim who declines medical treatment. The victim was a Jehovah’s Witness, who refused to accept a blood transfusion. On the question whether her decision, claimed to have been unreasonable, had broken the chain, the Court of Appeal said:

90. The cases of R. v. Malcherek and R. v. Steel [1981] 1 W.L.R. 690 were each concerned with a situation where the victim of an assault had been placed on a life-support system. At a certain stage in each case the treating doctors had decided to disconnect the machines, on the basis of a diagnosis of brain death. In each case the assailant was convicted of murder. The issue in each case was whether the jury should have been permitted to consider whether it was the switching off of the ventilator and the life support machines that was the actual cause of death.

91. The Court of Appeal held that the discontinuance of treatment had not broken the chain of causation between the initial injury and death. It was observed by the Court that in each case the initial assault was the reason for medical treatment being necessary, and that in each case the treatment had been normal and conventional. The Court referred to Jordan and Smith, and said that if a choice had to be made between them it would prefer Smith, but that the facts in Jordan were so exceptional that the choice did not fall to be made.

92. The Court held that there was no evidence that, after the life support systems were disconnected, the original injuries were other than “a continuing, operating and indeed substantial cause of the death of the victim”. The judgment continues:

93. The discontinuance of treatment in the circumstances of the case was held not to have broken the chain.

Proof of causation

94. In The People (Director of Public Prosecutions) v. Murphy [2005] 4 I.R. 504 the body of the deceased had been found in an outdoor location about three weeks after she had disappeared. The body had been damaged by animals to the extent that the pathologist could not determine a cause of death, although he could say that she was a young person in good health, making a death by natural causes unlikely. The case against the appellant depended on admissions, DNA and some circumstantial evidence.

95. It was part of the defence case that the prosecution had not established the date or cause of death and had not ruled out the possibility that some other person killed the victim. On this issue, the Court of Criminal Appeal ruled that the fact that the precise mechanism of death could not be established did not mean that the jury could not conclude that the appellant had murdered her if they accepted the other evidence.

QUESTION 2 – DURESS
Evidence relating to duress

96. Members of the Gardaí encountered the appellant very shortly after the shooting. According to their evidence, he immediately admitted having shot Mr. Kenny, and said that he had done so “due to circumstances”. He said that he had been “done a favour” and this was how he had to repay it. “It was him or me.” The appellant was then arrested. He subsequently signed a note of this conversation.

97. In his initial formal interviews with the Gardaí, the appellant said that another man had approached the car and shot Mr. Kenny, and that his role had been confined to driving him to the location. He had done this because he had been told to, and he feared for his own life and the lives of his family if he did not.

98. However he later admitted that he had shot Mr. Kenny. He told the Gardaí that he had been forced to do so. He had been threatened that if he did not, he and his family would be shot. The two men who threatened him had put a gun to his head and told him what to do. He did not name the people who threatened him but said that they knew him from the past, and that he “owed them a favour”. He expressed remorse and said that Mr. Kenny had been his friend, but that he had had no choice. He could not have moved his family abroad. He did not approach the Gardaí because he did not feel that they could protect him.

99. At the trial, the defence stressed various aspects of the evidence as tending to show that the appellant had not behaved in a manner consistent with being a professional assassin (for example, the fact that the car was registered in his name and had his work tools in it).

The decision of the Court of Criminal Appeal on duress

101. In its decision on the appeal, the Court referred to the decision in Attorney General v. Whelan [1934] I.R. 518, in which, in the course of a discussion about the general availability of duress as a defence the Court of Criminal Appeal had said:

102. In The Director of Public Prosecutions v. Patchell (ex tempore, Court of Criminal Appeal, 10th June, 2013) the Court of Criminal Appeal was invited to overturn Whelan and declined. The Court said that quite apart from considerations of policy, a change in the law would have to be a matter for the legislature.

103. In the instant case, the Court of Criminal Appeal said that the matter had recently been revisited in Patchell and that the limited arguments and material advanced by the appellant did not afford any compelling basis for departing from that decision.

104. In deciding to grant a certificate for leave to appeal, the Court said:

“Even the truncated discussion on this issue contained in this Court’s decision of the 31st July 2014 shows that the question of whether duress, which is a defence to all other criminal charges, can be a defence either partial or complete to murder, and if so, whether as principal or accessory, is a matter which has generated considerable debate both academic and practical, especially in neighbouring jurisdictions. Duress as a defence is itself a matter of common law, and the decisions for and against the extension of duress to charges of murder are themselves judicial decisions. It is argued however that the law in Ireland is reasonably clear, and that this position cannot, or at least should not, be altered save by legislation. That in itself however, is a component of the question…;”

Submissions on duress

105. On behalf of the appellant it is accepted that the issue may be seen as a policy matter, but it is submitted that this Court has power to alter the parameters of the defence of duress as it did with provocation in The People (Director of Public Prosecutions) v. MacEoin [1978] I.R. 27 and with self-defence in The People (Attorney General ) v Dwyer [1972] 1 I.R. 416. The only change being argued for here, it is said, is to overrule the dictum in Whelan.

106. It is submitted that the passage quoted above from Whelan must be seen as obiter. The statement that duress is not available as a defence in murder traces back to Hale’s Pleas of the Crown, but Hale believed that it was similarly unavailable in peacetime in respect of treason and robbery and the caselaw does not support that contention. Reference is made to comments by McCauley & McCutcheon in Criminal Liability (Sweet and Maxwell, 2000) where it is stated that the status of Hale’s rule in twentieth century caselaw is “highly problematic”.

107. Reliance is placed on the decision of the House of Lords in Lynch v. The Director of Public Prosecutions for Northern Ireland [1975] A.C. 653, where it was held that there was no direct English judicial authority against the applicability of duress to a charge of murder, and that it should be permitted. Lynch was overturned in R. v. Howe [1987] A.C. 417, but the Law Commission of England and Wales has consistently recommended that duress should be a defence. In South Africa, in the case of S. v. Goliath [1972] 3 (Translation) SA 1 it was held that duress should be available as a defence to murder.

108. The appellant submits that this Court should follow the logic of that approach. In the alternative it is submitted that it should consider the arguments set out in the Law Reform Commission’s consultation paper (LRC CP 39-2006) in favour of adopting a limited view of duress such that it would have the effect of reducing murder to manslaughter. Changing the law in this fashion would not, it is argued, amount to legislation by the Court, and would address the problem of people being coerced by criminal gangs in the modern era.

109. The appellant points to the recent decision of this Court in The People (Director of Public Prosecutions) v. J.C. [2015] IESC 31 as authority for the proposition that the Court can revisit and reverse earlier decisions now thought to have been wrongly decided. It is submitted that Whelan was in error and should be revisited.

The authorities

111. Attorney General v. Whelan [1934] I.R. 518 is described by McCauley & McCutcheon as “arguably the first twentieth-century case in which the defence actually succeeded, at least on this side of the Atlantic”. The appellant had been charged with receiving stolen money. The jury brought in a special verdict, finding that he had acted under threat of immediate death or serious violence. The trial judge considered that this amounted to a conviction, on the basis that duress was not a defence in law but merely went to mitigation. However he granted a certificate for leave to appeal on the question whether the verdict amounted to an acquittal.

112. In the appeal, it was argued by counsel that compulsion was a good defence save in cases of murder. (The acceptance that the latter was an exception was based on the decision in R. v. Dudley and Stephens 14 Q.B.D. 273.) The prosecution accepted that actual physical force which left the accused no choice of will would absolve from guilt, but submitted that anything short of such force was a matter for mitigation only.

113. The Court of Criminal Appeal observed that all of the elements of guilt had been established in the trial except the free exercise of will, and the point was accordingly narrowed down to the consideration whether there was such absence of will as to absolve from guilt.

114. The judgment refers to the paucity of authorities on the issue, particularly in the modern era. Reference is made to Hale’s Pleas of the Crown Vol. 1, p. 50, as stating that immediate fear of death could be a justification in the case of treason. In R. v. Stratton 21 How. St. Tr., 1045, 1229, 1230 Lord Mansfield had treated the principle as applicable to other crimes, as had Patteson J. in R. v. Crutchley 5 C. & P. 133. However, in R. v. Tyler 8 C. & P. 616 Denman C.J. had appeared to state as a general principle that apprehension of personal danger did not furnish any excuse for assisting in doing an act that was illegal.

115. R. v. Dudley and Stephens was described by the Court as affording no assistance other than to show the difficulty of formulating a rule of universal application.

116. The Court noted that counsel had been unable to discover any more recent authority and concluded:

117. This seems to be the only twentieth-century Irish authority on duress. The next recorded case dealing with the issue appears to be The People (Director of Public Prosecutions) v. Dickey (unrep., Court of Criminal Appeal, 7th March, 2003). In that case the Court quashed a conviction relating to the importation of drugs, on the basis that in charging the jury the trial judge had not outlined the evidence upon which the appellant’s plea of duress had been put forward.

118. In DPP v. Patchell (ex temp., Court of Criminal Appeal, 10th of June, 2013), the Court of Criminal Appeal engaged directly with the question whether that Court had the power to extend the availability of the defence of duress to a charge of murder. In giving the judgment of the Court, Hardiman J. said:

We will say that if the law were to be changed […;], notwithstanding the policy reasons which are so clear that a child could understand them and are perfectly illustrated by the facts of this case, it is plainly a matter for the legislature rather than for the Court to do so. The powers of government are divided into the legislative, the executive and the judicial, and these are separately constituted in Article 6 of the Constitution. This Court and the Supreme Court have been clear and emphatic in rejecting any improper legislative intervention in the area of the courts’ remit, and for consistency we must equally insist firmly on the exclusive jurisdiction of the executive in matters within its remit. The Court is far from calling for the attention of the legislature to this particular area, but if the matter were to be addressed, as seems to be implicit in the Law Reform Commission’s paper, it is for the legislature to address.”

120. The judgment ranges far and wide across Roman Dutch law, the Civil Codes of the Continent and ethical and philosophical writers as far back as Aristotle, as well as English common law. Unfortunately the translated version available to this Court omits most if not all quotations from these sources. The passages relied upon by the appellant are at p. 480 of the report, from the majority judgment given by Rumpff J.A., and read as follows:

In the application of our criminal law, in the cases where the acts of an accused are judged by objective standards, the principle applies that one can never demand more from an accused than that which is reasonable, and reasonable in this context means, that which can be expected of the ordinary, average person in the particular circumstances. It is generally accepted, also by the ethicists, that for the ordinary person in general his life is worth more than that of another. Only they who possess the quality of heroism will intentionally offer their lives for another. Should the criminal law then state that compulsion could never be a defence to a charge of murder, it would demand that a person who killed another under duress, whatever the circumstances, would have to comply with a higher standard than that demanded of the average person. I do not think that such an exception to the general rule which applies in criminal law is justified.”

122. The House of Lords divided on the question whether the defence of duress was available. The majority (Lord Morris, Lord Wilberforce and Lord Edmund-Davies) held that it was open to a person accused as a principal in the second degree.

123. Lord Morris referred to the view of writers including Stephen (the reference being to History of the Criminal Law in England , 1883, vol.2, pp. 107-108) that duress should never furnish an excuse from guilt, but only operate to mitigate punishment. However, he felt that it was much too late, having regard to authority, to adopt that view. In any event he did not consider such an approach to be just.

124. Lord Morris stressed the fact that the case concerned an alleged principal in the second degree, and that he was confining his decision to that issue. It might be that the law must deny such a defence to the actual killer, and that the law would not be irrational if it did so. In this regard he considered that the following passage from Hale should not be assumed to cover accessories, aiders and abettors:

“Again, if a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant’s fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact; for he ought rather to die himself, than kill an innocent.”

125. Lord Morris referred to the judgment of the Court of Criminal Appeal in Whelan. Noting the obiter dicta as to the limitations of the general principle, he said that no consideration was given in that judgment as to the position of a principal in the second degree.

126. Having regard to all of the authorities, he concluded that it had been “firmly held” by the English courts that duress can afford a defence in a criminal case, and that “general reasoning and the requirements of justice” meant that it should be open as a possible defence in the case of an aider and abettor.

127. Lord Wilberforce asked (at p. 680) what reason there could be for excluding murder. He referred to the description in Whelan of murder as a “heinous” offence, and observed that in some circumstances a defence of duress should be correspondingly hard to establish.

128. However, he considered that there were degrees of heinousness even in murder, and that an accessory, aider or abettor might bear a lesser degree of guilt. Therefore, to say that the defence might be admitted in relation to some degrees of murder, but that it should be so difficult in relation to a direct killing by a principal as almost to justify a ruling that it was not available, would not be illogical.

129. Lord Wilberforce summarised the authorities as establishing that the defence of duress had been known to the law since the 14th century; that it absolved from guilt rather than merely mitigating punishment; and that there was no direct English judicial authority against its application to charges of murder. He cited, with apparent approval, the passage quoted above from S. v. Goliath, and deduced the conclusion that

130. At p. 684 he said:

“The broad question remains how this House, clearly not bound by any precedent, should now state the law with regard to this defence in relation to the facts of the present case. I have no doubt that it is open to us, on normal judicial principles, to hold the defence admissible. We are here in the domain of the common law: our task is to fit what we can see as principle and authority to the facts before us, and it is no obstacle that these facts are new. The judges have always assumed responsibility for deciding questions of principle relating to criminal liability and guilt, and particularly for setting the standards by which the law expects normal men to act. In all such matters as capacity, sanity, drunkenness, coercion, necessity, provocation, self-defence, the common law, through the judges, accepts and sets the standards of right-thinking men of normal firmness and humanity at a level which people can accept and respect. The House is not inventing a new defence: on the contrary, it would not discharge its judicial duty if it failed to define the law’s attitude to this particular defence in particular circumstances. I would decide that the defence is in law admissible in a case of aiding and abetting murder, and so in the present case. I would leave cases of direct killing by a principal in the first degree to be dealt with as they arise.”

131. Lord Edmund-Davies was the third member of the majority and expressed similar views. Lord Simon and Lord Kilbrandon dissented.

132. The next development was the decision of the Privy Council in Abbott v. R. [1977] A.C. 755. In that case the appellant was charged as a principal in the first degree, and the issue was whether the defence of duress was available. On this occasion Lord Wilberforce and Lord Edmund-Davies were in the minority, with Lord Hailsham, Lord Kilbrandon and Lord Salmon holding that the defence was not open. The majority judgment proceeded on the basis that the Court was bound to “loyally” accept the decision in Lynch, but that it was not an authority which required extension of the doctrine of duress to such a case. Having regard to the doubts expressed in the speeches of the majority as to the applicability of their reasoning to persons who actually carry out killings, combined with the dissenting speeches, it was considered that a majority of the House in Lynch had to be seen as being of the opinion that it should not be extended.

133. It was considered that all English, American and Commonwealth authority, with the exception of Goliath, was against such an extension. Further, the Court rejected the argument that the law was thereby expecting too great a degree of heroism from the ordinary person. Reference was made to the trials of those charged with wartime atrocities, whose defence – that the actions in question were the result of superior orders and duress – was never accepted. The Court continued:

“We are not living in a dream world in which the mounting wave of violence and terrorism can be contained by strict logic and intellectual niceties alone. Common sense surely reveals the added dangers to which in this modern world the public would be exposed, if the change in the law proposed on behalf of the appellant were effected. It might well, as the noble and learned Lord Simon of Glaisdale said in Lynch’s case, prove to be a charter for terrorists, gang leaders and kidnappers.”

134. The question was asked, rhetorically:- “Is there any limit to the number of people you may kill to save your own life and that of your family?”

135. The judgment goes on:

136. The Privy Council did accept that a murderer who killed under duress would in many cases be less blameworthy than one who killed of his own free will. It was suggested that the appropriate approach to this issue would be to provide that duress, like provocation, should reduce murder to manslaughter and thus allow the trial court to pass a sentence based on all the circumstances of the case.

137. Ultimately, Lynch was overruled in R v Howe [1987] 1 A.C. 417. This judgment deals with two separate cases, in each of which the appellants had been actual participants in killing. The Court of Appeal certified a question as to the availability of duress as a defence in the circumstances.

138. Lord Hailsham, referring to the fact that he had been in the majority in Abbott, said that he had been able to accept Lynch only because it left open the issue as to principals in the first degree, and that was the issue in Abbott. The House of Lords now had the opportunity to reconsider Lynch. His own view was that

139. It had been submitted in the course of argument that there might be a “half way house” available, in that duress could be treated as analogous to provocation, with the effect of reducing the crime of murder to manslaughter. Lord Hailsham said of this proposal:

“I find myself quite unable to accept this. The cases show that duress, if available and made out, entitles the accused to a clean acquittal, without, it has been said, the ‘stigma’ of a conviction. Whatever other merits it may have, at least the suggestion makes nonsense of any pretence of logic or consistency in the criminal law. It is also contrary to principle.”

140. Lord Bridge said that it was never open to the House of Lords, in its judicial capacity, to make such a fundamental reform of the law as that involved in Lynch. If duress was to be made available generally as a defence to murder, the proper means to introduce it would be by legislation such as that proposed by the Law Commission. This was because it was for Parliament to decide whether the proposed reform was socially appropriate, but also because it was by legislation alone, as opposed to judicial development, that the scope of the defence could be defined with the necessary degree of precision.

141. Lord Griffiths said (at p. 439):

142. He considered that, even after Lynch, the whole weight of authority denied the defence to the actual killer. The Law Commission had, in the intervening period, produced a report in which it was recommended that the defence should be available in all cases, but the draft bill annexed to the report prescribed far narrower terms than previous judicial definitions and would require legislation. Parliament had not acted on the proposal.

143. Lord Griffiths saw no fair and certain basis for distinguishing between different modes of participation, and held that the defence should not be available in a charge of murder. He also rejected the compromise solution of declaring that duress could reduce murder to manslaughter. Where duress was available it was a complete excuse. English law had rejected the line of argument that saw it as mitigation only, and the proposed solution would put the law back to that line or else create a new anomaly.

144. In considering the submission that it would be appropriate for the House to extend the reasoning in Lynch to cover the actual killer, Lord Mackay cited Lord Reid’s approach in Myers v. Director of Public Prosecutions [1965] A.C. 1001 (the well-known hearsay case), where he had said:

145. Lord Mackay also took the view that, having regard to the balance of authority, Lynch was incorrectly decided. It marked a substantial change in the law and a departure from the decision in R. v. Dudley and Stevens . The dilemma faced by the accused in that case was the same as that faced by a defendant who killed as the only way of avoiding death himself or preventing the death of a loved one.

146. He considered that to change the law in the manner suggested would introduce uncertainty over a field of considerable importance, and on a topic about which there were already many unanswered questions.

Discussion
Question 1 – causation

147. The authorities discussed above seem to me to demonstrate the following principles:

(i) Causation in homicide may be broken by exceptionally negligent medical treatment (as in Jordan, where the victim was administered medication to which the medical personnel had reason to know he was intolerant), but it is not disrupted by conventional treatment even if there is evidence that the treatment offered might not have been the best available (Smith). Nor is it broken if the reason for a failure to provide appropriate treatment is a decision by the victim to refuse such treatment (Blaue).
(ii) A lawful and ethically proper decision to withdraw life support where there is a diagnosis of brain death does not mean that the original injury did not cause death if the injury inflicted is still an operational cause of the death (Malcherek and Steel).
(iii) It is an aspect of the Constitutional right to life that, in an appropriate case, a decision may be made that it is in the best interests of a patient to withdraw medical treatment of an invasive nature (In Re A Ward of Court). That decision can involve a choice to let nature take its course where continuation of such treatment serves no curative purpose. Where such a decision is made, the cause of death remains the original injury unless there has been, in the intervening period, a true novus actus interveniens.
(iv) A novus actus interveniens in this context would be something that is so independent of the act of the accused that it should be regarded in law as the cause of death. The fact that the immediate cause of death is an act by a third party does not necessarily break the chain of causation where that act is brought about by the act of the accused and is itself lawful and reasonable (Pagett).
148. In any of these situations, which may arise in any case where the assault does not result in immediate death, the actual date of death will be influenced by factors beyond the actions of the accused. In the absence of a true novus actus interveniens that does not mean that that the chain of causation is broken.

149. Where a person is shot in the head and thereby sustains serious brain injury, paramedics and medical professional personnel will where possible attempt to save the life of the victim. Such efforts may often mean that life will be prolonged to an extent that would not otherwise have been possible. In the modern era, that may well involve a brain-injured victim surviving in a persistent vegetative state, or a condition akin to that, for a lengthy period of time. That in turn may eventually produce a situation where a decision is properly and lawfully taken to withdraw a particular treatment. In the appropriate circumstances this must be seen as part of the range of appropriate medical treatments available. It is not open to the assailant, who brought about the situation whereby the victim required medical treatment, to argue that an otherwise appropriate choice of treatment from that range has altered his or her responsibility.

150. In such a situation, the assailant has no further influence on the timing of the death of his or her victim. Whether or not he or she can be held responsible for the death depends on the evidence in a given case. If, as in this case, the series of medical episodes leading up to the decision in question are all attributed by the medical evidence to the susceptibility of the victim to particular types of infection by reason of the damage to the victim’s brain or body; and that susceptibility is attributable to the condition caused by the original assault, then the injuries inflicted in that assault should be seen to constitute a substantial and operational cause of death.

151. In this case, the decision made by the medical personnel, with the approval of Mr. Kenny’s father, did not involve the withdrawal of treatment. Rather, there was a decision not to embark upon a particular form of treatment. In the circumstances as they obtained, there has been no suggestion that there was anything remotely improper about this. It was not a decision to bring about or accelerate a death that would not otherwise have occurred – that would be unlawful – but to acknowledge the medical reality of the increasing likelihood that death was going to occur and that invasive methods of treatment would not be in Mr. Kenny’s best interests. There was however continued treatment with antibiotics and oxygen, and continued suctioning of the secretions.

152. The reason that the particular decision came to be made in this case was that Mr. Kenny’s condition made him very prone to infection, and he had suffered three episodes of pneumonia of increasing severity over a short period of time. These episodes happened because of the damage to his brain. That was caused by the gunshot to his head. The medical evidence was that because of that damage it was always likely that Mr. Kenny would succumb to infection, most likely pneumonia. It was also a situation where, for that same reason, Mr. Kenny had an extremely poor quality of life. This gave rise to the considerations as to what treatment was truly in his best interests.

Question 2 – duress

154. It is clear from reading the authorities cited above that this is a subject that can give rise to strong arguments on either side of the policy issues, often expressed with powerfully rhetorical effect. I have omitted much of the policy discussion because it seems to me that the first consideration is whether this Court has the power to rule, in the applicant’s favour, that duress is a defence available on a charge of murder.

155. The proposition that it does have such power is based, in summary, on the argument that the authoritative status accorded to Hale’s formulation may be incorrect; that the House of Lords considered that it had jurisdiction to extend the parameters in Lynch and this Court has the same power; and that this Court has altered the common law in significant fashion in other cases.

156. As far as the first part of the argument is concerned, it seems to me to be much too late in the day to consider whether or not Hale (writing in the aftermath of the English Civil War) was right. Over the intervening centuries there has been much debate about various aspects of the defence but there is very little to show that it was ever accepted in relation to a charge of murder in a common law jurisdiction. It is true that in R. v. Kray (1969) 53 Cr. App. R. the judgment of the Court of Appeal proceeded on the basis that it was available to a person charged as an accessory. However, the issue for determination in Kray was the effect on the case for the co-accused who were charged as principals, whose counsel appear to have conceded that the defence was potentially open. The balance of authoritative and judicial pronouncements favours the view that the exclusion of murder from the defence was a rule of the common law as of 1922, the time at which this State inherited that body of law.

157. The issue must be therefore be approached on the basis that to either abolish the exclusion or to modify it so as to create a partial defence would be to bring about a significant change in a long-standing rule of law.

158. As to whether the House of Lords was entitled to do what it did in Lynch, I do not think it necessary to go beyond the observations quoted above from Howe as to the circumstances in which that tribunal can alter the common law.

159. In this jurisdiction, the role of the Supreme Court in developing the common law is described by Hogan & Whyte in JM Kelly: The Irish Constitution (4th ed., 2003, Butterworths) at p. 984 in the following terms:

160. In my view, what the appellant seeks here is not the development or extension of existing principles. It is the uprooting of a rule embedded for some hundreds of years in the common law, and the creation of an entirely new rule to apply, as the Court sees fit, to a greater or lesser extent. This is not put forward on the basis of any claim of Constitutional right, but purely on the basis that some other courts of other jurisdictions have preferred the policy of the proposed new rule and the argument that this Court is free to follow that policy.

161. This is not what occurred in either Dwyer or MacEoin. Dwyer, in its consideration of the subjective element in self-defence, was based largely on the Supreme Court’s interpretation of the then relatively recently-enacted s.4 of the Criminal Justice Act, 1964 and its implications for the concept of intention. In MacEoin, the Court of Criminal Appeal was also concerned with that section in relation to the proper test for provocation. It disagreed with a number of English authorities on the issue, and in the absence of any Irish authority set out its own formulation intended to accord with that in Dwyer. The case of J.C. was based, as were the preceding decisions in O’Brien and Kenny , on the Supreme Court’s view of the correct Constitutional approach to the relevant rules of evidence. This Court is the final arbiter on Constitutional matters, and has in certain defined circumstances the right to depart from its own earlier decisions.

162. The proposed alteration to the law relating to the exclusion of murder from the defence of duress comes into a very different category. The Court has, in effect, simply been asked to change the common law. In my view the proposed alteration is so fundamental that it could be introduced only by way of legislation.

163. In the circumstances I would answer the questions respectively “Yes” and “No”.

164. This conclusion leaves the case in a somewhat unsatisfactory state. The appellant now stands convicted of both attempted murder and murder of the same person, arising out of the same action. The Court has been informed that he has lodged an appeal against the conviction for attempt, notwithstanding his plea of guilty. The Director consented to enlargement of time for that appeal.

165. It may be that quashing the conviction for attempted murder is the only way to resolve the apparent illogicality of the appellant’s status, and will not lead to any injustice in the case, although I think that it would probably be the first time that the Court of Criminal Appeal has been asked to quash a conviction where the plea of guilty was unquestionably sound and reliable. However, in my view, it should not be presumed that the course of action taken in this case will always be considered appropriate.

[2016] IESC 24
Judgment of Ms. Justice O’Malley delivered the 11th day of May, 2016
1. On the 19th January, 2012, the appellant was convicted of the murder of Ian Kenny. It is common case that Mr. Kenny was shot in the head and arm with a sawn-off shotgun on the 4th July, 2007; that, although he survived the initial trauma, he was left in a vegetative state; and that he died in hospital two years later on the 31st July, 2009.

The admissions made at the trial
6. At the opening of the trial the following admissions were formally made on behalf of the accused in the following terms:

QUESTION 1 – CAUSATION
Evidence relating to medical treatment
7. The debate on the first certified question centres on the evidence as to the medical treatment of Mr. Kenny and in particular on the fact that, at a certain point, a decision was taken not to engage in aggressive or invasive treatment. The decision was made in consultation with Mr. Kenny’s father. The appellant does not take issue with the lawfulness, ethics or propriety of what was decided. However, he says that the consequences which flowed from it cannot be attributed to him, in that the death of Mr. Kenny, at the time it occurred, cannot be said to have occurred as a result of the shooting.

10. The view taken was that neurosurgical intervention to remove the pellets from the brain was not feasible, and would have caused more damage.

18. Mr. Pidgeon said that Mr. Kenny had sustained a devastating injury to the head which was not compatible with any form of survival of quality.

24. Mr. Murray’s statement concluded:

“Undoubtedly the chest infection/pneumonia/sepsis that occurred in this gentleman at this time related to his impaired neurological function as a result of the catastrophic injury that he had undergone as a result of gunshot wound to the head.”
25. On the 29th July, 2009, Mr. Kenny was again admitted to Beaumont. During the course of that day he had suffered a number of epileptic seizures, which were seen as indicative of an underlying infection.
26. The primary evidence relating to this admission was that of Dr. Deepak Gopinathan, a consultant physician in Beaumont. He said that Mr. Kenny had features of sepsis, meaning a form of infection with a focus commonly in the lungs or in the kidneys. His temperature was quite low, indicating a severe infection, and he also had low blood pressure and low oxygen levels. A chest x-ray confirmed an infection in both lungs. Dr. Gopinathan described it as bilateral pneumonia with features of severe sepsis.

34. Dr. Gopinathan agreed that a decision had been made not to transfer Mr. Kenny to intensive care, not to resuscitate him, not to put him on a ventilator and not to administer inotropes.

35. It was put to Dr. Gopinathan that Mr. Kenny had clung to life tenaciously since having been shot and had responded to appropriate treatment. The symptoms on this admission were similar to the previous episodes that he had survived. He did not agree, saying that this episode was more serious. It involved a very severe sepsis. The main difference was that on this occasion Mr. Kenny did not respond to the treatment given, which was not surprising.
Evidence relating to the cause of death
36. The post-mortem was carried out by Dr. Michael Curtis, Deputy State Pathologist. He said that he found evidence of widespread bilateral bronchopneumonia, that is, pneumonia involving both lungs. He concluded that the cause of death was bronchopneumonia, due to persistent vegetative state, due to brain injury caused by a shotgun wound. The shotgun wound to the arm was a contributory factor.

38. At the request of Dr. Curtis, Dr. Michael Farrell, a consultant neuropathologist, carried out an examination of Mr. Kenny’s brain.

44. The argument made was that in this case there was

“a deliberate, informed, it would appear ethically and medically justified decision, made by Dr. Deepak Gopinathan, to withhold medical treatment in circumstances where death, not surprisingly, followed in its absence, and may have been avoided if it had been provided.”
45. It was submitted that if Mr. Kenny had been treated with ventilation and/or inotropic medication, he might not have died when he did. It might well have been in the best interests of the patient not to provide that treatment. However, such a decision could not give rise to a criminal liability on the part of the accused.
46. The prosecution argued, on this aspect, that what Dr. Gopinathan had said was that Mr. Kenny would not be given certain types of treatment. On the evidence, the need for the particular treatment had not arisen. This was not accepted by the defence, who pointed to the evidence that Mr. Kenny had been gasping for breath.

47. In holding against the defence on this issue, the learned trial judge ruled (by reference to The People (DPP) v. Murphy [2005] 4 IR 504) that the required causal link can be inferred from circumstantial evidence, even where the precise cause of the result could not be shown. He applied the test for causation set out in the judgment of the Court of Criminal Appeal in The People (DPP) v. Davis [2001] 1 I.R. 146, where it was said to be sufficient

“if the injuries caused by the applicant were related to the death in more than a minimal way.”
48. On that basis he held that there was ample evidence to go to the jury.
The decision of the Court of Criminal Appeal on the causation issue

49. In relation to this issue, the Court of Criminal Appeal found no basis for distinguishing Davis.

52. In its ruling granting a certificate pursuant to s. 29, the Court said:

“The Criminal Justice Act 1999 abolished the common law one year and one day rule familiar to generations of law students, and which can be said to have offered a typically pragmatic response to some of the problems caused when victims die at some considerable time after an incident for which it is alleged the accused is responsible. Now however , courts are required to grapple with issues of causation which can raise notoriously difficult problems in other fields of law, all the more so when advances in medicine have made it possible to sustain life much longer than would have been possible even a generation ago , and in circumstances which could hardly have been imagined then. This can give rise to difficult questions of ethics and, on occasions, law. Counsel for the Applicant points to the somewhat anomalous form of the indictment here which charged the accused with having murdered Mr Kenny at Lakelands park, Stillorgan County Dublin (where the attack occurred on the 4th of July 2007) but on the 31st of July 2009 when the death occurred (in Beaumont Hospital) more than two years later.”

Submissions on causation
53. The argument made on behalf of the appellant originally included a submission that the correct test for causation was whether the actions of the accused contributed in a substantial way to the death, and that the Court of Criminal Appeal in Davis erred in substituting a de minimis test. However, at the hearing of the appeal counsel accepted that no matter which test is applied to the facts of this case the appellant would be found to have caused the death of Mr. Kenny. The issue relates to the timing of the death, and whether the accused can be said to have brought about the death on the date it occurred.
54. It is also accepted that if there had been a positive medical intervention, whether that was properly or negligently carried out, and death had occurred, the chain of causation from the appellant’s acts to the death would not have been broken.

56. The appellant contends that the observations in Re A Ward of Court should be seen as applicable in a civil context only, without having implications for criminal liability.

“(1) Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not.
(2) The accused person shall be presumed to have intended the natural and probable consequence of his conduct; but this presumption may be rebutted.”

Statutory provisions relating to indictments
60. Section 4(1) of the Criminal Justice (Administration) Act 1924 provides as follows:
“Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.”
61. Section 4(2) provides for rules in relation to the form and content of indictments, and stipulates that an indictment will not be open to objection if it conforms to those rules.
62. Rule 4 deals with the mode in which offences are to be charged. In so far as is relevant here, it provides that a count on an indictment is to commence with a statement of the offence charged. Sub-rules (3) and (4) read as follows:

(3) The statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence.
(4) After the statement of the offence, particulars of such offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary:

63. The rules provide that the description of property is to be such as to indicate “with reasonable clearness” the property referred to; that the description of any person is to be such as to be “reasonably sufficient” to identify that person; and that it shall be sufficient to describe any place, time, matter, act, or omission in such manner as to indicate “with reasonable clearness” what is being referred to.
64. An appendix to the rules sets out forms to be followed, or followed “as near as may be”, for particular charges. The first of these is for a charge of murder. The statement of offence as set out is simply “Murder”, although it must be remembered that the Indictment Rules date from 1924 and it is usual now to add the words “contrary to s.4 of the Criminal Justice Act, 1964”. The particulars of offence are: A.B. on the blank day of blank in the County of blank murdered J.S.
Authorities on causation

General principle
65. The issue of causation in murder is addressed in the following terms in Charleton, McDermott and Bolger Criminal Law (1999, Butterworths) at p. 503 under the heading “General statement”:

“The accused will legally have caused the death of the victim if his act, or acts, substantially contributed to the subsequent death, taking into account the time at which and the manner in which the death occurred. It is a function of the judge to decide whether there is any evidence reasonably capable of supporting the conclusion that the accused’s act was still a substantially contributing factor at the time when the victim died, having regard to the manner of his death.”
66. In their discussion of the issue the learned authors refer to Wong Tat Chuen [1997] HKLRD 433 and to Smithers (1977) 34 C.C.C. (2d) 427. The former was a decision of the Hong Kong Court of Appeal in which it was held that a jury should be told that it was sufficient if the accused’s act contributed “significantly” to the death and that it need not be the sole or principal cause. In Smithers the Supreme Court of Canada had ruled that the accused should be held liable for the death where his or her act or acts were “a contributing cause…outside the small de minimis range”.
67. In this jurisdiction the test was settled by the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Davis [2001] 1 I.R. 146. The evidence of the pathologist in that case was that the death of the victim was due to heart failure secondary to severe shock, which was itself the cumulative result of injuries alleged to have been inflicted by the applicant. The applicant had suggested that she might have been assaulted by two other men earlier in the day, and that she had subsequently fallen down some stairs. Having regard to the evidence, the Court observed that it seemed “overwhelmingly probable” that the attack on the deceased by the applicant was the sole cause of all significant injuries. The judgment continues (at p. 149):

“In point of law, however, it is unnecessary to go so far: it is sufficient if the injuries caused by the applicant were related to the death in more than a minimal way.”
68. The appellant has not in this appeal pursued the argument that the Davis test was incorrect.
Novus actus interveniens
69. In R. v. Pagett (1983) 76 Cr App R 279 the appellant had been using his girlfriend as a “human shield” while firing at policemen. They returned fire and she was killed by their shots. In his appeal against a conviction for manslaughter, it was argued inter alia that the trial judge should have ruled that where the act which immediately resulted in fatal injury was the act of another person, albeit in legitimate self-defence, then the ensuing death was too remote or indirect to be imputed to the original aggressor. It was submitted that there either was, or as a matter of policy should be, a rule of English law that no man should be convicted of homicide unless he himself, or another person acting in concert with him, carried out the act which was the immediate cause of the victim’s death.

71. The Court stressed that the prosecution must prove the essential ingredients of murder, including intent. However, it should be explained to juries that the accused’s act need not be the sole, or even the main, cause of death for his act to be held to have caused the death.
Medical intervention as novus actus interveniens
72. I propose to begin with consideration of the judgments of the Supreme Court in Re A Ward of Court. That case was not, of course, concerned with questions of criminal liability. Rather, the Court was dealing with the lawfulness of a decision to withdraw medical treatment involving antibiotics and artificial feeding, which would necessarily result in the death of the ward. The judgments are not, therefore, directly related to questions of causation or attribution of responsibility. However, certain passages are pertinent to the issue before this Court.

“That would be unlawful. There is no question of approving, even in a case of the most horrendous disability, a course aimed at terminating life or accelerating death. The court is concerned only with the circumstances in which steps should not be taken to prolong life.”
74. Hamilton C.J. stated that this principle applied with even greater force in this jurisdiction, and that any course of action aimed at terminating life or accelerating death would be unlawful.
75. At p.124, as part of a discussion of the content of the constitutional right to life, he said:

78. At p. 128 he said:

“The true cause of the ward’s death will not be the withdrawal of such nourishment but the injuries which she sustained on the 26th April, 1972.”
79. O’Flaherty J. agreed that the case was not about euthanasia, saying (at p. 130)
“[E]uthanasia in the strict and proper sense relates to the termination of life by a positive act. The declarations sought in this case concern the withdrawal of invasive medical treatment in order to allow nature to take its course.
The ward may be alive but she has no life at all…”

80. He endorsed the view that it was in the best interests of the ward that nature should be allowed to take its course without artificial means of preserving what was technically life, but life without purpose, meaning or dignity.
81. Blayney J. considered that the following passage from the judgment of the High Court was fully compliant with the constitutional obligation to respect the ward’s life:

“I have come to the conclusion that the benefit to the ward of sustaining her life by the present abnormal artificial means of nourishment is far outweighed by the burdens of so sustaining life with absolutely no prospect of any improvement in the ward’s condition. Accordingly, I find that it is in the best interest of the ward that the abnormal artificial nourishment, whether by nasogastric or by gastrostomy tube, should be terminated, thus ceasing artificially to prolong her life to no useful purpose and allowing her to die in accordance with nature with all such palliative care and medication as is necessary to ensure a peaceful and pain free death.”
82. Denham J. noted that the situation had arisen because of the application of advanced medical science. If it were not for that, the ward would not have survived a catastrophe that had occurred over 20 years earlier. She said (at p. 146):
“The case illustrates the problems arising out of modern medical technology and consequent legal issues. These matters have not been addressed by the Oireachtas so it falls to be decided by this Court in accordance with the Constitution and the common law.”
83. At p. 158 Denham J. referred to the decision to be made – whether to continue the medical treatment or not – and observed that to continue it would be as much a decision as not to do so. She went on:
“It is not pertinent whether the treatment is ordinary or extraordinary medical treatment. Consent of the adult with capacity is necessary for either ordinary or extraordinary medical treatment.
However, the nature of the medical treatment here is pertinent to the ward’s condition. The medical treatment is invasive. This results in a loss of bodily integrity and dignity. It removes control of self and control of bodily functions…Whilst an unconscious patient in an emergency should receive all reasonable treatment pending a determination of their best interests, invasive therapy should not be continued in a casual or ill considered way.”

84. Having analysed the constitutional aspects of the issue and found that what was at stake was a personal right of the ward, Denham J. moved on to the issue of causation. At p. 165 she said:
“Twenty three years ago, the ward suffered major injury to her brain during a minor gynaecological operation. If it were not for modern medical technology, utilised after the catastrophe, she would have died long since. She has been kept alive by modern medical science and the dedicated care and skill of the medical and nursing professions…
If this Court determines that the order of the High Court be upheld then, those acts so ordered being lawful, the ward would die shortly as a result of the medical catastrophe which occurred 23 years ago…”

85. In the criminal law context, the Court has been referred to a number of authorities dealing with the effect of medical intervention on the question of causation.
86. In R. v. Smith [1959] 2 Q.B. 35, the victim of stabbing in an army barracks had been dropped twice while being brought for medical treatment. He had then been given treatment described in court as “thoroughly bad”, which “might well have affected his chances of recovery”. He died about two hours after being stabbed. There was evidence that if he had received immediate and different treatment he might not have died. If a blood transfusion had been available he would have had a 75% chance of survival.

87. In the appeal against a conviction for murder it was argued that there had been a break in the chain of causation. The Court of Appeal said:

“It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that death does not flow from the wound.”
88. The Court in Smith contrasted what had occurred with the facts of R. v. Jordan (1956) 40 Cr. App. R. 152, where there was evidence that the deceased had been treated with a medication to which he had already shown intolerance, at a time when the original injury had mainly healed. In the latter circumstances a reasonable jury properly directed could not say that there had not been a break in the chain. In the case before the Court in Smith, the facts could lead only to one conclusion: that the death resulted from the original wound.
89. R. v. Blaue [1975] 1 WLR 1411 raised the problem of a victim who declines medical treatment. The victim was a Jehovah’s Witness, who refused to accept a blood transfusion. On the question whether her decision, claimed to have been unreasonable, had broken the chain, the Court of Appeal said:

“It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim’s religious belief which inhibited him from accepting certain kinds of treatment was unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death.”
90. The cases of R. v. Malcherek and R. v. Steel [1981] 1 W.L.R. 690 were each concerned with a situation where the victim of an assault had been placed on a life-support system. At a certain stage in each case the treating doctors had decided to disconnect the machines, on the basis of a diagnosis of brain death. In each case the assailant was convicted of murder. The issue in each case was whether the jury should have been permitted to consider whether it was the switching off of the ventilator and the life support machines that was the actual cause of death.
91. The Court of Appeal held that the discontinuance of treatment had not broken the chain of causation between the initial injury and death. It was observed by the Court that in each case the initial assault was the reason for medical treatment being necessary, and that in each case the treatment had been normal and conventional. The Court referred to Jordan and Smith, and said that if a choice had to be made between them it would prefer Smith, but that the facts in Jordan were so exceptional that the choice did not fall to be made.

“There may be occasions, although they will be rare, when the original injury has ceased to operate as a cause at all, but in the ordinary case if the treatment is given bona fide by competent and careful medical practitioners, then evidence will not be admissible to show that the treatment would not have been administered in the same way by other medical practitioners. In other words, the fact that the victim has died, despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death.”
93. The discontinuance of treatment in the circumstances of the case was held not to have broken the chain.
Proof of causation
94. In The People (Director of Public Prosecutions) v. Murphy [2005] 4 IR 504 the body of the deceased had been found in an outdoor location about three weeks after she had disappeared. The body had been damaged by animals to the extent that the pathologist could not determine a cause of death, although he could say that she was a young person in good health, making a death by natural causes unlikely. The case against the appellant depended on admissions, DNA and some circumstantial evidence.

Evidence relating to duress
96. Members of the Gardaí encountered the appellant very shortly after the shooting. According to their evidence, he immediately admitted having shot Mr. Kenny, and said that he had done so “due to circumstances”. He said that he had been “done a favour” and this was how he had to repay it. “It was him or me.” The appellant was then arrested. He subsequently signed a note of this conversation.

100. The accused applied to the learned trial judge for a ruling as to the availability of duress as a defence to a charge of murder. The application was made in the knowledge that, as counsel said, it was in the teeth of the authorities, but with the purpose of ensuring that the issue could be considered on appeal. The learned trial judge ruled that the current state of Irish law was that duress could not be availed of as a defence to murder.
The decision of the Court of Criminal Appeal on duress
101. In its decision on the appeal, the Court referred to the decision in Attorney General v. Whelan [1934] IR 518, in which, in the course of a discussion about the general availability of duress as a defence the Court of Criminal Appeal had said:

“The application of this general rule must however be subject to certain limitations. The commission of murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the strongest duress would not be any justification.”
102. In The Director of Public Prosecutions v. Patchell (ex tempore, Court of Criminal Appeal, 10th June, 2013) the Court of Criminal Appeal was invited to overturn Whelan and declined. The Court said that quite apart from considerations of policy, a change in the law would have to be a matter for the legislature.
103. In the instant case, the Court of Criminal Appeal said that the matter had recently been revisited in Patchell and that the limited arguments and material advanced by the appellant did not afford any compelling basis for departing from that decision.

104. In deciding to grant a certificate for leave to appeal, the Court said:

Submissions on duress
105. On behalf of the appellant it is accepted that the issue may be seen as a policy matter, but it is submitted that this Court has power to alter the parameters of the defence of duress as it did with provocation in The People (Director of Public Prosecutions) v. MacEoin [1978] I.R. 27 and with self-defence in The People (Attorney General ) v Dwyer [1972] 1 I.R. 416. The only change being argued for here, it is said, is to overrule the dictum in Whelan.
106. It is submitted that the passage quoted above from Whelan must be seen as obiter. The statement that duress is not available as a defence in murder traces back to Hale’s Pleas of the Crown, but Hale believed that it was similarly unavailable in peacetime in respect of treason and robbery and the caselaw does not support that contention. Reference is made to comments by McCauley & McCutcheon in Criminal Liability (Sweet and Maxwell, 2000) where it is stated that the status of Hale’s rule in twentieth century caselaw is “highly problematic”.

107. Reliance is placed on the decision of the House of Lords in Lynch v. The Director of Public Prosecutions for Northern Ireland [1975] AC 653, where it was held that there was no direct English judicial authority against the applicability of duress to a charge of murder, and that it should be permitted. Lynch was overturned in R. v. Howe [1987] AC 417, but the Law Commission of England and Wales has consistently recommended that duress should be a defence. In South Africa, in the case of S. v. Goliath [1972] 3 (Translation) SA 1 it was held that duress should be available as a defence to murder.

110. The respondent submits that Whelan and Patchell were correct, and that it has been recognised for centuries that duress is not a defence to murder apart from the subsequently-overturned decision in Lynch. The recommendations of the English Law Commission have never been implemented, and the Law Reform Commission’s publication is a consultation paper. It is submitted that this is settled law and that it is based primarily on the sanctity of life. Alteration of this position would be a change of such import and potential consequences that, having regard to the separation of powers, it could be undertaken only by the legislature and not by the courts.
The authorities
111. Attorney General v. Whelan [1934] IR 518 is described by McCauley & McCutcheon as “arguably the first twentieth-century case in which the defence actually succeeded, at least on this side of the Atlantic”. The appellant had been charged with receiving stolen money. The jury brought in a special verdict, finding that he had acted under threat of immediate death or serious violence. The trial judge considered that this amounted to a conviction, on the basis that duress was not a defence in law but merely went to mitigation. However he granted a certificate for leave to appeal on the question whether the verdict amounted to an acquittal.

112. In the appeal, it was argued by counsel that compulsion was a good defence save in cases of murder. (The acceptance that the latter was an exception was based on the decision in R. v. Dudley and Stephens 14 QBD 273.) The prosecution accepted that actual physical force which left the accused no choice of will would absolve from guilt, but submitted that anything short of such force was a matter for mitigation only.

115. R. v. Dudley and Stephens was described by the Court as affording no assistance other than to show the difficulty of formulating a rule of universal application.

116. The Court noted that counsel had been unable to discover any more recent authority and concluded:

“The matter before the Court must therefore be approached from the standpoint of general principle. It seems to us that threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal. The application of this general rule must however be subject to certain limitations. The commission of murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the strongest duress would not be any justification. We have not to determine what class of crime other than murder should be placed in the same category. We are, however, satisfied that any such consideration does not apply in the case of receiving. Where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at the time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats.”
117. This seems to be the only twentieth-century Irish authority on duress. The next recorded case dealing with the issue appears to be The People (Director of Public Prosecutions) v. Dickey (unrep., Court of Criminal Appeal, 7th March, 2003). In that case the Court quashed a conviction relating to the importation of drugs, on the basis that in charging the jury the trial judge had not outlined the evidence upon which the appellant’s plea of duress had been put forward.
118. In DPP v. Patchell (ex temp., Court of Criminal Appeal, 10th of June, 2013), the Court of Criminal Appeal engaged directly with the question whether that Court had the power to extend the availability of the defence of duress to a charge of murder. In giving the judgment of the Court, Hardiman J. said:

“[I]n this case, far-reaching issues have been raised, but they can be simply resolved. The defence of duress is not available in this jurisdiction to a charge of murder. This was so at common law. It was so at — and it was the state of the common law when it was taken over expressly in this jurisdiction in 1922 and again in 1937, and that is the position. There’s also manifestly very good reason why that should be so. This man who comes before the Court is, on his own admission, a person involved in drugs who had a dispute with the dead man, Mr O’Halloran, about some cocaine, who undoubtedly killed him and who says, when taxed with the killing, in effect, “They made me do it.” The policy reasons for the state of the common law are not far to see. But, for present purposes, it’s sufficient to say that duress is not available to a charge of murder. If the defendant had been charged, not with murder, but with some offence to which the defence was available, it would be, we may observe obiter, probably unavailable on these facts by reason of the long delay, the lack of any immediacy in any threats, if any, the failure to make any attempt to seek the protection of the state in the form of the gardaí, and the sheer improbability of the account of the appellant appears to make it of dubious utility even if it were available. But the salient feature is that it is not available, to which the appellant makes the case, well, he says to the Court, well, you could change that just like he says this Court changed the law in relation to provocation in the case of MacEoin in the mid ’70s. Well, the case of MacEoin has been much commented, and this Court is [not] going to make any further comment on it.
We will say that if the law were to be changed […], notwithstanding the policy reasons which are so clear that a child could understand them and are perfectly illustrated by the facts of this case, it is plainly a matter for the legislature rather than for the Court to do so. The powers of government are divided into the legislative, the executive and the judicial, and these are separately constituted in Article 6 of the Constitution. This Court and the Supreme Court have been clear and emphatic in rejecting any improper legislative intervention in the area of the courts’ remit, and for consistency we must equally insist firmly on the exclusive jurisdiction of the executive in matters within its remit. The Court is far from calling for the attention of the legislature to this particular area, but if the matter were to be addressed, as seems to be implicit in the Law Reform Commission’s paper, it is for the legislature to address.”

119. In the intervening years, there had been significant developments in other jurisdictions. In South Africa, in 1972, the Appellate Division held in S. v. Goliath (1972) 3 (Translation) SA 1 that duress could constitute a complete defence to murder. In so holding the Court was answering one of two questions reserved to it by a trial court, which had found that one accused acted under the compulsion of the other.
120. The judgment ranges far and wide across Roman Dutch law, the Civil Codes of the Continent and ethical and philosophical writers as far back as Aristotle, as well as English common law. Unfortunately the translated version available to this Court omits most if not all quotations from these sources. The passages relied upon by the appellant are at p. 480 of the report, from the majority judgment given by Rumpff J.A., and read as follows:

“When the opinion is expressed that our law recognises compulsion as a defence in all cases except murder, and that opinion is based on the acceptance that acquittal follows because the threatened party is deprived of his freedom of choice, then it seems to me to be irrational, in the light of developments which have come about since the days of the old Dutch and English writers, to exclude compulsion as a complete defence to murder if the threatened party was under such strong duress that a reasonable person would not have acted otherwise under the same duress. The only ground for such an exclusion would then be that, notwithstanding the fact that the threatened person is deprived of his freedom of volition, the act is still imputed to him because of his failure to comply with what has been described as the highest ethical ideal.
In the application of our criminal law, in the cases where the acts of an accused are judged by objective standards, the principle applies that one can never demand more from an accused than that which is reasonable, and reasonable in this context means, that which can be expected of the ordinary, average person in the particular circumstances. It is generally accepted, also by the ethicists, that for the ordinary person in general his life is worth more than that of another. Only they who possess the quality of heroism will intentionally offer their lives for another. Should the criminal law then state that compulsion could never be a defence to a charge of murder, it would demand that a person who killed another under duress, whatever the circumstances, would have to comply with a higher standard than that demanded of the average person. I do not think that such an exception to the general rule which applies in criminal law is justified.”

121. In 1975 the House of Lords decided the case of Director of Public Prosecutions for Northern Ireland v. Lynch. The case against the appellant on a charge of murder was that he had driven a car containing three other men to a particular place, where the men murdered a policeman. He then drove them back to their starting point. The appellant’s case was that he had been instructed to drive and believed that he would be shot if he did not.
122. The House of Lords divided on the question whether the defence of duress was available. The majority (Lord Morris, Lord Wilberforce and Lord Edmund-Davies) held that it was open to a person accused as a principal in the second degree.

123. Lord Morris referred to the view of writers including Stephen (the reference being to History of the Criminal Law in England, 1883, vol.2, pp. 107-108) that duress should never furnish an excuse from guilt, but only operate to mitigate punishment. However, he felt that it was much too late, having regard to authority, to adopt that view. In any event he did not consider such an approach to be just.

“The law must, I think, take a common sense view. If someone is forced at gunpoint either to be inactive or to do something positive – must the law not remember that the instinct and perhaps the duty of self-preservation is powerful and natural? I think it must. A man who is attacked is allowed within reason to take necessary steps to defend himself. The law would be censorious and inhumane which did not recognise the appalling plight of a person who perhaps suddenly finds his life in jeopardy unless he submits and obeys.”
124. Lord Morris stressed the fact that the case concerned an alleged principal in the second degree, and that he was confining his decision to that issue. It might be that the law must deny such a defence to the actual killer, and that the law would not be irrational if it did so. In this regard he considered that the following passage from Hale should not be assumed to cover accessories, aiders and abettors:
“Again, if a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant’s fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact; for he ought rather to die himself, than kill an innocent.”
125. Lord Morris referred to the judgment of the Court of Criminal Appeal in Whelan. Noting the obiter dicta as to the limitations of the general principle, he said that no consideration was given in that judgment as to the position of a principal in the second degree.
126. Having regard to all of the authorities, he concluded that it had been “firmly held” by the English courts that duress can afford a defence in a criminal case, and that “general reasoning and the requirements of justice” meant that it should be open as a possible defence in the case of an aider and abettor.

“Indeed, to justify the deliberate killing by one’s own hand of another human being may be something that no pressure or threat even to one’s own life which can be imagined can justify – no such case ever seems to have reached the courts.”
128. However, he considered that there were degrees of heinousness even in murder, and that an accessory, aider or abettor might bear a lesser degree of guilt. Therefore, to say that the defence might be admitted in relation to some degrees of murder, but that it should be so difficult in relation to a direct killing by a principal as almost to justify a ruling that it was not available, would not be illogical.
129. Lord Wilberforce summarised the authorities as establishing that the defence of duress had been known to the law since the 14th century; that it absolved from guilt rather than merely mitigating punishment; and that there was no direct English judicial authority against its application to charges of murder. He cited, with apparent approval, the passage quoted above from S. v. Goliath, and deduced the conclusion that

“[a]lthough, in a case of actual killing by a first degree principal the balance of judicial authority at the present time is against the admission of the defence of duress, in the case of lesser degrees of participation, the balance is, if anything, the other way. At the very least, to admit the defence in such cases involves no departure from established decisions.”
130. At p. 684 he said:
“The broad question remains how this House, clearly not bound by any precedent, should now state the law with regard to this defence in relation to the facts of the present case. I have no doubt that it is open to us, on normal judicial principles, to hold the defence admissible. We are here in the domain of the common law: our task is to fit what we can see as principle and authority to the facts before us, and it is no obstacle that these facts are new. The judges have always assumed responsibility for deciding questions of principle relating to criminal liability and guilt, and particularly for setting the standards by which the law expects normal men to act. In all such matters as capacity, sanity, drunkenness, coercion, necessity, provocation, self-defence, the common law, through the judges, accepts and sets the standards of right-thinking men of normal firmness and humanity at a level which people can accept and respect. The House is not inventing a new defence: on the contrary, it would not discharge its judicial duty if it failed to define the law’s attitude to this particular defence in particular circumstances. I would decide that the defence is in law admissible in a case of aiding and abetting murder, and so in the present case. I would leave cases of direct killing by a principal in the first degree to be dealt with as they arise.”
131. Lord Edmund-Davies was the third member of the majority and expressed similar views. Lord Simon and Lord Kilbrandon dissented.
132. The next development was the decision of the Privy Council in Abbott v. R. [1977] AC 755. In that case the appellant was charged as a principal in the first degree, and the issue was whether the defence of duress was available. On this occasion Lord Wilberforce and Lord Edmund-Davies were in the minority, with Lord Hailsham, Lord Kilbrandon and Lord Salmon holding that the defence was not open. The majority judgment proceeded on the basis that the Court was bound to “loyally” accept the decision in Lynch, but that it was not an authority which required extension of the doctrine of duress to such a case. Having regard to the doubts expressed in the speeches of the majority as to the applicability of their reasoning to persons who actually carry out killings, combined with the dissenting speeches, it was considered that a majority of the House in Lynch had to be seen as being of the opinion that it should not be extended.

“We have been reminded that it is an important part of the judge’s role to adapt and develop the principles of the common law to meet the changing needs of time. We have been invited to exercise this role by changing the law so that on a charge of murder in the first degree, duress shall entitle the killer to be acquitted and go scot-free. Their Lordships certainly are very conscious that the principles of the common law must not be allowed to become sterile. The common law, as has often been said, is a living organism. During the last decade there have been many important cases in which its principles have been adapted and developed by the judges….Their Lordships however are firmly of the opinion that the invitation extended to them on behalf of the appellant goes far beyond adapting and developing the principles of the common law. What has been suggested is the destruction of a fundamental doctrine of our law which might well have far-reaching and disastrous consequences for public safety to say nothing of its important social, ethical and maybe political implications. Such a decision would be far beyond their Lordships’ powers even if they approved…Judges have no power to create new criminal offences; nor in their Lordships’ opinion, for the reasons already stated, have they the power to invent a new defence to murder which is entirely contrary to fundamental legal doctrine accepted for hundreds of years without question. If a policy change of such a fundamental nature were to be made it could, in their Lordships’ view, be made only by Parliament.”
136. The Privy Council did accept that a murderer who killed under duress would in many cases be less blameworthy than one who killed of his own free will. It was suggested that the appropriate approach to this issue would be to provide that duress, like provocation, should reduce murder to manslaughter and thus allow the trial court to pass a sentence based on all the circumstances of the case.
137. Ultimately, Lynch was overruled in R v Howe [1987] 1 A.C. 417. This judgment deals with two separate cases, in each of which the appellants had been actual participants in killing. The Court of Appeal certified a question as to the availability of duress as a defence in the circumstances.

“the balance of weight in an unbroken tradition of authority dating back to Hale and Blackstone seems to have been accepted to have been that duress was not available to a defendant accused of murder.”
139. It had been submitted in the course of argument that there might be a “half way house” available, in that duress could be treated as analogous to provocation, with the effect of reducing the crime of murder to manslaughter. Lord Hailsham said of this proposal:
“I find myself quite unable to accept this. The cases show that duress, if available and made out, entitles the accused to a clean acquittal, without, it has been said, the ‘stigma’ of a conviction. Whatever other merits it may have, at least the suggestion makes nonsense of any pretence of logic or consistency in the criminal law. It is also contrary to principle.”
140. Lord Bridge said that it was never open to the House of Lords, in its judicial capacity, to make such a fundamental reform of the law as that involved in Lynch. If duress was to be made available generally as a defence to murder, the proper means to introduce it would be by legislation such as that proposed by the Law Commission. This was because it was for Parliament to decide whether the proposed reform was socially appropriate, but also because it was by legislation alone, as opposed to judicial development, that the scope of the defence could be defined with the necessary degree of precision.
141. Lord Griffiths said (at p. 439):

“For centuries it was accepted that English criminal law did not allow duress as a defence to murder. It was so stated in Hale’s Pleas of the Crown (1736), vol. 1, p. 51, repeated by Blackstone in his Commentaries on the Laws of England, 1857 ed., vol. 4, p. 28, and so taught by all the authoritative writers on criminal law. It was accepted by those responsible for drafting the criminal codes for many parts of the British Empire and they provided, in those codes, that duress should not be a defence to murder. In Reg. v. Tyler and Price (1838) 8 C. & P. 616 , Denman C.J. told the jury in emphatic language that they should not accept a plea of duress that was put up in defence to a charge of murder against those who were not the actual killers. Fifty years later, in Reg. v. Dudley and Stephens (1884) 14 QBD 273, the defence of necessity was denied to the men who had killed the cabin boy and eaten him in order that they might survive albeit only Stephens was the actual killer. The reasoning that underlies that decision is the same as that which denies duress as a defence to murder. It is based upon the special sanctity that the law attaches to human life and which denies to a man the right to take an innocent life even at the price of his own or another’s life.”
142. He considered that, even after Lynch, the whole weight of authority denied the defence to the actual killer. The Law Commission had, in the intervening period, produced a report in which it was recommended that the defence should be available in all cases, but the draft bill annexed to the report prescribed far narrower terms than previous judicial definitions and would require legislation. Parliament had not acted on the proposal.
143. Lord Griffiths saw no fair and certain basis for distinguishing between different modes of participation, and held that the defence should not be available in a charge of murder. He also rejected the compromise solution of declaring that duress could reduce murder to manslaughter. Where duress was available it was a complete excuse. English law had rejected the line of argument that saw it as mitigation only, and the proposed solution would put the law back to that line or else create a new anomaly.

“I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases. But there are limits to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations: that must be left to legislation. And if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty.”
145. Lord Mackay also took the view that, having regard to the balance of authority, Lynch was incorrectly decided. It marked a substantial change in the law and a departure from the decision in R. v. Dudley and Stevens. The dilemma faced by the accused in that case was the same as that faced by a defendant who killed as the only way of avoiding death himself or preventing the death of a loved one.
146. He considered that to change the law in the manner suggested would introduce uncertainty over a field of considerable importance, and on a topic about which there were already many unanswered questions.
Discussion

Question 1 – causation
147. The authorities discussed above seem to me to demonstrate the following principles:

(iii) It is an aspect of the Constitutional right to life that, in an appropriate case, a decision may be made that it is in the best interests of a patient to withdraw medical treatment of an invasive nature (In Re A Ward of Court). That decision can involve a choice to let nature take its course where continuation of such treatment serves no curative purpose. Where such a decision is made, the cause of death remains the original injury unless there has been, in the intervening period, a true novus actus interveniens.

(iv) A novus actus interveniens in this context would be something that is so independent of the act of the accused that it should be regarded in law as the cause of death. The fact that the immediate cause of death is an act by a third party does not necessarily break the chain of causation where that act is brought about by the act of the accused and is itself lawful and reasonable (Pagett).

148. In any of these situations, which may arise in any case where the assault does not result in immediate death, the actual date of death will be influenced by factors beyond the actions of the accused. In the absence of a true novus actus interveniens that does not mean that that the chain of causation is broken.
149. Where a person is shot in the head and thereby sustains serious brain injury, paramedics and medical professional personnel will where possible attempt to save the life of the victim. Such efforts may often mean that life will be prolonged to an extent that would not otherwise have been possible. In the modern era, that may well involve a brain-injured victim surviving in a persistent vegetative state, or a condition akin to that, for a lengthy period of time. That in turn may eventually produce a situation where a decision is properly and lawfully taken to withdraw a particular treatment. In the appropriate circumstances this must be seen as part of the range of appropriate medical treatments available. It is not open to the assailant, who brought about the situation whereby the victim required medical treatment, to argue that an otherwise appropriate choice of treatment from that range has altered his or her responsibility.

153. To hold, in these circumstances, that the act of the appellant caused the death does not involve visiting upon him the consequences of a decision made by others – it entails recognition of the fact that he is responsible for the condition that ultimately led to the death. Whether one describes his action as being an operating and substantial factor, or as a more than minimal factor, the result will be the same.
Question 2 – duress
154. It is clear from reading the authorities cited above that this is a subject that can give rise to strong arguments on either side of the policy issues, often expressed with powerfully rhetorical effect. I have omitted much of the policy discussion because it seems to me that the first consideration is whether this Court has the power to rule, in the applicant’s favour, that duress is a defence available on a charge of murder.

“As far as [common law principles are] concerned, it is plain that whereas the courts have a traditional role in extending and developing the common law (and thus, where necessary, overruling earlier Supreme Court decisions), there are recognised boundaries beyond which the courts cannot go. In other words, while the Supreme Court has latitude to relax the stare decisis rule where to do otherwise would be to re-inforce an earlier decision which is erroneous or not in harmony with modern legal values, nevertheless considerations of judicial continuity together with the maxim communis error facit jus place real restraints on that freedom where the Court is asked to overrule a decision of long-standing or uproot a rule which has become embedded in the fabric of the common law.”
160. In my view, what the appellant seeks here is not the development or extension of existing principles. It is the uprooting of a rule embedded for some hundreds of years in the common law, and the creation of an entirely new rule to apply, as the Court sees fit, to a greater or lesser extent. This is not put forward on the basis of any claim of Constitutional right, but purely on the basis that some other courts of other jurisdictions have preferred the policy of the proposed new rule and the argument that this Court is free to follow that policy.
161. This is not what occurred in either Dwyer or MacEoin. Dwyer, in its consideration of the subjective element in self-defence, was based largely on the Supreme Court’s interpretation of the then relatively recently-enacted s.4 of the Criminal Justice Act, 1964 and its implications for the concept of intention. In MacEoin, the Court of Criminal Appeal was also concerned with that section in relation to the proper test for provocation. It disagreed with a number of English authorities on the issue, and in the absence of any Irish authority set out its own formulation intended to accord with that in Dwyer. The case of J.C. was based, as were the preceding decisions in O’Brien and Kenny, on the Supreme Court’s view of the correct Constitutional approach to the relevant rules of evidence. This Court is the final arbiter on Constitutional matters, and has in certain defined circumstances the right to depart from its own earlier decisions.

163. In the circumstances I would answer the questions respectively “Yes” and “No”.

DPP v Gleeson

[2016] IECA 332
Judgment of the Court delivered by Mr. Justice Mahon on 14th day of November 2016
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 in DPP 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 in Dickey 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 reasonable persons. Particularly, when somebody seeks an exemption in relation to conduct that is otherwise criminal. It is fair and logical that the appropriateness and proportionality of the response to a threat are tested by reference to objectively reasonable standards as they are, for example, in the general area of the law for the use of force. This question must be answered in the way because everybody has to be judged by the same standards. The reactions of the reasonable person may or may not be the same as the reactions of any particular accused. You are here to represent society and community as a whole, and you set the standards of what is reasonable. In judging what a reasonable person would do you are not expected to imagine a saint or a particularly weak or a particularly touch or hard individual, and therefore you should adopt the posture of a reasonable person, being a sober person of reasonable firmness of the accused 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?”
12. Following the charge to the jury, counsel for the appellant made a requisition in relation to that part of the learned trial judge’s charge relating to the issue of duress and how the jury should approach that issue in the case.
13. The learned trial judge ruled in relation to the requisition thus:-

“But, I am satisfied, as I say, having considered all the authorities, and indeed Ms. Coonan in her book seems to accept that there is no clear cut guidance in relation to this from the Court of Criminal Appeal, but from my interpretation of the authorities, it is on that basis that I have given my charge, and I don’t propose to recharge in relation to that. Now, in relation to the immediacy of the threats, I just wonder having given the jury quite a lot to digest in relation to that, is it nit-picking in relation to something that .. I have told them that any threats that Mr. Gleeson received afterwards and what I was referring to was the note, threats of that nature, could not be perceived to be an immediate threat in terms of how they to view duress. And I think you would accept that does apply.”
14. The learned trial judge however did re-address the jury in the following terms:-
“.. You may recall in dealing with the issue of duress we looked at the immediacy of the threat, and Mr. Colgan has asked me to point out to you, and I have agreed to do that, because I think it is appropriate in this case, that in relation to the immediacy of the threat, we know in this case that Mr. Gleeson has indicated that he was under duress to go and to collect these drugs, and that it has been his intention obviously to dump them. That is what his evidence is. It is a matter whether you accept that nor not. But that the threat clearly would only have been carried out at a later stage, in other word, that the immediate threat, in other words the threat to his family’s life etc., or threat to his own life was not going to be carried out .. need not necessarily have been carried out in advance of the incident. It as the threat hanging over him that could, in fact, be carried out a few days later, when he had to face these people, whether that was with the drugs or without. You know he indicated, his indication was that the drugs were going to be dumped. But at some stage he was going to have to face these individuals. Mr. Colgan has asked me to point out to you that, you know, the threat did not have to be carried out there and then on the spot. In other words there did not have to be somebody standing there with a gun to get Mr. Gleeson to do this. The threat to life, whether his own or his family etc., could have been carried out in the days after the incident took place. So, I hope that assists you in some way.”
15. As correctly observed by Counsel for the appellant in the course of his requisition following the learned trial judge’s charge to the jury, that charge, insofar as it related to duress was on the basis that the test to be applied in determining whether there was duress is an objective test and not a subjective test. Specifically, the learned trial judge told the jury that:-
“It is an objective test, decided by reference to objective criteria and not to the accused’s subjective prespections..”
16. She referred to:
“The standards of honest and reasonable persons”
and
“…tested by reference to objectively reasonable standards as they are, for example, in the general area of the law for the use of force. This question must be answered in the way because everybody has to be judged by the same standards.
and
“The reactions of the reasonable person may or may not be the same as the reaction of any particular accused.”
17. If the test was that duress was required to be considered by the jury on a subjective basis, or a primarily subjective basis it would have been necessary for the learned trial judge to not only specifically and unequivocally invite the jury to apply such a test, it would also have been necessary to specifically refer to the fact in that context that the appellant was a prison officer, and that he worked in an environment which required him to interact on a daily basis with convicted criminals. Indeed it was suggested by Mr. Hanahoe responding to Mr. Colgan’s requisition to the effect that the jury should be re-addressed by the learned trial judge and informed that a subjective test was appropriate, that such might be disadvantageous to the appellant. Mr. Hanahoe stated:-
“If the jury was to adopt a subjective test the court might consider that it would have to inform the jury that what we are dealing with here is a prison officer who has ordinary congress or interaction with the people from whom the threats are meant to be emanating. He is used to dealing with criminals … so in fact what the subjective present in this case would, I say, point to the accused, Mr. Gleeson, having a far stronger ability to withstand threats than the ordinary man on the Clapham omnibus.”
18. The law on duress has, for over seventy years, been governed by the decision in The People (A.G.) v. Whelan [1934] IR 518. In the course of his judgment in that case, Murnaghan J. stated:-
“Threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal.”
19. This often quoted passage confirms and explains the defence of duress. It does not, however, assist in identifying, precisely, the criteria on which duress is to be assessed or confirmed in sufficient measure to result in a decision to exclude a finding of criminal responsibility for an act which, in the absence of duress, was criminal, and constituted the commission of a criminal offence. In DPP v. MacEoin [1978] I.R. 27 the facts were that the appellant was convicted by a jury of murder. At the trial, the appellant admitted that he struck the deceased with a hammer. Both men had met while serving prison sentences some years earlier. Subsequently they moved into a flat together. On the date of the killing, the deceased has consumed a very large quantity of alcohol. A row started, the deceased hit the appellant on the head with the hammer, it fell to the floor, both of them struggled for it, the appellant got the hammer, the deceased started to punch him whereupon the appellant claimed that he lost control of himself and hit the deceased on the head with the hammer and continued to hit him a number of times after he had fallen to the floor. The appellant claimed that he had been provoked into attacking the deceased. The issue addressed by the learned trial judge in his charge to the jury related to provocation and whether it had to be such that it made the accused unable to form an intention to cause serious bodily harm. This aspect of the charge was found to have been flawed, and the appeal was allowed on that basis.
20. In the course of delivering the judgment of the court, Kenny J. stated the following:-

“This would be sufficient to dispose of this appeal, but on the retrial, the question will arise as to whether the provocation must be acts or words which would cause a reasonable man to be provoked so that he temporarily loses control of himself and which actually cause the accused to cease to be master of himself (the objective test) or whether it is sufficient for him to raise a case that he was provoked by what was done or said whether it was such as would provoke a reasonable man or not (the subjective test).”
21. Later in the judgment, Kenny J. stated:-
“The objective test is profoundly illogical: we assume that the reasonable man whom it propounds as the criterion is not the accused. If he were, the question would not be whether the reasonable man would be provoked but whether the accused was provoked. But what are the characteristics of this reasonable man? Is he to be endowed with the knowledge and temperament of the accused? Words which would have no effect on the abstract reasonable man may be profoundly provocative to one having knowledge of what people say about him. … These are difficulties which those who support the objective test have never attempted to answer.”
22. It is of course the case that MacEoin was concerned with the defence of provocation, not duress. While both are, of course, different, they have some similar characteristics, in that both are concerned with criminal behaviour prompted by third party pressure. Their difference was explained in Criminal Law (Charlton, McDermott and Bolger), in the following terms:-
“An extension of that reasoning can be argued as applying to duress. The difference between the two defences is, however, that provocation as a defence is a concession to human frailty; where a person acts in the throes of passion to the extent that he is no longer master of his actions. To limit the defence to provocation or provocation to circumstances where a hypothetical, ordinary or reasonable man would act as the accused did is often to exclude the defence from those who may deserve its protection. Duress on the other hand involves a rational choice between two evils.”
23. The defence of duress was an issue in the case of DPP v. Dickey [2003] WJSC/CCA at 3266. In that case the Court of Criminal Appeal considered the learned trial judge’s charge to the jury and criticised it because it failed to outline the evidence of how the appellant was put under stress and allowed the appeal on that basis. The Court of Criminal Appeal did not criticise the following extract from the learned trial judge’s charge in that case:-
“When you are considering this you have to consider it from the powers that you perceive the accused to have; it is not what you do in the situation but what you perceive the accused’s powers were, and take into account the particular circumstances and human frailties of the accused specifically..”..
24. Undoubtedly this short quotation is a reference to a subjective test, rather than an objective test.
25. In the Australian case of Lawrence [1980] 32 ALR72, Moffat P. stated:-

“The questions posed are not simply whether the defence of duress is subjective or objective. On any view the defence involved both elements. It would be available only if the mind of the accused is in fact (subjectively) overborne, but that there are some objective developments before the defence is available, is clear.”
26. 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.
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.
The CCTV issue
28. On the morning of the hearing of the appeal the appellant filed a Notice of Motion with a grounding affidavit (sworn by the appellant’s solicitor, Mr. Boyce). The Notice of Motion sought leave to introduce fresh evidence which had not been presented to the jury in the course of the trial. This additional evidence included the following:-

(i) The transcript of a subsequent trial of the outstanding counts on the same Bill (KE67/2010) which began on 23rd July 2013. (All relevant excerpts are already contained in the applicant’s submissions).
(ii) CCTV footage (2 cameras) retained by An Garda Síochána of a incident at Eurospar on 29th March 2010 disclosed and played during the course of the second trial. This footage is in the possession of An Garda Síochána.

(iii) The statement of the appellant made to An Garda Síochána regarding the above incident made on 20th April 2010.

29. The appellant also sought an order pursuant to Order 86(C), Rule 11 for the production of the said CCTV footage and the said statement.
30. In his affidavit, Mr. Boyce averred, at para. 4:-

“I say that at the subsequent trial (herein referred to as the second trial) of the outstanding counts, evidence that was not adduced at the first trial was disclosed to the defence for the first time during the course of that trial, specifically CCTV of an incident at Eurospar, Kildare town on 29th March 2010. The jury from the second trial were discharged on the grounds that the DPP failed to disclose this material to the defence at the first trial and up to, and including the second trial.”
and
“I say that on 20th April 2010, the appellant made a statement to An Garda Síochána relating to the said incident at Eurospar in which he claimed to have been intimidated by certain named individuals. This was disclosed at the second trial.”
31. The court duly permitted the introduction of the new evidence. It has viewed the short CCTV footage since the hearing of the appeal. That short CCTV footage shows a man and a child (apparently, the appellant and his young son) standing at, and then entering a lift (apparently, at the Eurospar premises in Kildare). It shows two men walking immediately behind the appellant and his young son (apparently, these two men are Messrs. Dillon and Moorhouse), and shows them walking away as a garda approaches. The court has also read the statement of the appellant made to An Garda Síochána dated 20th April 2010 and the transcripts of the second trial which commenced on 23rd April 2013. The relevant part of the statement is generally consistent with the events apparent from the CCTV footage. The appellant then (and at his trial) maintained that Messrs. Dillon and Moorhouse were convicted criminals and were involved in the intimidation relevant to his duress claim.
32. On the second day of the second trial the CCTV footage was made available to the defence for the first time. The CCTV was viewed by the defence, and an application was then made to discharge the jury in relation to this and other matters. The decision to discharge the jury was made by the learned trial judge only on the basis of the failure to provide the defence with the CCTV footage prior to the commencement of the trial. In her ruling, she stated:-

“However, the one matter that does concern me arises from the CCTV which we have seen this morning, and it concerns me because, not only was this not disclosed until this morning, although we became aware of it yesterday and thankfully the CCTV footage is still available so that we don’t have to head down the road of missing evidence, but this clearly shows Robert Dillon, who features prominently in this case, in the CCTV footage in the presence of the accused, and the accused said he was being intimidated by him along with another person. It also discloses, and Mr. Gleeson’s statement discloses, that he telephoned the gardaí and that they arrived, and as Dillon and Moorhouse saw the gardaí arriving they moved off. Now I did not enquire as to whether a statement had been taken from .. I should not have said ban gardaí .. from the gardaí that arrived and I was told no.”
and

.. but what is very clear from the CCTV and I have seen is that it coincides and corresponds with the complaint made, and it is not a situation where they are simply passing in the street. They was obviously some form of contact between them. ..”

33. Duress formed the thrust of the appellant’s defence in both trials. In the first trial, the jury was addressed by counsel for the respondent, Mr. Hanahoe, very much on the basis that the evidence did not disclose the existence of duress, or at least duress of such an immediate nature as might, in effect, disprove the allegation that the appellant was guilty of the various charges, on the basis that such offences had been committed by him freely and in the absence of duress.
34. In the course of her charge to the jury in the first trial, the learned sentencing judge stated:-

“Now, he reminds you that the accused raised the issue of duress from the very first moment that he was apprehended, and indeed he pointed to the area in the interview where, in fact, even on the way back to the garda station it would appear that the accused was indicating that he did these matters under duress. He also said that the explanations as to what Mr. Gleeson said in relation to his phone and the analysis, and all of that stacked up. And clearly it is not disputed in any way that the persons that Mr. Gleeson’s referred to as intimidating, that clearly all of these people are very serious and dangerous criminals. I don’t think anybody is disputing that. And as I say, you have all of their previous convictions. So in looking again, ladies and gentlemen, at what effectively is the defence in this case of duress, as I say, you must look to what the evidence in relation to the threats, whether or not they were immediate…”
35. In her written submissions to this court, the respondent observed that no evidence was called to contradict the appellant’s suggestion that he had been threatened by third parties, and in particular, Mr. Dillon, or that he had made multiple complaints of such threats to the gardaí, or that the gardaí had not taken such threats seriously. She went on to state that while the failure to disclose the CCTV footage was most unfortunate, and that because of the implicit acceptance by the prosecution that the accused had indeed been threatened on at least one occasion following his arrest, the failure to disclose the CCTV did not have any material impact on the case. She placed reliance on the decision in DPP v. McCarthy [2008] 2 I.R. 2 where the following was stated:-
“The court is satisfied however that the obligations of disclosure are not limitless nor are they to be assessed in a vacuum or upon a purely theoretical or notional basis. Nor is a conviction to be regarded as unsafe per se simply because there has been a partial failure on the obligations of disclosure. It is a question of degree in every case, having regard to the nature and importance of the material in question.”
36. That statement represents, in the court’s view, the correct statement of the law on the effect of a failure to disclose relevant evidence. What is particularly relevant however is the question of degree… having regard to the nature and importance of the material in question.
37. The prosecution have, in general terms, a duty to make all relevant evidence available to the defence. It is the case that the gardaí have a specific duty to seek out and obtain relevant evidence and to preserve it for possible use at a trial. In Braddish v. DPP [2001] 3 IR 127, Hardiman J. stated:-

“It is the duty of the gardaí arising from their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the guilt or innocence. This is so whether the prosecution propose to rely on the evidence or not, and regardless of whether it assists the case the prosecution is advancing or not.”
38. The verdict of the jury in the first trial clearly suggests that the jury was not convinced that the appellant had been subjected to duress of either a sufficient nature or of such immediacy as excused the appellant’s involvement in the criminal activity in question.
39. It is undoubtedly arguable that had the jury been provided with the opportunity to view the CCTV it might have averted any doubt they may have had that the appellant had been subjected to duress.

40. The effectiveness of CCTV footage in assisting a jury to decide the guilt or innocence of an accused person varies from case to case. It can however be, (and often is), very effective and persuasive if its visual impact is significant and the subject matter of the video coverage reasonably clear. In this case, the appellant maintained that his admitted involvement in the offences in question came about as a result of duress, and in particular a fear for his family if he did not cooperate with the demands of certain criminal elements. It was always possible that a jury would accept or reject such a defence. However, the benefit and evidential value of the jury seeing with their own eyes the scenario of the appellant and his son being approached by two criminals, and the fact that the two criminals moved away when a member of An Garda Síochána arrived on the scene is likely to have been of considerable impact had they viewed it. At a minimum, it is likely to have provided a significant degree of credibility to the case being made by the appellant that he was acting under duress from the individuals in question. It is a fact that the CCTV footage in question was in existence at the time of the first trial. Had it been available to the jury at the first trial it is probable that it would have been of considerable benefit to the appellant, and may have swayed the jury in a particular direction leading, ultimately, to his acquittal on all charges. Understandably, for this reason, the absence of the CCTV footage was of concern to the learned trial judge in the second trial. It may well have been the case that in similar circumstances, the learned trial judge in the first trial would have acted in a similar fashion.
Conclusion
41. The court will allow the appeal on the basis that:-

(i) The charge to the jury by the learned 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 this, 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,

42. In the circumstances, it is unnecessary for the court to make any determination in relation to those grounds of appeal which maintain 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.

People (DPP) v Gleeson [2018] IESC 53

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 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.

7. 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
8. 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 beyond reasonable doubt. While the trial judge should put the prosecution and defence cases and is entitled to comment on these, a judge should not enter into advocacy when expressing a view and should make it clear that the jury is the tribunal of fact unfettered by any apparent opinion expressed by the judge, save for directions on points of law. Any warning especial to the case or any explanation of any defence on which there is sufficient evidence for a jury to reasonably act should also be given. On this, see generally Attorney-General v Murray [1926] IR 266, R v Lawrence [1982] AC 510 per Lord Hailsham LC, Coonan and Foley – The Judge’s Charge in Criminal Trials (Dublin, 2008) chapter 2, and Archbold – Criminal Pleading, Evidence and Practice (66th edition, London, 2018) paragraphs 4-430 to 4-444.

9. In that context, it should be commented that the duty of counsel for the prosecution and the defence is to argue their respective cases. It is not the duty of the trial judge to contend for any particular scenario, nor is there a requirement to reiterate what is obvious. Moreover, since the trial judge has seen all of the case and must be presumed to have an appreciation of the building blocks of what the prosecution allege and how this is countered by the defence, or any evidence the defence may give, the judge is entitled to a measure of appreciation as to the manner in which it is felt right by him or her to approach directing the jury.

The origins of duress as a defence
10. Duress in criminal law exists as a concession to human infirmity. When faced with a threat unless some crime is committed, some immensely courageous persons may opt for their own death rather than to break the law. Fewer indeed would allow the death of their family instead of being party to some lesser form of crime, such as theft. But, even still, all are obliged to obey the law. That is why prohibitions, on pain of criminal sanction, exist. In 1933, commenting on the defence of duress, Murnaghan J noted that even someone with the experience of the criminal law as Sir James Fitzjames Stephen had never personally dealt with a case in which that defence was pleaded, and he further stated that there had been no reported case on the matter in then recent years; AG v Whelan [1934] IR 518. Since then, the authorities, and resulting academic commentary, have burgeoned. Many of the relevant decisions and texts have been argued on this appeal. Within academic writing on duress, it been noted that with the increasing organisation of individual criminals into gangs and with the rise in drug dealing, the defence is increasingly popular and now often pleaded; see Smith and Hogan’s Criminal Law (14th edition, London, 2015), paragraphs 12.2 to 12.3 and Fairall and Barrett – Criminal Defences in Australia (5th edition, 2017), chapter 8.

11. While the distinction between offences which are justified by a defence, such as the lawful use of proportionate force in response to an attack, and those which are excused, of which duress is one, no longer remains of practical consequence, the experience on which a defence was founded through the development of the common law remains important. In AG v Whelan , Murnaghan J analysed the defence of duress on the basis of principle. In the facts of that case, the accused, “under violent threats”, accepted into his possession some stolen silver coin from a theft carried out on a train by a dangerous criminal. On the duress being raised as a defence at trial, the judge asked the jury a question in this form: “In receiving the money did Peter Whelan act under threat of immediate death or serious violence?” to which they answered “Yes”. Since this answer by the jury also amounted to a finding that the accused had received stolen property, the trial judge entered a conviction, but he mitigated the sentence imposed by suspending it. The accused appealed his conviction. The Court of Criminal Appeal reasoned that duress operated as a defence in the circumstances accepted by verdict of the jury. Murnaghan J defined the elements which would establish duress as excusatory of a crime thus:

It seems to us that threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal. The application of this general rule must however be subject to certain limitations. The commission of murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the strongest duress would not be any justification. We have not to determine what class of crime other than murder should be placed in the same category. We are, however, satisfied that any such consideration does not apply in the case of receiving. Where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at the time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats.
12. This classic statement of the law has since been followed or referred to in a multiplicity of cases in common law jurisdictions. Most recently, this Court rejected duress as a defence to murder in Dunne v DPP [2017] 3 IR 1, substantially on the basis of the correctness of the reasoning in that decision.

Duress and intention or recklessness
13. While the language of Murnaghan J in AG v Whelan might at first glance seem to require duress to negate the mental element of any offence charged, so that the accused no longer intended or was reckless as to the criminal behaviour alleged, this would be to misread the decision. In duress, the accused will intend to steal or to import drugs, but that conduct is excused because of a superior will bearing down upon him or her as a compulsion to commit the crime. The 1922 edition of Archbold – Criminal Pleading, Evidence and Practice (26th edition, London, 1922), page 21, gives examples of duress which indicate a situation where the external element of the crime was not in fact perpetrated by the accused; as where a man takes the hand of another holding a knife and plunges it into the victim. In such a case of the overbearing by another of the physical power of resistance of the accused, the ostensible perpetrator of the offence is blameless. That may be both as to the external element of the crime and as to the mental element. A person can be used by another as an innocent instrument of crime. In effect, a person can be used as a weapon. The example given in Archbold is perhaps unlikely, since once a person holding a knife is subject to an assault, the normal reaction would be to resist. To take a different example, a person climbing a stairs might be subject to a sudden malicious push, falling backwards and so injuring the person behind them intended to be assaulted by an individual using their body as a weapon of assault. Similarly, someone driving a car might be shoved by their passenger so as to collide with a pedestrian or another car. In those cases, any intent to injure or any recklessness as to whether injury might result from those actions would be absent. The person manipulating them would, instead, be the guilty party. That would be both in relation to the external element of the offence and the mental element.

14. The defence of duress is not concerned with the manipulation of physical force through using another person as an innocent instrument of crime. The reality of duress is a concession to the kind of pressures and circumstances which can leave a person of ordinary firmness of will feeling that they have no option but to act under the direction of a criminal in the commission of a crime. This would be something that they did not want to do, but had to do, and would never have embarked on but for an unavoidable intrusion of criminal demand into their lives. Thus, the defence is not so much a concession to human weakness, since, as Murnaghan J comments, operative overpowering of a person’s will at the time of the commission of the crime is required such as to overbear the ordinary power of human resistance. Further, the decision in AG v Whelan requires that there be no time for the will to reassert itself, which modern analysis suggests relates to opportunities by the person under duress to access the protections of civil society, through the police or other authority.

15. In modern Irish society, we are far from unfamiliar with how any ordinary civic-minded thought of resistance to a criminal scheme may be overcome. It has happened that a bank manager arrives home to find his domestic tranquillity shattered by the presence of armed men. If he is then told to proceed to the bank with the men’s accomplices and to hand over money when a time lock disengages, no right-thinking person would consider a theft charge against the bank manager appropriate. Similarly, guns pointed at customers in a bank raid that result in tellers handing out cash to robbers means that their conduct could in no sense be regarded by any reasonable standard as theft. One does not become a party to a crime by being coerced into a crime through being overborne by duress.

16. As the examples of kidnapping by invasion and cooperation through armed coercion illustrate, the individual circumstances whereby duress is claimed to be applicable are crucial to the validity of the defence. But, because a claim of coercion is easily made and because organised crime and paramilitary subversion, once participated in by joining or associating with a gang, in itself typically disciplined through coercion, the defence of duress must be circumscribed so as to exclude volunteers to violent criminal enterprise. Duress as a defence must be defined in such a manner that it does not become a handy excuse for conduct which the law proscribes.

Duress and the burden of proof
17. Every defence fits within the scheme as to the burden of proof applicable to it. To a large extent, the rules as to the burden and standard of proof have been set by experience, but legislation may also set down rules. In insanity and in diminished responsibility, the burden of proof is on the defence to clearly demonstrate such infirmity of mind at the time of the commission of the offence; see The People (DPP) v Heffernan [2017] 1 IR 82. In other instances, the legislature has intervened; as in defining the elements of the offence of possession of controlled drugs and in placing the burden of defence on an accused who is proved to be in possession of a controlled drug to prove that “he did not know and had no reasonable grounds for suspecting … that what he had in his possession was a controlled drug … or … that he was in possession of a controlled drug”; section 29(2) of the Misuse of Drugs Act 1977 .

18. Within that particular statutory scheme, the burden cast on the accused is to prove a reasonable doubt; The People (DPP) v Smyth [2010] 3 IR 688. The burden of proof in the defence of duress is that generally applicable to defences. That burden was explained in the context of the justificatory defence of the lawful use of force by Walsh J in The People (AG) v Quinn [1965] IR 366 at 382 thus:

When the evidence in a case, whether it be the evidence offered by the prosecution or by the defence, discloses a possible defence of self-defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the offence charged. The onus is never upon the accused to raise a doubt in the minds of the jury. In such case the burden rests on the prosecution to negative the possible defence of self-defence which has arisen and if, having considered the whole of the evidence, the jury is either convinced of the innocence of the prisoner or left in doubt whether or not he was acting in necessary self-defence they must acquit.
19. Since, however, acquittal on a criminal charge is on the basis of the prosecution not meeting the standard of proof beyond a reasonable doubt, a defence may only be left for consideration by a jury if it actually arises on the evidence. Once there is some evidence capable of raising the issue, the persuasive burden of disproving a defence is on the prosecution; see Taiapa v R (2009) 240 CLR 95 and Fairall and Barrett, paragraphs 1.73-1.74. A defence should not be left to the jury if there is no reasonable basis to support it, such as where it is either asserted speculatively or without foundation in the evidence. There must be some evidence whereby a defence such as duress may be left to a jury. The mere assertion of a defence does not mean that there is sufficient evidence requiring the jury to consider it. As Walsh J stated in the same passage at pages 382-383:
Before the possible defence can be left to the jury as an issue there must be some evidence from which the jury would be entitled to find that issue in favour of the appellant. If the evidence for the prosecution does not disclose this possible defence then the necessary evidence will fall to be given by the defence. In such a case, however, where it falls to the defence to give the necessary evidence it must be made clear to the jury that there is a distinction, fine though it may appear, between adducing the evidence and the burden of proof and that there is no onus whatever upon the accused to establish any degree of doubt in their minds. In directing the jury on the question of the onus of proof it can only be misleading to a jury to refer to “establishing” the defence “in such a way as to raise a doubt.” No defence has to be “established” in any case apart from insanity.
20. To that exception of reversed burden in insanity might be added such statutory exceptions as reverse, or partially reverse, the burden on the prosecution of disproving a defence; see generally Glanville Williams – The Proof of Guilt: A Study of the English Criminal Trial (London, 1963), pages 184-186. Other common law systems have the same or a similar approach.

Duress as a convenient excuse
21. Every defence in criminal law comes with restricting requirements and conditions. As Ashworth notes, these are based on both experience and on the strong social arguments which require a balance in the law on the basis of what is right and fair from the point of view of both society and the accused; see Ashworth – Principles of Criminal Law (4th edition, Oxford, 2003), pages 250-252. How a defence will work in practice is of the essence in testing its consequent effect upon the legal prohibition which it seeks to nullify. In duress, the element of compulsion by criminal interlopers strikes against the compulsion that those living in society are under to respect the law by not infringing its prohibitions. It is easy to assert that a crime was committed under duress either in a statement to the police upon being arrested, or through evidence at trial. In a police statement, the material cannot be tested by cross-examination of the accused and the circumstances of self-excuse may evoke scepticism in a jury. Where the accused gives evidence and is subject to cross-examination, the law rightly regards that category of testimony as potentially carrying more weight than a mere document. But, even there, as with a person arrested at Dublin Airport for carrying drugs or firearms into the country, there may be assertions about duress that are beyond testing. The person may assert a danger to family in a far-off country by people that apparently can only be described less than precisely. Rather than break the law, the question might be asked in these rather typical circumstances, why not have resort to the authorities for protection? However, these may be less than ideal in some particular countries of origin; and that is hard to probe by cross-examination.

22. There are strong dangers to weakening or dissolving the elements of the defence of duress as described by Murnaghan J in AG v Whelan . Of course, fundamental to any defence is that the accused, in asserting the defence, must be found by the jury to be genuine. This means that the jury must be either convinced of the innocence of the accused or left in doubt as to whether he or she was acting under duress. He or she must actually, in their own mind, be under compulsion. This is a subjective test. That is easily explained to a jury: to assert a defence requires that it be invoked honestly. Without proscribing this as a rule, it can be that the jury can usefully be reminded of this subjective element. Scrutiny of any defence can only begin when it is regarded as being genuinely operative on the mind of the accused at the time of the commission of the offence. One of the key elements whereby the defence of duress is designed to operate fairly is in the elements of reasonableness of response to the threat, proportion, and the requirement that a person in the circumstances of the accused should exercise reasonable firmness and courage, rather than make themselves party to a crime on another or on society. The reason for these elements is explained in compelling terms by Fairall and Barrett at paragraph 8.25 of Criminal Defences in Australia thus:

Where a person seeks to avoid criminal responsibility on the basis that he or she had no choice but to commit an offence by reason of duress, the claim is assessed on an objective standard. Were it not so, criminal responsibility would be determined by the lowest common denominator and the law would lose all credibility. Indeed, a person motivated by an exaggerated sense of threat or danger would be exonerated, while a person of greater sense or fortitude would be accountable. The law may well provide some respite or compassion for the timorous or the weak, but only up to a certain point. At common law and explicitly under the various statutory provisions (with the exception of Tasmania) there is a requirement of reasonableness in the assessment of duress. The behaviour of the accused is judged both by the reasonableness of his or her beliefs, and the appropriateness of the response.
23. Other academic authority rightly supports the need to circumscribe the defence of duress so that it retains a sense of reality. Claims of acting under duress are peculiarly difficult for the prosecution to investigate and, hence, potentially disprove beyond reasonable doubt. Professor John Smith has pointed out that “duress is a unique defence in that it is so much more likely than any other to depend on assertions which are peculiarly difficult for the prosecution to investigate or subsequently to disprove”; commentary on R v Cole [1994] Crim LR 582 at page 584.

Duress and reasonableness
24. Any defence in criminal law which entirely depends on what the accused claims to be his internal mental, or in other words subjective, viewpoint is anomalous. The only such defence in Irish law is that of provocation, which may reduce a charge of murder to manslaughter if accepted. As was commented by the Court of Criminal Appeal in The People (DPP) v Curran [2011] IECCA 95 on the leading decision of The People (DPP) v MacEoin [1978] IR 27, there may be problems associated with this defence that may merit a fresh analysis. Jurisdictions which are based on a criminal code harmonise with the common law on the defence of duress in universally requiring elements of objectivity to circumscribe the applicability of the defence. For instance, the codes of Victoria, the Australian Capital Territory, the Northern Territory and Western Australia all provide for a defence of duress where a person carries out what would otherwise be a crime but only under highly constrained circumstances; see Fairall and Barrett, paragraphs 8.3 to 8.7. Duress is only available as a defence to an accused on three conditions which are based on reasonableness. These are that:

• he or she reasonably believes that a threat has been made that will be carried out unless an offence is committed; and
• there is no reasonable way that the threat can be rendered ineffective; and

• the conduct is a reasonable response to the threat.

25. Duress operates on the will of the subject, constraining choice through the overwhelming compulsion of threat that puts a greater evil in the way of the accused. Hence, in terms of circumstance, it can be excused by society for a person to engage with those who impose their will on the accused whereby a worse event is forestalled. That is the essence of the defence. But, that defence is not there to be available as a ready excuse. The essence of the defence is the placing of the accused in circumstances that offer no reasonable choice. Since the law regulates society and requires the adherence of all who live within the rule of law, the circumstances of the constraint, how the constraint came about, and the availability of resort to other avenues apart from breaking the law, place boundaries to the deterioration of social structures. Speaking of breaking the law due to an overwhelming necessity, and specifically referencing the need to throw goods overboard in a storm, it is noteworthy that Aristotle in Nichomachean Ethics (Book III, chapter I) analyses the excuse of constraint by reference to objective factors:

For such actions men are sometimes even praised, when they endure something base or painful in return for great and noble objects gained; in the opposite case they are blamed, since to endure the greatest indignities for no noble end or for a trifling end is the mark of an inferior person. On some actions praise indeed is not bestowed, but pardon is, when one does what he ought not under pressure which overstrains human nature and which no one could withstand. But some acts, perhaps, we cannot be forced to do, but ought rather to face death after the most fearful sufferings; for the things that ‘forced’ Euripides Alcmaeon to slay his mother seem absurd. It is difficult sometimes to determine what should be chosen at what cost, and what should be endured in return for what gain, and yet more difficult to abide by our decisions; for as a rule what is expected is painful, and what we are forced to do is base, whence praise and blame are bestowed on those who have been compelled or have not.
26. Some modern authorities split up the elements of what consists of the excuse of duress into particular sub-rules, as in a criminal code. The essence of the defence, however, remains the overwhelming nature of threat in the circumstances in which the accused is constrained and the absence of any reasonably available resort to lawful conduct. Thus Lord Bingham in R v Hasan [2005] 2 AC 467 at paragraph 21 lists the elements of the defence as requiring: a threat of death or serious injury; the threat must be directed against the defendant or his immediate family or someone close to him or her, or to someone for whose safety the accused reasonably considers himself or herself responsible; the perception of the threat and the accused’s response are to be reasonable; the criminal conduct sought to be excused by the defence of duress must result directly from the threat; no evasive action may be available to the accused; threats voluntarily laid on himself or herself by association with a violent grouping are inadmissible; duress is no defence to murder; see also Smith, Hogan and Ormerod’s Criminal Law (15th edition, London, 2018) at pages 346-347.

27. The Law Reform Commission view of the law, as opposed to any recommendation, in their Report on Defences in Criminal Law (LRC 95-2009) at paragraphs 5.31-2 endorse the excusatory nature of the defence and state that the “features referred to by Lord Bingham in R v Hasan should be incorporated into the defence”. These are summarised succinctly in a manner which reflects the existing law as:

… the defence should include that the threat was imminent, there was no reasonable way to avoid the threat or make it ineffective and the conduct was a reasonable response to the threat.
28. There are no relevant authorities which propose that, judged by objective standards, anything less than an ordinary standard of resistance to the threat to the accused can ground the defence of duress. Further, there are no authorities which support the proposition that the accused may act on a fanciful notion that a threat exists. Rather, the law does not depart from the analysis of the Law Reform Commission and the summary of their recommendation at paragraph 5.58:
… the belief in the existence, nature and seriousness of the threats should be reasonably held and … the test should be what an ordinary person with the accused’s characteristics would have reasonably believed in the circumstances.

Characteristics of the accused

29. Circumstances of constraint will vary from situation to situation. Herein, there has been reference to a bank robbery with threats of violence leading to the surrender of money and to tiger kidnapping forcing the custodian of money to travel with other of the criminal accomplices to hand it over. Such circumstances are like the storm to which Aristotle refers; without jettisoning the property of another, the ship would sink and lives would be imperilled. For the defence to have any valid foundation, such circumstances must either actually have existed or the accused must reasonably have believed them to exist. In every such situation, the issue becomes the human reaction to threat within the context in which the threat is proffered. Just as situations vary, so may the fixed characteristics of those to whom the threat is made.

30. Within the context of the development of the defence of provocation, the circumscription of the defence so that not only should the accused, in losing self-control, react proportionately to the insult that broke that self-control, but that such accused would be a notional reasonable person with the characteristics of an average member of society was much criticised; see Brett – The Physiology of Provocation [1970] Crim LR 634. With the decision of the House of Lords in R v Camplin [1978] AC 705, some modification of the entirely detached nature of the test was allowed. The decision was the model for developments enabling elements of individual characteristics into other defences in criminal law. The reasonable person became a person of the same age as the accused and in the same situation as that in which the provocation was offered.

31. In The People (DPP) v Dickey (Court of Criminal Appeal, unreported, 7 March 2003), no ruling incorporating subjective elements into the defence of duress was made. Rather, the court proceeded on the basis of the unchallenged correctness of the direction of the trial judge as to the defence:

When you are considering [the applicability of duress as a defence] … it is not what you would do in the situation but what you perceive the accused’s powers were, and take into account the particular circumstances and human frailties of the accused specifically.
32. Such a direction is difficult to follow. If the accused is taken to be an absolute coward, then there will be a ready excuse for him or her yielding even to the mildest threat. It would be easy to present a case claiming that or any other apparently excusing personality make-up. What the “accused’s powers” may or may not be entirely depends on the individual, with no leavening requirement that reasonable courage be shown or that reasonable alternatives to participating in a crime should be sought. This would completely undermine the interest of society in asserting the rule of law. Those elements are integral to the defence of duress.
33. Turning to the requirement that the law should be founded on both respect for the individual as well as society, it is apparent that the manner in which a threat may cause an individual to react can vary with the characteristics that are personal to them. To threaten a pregnant woman, for instance, with mild violence to her body may meet the requirement that the threat should overcome the ordinary power of human resistance. Such a threat would not excuse a grown man from participating in a crime. What is a threat to a physically weak person, or a very old individual, or a person with compelling medical needs or a desperate need to avoid an allergic reaction would not amount to overwhelming compulsion on a healthy man or woman of college-going age.

34. Drawing on the decision in Camplin , courts in the neighbouring kingdom have relied upon analogy with the law of provocation and introduced elements of an accused’s individual characteristics into the defence of duress. Smith, Hogan, and Ormerod comment that this authority “suggests that account should be taken of not only the gravity of the threat to [the accused] but also the sex and age of [the accused] and such of [the accused’s] characteristics as would affect the gravity of the threat to him [or her]”; page 353. Other authorities have held that pregnancy and serious physical disability, together with a recognised mental illness or psychiatric condition such as post-traumatic stress disorder can be incorporated into the characteristics of the individual accused, while still requiring that such a person show reasonable courage. In most Australian jurisdictions, a similar approach has been adopted. Thus in R v Palazoff (1986) 43 SASR 99 at 109, the person of ordinary firmness of mind against whom the accused is to be assessed is a person of the same age and sex and background and other personal characteristics, apart from the same strength of mind as the accused. Such criminal conduct as the accused with such characteristics is engaged in must, nonetheless, be a response of reasonable courage to the threat. In Queensland, an accused must reasonably believe that he or she or the other person threatened for the purpose of compulsion is unable to otherwise escape the carrying out of the threat and it is further required that engaging in the criminal conduct must be reasonably proportionate to the harm or detriment threatened; see Taiapa v R and Fairall and Barrett, paragraphs 8.25 to 8.31.

35. The Law Reform Commission reached a similar conclusion in recommending at paragraph 5.72 of their Report on Defences in Criminal Law:

The Commission considers that the belief in the existence, nature and seriousness of the threat should be reasonably held and the test should be one that is based on what an ordinary person with the accused’s characteristics would have reasonably believed in the circumstances.
36. In other jurisdictions, difficult situations have arisen whereby distinctions may need to be drawn between a recognised psychiatric condition affecting the ability of an accused to withstand coercion and unusual vulnerability. This may arise, for example, from a low intelligence quotient. If this does not amount to mental illness, reasonable courage is nonetheless required. Learned helplessness due to, for example, repeated physical or sexual abuse which may increase vulnerability to threats is the object of academic criticism of the existing judicial decisions in the neighbouring kingdom; Smith, Hogan, and Ormerod, page 353.
37. There has also been some discussion in the authorities as to the requirement for the threat leading to criminal conduct to be immediate and actually present at the time of the commission of the crime and for the defence to be nullified by voluntary participation; see Lynch v DPP for Northern Ireland [1975] AC 653. Fundamentally, however, such issues are answerable on the basis of principle. One asks: on a reasonable basis was the threat operative on the accused as a person required to show reasonable courage at the time of the commission of the offence to which they assert duress as a defence. To voluntarily engage in a violent criminal gang is to voluntarily make oneself liable for the coercion inherent in such organisations. Cases such as ones excusing perjury in court despite the presence of police and other authorities may be regarded as outliers; see R v Hudson and Taylor [1971] 2 QB 202 and R v Batchelor [2013] EWCA Crim 2638. Any issue concerning threat to property excusing a crime may be explored in an appropriate case. Principle would seem to exclude this from the defence of duress, but threats of destruction to irreplaceable works embodying the human spirit, such as the Ardagh Chalice or the Book of Kells, might be arguable.
Summary
38. Since these difficult questions of law become decisions for trial judges on a day-to-day basis, and since the judiciary are required to instruct juries in coherent terms, a concise summary may be useful.

39. In essence, 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 accused, into criminal conduct. That coercion, on a reasonable view, should be so serious as to overcome the resistance of the person seeking to assert the defence. Duress is a defence but only provided that person genuinely feels under threat of death or serious physical violence from a threat directed against the accused or the accused’s immediate family or someone close to him or her, or someone for whose safety the accused reasonably considers himself or herself responsible. The defence of duress only applies where that person has no available resort to any lawful alternative through any reasonable means. A jury should be reminded that every person is required to obey the law. If any reasonable opportunity exists for the person who claims to be under duress to take any lawful evasive action, particularly seeking the assistance of law enforcement authorities, it must be taken. If resort to lawful authority, or to any other lawful means of not committing a crime, is not taken when it is reasonably open to an accused, the defence of duress does not apply.

Personal characteristics and this accused
40. The submissions on behalf of Trevor Gleeson contend that the decision of the Court of Appeal is correct. It is argued that there should have been emphasis on the job of the accused and his position within society. These, however, are no more than the circumstances within which a threat may take place. Everyone in court was, moreover, aware of that. Reasonable firmness is what is required. At paragraph 18, those submissions state:

In summary, it is respectfully submitted that the Court of Appeal was correct in stating the jury ought to consider the reactions of the accused taking into account his particular circumstances as per the excusatory nature of the defence. The Court of Appeal’s contention that a jury should be permitted to consider allegations of duress in the context of the “individual and personal circumstances of the accused” (specifically in this instance in the category of a prison officer) is not per se a very broad departure but instead follows the well established jurisprudence of the Common Law countries (as cited by the [Director of Public Prosecutions]) which includes the “characteristics of the accused” as a factor.
41. For the Director of Public Prosecutions, it is argued that the law on duress should only be modified from its objective stance to take into account the permanent and fixed characteristics of the accused. At paragraph 10.1, the following summary is given:
For the foregoing reasons, the Appellant submits that [t]he Court of Appeal erred in concluding that a jury should consider allegations of duress in the context of the individual and personal circumstances of the accused person. Fundamentally, such a test fails to strike an appropriate balance between the conflicting interests of the accused, society and victims. The standards to be applied in judging both the perceptions and actions of the [a]ccused should continue to be objective but modified to take account of certain permanent characteristics of the [a]ccused.
42. What is difficult to understand in the context of this case is: what are the characteristics of the accused which the jury was supposed to take into account? The jury knew that they were dealing with a man who worked as a prison officer. These amount to no more than the circumstances within which the alleged threats were supposedly made. There was nothing to suggest that any particular factor rendered those threats more potent to him than to any other officer working in a prison setting. Nothing on the face of the written submissions points to anything other than that he was a man with a family and that prisons hold some dangerous individuals who, in the nature of criminal activity, will usually have associates who are not locked up. These are merely circumstances, and have nothing to do with the plea that special and fixed characteristics such as mental illness, age, illness or serious infirmity were engaged. In fact, no characteristic of any kind was pleaded before the court of trial or argued on this appeal. In point of fact, the trial judge’s direction to take into account the accused’s “age and gender” was the only one which she could properly have given.

43. It follows 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. There was nothing to which she could have referred whereby the requirement that the accused show ordinary courage might be modified by his nature.

44. In addition, there were multiple occasions for the accused to have resort to the authorities. It was a question for the jury as to whether these should have been taken in the circumstances of constraint under which the accused 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 accused, but was not taken.

Form of order
45. It follows that the decision of the Court of Appeal should be reversed. The consequences of such order, including possibly the reinstatement of the convictions of the accused, should be subject to discussion with counsel before this Court makes a final order.

Duress

Cases

Jonathan Dunne v The Director of Public Prosecutions

DPP v Gleeson

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