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O'Friel v. D.P.P. [1999] IESC 65 (30th July, 1999)
THE
SUPREME COURT
Record
No. 119/1999
Barrington
J.
Lynch
J.
Barron
J.
IN
THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AS AMENDED AND
EXTENDED BY THE PROVISIONS OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961
Between:
JAMES
O’FRIEL
Accused/Appellant
and
THE
DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutors/Respondents
RULING
of the Supreme Court delivered by Barrington J. on the 30th day of July, 1999.
________________________________________________
-2-
1. This
is a case stated by Judge Albert O’Dea, a Judge of the District Court
assigned to District No. 12 arising out of a prosecution for drink driving at
Deerpark Middle, Ennistymon, Co. Clare which came before him on the 26th day of
August,
1995.
2. It
is unnecessary to repeat here all the details of the charge or all the facts as
set out in the case stated.
3. The
salient facts appear to be those set out at paragraph 2 sub-paragraph (i) and
sub-paragraph (ii):
(i)
“Garda
Ireland of Ennistymon Garda Station had been on duty on the afternoon of the
26th August, 1995. He had been in Lisdoonvarna, Co. Clare, in a patrol car with
Garda Lavin and returned by Deerpark Middle at 6. 15p.m. on his way back to
Ennistymon. At 7.20 p.m. a telephone call was received at Ennistymon Garda
Station and as a result of a complaint Garda Lavin and Garda Ireland left the
station. They came to Deerpark Middle and saw a motor car vehicle was pulled up
on the side of the roadway. The hazard warning lights were on. There was one
person in the driver ‘s seat. The engine was turned on and the car radio
was on. Garda Lavin knocked on the window several times. He then opened the
door and had to wake up the person behind the wheel.
________________________________________________
-3-
This
was at 7.23 p.m. This took a couple of minutes. Garda Lavin asked the man to
get out of the motor vehicle. He stated this vehicle was not there at 6.15 p.m.
In cross examination Garda Ireland admitted that the person behind the wheel
was clearly asleep and that his colleague Garda Lavin had to shake this person
to wake him up. When he was awake it was apparent that his eyes were bloodshot,
he staggered on the roadway and he was drunk
(ii)
Garda
Lavin then gave evidence. He had been in Lisdoonvarna with Garda Ireland on the
afternoon of the 26th August, 1995 and had returned by Deerpark Middle at
approximately 6.15 p.m. with Garda Ireland in the Patrol Car. He was in
Ennistymon Garda Station at 7.20 p.m. and took a telephone call. As a result of
information received in the telephone call, he left the Station with Garda
Ireland to patrol the road towards Lisdoonvarna. Garda Ireland drove the Patrol
Car. At Deerpark Middle, he saw a motor car, Reg. No. 90 D 20610 stopped at the
side of the road. It was faced towards Ennistymon. The vehicle was not there
when he passed the spot at 6. 15 p. m. He said the hazard lights were flashing,
the engine was running and the radio was on in the car. He saw only one person
in the car and he seemed to be asleep in the drivers seat. He knocked on the
window and failed to get a response. He
________________________________________________
-4-
opened
the car door and shook the man to wake him up. When the man woke up, at the
Garda‘s request, he turned off the car engine and the car radio.
He
gave his name as James O‘Friel from Miltown Malbay. His eyes were
bloodshot and his speech was slurred and he was heavily intoxicated. Garda
Lavin asked Mr. O‘Friel where he was coming from and he said he was
coming from Lisdoonvarna. The Garda asked him how he had come from Lisdoonvarna
and Mr. O’Friel said he drove”.
4. At
the conclusion of the case stated the learned District Judge poses the
following question:-
5. This
question puzzles the Court for two reasons. First this is not a consultative
case stated but an appeal by way of case stated. Secondly one
________________________________________________
-5-
would
therefore expect to find set out in it the facts and the inferences from fact
on the basis of which the learned District Court Judge convicted the accused.
6. The
form of the question is consistent with the learned District Justice having
drawn the conclusion that the accused was driving his car at the time when
Garda Ireland and Garda Lavin first found his car parked at the side of the
roadway. In paragraph
5
of
the case stated, on the other hand, the learned District Judge, having referred
to certain evidence concludes “
it
was reasonable to conclude that Mr. O‘Friel had driven the vehicle
“.
7. This
Court would accordingly remit the case stated to the learned District Judge,
pursuant to the provisions of Section 7 of the Summary Jurisdiction Act, 1857
for
amendment, to enable the learned District Court Judge to set out the facts and
inferences from fact on the basis of which he convicted the accused.
© 1999 Irish Supreme Court
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