THE HIGH COURT
			1998 No. 882ss
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AND IN THE MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961:
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS 
(AT THE SUIT OF GARDA KEVIN HIGGINS) 
			APPELLANT
AND
JOHN BYRNE
			RESPONDENT

JUDGMENT of O'Sullivan J. delivered the 4th day of February, 1999.
	In this judgment I am dealing with a Case Stated by Judge Thomas Ballagh dated 3rd April, 1998 arising out of a sitting at Bray District Court on the 15th November, 1996.  
	The Respondent appeared on that date to answer a prosecution by the Appellant for driving while under the influence of intoxicating liquor contrary to Section 49(3) and (6)(a) of the Road Traffic Act, 1961.  
	Garda Higgins gave evidence, inter alia, that on the 5th May, 1996 at 12.10 am he was on duty in the patrol car with another Garda.  As the patrol car went along Marine Terrace towards the junction with Cliff Road he observed a car parked at the side of the road with the driver's door open, the ignition was on and a crowd of people were standing around.  He observed one person, whom he now knows to be John Byrne, urinating against the side of the car.  
	Garda Higgins asked the Respondent if he was the owner of the car and he replied that he was.  He then asked the Respondent if he had been driving that motor car.
	At this stage Mr Brian McLoughlin objected to Garda Higgins giving any further evidence on the following grounds:
	(a)	The evidence to date showed that the Garda had witnessed the Respondent committing an offence (urinating in a public place) and therefore it was reasonable to assume that the Garda had made up his mind to charge him with that offence and therefore he should first have cautioned him before asking any questions;
	(b)	The manner in which the Garda had asked the question could lead the Court to an interpretation that any answer given was not a voluntary answer as no attempt had been made by the Garda to explain to the Respondent the provisions of Section 107 of the Road Traffic Act, 1961.

	In reply Inspector P Finn submitted that:
	
	(a)	Under the "Judges' Rules" there was no obligation on Garda Higgins to caution the Respondent as the Garda had not made up his mind to charge him with any offence at that stage, and 
	(b)	Under Section 107 of the Road Traffic Act, the Garda was entitled to establish who was driving the car.

	The learned judge did not accept the submission made on behalf of the prosecution and dismissed the charge accordingly.  At paragraph 5 of the Case Stated he requires the opinion of the High Court in the following terms:

	"The opinion of the High Court is sought as to whether I was correct in law in so dismissing the charge and, in particular, whether I was correct in law in holding that in the circumstances of the case it was incumbent on the prosecuting Garda to caution the Respondent before questioning him as to whether he had been driving the motor vehicle on the occasion in question."

	At the hearing before me Ms Adrienne Egan B.L. for the Appellant submitted that the point made that the Garda had made up his mind to charge the Respondent with an offence (urinating in a public place) was demonstrably ill-founded because in fact that was not the charge that was subsequently preferred.  There was no evidence, therefore, that the Garda had made up his mind to charge the Respondent with that offence.  
	I did not understand Mr Raymond Comyn, BL for the Respondent seriously to take issue with that submission and in that I think he was correct.  I agree with the submission made by Ms Egan in relation to that point.  
	In relation to the point arising under Section 107 of the Road Traffic Act, 1961 Mr Comyn accepted that this clearly did not apply.  Once again I think he was correct.   The section where relevant provides as follows:

	"Where a member of the Garda Siochana has reasonable grounds for believing that there has been an offence under this Act involving the use of a mechanically propelled vehicle:-
		(a)	The owner of the vehicle shall, if required by the member, state whether he was or was not actually using the vehicle at the material time and if he failed to do so he shall be guilty of an offence."
	 
	It will be noted that the subsection authorises the Garda to require the owner of the vehicle to state whether or not he was actually using it at the material time.  The evidence did not show that Garda Higgins required the Respondent to state anything; he merely asked him a question.  Furthermore there was no specific reference to Section 107.  It was suggested before me, further, that the Garda would not have had reasonable grounds for believing that there had been an offence involving the use of a mechanically propelled vehicle at the point in evidence which had been reached before the proceedings were halted.  One does not know what further evidence Garda Higgins intended to give which would have been material to the actual charge before the Court.  In the circumstances, I consider Mr Comyn was correct to accept that Section 107 clearly did not apply.  
	The main thrust of Mr Comyn's submission before me was that under the Judges' Rules and in particular Rule 1 the Garda had no authority to ask the Respondent if he had been driving the car and indeed whether he owned it.  
	Rule 1 of the Judges' Rules provides as follows:
	
	"When a police officer is endeavouring to discover the author of a crime there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not from whom he thinks that useful information may be obtained."

	The point made in this context was that Garda Higgins was not endeavouring to discover the author of a crime for the simple reason that he could not reasonably have come to the conclusion, at the point reached in the evidence in the case before the learned judge, that there had been any crime committed at all.  Mr Comyn submitted that the questioning referred to in Rule 1 was permissible only after the police officer had come to the conclusion that there had been a crime committed and was endeavouring to discover the author thereof.
	Ms Egan for the Appellant submitted that this could not be the meaning of Rule 1 because if it were then all preliminary enquiries and investigations would be contrary to this rule.  A scene (for example a wounded man in the presence of another) might well be capable of a perfectly innocent explanation (the wounded man had fallen down) or a guilty one (the other had hit him).  Is it seriously to be suggested that Rule 1 prohibits the questioning of either or both of these on the basis that the enquiring police officer had not yet made up his mind whether a crime had been committed?  I cannot agree that the questions asked by Garda Higgins set out in the Case State were precluded by Rule 1 of the Judges' Rules.  
	Turning, therefore, to the question raised at paragraph 5 in the Case Stated I would answer the learned judge by saying that there was no obligation on Garda Higgins to caution the Respondent before questioning him as to whether he had been driving the motor vehicle on the occasion in question.  To the extent that this question may imply an acceptance of the argument set out at paragraph 2(a) of the Case Stated (which submitted that the Garda had witnessed an offence and therefore had made up his mind to charge the Respondent and should have first cautioned him) I would say that the evidence does not establish that Garda Higgins had made up his mind to charge the Respondent with the offence of urinating in public on the simple basis that he did not charge him with this offence at all; and with regard to the offence under the Road Traffic Act, the evidence does not show that at the time of asking these questions Garda Higgins had made up his mind to charge the Respondent with an offence under that Act.  
	There being no basis (either as set out in arguments for the prosecution before the learned judge or by Mr Comyn in the submissions before me or as particularised at paragraph 5 of the Case Stated) for dismissing the charge against the Respondent I would answer the learned judge by saying that he was not correct in law in so dismissing the said charge and in particular was not correct in holding in the circumstances that it was incumbent on the prosecuting Garda to caution the Respondent before questioning him as specified.