AN CHÚIRT UACHTARACH
THE SUPREME COURT
O’Flaherty I,
Barrington J.,
Murphy J.,
(251/98)

BETWEEN:

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857,
AND IN THE MATTER OF
SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISONS) ACT, 1961

THE DIRECTOR OF PUBLIC PROSECUTIONS
(AT THE SUIT OF GARDA NOEL O’BRIEN)
Appellant
.v.

PAUL CORMACK
Respondent

Judgment (ex-tempore) delivered on the 22nd day of January, 1999, by O’Flaherty J.

The Court has heard very interesting and at the same time succinct submissions on each side of this case but since we have reached a clear conclusion as to the result we do not think that there is any need to reserve judgment.

This is an appeal brought by the Director of Public Prosecutions from the judgment and order of the High Court (Quirke J.) of 22nd May, 1998, in which he answered a question posed by District Judge Pattwell in a case stated for the opinion of the High Court in favour of the respondent, Paul Cormack.

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The question posed for the opinion of the High Court was whether he was correct in law in dismissing the charge that had been brought against the respondent.

The case sets forth the facts very clearly, as well as the course of proceedings in the District Court. District Judge Pattwell recounts that at a sitting of his court at Cashel, Co. Tipperary on 21st May, 1997, Mr. Cormack appeared before him charged that he did on 11th April, 1997, at Prices Lot, Cashel, Co. Tipperary, drive a mechanically propelled motor car while there was an excess quantity of alcohol in his body, in other words drunk driving. As it happens when the result of the test came back he was about three and a half times over the limit.  The District Judge recounts that Garda Noel O’Brien on the date in question, together with Sergeant Tom O’Brien, came to the scene of an accident where one vehicle was involved, and it was in the side of the ditch. Mr. Cormack was present and the gardaí spoke to him. Mr. Cormack admitted driving the vehicle and stated that the accident had happened ten minutes prior to the arrival of the gardaí.  He also went on to say:  “This is the second car I have crashed, the wife will kill me.”  The gardaí also noticed that there were fresh marks in the ditch where Mr. Cormack had struck the ditch and where the car had overturned. It was blocking the public road and the keys were still in the ignition. The gardaí smelt intoxicating liquor from the man’s breath and

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formed the opinion that he was drunk to such an extent that he should not have been in charge of the car or driving the car. He was arrested and then things took their usual course. The doctor came to the garda station and Mr. Cormack provided a urine sample.

The District Judge came to dismiss the charge on the grounds that having regard to the accused’s condition from drink there was insufficient evidence to show that the vehicle had been driven in a public place within the relevant statutory period of three hours.

The learned High Court judge agreed with that conclusion. I must say that I cannot see the rationale behind that at all.  Once the man made an admission, then it is clearly evidence and the District Judge was bound to accept it.  Unfortunately, there is I think a certain mythology abroad that some onus rests on the prosecution to prove cases to an impossible extent so as to exclude every hypothesis that might occur to the most ingenious mind.  That is not the law. Any admission said by a person, drunk or sober, is prima facie admissible in evidence. There may be cases where someone will say:  “It was not a voluntary statement, I was induced to make it,” or “I was forced to make it,” or “I was beaten up to make it.” That is one thing; but that is not this case. It might be that someone might say: “I was so drunk that I did not know what I was saying”, or “I did not mean what I said”. If the accused wants to get into

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the witness box and give another account of what he meant, that is a different matter. Then it would be for the District Judge to decide what was right or wrong. However, he is not entitled to have any doubt about the evidence that was proffered in this case.

I would also go on to hold that, even if there had been no admission in this case, there was sufficient evidence to call for an answer from the accused. The fact that the car had run into a ditch, had overturned and was blocking the road, and the only person there was Mr. Cormack with the key in the ignition of the car. All that would have entitled the District Judge to hold that, of course, he had been driving within a period of three hours. I do not go so far as to say that in relation to that evidence that the judge would be bound to find that but it would certainly appear to me to be very coercive evidence that he had been driving as recently as within the previous three hours - which is the statutory requirement.

So with great respect to the conclusion of the District Judge and of the High Court judge, there is only one way that this matter could have been decided in the state of the evidence presented to the court which was to hold that the evidence was conclusive and bound the district judge to find that the man had been driving the car within three hours.

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So to answer the question posed, I would reverse the order of the learned High Court judge and I would answer the question posed in the case stated in the negative. The case should be remitted to the District Court to enter continuances.