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.

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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.

It is unnecessary to repeat here all the details of the charge or all the facts as set out in the case stated.

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.

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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

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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”.

At the conclusion of the case stated the learned District Judge poses the following question:-

Q. 	“Was the Defendant whilst asleep in his motor vehicle with the engine of the said vehicle running driving the said vehicle within the meaning of Section 49(3) of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994?”

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

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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.

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 “.

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.