Judge dismisses alleged drink-driving case after probing Garda about ?texting?

A CAVAN motorist who had been brought to Cavan Garda Station suspected of driving with excess alcohol at Crumlin, Carrickaboy on October 20th last, walked free from Cavan District Court last week, when the defence Solicitor Garrett Fortune claimed that his client had seen a garda tasked with carrying out the 20 minutes observation process take out a mobile phone on 3 different occasions.

 Judge Mac Bride said he was left with no alternative but to dismiss the case when Garda Una Comaskey could  not definitely say, that it did not happen.

 Judge MacBride said it would be a "crazy exercise if you were observing a defendant for 20 minutes, that you would be texting messages to people".

 Garda Una Comaskey told the court that she commenced the 20 minutes observation in the day room in Cavan Garda Station at 33 minutes past midnight on October 20 2007.

 Witness explained to Martin O'Reilly, from Alacken, Cavan that she would be observing him for 20 minutes to make sure he had nil by mouth.

 She explained that she was sitting directly across from Mr O'Reilly.

 When asked by Judge Sean McBride what precisely she did for the 20 minutes in relation to the defendant, witness said she did not have a note taken down, but normally there would be conversation with the defendant.

  "I don't recall taking my eyes off him, - I don't recall receiving a phone call or a text message".

 During cross examination defending solicitor Garrett Fortune put it to the witness that his client said "that you had your mobile with you and you took  it out on three occasions. He is not clear whether you were using it for texting or for whatever reason. You were using your mobile phone on three occasions during the 20 minute period. I know you say that you don't recollect taking your eyes off Mr Reilly, - but isn't it possible that you took it out to answer a text or to receive a text or to make a text, in response to a text".

 Garda Una Comaskey said she did not recall receiving a text message – it may have happened, but she didn't recall getting a text.

 She agreed that the defendant was agreeable and fully co-operative.

  Judge Sean Mac Bride – "Tell me Guard, before you leave the witness box  - I would have thought that if you were involved in observing someone like that, you would be well entitled to put your mobile on silent, so that it records messages. You could not be expected to be receiving calls and observing the person at the same time and I don't think any of your superior officers would hold that against you. I think that would be prudent, - wouldn't it".

 Judge MacBride added that it would be disconcerting if you were observing someone for 20 minutes to ensure they take nill by mouth and "suddenly there were interuptions from your phone when it goes off".

  "Surely if you were texting messages on this occasion, it is something you would remember. Did you ever send text messages, when you were observing somebody".

  Garda Comaskey – " I don't recall having sent any text messages Judge".

 Judge MacBride replied: "It is not just a matter of recalling, but can you be more specific than that – can you tell me that is something I don't do. I'm not being disrespectful to the Defendant, but it seems to me a crazy exercise – if you are observing a defendant for 20 minutes, that you would be texting messages to people".

 Judge Sean MacBride said the observation process was a very important aspect of a drunk driving prosecution and one where you have to be very definitive. "You have to say, look, I was looking at the defendant, - texting messages, definitely not".

  "The answer I expected to write down from your evidence was, - No this is nonesense, I don't do that. I have written down here – you said it may have happened – I don't recall receiving a text".

 Witness said that another garda was present when the observation process was going on, but he was not in court. Garrett Fortune pointed out that this other garda would not be facing in the same direction.

  Judge MacBride agreed that he would not be able to throw light on this.

 When Judge MacBride asked Inspector Brendan Cadden what he thought of the reply by witness, Inspector Cadden said there were clear instructions in relation to carrying out the observation.  "She says that she doesn't recall it – it is most probable she didn't do it, because normally that is not the practice".

 When Judge MacBride put witness over it again for clarity, she said "I don't recall, - I can't say it definitely did not happen, - I don't recall".

 Judge MacBride said the Officer was being honest, "but she has left a door open, unfortunately for the defence".

 Inspector Brendan Cadden said "I'm in your hands your honour".

 Judge MacBride asked: "Are you nervous at all – you are a professional Guard – you are very honest – are you saying this may have happened".

The garda replied: ''I don't recall, I may have – I don't know – I don't recall the exact 20 minutes – I don't recall the conversation – I don't have a note of the conversation.''

 Judge MacBride said she did not have to have a note "But you have to be able to tell me, - that did not happen – you have not unfortunately given me that evidence – I don't have a choice here, I'll dismiss".

 Judge MacBride said that for future reference Gardai should look at the defendant and keeping looking at them during the  observation process and nothing else and forget about the mobiles.