Complicated case law is being consulted to decide whether Kenmare gardaí were entitled to pursue an allegedly intoxicated Kerry farmer who was driving a 40-year-old tractor into the driveway of another person’s home in the early hours.
Gerry O’Shea, aged 56, of Ankail, Tahilla, Sneem, a small-holding farmer with six cows, is summonsed before Kenmare District Court accused of various offences in relation to the 1974 tractor he was driving in the early hours of November 26, 2012.
The charges include driving without due care and attention, driving in an intoxicated state, being on the road without a working rear light and without a rear number plate.
Gardaí on patrol became suspicious after they observed the tractor, with its lights broken. It crossed the white line twice.
The gardaí put on flashing lights and, pursued by the patrol car, O’Shea drove the tractor into a driveway not his own.
He fell out of the cab onto the driveway, and he had a strong smell of alcohol, the gardaí claim.
Under cross-examination by Padraig O’Connell, solicitor, garda witnesses said they drove into the private property to ascertain his fitness to drive.
“Gardaí cannot enter a third party property for purposes of investigation — only for arrest,” solicitor Mr O’Connell told Kenmare Court. He handed case law from the Supreme Court (DPP v Molloy 2004) in relation to the matter.
“Gardaí saw him with defective lights, they saw him falling off the tractor and they followed him into private property,” he said.
They gardaí could have arrested him on the public road and did not do so, the solicitor said.
However, Supt Flor Murphy said gardaí were entitled to enter a third party property to investigate and he handed in High Court rulings on the matter.
Judge James O’Connor said it seemed to him O’Shea entered the property for the purposes of “evasion”.
“But if this is the law...” the judge said.
If allowed, all anybody had to do to evade pursuing gardaí was “go into the nearest driveway and off you go”, the judge mused.
He is to study the case law handed into him before making a decision and the matter had been adjourned to November to allow the judge to come to a decision.
© Irish Examiner Ltd. All rights reserved