Judge Peter Smithwick made the comment after dismissing a case against a Tipperary publican who was charged with allowing underage drinking at his premises.
The defendant's solicitor said the boy, who gardaí claimed was caught with a pint of lager, was drinking Red Bull, an alcohol-free drink. Judge Smithwick said there was a "reasonable doubt" about what drink he was consuming and dismissed the case.
Last Friday, Noel McMahon of MacMathuna's pub in Kenyon Street, Nenagh, Co Tipperary, was in court charged with permitting underage drinking on April 27, 2001.
Nenagh District Court was told hat gardaí raided the pub and came across an underage youth with what appeared to be a pint of lager. Garda Richard Quigley said when he entered the pub he saw the young man, who was under 16 years , drinking a pint of lager.
However, Elizabeth McGrath, solicitor for the defendant, asked Garda Quigley whether it was Red Bull or lager that the youth was drinking.
Garda Quigley replied: "I know lager." But Ms McGrath said both drinks looked similar in a glass.
Proprietor Noel McMahon told him the boy was drinking Red Bull "In a pub at 11.30 with dark lights, all drinks look the same," said Mr McMahon.
A glass of Red Bull and a glass of lager were presented as evidence in court Garda Quigley was asked the difference between the two drinks. He said he was a lager drinker and was sure that the substance was lager because of the head on it. However, Ms McGrath said there was no evidence of tasting and argued there was a reasonable doubt because both the Red Bull and lager looked the same in a glass.
Judge Smithwick said Garda Quigley had visually inspected the substance in the glass, but did not sip or smell it. A small sip was necessary, and legitimate, for the purpose of proving the offence. Yesterday a Garda spokesman said it was too early to discuss the implications of the case for the campaign against underage drinking. Gardaí are not allowed to take blood or urine samples from people under 18 and they can only try the drink themselves with the permission of the drinker.
A Law Society spokesperson said that future prosecutions would have to take the case into account.