A garda had acted unlawfully and had breached a citizen's constitutional rights when she opened the car door of a woman whom she suspected of drink-driving as the woman sat in her car in the driveway of her home, a defence lawyer argued yesterday.
Solicitor Joe Cuddigan said Garda Frances Murphy had trespassed on the property and person of Sheila O'Sullivan when she followed Ms O'Sullivan's car into her driveway at Palmbury Orchard, Togher, Cork and opened her car door without permission on January 8th, 2005.
Garda Murphy had seen Ms O'Sullivan's car mount a roundabout on Togher Road and swerve from side to side along the road before entering into Palmbury Orchard when it pulled into a driveway without any indication and almost hit the side of the house.
Mr Cuddigan argued that Garda Murphy's actions in opening Ms O'Sullivan's car door on her property without her permission were not merely "wholly illegal" because they were a trespass but they were also a breach of Ms O'Sullivan's constitutional rights.
Mr Cuddigan argued at Cork District Court that Garda Murphy had breached Ms O'Sullivan's right to privacy under Article 40.3 of the Constitution, which entitles citizens to be free of unlawful interference within their property.
"If the accused wished to sit in her car in her own driveway, whether it be for the purpose of reflection, rest, sleep or simply listening to the radio, she was entitled to do so without interference or molestation by agents of the State."
State solicitor for Cork city Barry Galvin rejected the arguments raised by Mr Cuddigan and said that issue came down to whether or not Garda Murphy had been lawfully entitled to open Ms O'Sullivan's car door on her property.
Mr Galvin also argued that opening the door was separate from Ms O'Sullivan's arrest on suspicion of drink-driving as it was only after opening the door and asking Ms O'Sullivan to step out and noticing that she was unsteady that Garda Murphy arrested her.
Judge Con O'Leary said he wasn't sure that what Garda Murphy did in opening the car door was necessary. If she had knocked on the car window and been ignored by Ms O'Sullivan, then opening the door could be deemed to have been necessary but that didn't happen.
Judge O'Leary disagreed with Mr Galvin's assertion that opening the door and the arrest were separate acts. Garda Murphy would not have arrested Ms O'Sullivan if she hadn't opened the door and asked her to get out of the car, he pointed out. Mr Cuddigan said there were sufficient grounds for seeking to have a consultative case stated on the issue rather than a definitive finding, but Judge O'Leary said he wanted more time to consider the matter and adjourned it until November 14th.
