A judge has said that while he believed a garda had acted unnecessarily in opening the car door of a motorist she suspected of drink-driving, it was another matter to say that the garda's action was unlawful.
Judge Con O'Leary indicated yesterday that he plans sending the case of Sheila O'Sullivan, Palmbury Orchard, Togher, Cork, forward for a consultative case stated to the High Court to allow it adjudicate on whether gardaí are entitled to open car doors without permission.
The issue arose after Cork District Court heard evidence from Garda Frances Murphy on how she had opened the door of Ms O'Sullivan's car without her permission in the driveway of her house after she had followed Ms O'Sullivan home on January 8th, 2005.
Garda Murphy said she had seen Ms O'Sullivan's car mount a roundabout on Togher Road and swerve from side to side along the road before entering Palmbury Orchard. She said the car pulled into a driveway without indicating and almost hit the side of the house.
The issue of whether Garda Murphy had the legal right to open the car door has been debated at length by Ms O'Sullivan's solicitor, Joe Cuddigan, and State Solicitor for Cork city, Barry Galvin, before Judge O'Leary at a number of hearings.
Yesterday Judge O'Leary said: "I do not think it [ opening the door] was necessary. I am not sure whether or not it was lawful. Questions of law are for the High Court, questions of facts are for this court."
He disagreed with Mr Galvin that the High Court would expect him to decide if Garda Murphy's action was unlawful.
"It may still happen that I will look at a case and say the answer is here but I do not think that will happen," Judge O'Leary said, and adjourned the matter until December 5th.
