A Portlaoise man appealing a conviction for holding a mobile phone while driving has been given until the end of June to source phone records proving he was not using the phone at the time.
Before Portlaoise Circuit Court was Sean Fitzpatrick (25), with an address at Ballymacken, Portlaoise, appealing a conviction for holding a mobile phone while driving, at the Stradbally Road, Portlaoise, on June 25, 2017.
At the district court in January this year, he was convicted and fined €300.
During the appeal against this conviction at the recent circuit court, Garda Noel Tier gave evidence that on June 25, 2017, at the Stradbally Road, Portlaoise, he observed the accused driving onto the roundabout, holding a mobile phone in his right hand at the steering wheel.
Garda Tier said he told the appellant why he had stopped him and the appellant did not contest the matter at the time.
Defence, solicitor Mr Philip Meagher said that the incident almost coincided with sunset, so the lighting conditions weren’t perfect.
Garda Tier replied there was street lighting at this location.
He also said he wasn’t a substantial distance from the appellant, maybe a maximum of 10 to 15m away.
Mr Meagher said the incident happened 200m from his client’s home and as his journey began the appellant's black wallet was on the dashboard and it started to move, so he lifted it.
Mr Meagher asked the garda what colour the object in the appellant’s hand had been, to which Garda Tier replied he could not say.
Mr Meagher put it to Garda Tier that the appellant would say he immediately told the garda he wasn’t on the phone, but Garda Tier replied that the appellant did not mention a wallet to him and did not dispute being on his phone.
“The first time the wallet was mentioned was in the district court,” said Garda Tier.
The garda also said that there had been no argument between them over the phone, but there had been an argument over the previous address given by the appellant.
Mr Meagher produced a wallet to the court and said his client had lifted this item to put it on the seat beside him.
Garda Tier repeated that he saw the appellant with a phone in his hand.
He said he couldn’t see the appellant’s thumb move as though he were texting, but perhaps the appellant was just reading something on the phone.
“He was in a moving vehicle in the fading light, you could have been mistaken,” said Mr Meagher.
“There are times I see someone on the phone, but if I’m not 100 percent certain I won’t stop them,” replied Garda Tier, adding that he had stopped the appellant a month before this incident, too.
Mr Meagher put it to him that as he knew the appellant from before, that was why he had pulled him in. Garda Tier rejected this.
Garda Tier also said he didn’t think the appellant had seen the garda patrol car on the night.
Taking the witness box, the appellant said he had not done anything wrong.
He said he got into the car and threw his wallet on the dashboard, but it started moving so he took it down.
He said he had the wallet as he had to go and pay someone and denied being on his phone.
The appellant admitted he “became thick” with the garda and he was under pressure at the time as it was getting dark.
State solicitor, Mr Donal Dunne put it to the witness that the garda was trained to observe various activities and had given evidence he saw a phone.
Mr Dunne asked was there any chance the garda was correct, to which the appellant replied in the negative.
Mr Meagher put it to the court that the appellant had simply begun his journey and was going to a nearby field to pay someone who was working on silage for him.
He said the garda had made an honest mistake as the appellant was carrying a black object.
Judge Keenan Johnson suggested that the appellant produce his phone bill, which would indicate whether or not he was on the phone at the time.
The appellant informed him it was a pay as you go phone.
Judge Johnson said he would adjourn the case to allow the appellant to get documentary evidence of the phone use and the matter was put back to the next sitting of Portlaoise Circuit Court on June 27.
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