Case dismissed as lack of caution leaves a ‘fatal flaw’

December 3, 2020

A DONEGAL man had charges dismissed this week after a procedural error by Gardaí left a ‘fatal flaw’ in the prosecution.

A case against Paul Creamer (28) of Rockhill, Dunfanaghy, who faced two charges – one of having no insurance and the other of failing to give information – collapsed.

At 3.40am, on December 30, 2017, Gardaí were on public order patrol at Market Square, Dunfanaghy.

A dark Toyota Avensis drove across Market Square and took off at speed.

Letterkenny District Court heard that Gardaí followed the car, which was traveling at excessive speed. Gardaí abandoned the pursuit and returned to Market Square.

A short time later, the same vehicle, traveling at what was described as ‘very excessive speed with the engine revving’.

Garda Brendan O’Connor told Letterkenny District Court that the patrol car ’shook, the vehicle was travelling at such speed’.

With a high volume of people present, Gardaí believed it would be unsafe to mount a pursuit. Garda units were alerted and a check of the system showed that Paul Creamer was the registered owner.

When Gardaí called to Creamer’s address, he was in the passenger seat of another vehicle outside the house. Gardaí said they believed he had information about who was driving the vehicle, but Creamer said he had sold the car to a man in Buncrana three days earlier and the log book was sent away.

Garda O’Connor asked Creamer to open his garage and the Avensis was parked inside.

Defence solicitor Mr rank Dorrian said that anything that was told regarding ownership was ‘hearsay’.

Garda O’Connor said he explained matters to Creamer in ‘ordinary language’.

“The Act must be cited specifically,” Mr Dorrian said. “Different sections attract different obligation.”

Mr Dorrian said that when a demand is made for something under the Act, the specific Act must be referenced. He said Gardai had cited the wrong section and that the matter should have been covered by a caution. This was not referenced in the Garda’s notebook, the solicitor mentioned.

“There is a big difference in being the owner and being the driver,” Mr Dorrian said.

Inspector Siobhán Mollahan said it was ‘pretty clear’ that Gardaí were attempting to establish who was driving and contested that Mr Dorrian was trying to ‘cloud’ the situation.

The onus, Mr Dorrian, argued, was on the Gardaí to produce proof of ownership.

“The difficulty I have in the prosecution is that it is up to the State to produce a certificate to show who is the owner,” Judge Alan Mitchell said.

“Once the Garda spoke to Paul Creamer at the time, he was speaking as a suspect and should have been cautioned.

“The absence off a cert giving evidence of ownership leaves a fatal flaw in the prosecution. An essential element has not been proved and, while I am not impressed by other evidence that I have heard, I have no option but to dismiss the case.”

In closing, Judge Mitchell said that Gardaí not administering cautions was now something that had become a ‘feature’ that he was finding regularly.

He said: “Once a person becomes a suspect, that person should be cautioned.”