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1. On the 7th June, 1998 a minor road traffic accident occurred close to the High Cross Inn, a licensed premises at Bellan, Moone, Co Kildare, when the Applicant's motor car collided with a parked Landrover the property of one Simon Cross. Arising out of this the Applicant was charged under Section 49(2) and (6)(a) of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994.

2. The matter was heard by the first named Respondent at Athy District Court on the 10th November, 1998 the Applicant being represented by Counsel. Simon Cross was not called to give evidence and the only evidence adduced at the hearing was that of Garda Michael Egan. He gave evidence that on the 7th June, 1998 he arrived at the scene of a road traffic accident outside the High Cross Inn at Bellan, Moone, Co Kildare. He observed that the Applicant's motor car had driven into a Landrover owned by Simon Cross. Simon Cross informed him that that accident had happened at approximately 10.20 pm and that the Applicant had left the scene by foot. Shortly afterwards Garda Egan interviewed the Applicant on the road. The Applicant admitted to being the driver of his motor car at the time of the collision which he stated had occurred a few minutes earlier. In the course of the conversation the Garda formed the opinion which led to the Applicant being arrested and subsequently charged.

3. In these proceedings the Applicant seeks an Order of Certiorari quashing his conviction upon the following grounds:-

4. In relation to the first ground it is quite clear that the Applicant's Counsel was given every opportunity to, and did in fact make detailed legal submissions to the first named Respondent. Accordingly, insofar as the application is based on a failure to hear the Applicant - audi alteram partem - I am satisfied that the application must fail. The Applicant's real complaint is that the submissions made were not successful. Counsel for the Applicant submitted to the first named Respondent and in arguing this ground before me that there was no evidence that the place at which the accident occurred was a public place and that notwithstanding the absence of such evidence the Applicant had been convicted. It is clear from the affidavits sworn on this application that there was indeed no evidence as to the nature of the place at which the accident occurred. It is well settled that the onus is on the prosecution to establish by proper evidence that the offence was committed in a public place as defined in the Road Traffic Acts; Attorney General (McLoughlin) v. Rhatigan 100 ILTR 37. On the account of the proceedings before the first named Respondent it would appear that the prosecution did not discharge this onus.

5. The second ground relied upon is that the first named Respondent failed to exclude evidence which offended the hearsay rule. However, it was argued in addition before me that an admission of driving made by the Applicant to Garda Egan having been made in the absence of a proper caution ought not to have been admitted in evidence and this being so whether or not the Road Traffic Act, 1961 Section 107 had been invoked by the Garda. The law governing inculpatory statements was considered by the Supreme Court in The People (Attorney General) v. Cummins [1972] IR 312. I am satisfied that on the evidence that the first named Respondent was entitled to find that the statement was a voluntary statement and in these circumstances she had a discretion as to whether or not the same should be admitted and there is nothing before me to suggest that this discretion was exercised in other than a judicial manner. It was argued that if the statement was obtained pursuant to the Road Traffic Act, 1961 Section 107 then having regard to the decision in The People (Attorney General) v. Michael Gilbert [1973] IR 383, it remained an open question whether such a statement is admissible where charges are preferred under the Road Traffic Acts. Again on the evidence before me it is unnecessary to decide this question at this time as, on the account of the evidence led in the District Court available to me, there is no suggestion that the statement was obtained in reliance on the powers conferred by this section. Further it was argued that a caution ought to have been given by Garda Egan. The Judges' Rules require of the Garda that as soon as he has evidence which would afford reasonable grounds for suspecting that a person has committed an offence he should caution that person before putting any questions. However, when a Garda is trying to discover whether or by whom an offence is being committed he is entitled to question any person whether suspected or not from whom he thinks such useful information may be obtained and in doing so he is not required by the Judges' Rules to administer a caution. On this occasion Garda Egan was doing no more than trying to discover whether or by whom an offence had been committed and he was entitled to ask the Applicant as to whether or not he was driving at the relevant time. I am satisfied that notwithstanding the absence of a caution the evidence of the statement made by the Applicant in relation to his driving of the car at the relevant time is admissible. The admission of hearsay evidence of driving was not necessary for a conviction.

6. As for the third ground - absence of proof of time of driving - the Applicant raises like arguments as to admissibility of inculpatory statements and the absence of caution. Again, it was open to the first named Respondent to find that the statement was a voluntary statement and to exercise her discretion and admit the same and there is nothing to suggest that the discretion was exercised in other than a judicial manner. The Applicant told Garda Egan that he had been involved in a motor accident with a jeep a few minutes earlier. This statement if admissible is sufficient to enable a finding to be made that driving had occurred within the three hour period. I am satisfied that no caution was necessary; Garda Egan was at the time still trying to discover whether or by whom an offence had been committed and there is nothing to suggest that at the time the statement was made that Garda Egan had evidence which would afford reasonable grounds for suspecting that the Applicant had committed an offence. I note that the statement made by the Applicant does not appear to have been made in response to a question and this circumstance alone would appear to dispose of any suggestion that the statement was involuntary or that a caution was required. Once the statement is admitted it is sufficient to discharge the onus on the prosecution to adduce evidence as to the time of driving. The admission of hearsay evidence as to time of driving was not necessary for a conviction.

7. In these circumstances the only basis upon which the Court could be asked to interfere by way of Judicial Review is on the basis that no evidence appears to have been led which would enable a finding to be made that the offence was committed in a public place. The second named Respondent argues that this error is an error of law and that Certiorari is not the appropriate remedy and that the discretionary remedy of Certiorari should rarely be granted where an adequate alternative remedy is available by way of appeal and the appeal has been availed of as is the case here. The law is as stated in The State (Abenglen Properties Limited) v. Dublin Corporation [1984] IR 381 by Henchy J. at p. 400:

8. Again O'Higgins C.J. at p. 393:-

9. In the present case the error does not appear on the face of the record. There has been no disregard of the requirements of natural justice. The Applicant has an appeal pending against his conviction before the Circuit Court. Having regard to the decision of the Supreme Court in Abenglen Properties Limited and the foregoing findings it is not appropriate that an Order for Certiorari should be made. Accordingly, I dismiss the application.