Garda Aidan O'Gorman told the court the accused admitted at the scene he was holding a phone
A BUS driver was convicted of holding a mobile phone while driving despite insisting he was holding an e-cigarette when he was encountered by gardai.
During a contested hearing at Newcastle West Court, Desmond O’Shea, 42, of Uppertullig, Caraghlare, Killorglin, County Kerry insisted Garda Aidan O’Gorman was mistaken and that he did not have a phone in his hand as alleged.
Garda O’Gorman, who is a member of the divisional Roads Policing Unit, said he was on duty at Convent Road, Abbeyfeale at 7.30pm when he observed the defendant holding a mobile phone at the steering wheel of the bus.
Solicitor Enda O’Connor said his client would give evidence he was holding an e-cigarette in his hand and that his phone was on a shelf unit to the side of the steering wheel.
“Initially he denied it, then he said he was checking the time (on the phone),” said Garda O’Gorman who agreed he was around 60 feet away from the defendant and “had to look through the passenger side of the bus”.
He also said he could not remember which hand Mr O’Shea was using to hold the phone .
When asked if it was possible he could have mistaken the e-cigarette for a mobile phone, Garda O’Gorman replied: “No judge - he admitted holding it, I have a note of it”.
In his evidence, the defendant said he was driving a tour bus and was travelling from Dublin to Kerry when he was stopped by the garda.
“He was mistaken, it was an e-cigarette I was holding a the time,” he said producing an e-cigarette for the court to examine.
“My phone was on a ledge to my right hand side, I looked down to check the time,” he added confirming he owns a Samsung smartphone.
Mr O’Shea told the court he has a sat-nav system in the bus which also works as a handsfree kit when connected to the phone.
“You can speak to it,” he said adding the sat-nav also reads text and WhatsApp messages out loud.
”I didn’t make a call, I received no messages,” he insisted.
Mr O’Connor submitted the e-cigarette was a similar size to the phone and that there had to be a doubt given how far away Garda O’Gorman was from his client.
Inspector Andrew Lacey disagreed and he submitted the State had proven its case and that the evidence of Garda O’Gorman could not be disputed.
Convicting the defendant of the charge, Judge Mary Larkin said she “did not accept” his evidence in relation to his interaction with Garda O’Gorman and that she was satisfied he did not mention the e-cigarette to him when he was stopped.
“Why would the garda say you made admissions,” she commented.
She imposed a €200 fine giving him three months to pay.
While not a matter for the court, Mr O’Shea will also receive penalty points on his driver’s licence.
Recognisance of €250 were set in the event of an appeal.