A judge has been to the scene of an alleged crime between Maguiresbridge and Tempo.

District Judge Nigel Broderick wanted to see for himself if Mark Convey was on a public road when he allegedly drove a Volkswagen Polo with excess alcohol, while disqualified and without insurance.

Convey, who has 580 convictions on his criminal record, denied committing the offences on New Year’s Eve 2013, claiming he was on private property.

After visiting the scene at Gardiner’s Cross the District Judge told Fermanagh Court that the Polo was found on a grass verge.

A Mr. Armstrong and his son had come across the crashed car and offered Convey assistance. They said they towed the car backwards out of a ditch with Convey sitting in the driver’s seat, steering. Convey claimed he was not sitting in the driver’s seat but standing leaning in through the driver’s window and steering the car that way. The Polo was towed on to a private lane and the Armstrongs were putting the rope into the boot of their vehicle when the police arrived. The prosecution case was that the car was on a public road and Convey was steering and therefore in control of the vehicle.

The District Judge referred to a case in England where a car with no engine was being towed. The person steering was judged to be in control of the vehicle.

Defence barrister Steffan Rafferty submitted that the Polo was on private land.

“It was not on a public road,” he argued.

The District Judge said that in another case a pavement or walkway was deemed to be part of a public road.

“Is a grass verge part of a public road,” he pondered.

The court heard that the tyre marks from the Polo did not actually go as far as the public road. They stopped a foot and some inches short.

The prosecutor accepted that if a car was driven off a road into a field it would not be in a public place.

She said the prosecution case was that the grass verge was part of the public road.

The case was adjourned to give Convey’s lawyers time to investigate who owned this particular grass verge.

The District Judge said he was satisfied there was a prima facie case that Convey was sitting in the driver’s seat, steering the Polo while it was being towed, and was therefore in control of the vehicle.

“The issue was whether it was on a public road or not,” he stated.

Mr. Rafferty handed in a map showing that the verge where the car was found appeared to be within the boundary of a piece of private land.

The prosecutor said she could not argue with the map.

The District Judge said that, based on the map, he was not satisfied that the prosecution had established beyond reasonable doubt that the car was on a public road.

He dismissed all three charges against Convey, who was then returned to prison to serve the remainder of a five-month sentence for other, unrelated offences.