26 April, 2023.
A POLISH WOMAN a drink driving case dismissed after Gardai failed to bring the interpreter to court.
The case came before Judge Brian O’ Shea at Youghal District Court.
Miss S. was arrested on suspicion of drink driving. She was charged with failing to provide a specimen of breath in the Garda station, an offence which carries a four-year disqualification from driving.
Miss S. had crashed her car into a telephone pole late in the evening of 25 January 2023 outside Youghal, Co. Cork. When Garda Murphy arrived at the scene, he discovered that her car “had collided with [the ESB pole] with enough force… to knock over the ESB pole and drive it approximately 15 feet from its mounted place”.
Garda Murphy’s evidence was fair and balanced.
He found Miss S. “swaying backwards and forwards” and “slurring her words”. There was a strong smell of alcohol from her breath. Miss S. was cautioned, and she replied, “Yeah, I drinking and drive”.
“[Miss S] refused to blow into
the machine. I again explained
through the interpreter that she
was required to give a sample
of breath through the machine”.
Miss S. was arrested and taken to Midleton Garda Station. Garda Murphy said that she “stated that her English was not very good”.
A translator was called, was placed on speakerphone and her rights were explained to her.
Miss S was told that she would be required to give two specimens of her breath into a machine (Evidenser) designed to test the concentration of alcohol in her breath.
She was observed for 20 minutes to ensure she didn’t consume anything prior to using the test and that “mouth alcohol did not interfere with the test”.
She was taken to the Evidenser machine. Garda Murphy said that at 00:55am he told her that she would have to provide two specimens of her breath. He outlined the penalties to her if she did not.
All of this was translated to Miss S.
Garda Murphy said that at 1:06a.m. “[Miss S] refused to blow into the machine. I again explained through the interpreter that she was required to give a sample of breath through the machine”.
He said that Miss S refused.
Garda Murphy said that he again reminded Miss S that if she failed to provide a sample “the [Evidenser] machine would time out and she would be in breach” [of the law].
He said that “she stated that she understood”.
She failed to provide a specimen of breath and “the Evidenser machine …returned a result of Specimen Incomplete”.
It was suggested to Garda Murphy that Miss S. spoke Polish but not English and that the Gardai spoke English but not Polish.
Garda Murphy agreed.
Garda Murphy also agreed that the interpreter who had interpreted on the phone that night was not in court.
Judge O’ Shea asked whether this was a case where “the Gardai considered it necessary to call an interpreter so that they could communicate with Miss S?”
The State agreed.
“But the prosecution didn’t call the interpreter [to give evidence]?”
This was confirmed.
Judge O’ Shea said that the interpreter was crucial as the Prosecution needed to rely on an essential piece of evidence i.e. that Miss S. was told -in a language that she understood- about the consequences of failing to provide a specimen.
At this point Judge O’ Shea stated that this area was one that he was very familiar with. He indicated that he had dealt with a case previously which had similar facts. This was the case of DPP v. Atilla Mike (5 February, 2020).
“It was a case I dealt with at Gorey District Court”.
IN THE CASE OF Atilla Mike, the Defendant, a Hungarian national, had been arrested for drink driving and was charged with failing or refusing to provide a breath specimen.
“The issue is the status of evidence gathered through the services of an interpreter”.
The Defence argued that whatever the Defendant had said in Hungarian (which the Gardai understandably did not understand) was not admissible evidence in court that he had actually said such a thing.
His judgment took in a wide sweep of cases from
the United Kingdom, South Africa, Canada, Australia
and New South Wales
from 1901, 1946, 1959, 1960 and 1993.
The languages under consideration were
Zulu, Maltese, Afrikaans, Motu and English.
In his judgement in Atilla Mike Judge O’ Shea repeated what the prosecuting Garda had stated in evidence:
“He just wouldn’t do the procedure … he was instructed how to provide the sample … I mimed how to blow into the mouthpiece … everything that had to be explained was done through the interpreter … the interpreter was on the phone at all times throughout the entire procedure … throughout the 20 minute observation period he stated he was not going to provide the specimen … he was informed that it was a criminal offence to fail or refuse to comply with the requirement … in the doctor’s room he stood up and kept telling me and the translator he wouldn’t comply … he made no effort to blow into the device.”
The interpreter was not a witness in court.
As a preliminary observation Judge O’ Shea stated that he was “of the opinion, on the evidence, that nothing in the behaviour of the accused in the absence of the utterance in issue could amount to a failure or refusal”.
Without an interpreter in court who could either state under oath that what Garda Murphy said was true or who could provide evidence based on a note they had taken of what happened in the Garda Station, the evidence the Gardai now provided to court “was inadmissible hearsay”.
Judge O’ Shea stated that there were practically no authoritative cases in Irish legal jurisprudence and that “accordingly, it became necessary to look further afield”.
His judgment took in a wide sweep of reported cases from the United Kingdom, South Africa, Canada, Australia and New South Wales from 1901, 1946, 1959, 1960 and 1993.
The languages under consideration were Zulu, Maltese, Afrikaans, Motu and English.
In all cases the police officer spoke one language and the defendant spoke another.
In each case neither party spoke the other’s language and an interpreter was called to translate.
Judge O’ Shea referred to the decision of the English Court of Appeal in Attard (1959) where the court, possibly anticipating the difficulties Judge O’ Shea would later face, stated that “just because [an argument against police officers giving evidence as to the truth of what was said by the Defendant to the interpreter] had not been argued previously, [it] was not a reason to refuse the application if it was correct”.
In Atilla Mike Judge O’ Shea said that cases involving interpreters could be split into two groups: cases where the interpreter gave evidence and cases where they did not.
In the cases where the interpreter gave evidence, it was only to confirm that their translation had been accurate.
In other words, the translator did not recall specific details of the case. They had made no notes. This was important.
If the translator gave evidence that confirmed that their translation was correct and accurate, then the Defence could have no complaints. The only question that could arise could be on the accuracy (sufficiency) of the translation.
Judge O’ Shea felt that interpreters should
make notes of what they had translated at the time
especially if the statement by the arrested person
(i.e. that they were refusing to comply) would be
the “core essential proof required to establish guilt on [their] part”.
In the cases where the interpreter had not been called to give evidence, the police relied on the evidence of the police officer to determine the truth of what had happened.
But in these cases, the courts had been in agreement that this evidence was hearsay. That relegated it to the status of inadmissible evidence.
The court could not rely on it.
While Judge O’ Shea had concerns that evidence from an interpreter was admissible even where the interpreter could not remember anything specific about the translation they had performed, he had no doubts about evidence where the interpreter was not called to give evidence.
“It is almost impossible to disagree with the finding that where no interpreter is called to testify then the [Defendant’s statement] to that interpreter is inadmissible hearsay”.
The main point in Attila Mike was whether the interpreter was an essential witness for the prosecution. Judge O’ Shea took the view that if the Garda stated that the Defendant was refusing to provide a specimen, and no interpreter had been called to give evidence, then this was hearsay.
That made it inadmissible.
If this was the case, then, from a legal point of view, there was no proof that there was any refusal “in the absence of the interpreter”.
Another issue now needed to be dealt with.
Should the interpreter have a specific recollection of what they had interpreted or was it enough for them to testify that the interpretation that they provided was accurate?
This issue had not been decided by Irish courts and Judge O’ Shea felt compelled to look at the judgements from overseas.
While foreign judgements do not bind an Irish court and are “persuasive only” Judge O’ Shea felt that the “weight of foreign authority [was] so overwhelming…that I would likely find…that evidence of content by an officer coupled with evidence of general accuracy by the interpreter is sufficient to prove what was [said] by the accused”.
As an aside Judge O’ Shea felt that interpreters should make notes of what they had translated at the time especially if the statement by the arrested person (i.e. that they were refusing to comply) would be the “core essential proof required to establish guilt on [their] part”.
Judge O’ Shea now turned to Miss S.’s case.
“The accused is Polish who doesn’t speak English. The Garda does not speak Polish. The Garda was concerned and felt it was necessary to get an interpreter. The Prosecution didn’t call the interpreter. The interpreter is crucial as the Prosecution need to rely on an essential piece of evidence (i.e. that Miss S. had stated that she would not provide a breath specimen)”.
Judge O’ Shea stated that if the interpreter had been called to give evidence, he would have been satisfied if the interpreter had a note of what they had translated or, failing that, were in a position to confirm that the Garda’s evidence of what had transpired was correct.
Where an interpreter had been called an argument may be had as to the accuracy (“sufficiency”) of their evidence.
He repeated his decision in Attila Mike.
“As the interpreter was not called to testify, not only does sufficiency not arise but the prosecution does not even get as far as that hurdle”.
The evidence of Garda Murphy had been “inadmissible hearsay” and there was “no evidence about a refusal”.
He dismissed the prosecution case.
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