Court dismisses acquittal application where prosecution failed to call interpreter, rendering alleged refusal hearsay.

THE DISTRICT COURT DISTRICT COURT AREA OF WEXFORD DISTRICT NO. 23

DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA CHRISTIAN DORNEAU)

PROSECUTOR

- AND -

ATILLA MIKE ACCUSED Judgment delivered by Judge Brian O’Shea at Gorey District Court on the 5th day of February 2020

1. This is an application by the defence for an acquittal at the close of the prosecution case.

2. The accused is charged with failing or refusing to provide a breath sample pursuant to section 12(1) of the Road Traffic Act 2010 as amended.

3. The issue is the status of evidence gathered through the services of an interpreter.

4. The accused is a Hungarian national. He does not speak any English. The garda who made the statutory demand to provide the breath sample speaks English but does not speak any Hungarian. An interpreter, who speaks both languages, was engaged by the prosecuting garda so that the garda and the accused could understand each other. The interpreter was on the telephone, on loudspeaker, and translated what both men said throughout the entire process. The garda spoke in English and the interpreter translated into Hungarian for the accused. The accused spoke in Hungarian and the interpreter translated into English for the garda.

5. The defence focused its application on the alleged utterance of the accused that the prosecution relies upon as amounting to a refusal. The defence argues that there is no admissible evidence before the court that the accused made such an utterance.

6. The evidence of the garda included the following relevant testimony: “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.”

7. The interpreter was not a witness at the trial.

8. For the avoidance of doubt, I am 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.

9. At the close of the prosecution case the solicitor for the accused argued that the prosecutor can only succeed in establishing the requisite failure or refusal by proving the content of what the accused allegedly said to the translator. Put another way, in the absence of the testimony of the interpreter, the content of what the accused said in Hungarian to the interpreter is inadmissible hearsay so there is no admissible evidence of the failure or refusal. The garda testified as to what was said to him by the translator in English but he cannot testify, from his own knowledge, what the accused is alleged to have said.

10. The starting point for any analysis of this argument must be to acknowledge the general rule that all relevant evidence is admissible. This is so unless it offends any of the established exceptions to the general rule, for example the rule against hearsay.

Seemingly inadmissible hearsay may in turn fall within one of the exceptions to the hearsay rule and thereby become admissible as an exception to an exception.

11. Although the defence submission appears on its face to be a very straightforward, there does not seem to be any Irish law directly on the point and none was opened to the court.

Accordingly, it became necessary to look further afield.

12. The first decision of relevance emanates from the appellate division of the Supreme Court of South Africa, namely R. v. Mutche [1946] A.D. 874. In that case a police officer interviewed a suspect. The officer did not understand the suspect’s language. An interpreter was engaged. The officer put questions to the interpreter in English. The interpreter then communicated with the suspect in the suspect’s language. The interpreter then reverted to the officer with the suspect’s answer translated from the suspect’s language into the officer’s language. The suspect’s answers, if proved, amounted to a confession. The officer took notes. The interpreter took no notes. The interpreter could not remember the content of the interview. The officer testified at the trial of the accused using his contemporaneous notes to refresh his memory. His testimony consisted of repeating what the interpreter told him that the accused had said.

13. In his judgment on the issue Davis A.J.A. (at page 875) states that it is “… axiomatic that what has been said through an interpreter to someone who does not understand the language interpreted is ordinarily mere ‘hearsay’ if deposed only by that person.” He concludes obiter (at page 878) that: “It seems to me that it is sufficient if … the interpreter, deposes to the fact that he interpreted correctly all that was said to him by [the suspect], and if [the officer] … then deposes to what … the interpreter said at the time. For here we have no hearsay. … The interpreter deposes to a fact within his own knowledge, namely that he interpreted correctly; the [police officer] also deposes to a fact within his own knowledge, namely what the interpreter told him. The sum of the evidence of … the interpreter … and … the [police officer], each speaking from his own knowledge, proves what was said by [the suspect]. And this is the usual practice in South Africa.”

14. More recently Botha J.A. in the same court in Ndlovu and Mashego v. The State (Case Nos. 250/1991 and 16/1992 delivered 24 May 1993) pronounced further on the issue in the following terms (at page 9 of the judgment): “That practice has continued to this day.

In R v Mutche, the absence of the relevant evidence from the interpreter was held by this Court to be fatal to the admissibility of the words recorded by the person to whom the statement was being interpreted. Unless the statements in the present case can be admitted on some other basis, the failure to have called the interpreters renders them inadmissible.”

15. In Ndlovu and Mashego the statements of both appellants were made in Zulu. The police officers who took the statement did not understand Zulu. The police officers recorded the Afrikaans translation of the interpreters. Neither of the interpreters testified. The question arose as to whether it was proved by the prosecution that either of the appellants told the interpreters what the police officers recorded. The court concluded (at page 15 of the judgment): “It follows that the statement made by [both accused to both interpreters] were not properly proved in evidence and must be disregarded.”

16. Davis’ A.J.A. conclusion in Mutche, however, ignores that even if what was said by the officer to the interpreter and visa versa was admissible on the basis that it was said in the presence of the accused (who did not understand it) then it could only be for the purpose of grounding an admission as to the veracity of any reply made by the accused. Even if the court was to treat the interpreter as an agent of both the accused and the officer this does not progress the argument because as far as an accused is concerned the interpreter’s authority is limited to correct translation and the issue remains that the content of the accused’s utterance to the interpreter is still unproven. This view accords with the dissenting judgment of McTiernan J in the High Court of Australia in Gaio v. The Queen, referred to below in more detail. He was of the opinion (at page 4 of the judgement) that the evidence in that case was inadmissible for three reasons: “(1) it was hearsay and there is no exception to the rules against the rule which could let it in; (2) it was not evidence of an admission by the appellant because the interpreter was not his agent to make any admission as the appellant was not versed in English, [and 3] the statement was not one that would be fair having been made in the appellant’s hearing.

The case seems to me to call for an ordinance to deal with the circumstances out of which the appeal has arisen. I think the appeal should be allowed.”

17. R v. Attard (1959) 43 Cr. App. R. 90, is a decision of the English Court of Criminal Appeal in which the police officer gave testimony but the interpreter did not. The accused argued that the testimony of a police officer was inadmissible hearsay. The officer spoke in English only and the prisoner spoke in Maltese only. An interpreter was engaged who spoke both languages. It was argued for the accused that he did not understand the questions put to the interpreter in English nor his subsequent answers translated into English. These questions and answers were, consequently, not statements made in the presence and hearing of the accused. The only valid witness regarding the interview was the interpreter.

18. The prosecution on the other hand argued that interpreters are in a different position from that of police officers in that they are impartial and are not expected to take an intelligent interest in the proceedings. The prosecution further argued that the rule against hearsay is not absolute and that it was a mistake for the accused to state that this established practice for taking statement offends against the rules of evidence. It was argued that interpreters are “mere cyphers who hear translations and then gives them back in the English language”.

19. In Attard, O’Gorman J noted (at paragraph 92 of the judgment) that the argument was a novel one but not one to be lightly dismissed. He noted that there were no reported decisions on the point but that just because it had not been argued previously was not a reason to refuse the application if it was correct. O’Gorman J concluded that the submission on behalf of the accused was correct and that the evidence “ought not to be given through the mouth of the [officer] in the witness box.”

20. Perhaps significantly, in response to this decision the Director of Public Prosecution suggested, and the Home Office agreed, that a circular issue to the Chief Officers of Police stating: “it will be necessary in similar cases in the future to ensure that the interpreter is available to give evidence as to oral statements made by the accused, as is already done in the case of written statements. It will be desirable that, whenever practicable, the interpreter should make his own notes of the interview for use in the event of his being called to give evidence. Failing this, the interpreter should be asked to initial the record of the interview made in the notebook of the police officer conducting the interview, so that it can be used by the interpreter to refresh his memory when giving evidence.”

21. O’Gorman J noted by way of comment, but without adjudicating on the issue of the sufficiency of the interpreter’s testimony, that the defence accepted that it would be sufficient for the interpreter to testify along the following lines: “I heard the [officer] put the question. I then translated that question. I said this to the prisoner and the prisoner said this to me”, the interpreter being asked as a sort of intermediary between the non- English-speaking prisoner and the English-speaking [officer].”

22. In the aforementioned decision in Gaio v. The Queen (1960) 104 C.L.R. 419 the interpreter testified in general terms as to the accuracy of his translation but without recalling any detail of the content. The accused spoke in Motu and the officer in English.

The admission against self-interest occurred during an interview in the presence of an interpreter who spoke both languages. The interpreter was called as a witness and he testified that he truly translated to the officer everything said by the accused in answer to the questions put to him. The interpreter did not give evidence of what was said by the accused. The officer testified that he immediately typed what the interpreter told him the accused said. At trial, objection was taken to the admission of the officer’s oral proof of what the interpreter said to him in translating the appellant’s answers during the interview on the ground that it was hearsay. The majority of the High Court in Australia opined that the oral testimony of the officer was not hearsay and that there was no infringement of the hearsay rule. The court took the view that the testimony of the police officer and the interpreter properly proved the confession. The court concluded that it was a fallacy to conclude that there were two conversations ongoing during the interview, i.e. one between the police officer and the interpreter and another between the interpreter and the suspect. It opined that there is just one conversation during an interview of a suspect by an officer in the presence of an interpreter, with the interpreter acting as a “telephone” between the officer and the suspect. The court further concluded that the interpreter may then testify as to the accuracy of his translation.

23. The difficulty I have with this conclusion is that “telephones” do not translate. The interpreter could do no more than testify that he translated accurately. On foot of this generalisation regarding accurate translation, the court accepted that what the accused said to the interpreter was proved by the officer repeating what the interpreter told him.

In my opinion this cannot be correct in law. The officer was giving the interpreter’s direct evidence for him. This amounts to a fundamental breach of the hearsay rule because a witness must testify from personal knowledge. The officer did not have any personal knowledge of what the accused said to the interpreter. The interpreter may have had that knowledge at the time but could remember nothing of what the accused said to him or what he in turn said to the officer, yet he asserted that what he said to the officer was accurate. The issues I allude to regarding the finding of the majority did not go unnoticed by McTiernan J in his dissenting judgment where he stated (at page 2 of the judgment):

“I do not agree with that view. There is in my opinion no analogy between the mechanical reproduction of a verbal statement and the translation by an interpreter from the language in which it is made to him into the language of the person to whom the words of the statement are communicated by the interpreter.”

24. In R. v. Kores (1970) 15 C.R.N.S. 108 the British Columbia Court of Appeal took the view that where an otherwise admissible statement is taken out of court through an interpreter, the use of the interpreter does not make the statement of the witness hearsay. The person who took the statement through the interpreter may give evidence as to the contents of the statement, provided there is evidence that the statement is accurate.

25. There are other cases on the issue, most of which emanate from South Africa, Australia and New South Wales. They include R. v Sundra (1901) 18 WN (NSW) 29, R. v. Lau Chi

(1947) QSR 154, and S v. Dondashe and Others (Case No 363/1987 delivered 30 November 1988) where the decision in Mutche was again adopted and applied to exclude a statement made to an interpreter where the interpreter did not testify.

26. All the caselaw is readily divisible into two distinct groups: (1) cases where the interpreter testified and (2) cases where the interpreter did not testify. In all the cases where the interpreter testified it was only as to the general accuracy of their translation with no recall of any specific content. The reason for this is obvious but I will state it anyway: if the interpreter testified as to both accuracy and content then no argument would be available for the defence to raise in the first place.

27. The issue involved in the cases in the first group concerned the sufficiency of the testimony as opposed its non-existence. In cases where the interpreter was not called to testify, the evidence of the officer was opined by the court to amount to inadmissible hearsay. While it is possible to level criticism at the respective courts in relation to the cases in the first group regarding the decision to admit the confessions in the absence of the ability of the interpreter to recall absolutely anything of what was said to them by the accused, it is almost impossible to disagree with the finding that where no interpreter is called to testify then the purported utterance of the accused to that interpreter is inadmissible hearsay.

28. The central issue in the instant case is whether on the particular facts the interpreter is an essential witness for the prosecution. If the testimony of the garda is inadmissible hearsay as regards the alleged utterance made by the accused to the effect that he was refusing to provide the sample, then there is no proof of the refusal in the absence of the interpreter.

29. The other issue that arise on the caselaw, but not on the facts of the instant case, is whether it is sufficient for the interpreter to testify in general terms as to the accuracy of their interpretation or must the interpreter testify as to the actual content of the utterance made. In my opinion, which may be purist and is definitely obiter, I respectfully disagree with any decision that it is sufficient for the interpreter to testify only as to the general accuracy of their translation. This is because it offends the rule against hearsay for a court to be informed of the suspect’s utterance not by the person to whom it was made but by the officer repeating what the interpreter told him in English that the accused said in his own language to that interpreter. The “interpreter-as-a-telephone”

argument is too weak to countenance and appears to me to be an effort to avoid the application of the rule in circumstances where there is no exception provided at common law or in legislation. The officer is testifying by repetition with no direct knowledge of the purported utterance of the suspect instead of the direct testimony of the interpreter to whom the accused spoke, and who presumably understood the suspect. I further opine that to conclude that the sum of an officer’s repetition testimony coupled with an assertion by the interpreter as to the general accuracy of a forgotten translation proves an essential ingredient of a criminal offence at worst ignores, and at best misinterprets, the essence of the rule against hearsay. However, if on such a set of facts I expressed my opinion as above I would then be obliged to look at the scenario through the prism of the stare decisis the principle. There is no caselaw on the precise point in this jurisdiction and foreign authority is persuasive only. But the weight of the foreign authority against my view, I being a judge exercising local and limited jurisdiction only, is so overwhelming, despite the occasional dissent, that I would likely find, against my will, that evidence of content by an officer coupled with evidence of general accuracy by the interpreter is sufficient to prove what was uttered by the accused. Of course, I would very much welcome being overturned on such a finding by a higher court in this jurisdiction.

30. Is it so unreasonable for an interpreter to note what the officer states, followed by what the accused states in his own language, followed by the translation given to the officer? I think not, in circumstances where the actual content of the purported statement against self-interest is the core essential proof required to establish guilt on the part of the accused. Even if there are impracticalities associated with the procedure that should not amount to a reason for not doing so given the crucial nature of the evidence. The irony is that if instead of relying on the police officer alone, or the detailed testimony of a police officer coupled with a general confirmation of accurate translation by an interpreter, the prosecution would do better with the evidence of a competent professional interpreter taking accurate notes who could prove the admission against self-interest with no assistance from the police officer.

31. Turning from obiter to ratio, in the instant case the prosecution did not call the interpreter to testify at all. In my opinion the interpreter is a crucial prosecution witness where the prosecution seeks to rely on the utterance made by the suspect to prove an ingredient of the offence. Where the interpreter testifies the sufficiency of their evidence may be in issue. 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 testimony of the garda as to what the accused is alleged to have said is inadmissible hearsay. There is, therefore, no evidence before the court to prove the alleged failure or refusal on the part of the accused to comply with the statutory requirement.

32. Consequently, the application must succeed. The case is dismissed.