DPP (at the Suit of Detective Garda Patrick Fahy) v Savickis

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 16 July 2019
• Neutral Citation: [2019] IEHC 557
• Court: High Court
• Docket Number: [2018 No. 1194 SS]
• Date: 16 July 2019

IN THE MATTER OF S. 52 OF THE COURTS SUPPLEMENTARY ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF DETECTIVE GARDA PATRICK FAHY)

PROSECUTOR

AND

DARIUS SAVICKIS

ACCUSED

[2019] IEHC 557

Donnelly J.

[2018 No. 1194 SS]

THE HIGH COURT

Crime & sentencing – Practice & procedure – Translation services – Fairness of trial – European Communities Act, 1972 (Interpretation and Translation for Persons in Custody in Garda Síochána Stations) Regulations, 2013 SI 564/2013

Facts: The accused was required to notify An Garda Síochána of this name and address under the provisions of the Sex Offenders Act 2001. He was alleged to have failed to do so, and brought before the District Judge. An issue arose that the interpretation services during the investigation were alleged to have been inadequate, and the District Judge stated a case relating to the provisions of those services in respect of European Communities Act, 1972 (Interpretation and Translation for Persons in Custody in Garda Síochána Stations) Regulations, 2013 SI 564/2013.

Held by Donnelly J, that the District Judge was under a duty to ensure the fairness of the trial, and remedies for alleged breaches of the 2013 Regulations were to be assessed during the course of the trial. Where a memo of an interview was agreed to be unclear, the Judge should avail of the opportunity to listen to an audio recording. The prosecution was not obliged to tender the translator where the document was relied on by the accused and prosecution alike.

JUDGMENT of Ms. Justice Donnelly delivered on the 16th day of July, 2019

1 This consultative case raises issues about the role of the trial judge in assessing allegations of inadequate translation services provided to an accused person at the investigative stage and the effect on the fairness of the subsequent trial if the services are found to be inadequate. These issues arose in a District Court trial of the accused for the alleged offence of failing to notify An Garda Síochána of his name and his home address as required by the relevant provisions of the Sex Offenders Act 2001 as amended by the Criminal Law (Human Trafficking) Act 2008 (‘the 2001 Act’).

2 Under the provisions of s.10(1) of the 2001 Act, a person who is subject to the requirements of the Act must notify the Gardaí in respect of this personal information within seven days. Under s.12(1)(a) and (3) of the 2001 Act, a person who ‘fails, without reasonable excuse’ to comply with s.10(1) of the 2001 Act shall be guilty of an offence which may be tried either on indictment or summarily in the District Court.

3 The case stated by the District Judge outlined that the solicitor for the accused made submissions to the effect that the proceedings were tainted by an inherent unfairness with the result that the District Judge ought to exercise her jurisdiction to dismiss the charge. This was based upon his submission concerning the interpretation facilities provided at an interview conducted with the accused and recorded at Galway Garda Station on the 19th January, 2017, (‘the interview’). The solicitor submitted: -

(i) The interpretation facilities were completely inadequate to the point of unfairness;

(ii) the memorandum of interview disclosed by the prosecution was incomplete and did not reflect what was said at the interview;

(iii) the prosecution had subsequently procured a second independent translation of the interview (‘the translation review’) which demonstrated the inadequacy of the interpretation facilities and the incomplete nature of the memorandum of interview;

(iv) the individual responsible for conducting the translation review was neither preferred as a witness on behalf of the prosecution nor tendered for cross-examination on behalf of the accused;

(v) the identity and location of the individual responsible for conducting the translation review was not being disclosed to the accused (other than by way of an indication that the individual was ordinarily resident in Lithuania).

4 At the trial, the District Judge considered that in order to rule properly on the issue she had first to hear the evidence led by the prosecution. A number of witnesses were called on behalf of the prosecution. This included a detective sergeant who gave evidence that the accused had not registered as a sex offender pursuant to s. 10 of the 2001 Act. The relevant facts disclosed in the case stated are as follows: -

(a) The accused pleaded guilty to a charge of rape and was sentenced on 27th July, 2009 to a term of six years' imprisonment.

(b) His initial intended release date was 19th August, 2014.

(c) In or around July, 2013, while in custody at Arbour Hill Prison, the accused met Niall Kennedy, a prison officer working there. Mr. Kennedy was familiar with the accused during his custody for a period of approximately two and a half years. Mr. Kennedy frequently conversed with the accused in the English language during that time. He met the accused and provided him with a leaflet (printed in English) concerning his obligation to register as a sex offender upon release from prison pursuant to s. 10 of the 2001 Act. Mr. Kennedy considered the accused fully understood those terms at the time. The accused signed a document (printed in English) acknowledging receipt of this information. A copy of the document typically provided to such persons was tendered in evidence.

(d) There was no Lithuanian interpreter present for that meeting. The accused indicated his intention upon release was to return to Galway to live with his partner and their child, but this document recorded the accused as indicating he would be homeless upon release. The latter reference was a standard inclusion on the form which should have been deleted, it had not been indicated by the accused.

(e) In point of fact the accused was not released from prison in August, 2014. He was detained in custody on foot of a European Arrest Warrant which had issued from the Lithuanian authorities for a surrender to Lithuania. Following legal proceedings, the accused was surrendered to Lithuania pursuant to an order of the High Court made on 31st July, 2014.

(f) After a brief time in custody in Lithuania, the accused was released and lawfully returned to reside in the State to his partner and their child, in or around November, 2015.

(g) On 18th January, 2017, the accused made a housing application to a local authority, Galway County Council, on behalf of himself, his partner and now two children. The local authority passed the matter to An Garda Síochána for Garda vetting, as is customary with housing applications.

(h) On 19th January, 2017, D/Gda. Pat Fahy became aware that the accused was residing at a specific address in Galway. D/Gda. Fahy consulted with D/Sgt. O'Neill, who was familiar with the operating systems used by An Garda Síochána for recording information provided by persons subject to the provisions of s. 10 of the 2001 Act. D/Sgt. O'Neill informed D/Gda. Fahy that, according to Garda systems, the accused had not complied with his registration obligations under s.10 of the 2001 Act. D/Gda Fahy met the accused at his home the same day, and the accused informed him that he had been residing there since November, 2015. The accused was arrested pursuant to s.4(3) of the Criminal Law Act, 1997 and conveyed to Galway Garda Station where the member in charge, Gda. Joseph Hearst, detained the accused under s. 4 of the Criminal Justice Act 1984 (‘the 1984 Act’).

(i) The accused was interviewed at Galway Garda Station by D/Gda. Fahy and Gda. Mary Moran. D/Gda. Fahy requested that the member in charge contact the translation service known as ‘translation.ie’ to procure a Lithuanian interpreter for the interview, and this was done.

(j) The interview commenced after Ms. Aura Navickite, the Lithuanian interpreter, had arrived. Ms. Navickite had no training or qualifications in the provision of interpretation or translation services, either generally or in the context of the criminal justice process. She was educated in ordinary level English at secondary school in Lithuania. At the material time, Ms. Navickite was 23 years old and worked part time as a Lithuanian interpreter for translation.ie. The interview represented the second occasion on which she had attended a Garda station to interpret at an interview of an accused in custody.

(k) Following the interview, the accused was subsequently charged with the offence. He then met with his solicitor.

(l) Disclosure was made by An Garda Síochána of the memorandum of interview, and disclosure of the audio-visual recording of the interview was made pursuant to s.56 of the Criminal Justice Act, 2007. Based on instructions from the accused that he had been unable to participate fully in the interview as a result of the poor quality of the interpretation, and based on a review of the audio-visual recording of the interview, the solicitor took the view that the memorandum of interview was seriously deficient and did not reflect what was said by the accused or what was attempted to be conveyed by the accused at the interview.

(m) Accordingly, the solicitor corresponded with An Garda Síochána, setting forth his client's position that the interview had been conducted unlawfully by reason of the inadequate interpretation of same. He sought confirmation as to whether An Garda Síochána proposed to introduce into evidence the memorandum of interview at the trial.

(n) Arising from this exchange of correspondence, An Garda Síochána arranged for translation.ie to conduct the translation review. This review was conducted by unidentified experts in Lithuania working for translation.ie.

(o) A copy of the translation review was subsequently furnished by way of disclosure.

(p) At the District Court hearing, the memorandum of interview was proved by D/Gda. Fahy and a copy of it was admitted into evidence on behalf of the prosecution.

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