A man who was accused of driving with a trace amount of cocaine in his system has had his conviction overturned on appeal, after a judge noted the identity of a Romanian interpreter provided at a garda station was not recorded.
The District Court Appeals Court heard that Marcel Nagit (36) was allegedly found to be 1.3 nanograms over the limit for metabolised cocaine in his blood.
Mr Nagit, with an address in Pine Hurst, Ratoath Road, Dublin 7, was convicted in the District Court of driving while there was present in his body a quantity of benzoylecgonine (cocaine) where the concentration of that drug in his blood was greater than the specified concentration, contrary to section 4(1)(A) of the Road Traffic Act 2010.
He was convicted in the District Court, fined €1,000 and disqualified from driving for one year. He later lodged an appeal against his conviction.
Garda Derek Larkin told the court that he approached a Volkswagen Golf car and indicated for it to stop at a roads policing checkpoint on the Castleknock Road, Dublin 15 on February 13, 2023.
He said that he spoke to the driver and observed from the windscreen that the NCT had expired.
Garda Larkin said that he explained to Mr Nagit that he was driving without NCT and made a lawful demand to take a sample of saliva. He said that Mr Nagit indicated that he understood and agreed to comply.
The garda said that the test returned a positive result for cocaine and that he arrested Mr Nagit.
He said that when the accused arrived at the station, a Romanian interpreter was contacted but the service couldn’t guarantee an arrival in time. He said that he was operating under a three-hour time restriction and that he opted for a telephone translation.
Garda Larkin said that he made a demand for the accused to allow the doctor to take a blood sample and explained the penalties of failure or refusal. He said that Mr Nagit consented to a sample.
He said that the sample returned a reading of 51.3 nanograms of benzoylecgonnine (cocaine) which exceeds the 50ng/ml limit.
The garda said that a fixed charge penalty notice was issued for the NCT and that this was dealt with.
He said that there was interpretation for the notice of rights, the reason for arrest and all throughout the process with the doctor.
Garda Larkin said that he went through appropriate channels and that the service the gardai use is verified. He said that Mr Nagit had a good understanding of what was going on at the roadside.
Counsel for the defence, Martin Joseph Dully BL, said that his client was marginally over the limit.
Mr Dully said that the custody record was dealt with by another garda and that the section dealing with foreign nationals and interpretation was “effectively crossed out”.
Mr Dully said that this section is “utterly essential” when English is not a defendant’s first language and that rules must be respected.
Garda Larkin replied that they were respected and disagreed that the record was “utterly incorrect”.
Garda Larkin said he didn’t think he had used interpretation over the phone more than three times in his career and that this occasion was memorable. He said that a Romanian interpreter was being used for all interactions in the station.
He said that to suggest that at some point a garda would ditch the interpreter was “preposterous”.
Mr Dully said that under the regulations, there is an obligation imposed on the member in charge or jailer to record all matters concerning an interpreter.
Garda Larkin said that he didn’t record the name of the interpreter and when asked by Mr Dully if he could recall if the interpreter was male or female, he replied that he couldn’t, saying “that wasn’t my concern judge”.
Mr Dully said his client instructed that there was only a single conversation and no simultaneous translation.
He said that the person who was given the job of recording the information had failed to fulfil his obligations. He said that the “utterly unexplained failure” to record information puts the defence in a difficult position.
Counsel said that the garda was claiming that everything was interpreted, but that the custody record provided no particulars of that. He said that he couldn’t check this out with the person identified as the interpreter.
Mr Dully said that there was a question mark over whether the accused was lawfully detained if there were clear breaches of the custody regulations.
Counsel for the prosecution said that efforts were made to get a translator on the phone. It was submitted that Garda Larkin was extremely clear that he was trying to move things on as quickly as possible, as Mr Nagit’s liberty was coming into question.
She said that the garda made what he thought was the best decision in the moment to use a well-used service. She said that nobody was saying it was perfect, but that gardai have to be practical.
Counsel also said it was accepted that the case was “teetering on the edge” in terms of the amount of nanograms present, but that the test produced a result with a presence of cocaine.
She accepted that no one was saying there was a high level and while Mr Nagit’s demeanour wasn’t an issue, she submitted that trace cocaine was found.
Judge Callan said that the garda gave his evidence honestly and he fully accepted that the witness didn’t remember the gender of the interpreter.
However, he said that the court had an issue with the custody record. He said it was an important document which is completed in context of a person being deprived of their liberty.
Judge Callan said it is important that the custody record is completed accurately, so that the defence can be instructed on what occurred.
He said that the defence could test that or seek some evidence from the interpreter, but that possibility was deprived of the accused.
The judge said the identity of the interpreter wasn’t to be found and for that reason he believed that there was an element in the process which was prejudicial to the accused.
He said that he was satisfied on that ground to allow the appeal.