GAYLEBarbara Gayle, Staff Reporter
ONE OF the functions of a judge is to ensure that an accused person understands the conduct of the proceedings so that the accused can have a fair trial.
Henry Rivas, one of the two Venezuelans who were convicted on May 14, 2002 of unlawful possession of US$426,000, had appealed on the ground that his interpreter was not competent. Rivas speaks Spanish and a police officer was asked to interpret the proceedings for him.
Rivas was convicted along with Giovanni Infante and each sentenced to four months imprisonment. They each appealed against their convictions and sentences but the Court of Appeal dismissed their appeal on August 5 last year. The men were about to leave the island on March 21, 2001 when they were arrested and charged. After they entered the security check-point and passed through the X-ray machine at the Sangster International Airport in Montego Bay, Corporal Teeshan Gordon noticed that they had bulges to their thighs.
Cpl. Gordon accosted them, they were searched and subsequently arrested and charged after several packets of money were found strapped to their thighs. They said a friend who sold a house in Florida had sent them to Jamaica to collect the money. On May 14 last year, Resident Magistrate Valerie Stephens found them guilty of unlawful possession of the money.
One of Rivas' grounds of appeal was that "having been assessed as needing an interpreter it was necessary that the interpreter obtained on his behalf be established to a prima facie level to be without bias and competent. The interpreter being a police officer, was on the face of it biased in favour of the prosecution and her expertise was never established. Accordingly, the learned Resident Magistrate erred in accepting and utilising her as an interpreter for the appellant Rivas."
The Court of Appeal said "the record of the proceeding reveals that each interpreter was duly sworn and the evidence led in examination-in-chief and cross-examination conducted by counsel on behalf of the appellants. Subsequently, each appellant gave evidence, in direct response to the allegations, demonstrating that each understood the evidence led by the prosecution." The court said further that "neither did counsel or the appellants object on their behalf, either to the interpretation or his clients' inability to understand or to participate at any stage of the trial. We agree with Miss Paula Llewellyn for the Crown that the narrative of each appellant reveals a coherent sequence, that the trial was fairly conducted and that there was no miscarriage of justice."
The Court of Appeal referred to the United Kingdom Privy Council case of Kunnath v The State in which the Privy Council in 1993 allowed the appeal of an uneducated peasant from Southern India whose native language was Malayan but his trial in Mauritius was conducted in English. The interpreter, mistakenly interpreted only portions of the proceedings but none of the evidence for the benefit of the appellant, who in his statement to the court said he did not understand what the witnesses had said.
The Privy Council allowed the appeal and said "an accused who had not understood the conduct of a proceedings against him could not, in the absence of express consent, be said to have had a fair trial and the judge by virtue of his duty to ensure that the accused had a fair trial was bound to ensure that, in accordance with established practice, effective use was made of an interpreter provided for the assistance of the accused. When a foreign accused was defended by counsel, the evidence should be interpreted to the accused except when he or counsel on his behalf expressed a wish to dispense with the translation and the judge thought fit to permit the omission."
The Court of Appeal comprising Mr. Justice Donald Bingham, Mr. Justice Paul Harrison and Mr Justice Seymour Panton who heard the appeal said nothing of the sort as complained of in Kunnath's case occurred in the two appellants' case.
