San Lee v. Her Majesty’s Advocate [2016] HCJAC 39

Note of appeal against conviction:- On 30 June 2014, at Edinburgh High Court, the appellant was convicted after trial of a charge of rape contrary to section 1 of the Sexual Offences (Scotland) Act 2009. On 29 July 2014 the appellant was sentenced to 54 months imprisonment. The appellant appealed against his conviction on two grounds:- (1) that the appellant had been denied a fair trial in that, having initially stated that he did not want an interpreter and changing his mind so that he wanted an interpreter, the interpreter thereafter impeded rather than assisted his understanding of the trial proceedings; and (2) that the trial judge erred in her directions on reasonable belief. In relation to the interpreter issue, the circumstances were that the appellant did not have one at the preliminary hearing, however, it was minuted that one should be used for trial. On the first day of the trial an interpreter was sworn and at that stage a special defence of consent was tendered, a jury was empanelled and thereafter a joint minute of agreement was read which included inter alia that on the night in question the appellant had had sexual intercourse with the complainer. On the second day of the trial the interpreter advised the court that, whilst the joint minute was being read, the appellant had asked that he should stop interpreting as the translation was distracting and that he was able to follow and understand the English used. The appellant’s counsel advised the court that the appellant’s views, in relation to his need for an interpreter, had changed frequently during the proceedings and counsel asked that the interpretation should continue meantime. The trial judge agreed that the interpreting should continue and the issue was not raised again during the trial. It was submitted here on behalf of the appellant that he had not had a fair trial because the interpretation had impeded his ability to understand the case against him. Two reports and an affidavit had been obtained from Professor Isabelle Perez, a Professorial Fellow in Languages and Intercultural Studies in the School of Management and Languages at Heriot-Watt University in which a number of criticisms of the interpreting at trial were made. It was submitted on the appellant’s behalf that the interpreter was not properly qualified and the standard of the interpretation provided had fallen below acceptable standards and failed to provide an adequate procedural safeguard to ensure his comprehension of proceedings. The second ground of appeal related to alleged misdirections by the trial judge in which it was said that the Crown’s position was that “the accused had no reasonable basis for believing that the complainer consented, or was capable of consenting to sexual contact” so the judge had introduced the concept of reasonable belief not only in relation to consent but also for capacity to consent. In addition the trial judge directed the jury that in determining reasonable belief as to consent, the jury could have regard to the same features as they had considered relative to consent, for example, the jury should not have considered the complainer’s memory loss since the appellant would have been unaware of that at the time of the sexual contact. Here the court refused the appeal. In relation to the issue of the interpreting services provided at trial the court confirmed that “...where an accused person is unable adequately to understand English at a trial diet, he has a right to have the assistance of an interpreter...” (Hassan v HMA 2013 SLT 217 at paragraph 33) which is in line with the Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings. In relation to the present case, however, the court considered that the appellant was proficient in English and, whilst the court did not consider that he required simultaneous translation of the testimony of the witnesses into Korean, that is what he requested and was provided with at his trial and his appeal and, in the circumstances, there was no unfairness as what was provided ensured a level and fair playing field. The court stated that for there to be any merit in this aspect of the appeal it would have to be satisfied that the appellant might have been prejudiced by any lack of understanding and in the present case there was nothing to indicate that the appellant might have suffered prejudice. It had been made clear on the second day of the trial that any issue regarding interpreting could be revisited during the course of the trial and no further issue was raised by the appellant. In relation to the second ground of appeal, namely, the trial judge’s directions to the jury, the court confirmed that use of the word “reasonable” was a misdirection but the court considered it to be a linguistic error and from the remainder of the charge it was clear that if they considered that the appellant believed that the complainer had consented, they required to acquit if that belief was reasonable or had a reasonable doubt. The court considered that there was a further misdirection and that related to directions given by the trial judge that, if the appellant reasonably believed that the complainer was capable of consenting, they should acquit, however, the court considered that such a misdirection favoured the appellant. The court observed that whilst the trial judge had given specific directions in relation to reasonable belief of consent the Crown case was based on the complainer being incapable of consenting because of her alcohol consumption where that was proved and where the appellant gave no evidence and provided a “no comment” interview, the issue of reasonable belief could not arise as there was no evidential basis for the appellant believing that the complainer was consenting to intercourse.