Woman who assaulted deaf pensioner wins appeal against conviction because victim knew interpreter
A woman jailed for assaulting a deaf pensioner for whom she had previously performed “sexual favours” has had her conviction quashed because the complainer knew the sign language interpreter at her trial.
The Criminal Appeal Court ruled that a “miscarriage of justice” had occurred after the sheriff rejected a compatibility minute lodged on behalf of the accused prior to the trial, to the effect that the interpreter’s knowledge of the complainer created a “real risk of prejudice”.
Lord Eassie, Lady Smith and Lord Drummond Young heard that the appellant Louise McDougall, 26, was sentenced to three years imprisonment in February 2015 after she was convicted at Dundee Sheriff Court of assaulting 87-year-old William Watson to his severe injury and permanent disfigurement, and an attempt to pervert the course of justice after she falsely claimed he had sexually assaulted her, following an incident at his home in Montrose in December 2013.
Mr Watson, who is profoundly deaf and has no speech had, by the time of the trial, been assisted and supported for 17 years by Jennifer Ramsay, a specialist interpreter trained and qualified in “minimal sign language”.
Prior to trial, a compatibility minute was lodged which stated that Mrs Ramsay, who was listed as a Crown witness, had interpreted and translated the complainer’s police statement and that in interpreting the evidence in the trial, there was a real risk that her interpretation would be influenced by her knowledge of the complainer and his complaint to the police.
It was also contended that it may be necessary to call the interpreter as a witness, but that wouldn’t be possible due to her presence in court.
Therefore, it was argued that there was a “real risk of prejudice” if Mrs Ramsay were to act as court sign interpreter and translator, and that a “suitable alternative” should be appointed.
However, the sheriff rejected the contentions in the minute as she was “not satisfied” that there was a real risk of prejudice to the appellant.
She explained that there was a “real risk to the interests of justice if Mr Watson’s evidence was not properly interpreted”, and Mrs Ramsay was clearly the “best person” to achieve that and any issue regarding the fact that she had interpreted for Mr Watson during his police interview could be dealt with in the course of the trial.
Following the appellant’s trial an appeal against conviction was lodged, in which it was submitted that the sheriff had erred and that a different interpreter could and ought to have been instructed.
On behalf of the appellant it was argued that the use of Mrs Ramsay as interpreter involved a “real risk of apparent bias”.
The impression given to an objective bystander was likely to be one of “partiality”, due to the length of time during which Mrs Ramsay had known, supported and assisted the complainer, and because she had interpreted for him during the police interview.
It would readily have been concluded by such a bystander that she was likely to be “sympathetic” to him and therefore there was a “significant risk of prejudice to the appellant”, it was submitted.
For the Crown, the advocate depute submitted that even if there had been a breach of procedural requirements, the sheriff had applied her mind to the competing issues and there had been “no miscarriage of justice”.
The relationship between the complainer and Mrs Ramsay was a “professional one”, even if longstanding and the risk of prejudice “should not be made into a presumption”.
It was important to equip a “frail and vulnerable” witness so as to enable him to give his evidence, and it was appropriate to use an interpreter who had knowledge of the complainer because of his particular difficulties, it was argued.
However, the judges observed that while it may have seemed “convenient” to use Mrs Ramsay as an interpreter, it would have been possible for a different interpreter to be instructed for the trial.
Delivering the opinion of the court, Lady Smith said: “The issue for the sheriff was whether, if Mrs Ramsay acted, there was a significant risk of prejudice to the appellant. In the circumstances, the question whether there would be apparent bias if Mrs Ramsay’s services were used was of central importance. If the circumstances are such as would lead a fair minded and informed observer to conclude that there is a significant risk of partiality then it will be difficult to resist the conclusion that a trial conducted in the presence of such circumstances cannot be a fair one.
“All the circumstances relied on by counsel for the appellant did, we agree, point to the presence of such a risk. The length and nature of the association between Mrs Ramsay and the complainer and her knowledge of the line adopted by him at the earlier police interview made it impossible to rule out there being a significant risk of her interpretation being affected by sympathy for him particularly once he was being subjected to cross examination. It was a risk which did not, in the circumstances, need to be run.”
The judges held that the minute should not have been repelled, and that the risk of prejudice to the appellant was not, in the event, eliminated.
“Rather, we are satisfied that a miscarriage of justice occurred,” Lady Smith added.
The appeal court also refused a Crown motion for authority for a fresh prosecution, due to the time the appellant had already spent in custody, ruling that it was “not in the interests of justice” to grant the motion.
© Scottish Legal News Ltd 2021