Thai brothel trial must start again
Evidence distorted, says judge
ADURBAN couple facing 30 years in prison were successful in having their convictions overturned.
Pietermaritzburg High Court Judge Esther Steyn ordered that the trial that convicted Basheer Sayed and his Thai wife, Somcharee Chulchumphom, be set aside and that a new trial be started afresh before a new Durban Regional Court magistrate.
Durban Regional Court magistrate Trevor Levitt convicted the couple of running a brothel on charges under organised crime legislation.
It was said to be SA’s first conviction for racketeering relating to prostitution and human trafficking.
Following their convictions, the couple faced 30 years in jail or a R100 million fine for running a brothel in Umbilo with women recruited from Thailand.
Sentencing had been postponed pending the outcome of their review proceeding in the High Court.
The couple allege their trial was not properly interpreted and applied to the High Court to have their convictions overturned.
In heads of argument presented before Judge Steyn, senior defence advocate Pingla Hemraj argued that the English of the interpreter, known only by the name Kate, had not been fluent and it had been difficult to understand what she said.
Hemraj also submitted that Kate’s services had been used by the State when consulting witnesses before the trial, and to interpret conversations between Chuchumporn and her legal representative.
“The interpretation of the evidence of the Thai witnesses contained more information than was actually conveyed by the witnesses while testifying, and she appeared to be using her prior knowledge of the matter to embellish the actual answers of the witnesses,” Hemraj said.
Reflect
Hemraj said the record of the trial did not reflect that Kate had been sworn in as an interpreter in court.
The defence is relying on case law which states that if it is proved that a translator had not taken the general oath, the evidence that was interpreted becomes inadmissible.
The State submitted that the legal representatives of the couple had not registered a complaint against the interpreter’s alleged non-proficiency in English at the trial – nor had they registered a complaint about the oath.
The State argued that it would not be in the interests of justice to start a new trial be- cause all the witnesses who testified in the criminal trial had returned to Thailand, and that it would not be possible to get them back to testify.
Following Judge Steyn’s judgment, it is unclear whether the State will be able to locate all the previous witnesses to testify at the new trial.
In her judgment handed down this week, Judge Steyn said this case had demonstrated that it was not sufficient merely to be bilingual or fluent in a language; an interpreter should have a basic understanding of the legal process, since they were expected to translate exactly what was said.
“If the translation is improper, due to a lack of understanding, it would result in evidence being distorted,” Judge Steyn said.
In the present case, the interpreter failed to refer to any date on which she was sworn in and did not stipulate what was explained to her before she took the oath or that she understood the nature of the oath.
The judge said the irregularities that occurred during the trial had a direct bearing on Levitt’s findings and directly impacted on the fairness of the trial.
“There is no doubt the participation of the applicants in this trial was compromised and that their rights have been violated,” said Judge Steyn.