Showing posts with label Sign language interpreters. Show all posts
Showing posts with label Sign language interpreters. Show all posts

Wednesday, June 8, 2016

Deaf witness is a competent & credible witness- High Court [Judgement Included]

Dear Colleagues,

A single bench of Hon'be Delhi High Court presided by Justice Mukta Gupta while disposing off an appeal has held that when a deaf witness is under cross-examination the Court is required to take due care of the fact that vocabulary of such a person is limited as he or she speaks through sign language and it may not be possible for that witness to answer, or in detail explain every answer by sign language. This disability of a limited vocabulary of sign language does not  affect either the competence or the credibility of such witness.

In the instant appeal filed by the Accused who was convicted for the offence defined under Section 9(k), punishable under Section 10 of The Protection of Children from Sexual Offences Act, 2002, for sexually assaulting a 12 yr old deaf and dumb girl, twin arguments were raised by the counsel for appellant i.e.  firstly since the prosecutrix could not be cross-examined her testimony cannot be read in evidence  and secondly even if the offence is proved against the appellant, the same would fall under Section 7 punishable under Section 8 of POCSO Act and not under Section 9(k) punishable under Section 10 of the POCSO Act.

Section 119 of the Indian Evidence Act, 1872 provides: “119. Dumb witnesses.- A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs, but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence.”

While dealing with the mode of recording, non-administration of oath to a deaf and dumb witness and involving an interpreter for understanding the evidence of such a witness, the Supreme Court in the decision reported as (2012) 5 SCC 789 State of Rajasthan Vs. Darshan Singh @ Darshan Lal held: “26. The object of enacting the provisions of Section 119 of the Evidence Act reveals that deaf and dumb persons were earlier contemplated in law as idiots. However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally found more intelligent, and to be susceptible to far higher culture than one was once supposed. When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law requires that there must be a record of signs and not the interpretation of signs.

On Questioning the Testimony as no cross examination held

In reply to the first argument of questioning the testimony, Justice Mukta Gupta held as follows;

“The purpose of cross-examination is to ascertain the truth in relation to the acquisition levelled against an accused person and a discretion is vested in the Court to control the cross-examination. A party cross-examining a deaf and dumb witness like any other witness is required to act within the bounds of law and cannot be permitted to cross-examine the witness all and sundry on irrelevant questions. Section 138 of the Indian Evidence Act itself provides that the examination and cross-examination of a witness must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief. The purpose is that in cross-examination besides relevant facts, facts which impeach the credibility of the witness and shake his creditworthiness can also be asked. However still the first portion of Section 138 of the Evidence Act qualifies this right confining the cross-examination to relevant facts though it may not have been so deposed in the examination-in-chief. It is the duty of a Judge to control the cross-examination to prevent any abuse and to protect a witness from being unfairly dealt with. Sections 149 to 152 of the Evidence Act prohibit asking questions without reasonable grounds, which are indecent and scandalous in nature, or which are intended to insult or annoy the witness”.

“When a deaf and dumb witness is under cross-examination, the Court is required to take due care of the fact that vocabulary of such a person is limited as he or she speaks through sign language and it may not be possible for that witness to answer, or in detail explain every answer by sign language. This disability of a limited vocabulary of sign language does not affect either the competence or the credibility of such witness. The Court is required to exercise control over the cross-examination keeping in view the ability of the witness to answer the questions.

From the examination of the witness which was in question-answer form and the response to the cross-examination wherein the witness drew and explained the distance where the incident took place, it can safely be held that there was sufficient compliance of the right to cross-examination provided to an accused and the testimony of this witness is not required to be effaced”

On punishment under section 8 Sexual Assault or Section 9 Aggravated Sexual Assault 

The Court then examined the question whether appellant can be convicted for offence defined under Section 7 and punishable under Section 8 of the POCSO Act or defined under Section 9(k) and punishable under Section 10 of POCSO Act. The appellant was charged for offence defined under Section 7 and punishable under Section 8 of POCSO Act i.e. “sexual assault”.

Section 7 POCSO Act defines the term sexual assault as physical contact without penetration. The punishment for the same is provided in Section 8 wherein the minimum sentence is 3 years which may extend to 5 years with fine.

Section 9 of POCSO Act defines “aggravated sexual assault” which is punishable under Section 10 POCSO Act. Section 9 POCSO Act defines different types of sexual assault which would be termed as aggravated sexual assault. Sub-clause (k) of Section 9 POCSO Act provides that whoever, taking advantage of a child’s mental or physical disability, commits sexual assault on the child would be punished for aggravated sexual assault as per Section 10 of POCSO Act wherein the minimum punishment is of 5 years imprisonment which may extend to 7 years and fine.”

Though charged with a major offence an accused can be convicted for a minor offence, the vice-versa is impermissible.

Court altered the Punishment

Accepting the contention of the Accused, the bench held that in the facts of the case Court is not required to go into whether aggravated sexual assault is made out or not from the evidence on record, for the reason there was no charge for aggravated sexual assault framed against the appellant. “ It is trite law that though charged with a major offence an accused can be convicted for a minor offence, however the vice-versa is impermissible which has been done by the learned Trial Court.”

Consequently, the Court altered the conviction of Accused to one for offence defined under Section 7 and punishable under Section 8 of POCSO Act.

The earlier sentence dt. 17 Dec 2013  of "Rigorous imprisonment for a period of six years and fine of Rs. 5,000/- in default whereof to undergo simple imprisonment for a period of three months" has not been modified as "Rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 10,000/- in default whereof to undergo simple imprisonment for a period of one month".

Click here for the Judgement dated 03 Jun 2016, bearing No. CRL.A. 751/2014 titled Chander Singh Vs. State

Language used by Judiciary referring to persons with disability

An important takeaway from this judgement is also the issue of improper and disability unfriendly language used by the Hon'ble Judges despite their best intentions. The terminology "deaf and dumb", "suffering from disability" etc has been repeatedly used by the prosecution, courts below and the high court in the pleadings, orders and judgement. And this is not one odd case. Its high time that the judicial officers  and prosecution officers too are trained in the use of correct language / terminology while referring to persons with disabilities. While the words, "suffering from" and "handicapped" are one extreme, the term "Divyang" suggested by Hon'ble Prime Minister of India is on the other extreme of the disability etiquette. People with disabilities are persons first and therefore a simple reference to them as "a person with disability" or "a person with hearing impairment", speech impairment, etc... in line with the UNCRPD accepted worldwide is appropriate and proper. The Hon'ble High Court must consider addressing this as a priority.  

Monday, August 5, 2013

Hospital refused Sign Language Interpretor - sued for disability discrimination under ADA

Department of Justice Files Lawsuit Against Vero Beach, Fla. Doctor and Medical Practice for Retaliating Against Deaf Couple

Monday, July 29, 2013

The Department of Justice announced today that it has filed a lawsuit against Dr. Hal Brown and Primary Care of the Treasure Coast of Vero Beach, Fla. (PCTC), alleging that the doctor and the medical practice violated the Americans with Disabilities Act by discriminating against Susan and James Liese, who are deaf. The complaint alleges that the doctor and the practice violated the ADA by retaliating against Mr. and Mrs. Liese because they engaged in activities protected under the act.  The suit was filed in the U.S. District Court for the Southern District of Florida in Ft. Pierce.

According to the Justice Department’s complaint, the doctor and medical practice terminated Mr. and Mrs. Liese as patients because the couple pursued ADA claims against a hospital for not providing effective communication during an emergency surgery.  The hospital is located next door to and affiliated with PCTC.  The complaint alleges that the Lieses threatened the hospital with an ADA suit based on failure to provide sign language interpreter services, and upon learning of the lawsuit, PCTC and Dr. Brown, who was the Liese’s primary doctor at PCTC, immediately terminated the Lieses as patients.

“The Department of Justice is committed to enforcing the provisions of the ADA that protect an individual from retaliation when he or she opposes disability discrimination and prohibit interference with an individual in the exercise of rights granted by the ADA,” said Jocelyn Samuels, Acting Assistant Attorney General for the Civil Rights Division.  “A person cannot be terminated as a patient because he or she asserts the right to effective communication at a hospital.”

The enforcement of the ADA is a top priority of the Justice Department’s Civil Rights Division.  The ADA prohibits retaliation against an individual because they oppose an act that is unlawful under the ADA and because they made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under the ADA.  The ADA also makes it unlawful to coerce, intimidate, threaten or interfere with any individual exercising their rights protected by the ADA.  The department’s Civil Rights Division enforces the ADA, which authorizes the Attorney General to investigate allegations of discrimination based upon disability. Visit and to learn more about the ADA and other laws enforced by the Civil Rights Division.

Friday, December 2, 2011

Deaf Man sues for being jailed without hearing him out through a sign language interpreter

Dear Friends,

After success at a PIL seeking interpreters for the deaf people  to make the public places accessible, the incidences like the one below in USA should become common in India too!

The present suit is a struggle of Siaki, a deaf person, against the establishment for denying him access to justice by not providing him a sign language interpreter during the arrest and booking process.

The suit indicates the urgent need of policies and procedures for dealing with deaf people keeping in mind their access needs and human rights. Its is wrong to assume that a deaf person understands what is being said to him.

Here is the struggle of  Siaki, a deaf person, against the establishment for denying him access to justice.

To read from Source click here : Mail Online

Deaf man suing after being jailed for 25 days 'without a sign language interpreter'

Authorities detained a deaf man for 25 days in jail without providing a sign-language interpreter, lawsuit has claimed. 
Domestic assault charges were eventually dropped against Timothy Siaki by Adams County officials.

A lawsuit filed Wednesday in U.S. District Court seeks unspecified damages and a finding that Adams County officials violated the Americans With Disabilities Act over his May 14, 2010, arrest and detention.

The Denver Post reports Siaki doesn’t read or write English or read lips, but he does communicate through American Sign Language. Deputies arrested Siaki after a noise complaint at a motel where Siaki and his fiancee were verbalizing sounds while arguing.

Deputies responding to the complaint knocked down the motel-room door and tackled Siaki after he failed to respond to their commands.

An Adams County sheriff’s spokesman says officials need to review the suit before commenting. Siaki’s fiancee, Kimberlee Moore, as well as Colorado Cross-Disability Coalition advocacy group are also plaintiffs in the suit.

Adams County Sheriff Doug Darr is named as the defendant.

'There were 25 days of his life that he had access to nothing — no information on why he was being held, no information about his case or what was going to happen to him,' said Kevin William, an attorney who filed the lawsuit.

According to the lawsuit, Moore tried to tell the deputies that Siaki didn’t hurt her but couldn’t because she was not provided an interpreter or any aids.

The suit claims Adams County is violating the ADA by failing to provide an interpreter or auxiliary aids for deaf suspects during their arrest and booking process.

'To this day,' he said, 'we don’t know why he was held for 25 days.'

Williams told the paper the coalition recently settled a similar case against the Lakewood Police Department and the Jefferson County Sheriff’s Office that call for very specific policies for compliance with the ADA.

'They need policies and procedures for folks who are deaf,' Williams said. 'People just assume that a deaf person understands what they are saying.