NASSAU, BAHAMAS — In providing its reasoning for quashing the assault and abduction conviction of former police reserve sergeant Dwayne DaCosta, the Court of Appeal said it was “unfair” for the prosecution to present new charges at the end of its case, after an indictment of unlawful sexual intercourse was presented, and the matter proceeded to trial.
In her ruling, Court of Appeal Justice Carolita Bethell said there was a single count on the indictment, and the judge, having found there was no case for DaCosta to answer on that count or on the lesser charge of indecent assault, should have acceded to the no case submission and the case should have “been brought to an end”.
The appellate court said DaCosta was asked to answer to new charges without the indictment being amended and without him being made to replead to the new charges.
It said the proper course of action would have been for the Crown to made an application to amend the indictment, and for the judge to consider the application and amend if satisfied, before calling upon the accused to replead.
The appellate court said this course of action was not followed and it was “most unfortunate”.
“It is my view that this was most unfortunate,” read the ruling.
“The error was fundamental.
“In the matter of Jonathan Armbrister v R SCCrApp. No. 232 of 2012, the Court of Appeal, differently constituted, held that where an order for amendment was not made, the error was fundamental as the amendment of an indictment is a serious matter and not a mere matter of formality.
“Isaacs JA judgment at paragraphs 65 et seq is instructive to trial judges on this point.
“It is unfair to present an indictment to an accused, proceed to trial, then at the end of the prosecution’s case, depending on the evidence led, the prosecution seeks to lay what amounts to new charges without giving the defendant the ability to plead to them.
“Before I leave these grounds I would like to address the misapprehension that the learned trial judge and counsel for the Crown were under regarding when it was applicable to consider the principle of when a lesser offence is subsumed by the greater offence.
“They were both of the view, erroneously so, that it could have been applied at the no case stage.”
In May 2021, the appellate court quashed the six-month sentence of the former police reserve sergeant.
At the time it said it would provide its reasons at another date.
It provided that reasoning in a written ruling on February 25.
DaCosta was charged with unlawful sexual intercourse with a girl, who was 13 years old at the time of the alleged incident, at the South Beach Police Station.
But during the trial, the girl said DaCosta did nothing sexual to her.
She was declared an adverse witness.
The appellate court noted there was no evidence alleging any sexual misconduct on the part of the reserve officer.
At the end of the prosecution’s case, the defense submitted the charge had not been made out against their client and counsel for the Crown conceded the point.
However, the Crown said it was open to the court to put an alternative offense to the jury, noting assault and abduction were all lesser charges that could be considered.
Defense counsel strongly objected.
The judge agreed with the no-case submission to the charge of unlawful sexual intercourse, but she also agreed that DaCosta still had a case to answer on the alternative charges.
The jury found DaCosta not guilty of unlawful sexual intercourse, but found him guilty of the alternative offences and sentenced to six months’ imprisonment.
He appealed his conviction on the grounds that the trial judge erred in law when she failed to acquit him after accepting the no-case submission; and that she erred when she directed the jury to consider the charges of assault and abduction when “they did not arise out of the facts”.
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