The Tribune

By FARRAH JOHNSON

Tribune Staff Reporter

fjohnson@tribunemedia.net

THE Court of Appeal yesterday quashed the six-month sentence of a former police reserve sergeant who was convicted of abducting and assaulting a teenage girl at a police station over two years ago.

In July 2018, Dwayne Dacosta was accused of having sex with a then 13-year-old girl in the precincts of the South Beach Police Station.

During trial, it was initially alleged that he digitally penetrated the teenager and made her perform oral sex on him in a room upstairs in the station’s fire services garage.

However, when the girl gave sworn evidence, she denied telling police about any sexual acts allegedly committed by Dacosta, and in fact said the contents of her statement were “incorrect”.

The teenager said although she signed her statement, she did not read it over before she signed, and it was not read back to her by the interviewing officer. She also said she didn’t sign the document truthfully.

She did acknowledge she told police that at one point while at the station, an officer alleged to be Dacosta called her from the foyer and directed her to a room upstairs at the rear of the building.

In 2019, a nine-member jury unanimously acquitted Dacosta of the unlawful sexual intercourse charge but found him guilty of committing the lesser offences of abduction and assault. He was subsequently sentenced to six months behind bars, placed on probation for one year and ordered to keep the peace and be of good behaviour.

His attorney, Krysta Mason-Smith, recently appealed his sentence after arguing the verdict was unreasonable given the circumstances of the case.

During a virtual hearing before Justices Milton Evans, Carolita Bethell and Roy Jones yesterday, she contended that the judge should have acquitted the appellant at the no case stage and not proceed with the other matters, since there was no evidence to support the accusation brought against her client.

“At the stage that the learned judge found that there was no evidence of any sexual offence being committed before her, and on the concession of the Crown to that effect, that ought to have brought the matter to an end,” she stated.

“Having regard to what the law says about any other offence arising on the facts, then what ought to have happened is that that particular indictment ought to have been formally quashed and or amended and none of that transpired.”

Mrs Mason-Smith said while the Supreme Court was “armed with power,” there were procedures put in place to ensure the authority they possessed was “executed in the correct fashion”.

She also noted the Crown never made an application to amend the indictment, despite the fact that the evidence produced during trial “revealed” something contrary to their allegations.

“The evidence of the complainant herself said he (Dacosta) did nothing to me. There was no evidence of him doing anything sexual or otherwise other than the seven minutes that the Crown made much of. If it had been a situation where the facts revealed indecent assault... even that had to be left to the jury at the appropriate stage. That’s what we’re saying. At a no case submission stage, we have a difficulty with the manner in which the case unfolded and led to a conviction.”

Mrs Mason-Smith said the judge’s ruling, in which she concluded that there was not sufficient evidence “in respect to the current charge that the jury properly directed may consider relative to the charge of unlawful sexual intercourse,” proved the teen’s evidence did not assist the Crown “whatsoever”.

“He was there for an offence of a sexual nature only (but there was) no evidence,” she said. “The Crown in their attempt to even raise the issue of indecent assault, show us that their mind also was aligned that lesser offences must come from the greater offence. Our submission respectfully is that the offences for which Mr Dacosta was unusually asked to lead a defence (for) do not form the lesser of the greater in these circumstances nor was the correct process followed”.

In her submissions, Crown attorney Jacklyn Burrows asserted there was “no need” for a formal arraignment or amendment to the indictment.

“The prosecution did concede that on the facts, the unlawful sexual intercourse did not occur on the evidence. However, we are of the view that lesser offences did arise from the evidence,” she stated.

Still, when Justice Jones said it was not “fundamentally fair” to place an indictment in front of the accused without first charging him for the offences, Mrs Burrows argued that Dacosta was “fully aware of all the allegations of conduct”.

In response, Justice Evans told her that Dacosta was only arraigned on “one specific charge”, which meant that if the Crown was “moving away” from it, an amendment had to be made.

The Crown had originally filed an appeal to contest Dacosta’s sentence as well. However, after considering the point raised by the appellate panel during Dacosta’s appeal, the prosecution opted to withdraw the court action.

After some deliberation, Justice Jones said the panel elected to rule in favour of Dacosta.

“We have decided to allow the appeal, quash the conviction and sentence and we do not order a retrial,” he said. “We will give our reasons at a later date.”