RAPE, buggery and murder accused Dwayne Belazaire is now a free man due to technicalities concerning evidence in the early stages of police investigations. Belazaire, a dual citizen of TCI and the Bahamas, was charged and remanded to prison for the murder of Romona Sanchez on February 1, 2009.
The trial was scheduled to start in Providenciales Supreme Court on September 26 before Judge Edwin Goldsbrough and a jury. But before a jury could be empanelled, Belazaire’s lawyer Stephen Akinsanya, attached to F Chambers, brought a motion inviting the judge to exclude the DNA evidence from the trial.
He told the court that DNA samples were taken from his client on April 1, 2009 but it was done the wrong way. The law at the time – it has since been changed – was that an intimate sample may be taken from a person in police detention only.
In addition, the court had to give the order for it to be taken, as well as the accused had to consent. This was not done, Akinsanya pointed out. The police did not seek an order from the court but instead, recorded a statement of consent from Belazaire on April 17 and proceeded to have the samples taken.
“The DNA was taken under the wrong circumstances and the problem is if procedure is not adhered to in any case, you leave yourself open to legal challenge,” Akinsanya said.
He presented the ruling in the Amanyara trial in which Chief Justice Gordon Ward ruled to exclude the DNA samples since they were collected without a court order. A voir dire was conducted and evidence was taken from three police officers and Dr. Umo Umo.
Detective Sergeant Tomiko Glinton testified and admitted that he did not seek a court order before taking Belazaire’s sample. “I thought I was doing the right thing,” he said. Based on legal authorities, Principal Crown Counsel JoAnn Meloche argued: “There has to be a balance of the accused rights and the public’s interest – serious crimes gets tried”. She built her arguments on a ruling handed down by the House of Lords in December 2000, a higher court than the Supreme Court.
“Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after the commission of the offence, the judge has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained.”
In other words, if there was a breach of the accused rights it does not automatically mean that you exclude the evidence. The ruling stated: “The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. “And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. “There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. “It involves taking into account the position of the accused, the victim and his or her family, and the public.”
Justice Goldsbrough did not accept this argument and after hearing the evidence ruled that the DNA evidence will be excluded from the trial. At that point, Meloche had to decide whether to continue to trial without the DNA which was strong and compelling evidence. She decided against it and discontinued the prosecutions.
“In light of the decision by Judge Goldsbrough excluding DNA evidence the Crown is entering a Nolle Prosequi,” she said. Nolle prosequi means the case against the defendant is being dropped but it is not a guarantee that the person will not be re-charged for the same matter.
Meloche promised that the Attorney General’s Chambers will consider its legal options with respect to the charges.