Attorney Waide DaCosta appeared in Grand Court on Monday as a witness called by Defence Attorney Jonathan Rose in the trial of suspended Deputy Commissioner of Police Rudolph Dixon.
Mr. DaCosta told the jury and Justice Charles Quin there was a DUI case years ago that was dismissed in Summary Court because the officer who made the arrest did not have any reasonable suspicion in his own mind.
Dixon, who is charged with misconduct in public office and doing an act tending and intending to pervert the course of public justice, has already given evidence that he was relying on that case when he gave advice in 2004.
The charges against him, which are alternatives, stem from an incident on the night of 7 April, 2004. Dixon is accused of ordering the release of retired Deputy Commissioner Rudolph Evans, who was followed home that night by an off-duty officer who observed a truck and formed the opinion that its driver was under the influence of alcohol.
The officer called for uniformed officers to attend the scene so they could make the arrest.
Dixon has said the Inspector on duty, Burmon Scott, called him at home because he was not happy with the arrest. Dixon further stated that, based on what he was told by Mr. Scott and the arresting officer, he considered that Mr. Scott had a right not to be happy.
Dixon said he referred to ‘the Mervyn Cumber case’ which he considered was well-known. He said police procedure had changed after it – the point being that the arresting officer must form an opinion in his own mind and not simply on instructions from someone else.
Based on what he learned later, however, Dixon said he would not have given that advice.
Mr. DaCosta supplied the particulars of the Cumber case. Admitted as an attorney in 1993, he said he was a clerk with the law firm of Hunter and Hunter – now Appleby – back in January 1991.
Shown a court file that was seriously damaged during Hurricane Ivan in September 2004, Mr. DaCosta said Attorney Nigel Clifford handled the case for Mr. Cumber and instructed Ramon Alberga QC. He said the case against Mr. Cumber was dismissed in Summary Court.
Mr. DaCosta referred to the record of interview to show why. The interviewer, PC Pritchett, told Mr. Cumber that he had been informed by an off-duty officer that he had seen Mr. Cumber driving to the police station that night.
Mr. Cumber agreed he had. He had been told to sit down in the public area but he refused, saying he was fit to stand.
The interview showed that Mr. Pritchett asked if Mr. Cumber had been drinking alcohol. Mr. Cumber said yes, six glasses of wine over a six-hour period that included food.
PC Pritchett then said, ‘I have been told to arrest you on driving under the influence of alcohol and a certain procedure has to be followed. Do you understand?’
Mr. Cumber said he had come to the station on a mission of mercy to pick up a friend. The officer subsequently worked out by extrapolation the amount of alcohol that would have been in Mr. Cumber’s blood at the time he was driving.
In court, his attorneys successfully argued there was no case to answer because the reasonable suspicion that an offence had been committed must be in the mind of the arresting officer. ‘The case itself was not reported [in Cayman Islands Law Reports] but it was well known to the criminal bar,’ Mr. DaCosta told the court.
‘That particular case was a wake-up call to the police that a more formal observation process had to be followed,’ he said.
Those observations include whether the suspect’s eyes are glazed, if his speech is slurred, if he smells of alcohol, if he is unsteady on his feet.
Since that case, defence attorneys know what weaknesses to look for when a client is charged with DUI. Most of the time the case is not worth challenging because procedure has been followed, Mr. DaCosta said. If the arresting officer has not followed the procedure of observation, the client will plead not guilty and go to trial.
Questioned by Andrew Radcliffe QC for the prosecution, Mr. DaCosta said the fact that someone had been drinking was not enough to arrest him. He said the important point in the Cumber case was the officer saying ‘I have been told to arrest you.’