The findings of the June 2019 court martial on two charges against former commissioned officer Lieutenant David Anthony Harewood of the Barbados Coast Guard is “unsupported by the evidence set in the case”.
That’s the contention of Harewood’s attorney Vincent Watson as he argued in the appeal of his client’s conviction and sentence before a three-member panel of the Barbados Court of Appeal.
Harewood, an 18-year military veteran, was court-martialed and convicted of charges that on an unknown date in January 2018, being a commissioned officer of the Barbados Defence Force (BDF) and having knowledge of a threat to the life of Ordinary Seaman Marlon Scott, he neglected to inform his superiors of the threat; and that he conducted unauthorized information gathering operations, conduct unbecoming of a commissioned officer of the BDF, between January 1, 2014, and September 30, 2018.
He was dismissed from the BDF in June 2019 after a five-member tribunal found him guilty on the two charges.
But appearing before Chief Justice Sir Patterson Cheltenham, Justices of Appeal Francis Belle and Margaret Reifer during a virtual sitting of the Supreme Court on Friday, Watson argued that the findings of the court-martial on the first count were unsupported by the evidence led in the case. He said in the evidence rendered neither of the instances of what was purportedly said, show a declaration or intent to harm or injure Ordinary Seaman Scott.
On the second count the appellant also maintained that conclusion of the matter was “unreasonable” was “not supported” by the evidence.
The attorney argued that the evidence does not support the assertion of the prosecution that the appellant had meeting or meetings or where the meeting or meetings took place; proving the assertion was the essence of information-gathering operations as set out in the charge.
He added: “The decision on this count is unsafe and unsatisfactory.”
Watson said that there also needed to be established and known criteria on what amounted to “unauthorized information gathering” prior to January 2018, the date in the charge.
“In the absence of an existing and known criteria setting out what amounts to information-gathering operations to charge the appellate retrospectively for unauthorized information gathering, is contrary to the rule of law.
“It is the appellant’s contention that the totality of the evidence presented by the prosecution when objectively assessed, does not support the conclusion of guilt on this count as concluded by the panel,” he said adding that it is also the appellant’s contention that “the sentence of dismissal is excessive in all the circumstances”.
“We are saying that there is no guidance from which we have found as to what constitutes the appropriate punishment in these set of circumstances . . . . The conduct complained of for which the appellant was convicted, does not amount to gross misconduct which would attract the most severe of the sentence . . . We are therefore saying that it was within the discretion of the panel after considering the aggravating and mitigating factors . . . to arrive at a sentence less severe as dismissal.”
He contended that his client’s dismissal from the BDF was “ a draconian” sentence.
“ . . . If there was a conviction on this matter then some sentence away from dismissal but perhaps a little up from the stoppage of pay could have been appropriate in the circumstances,” Watson said.
Senior Crown Counsel Oliver Thomas who is appearing for the BDF in association with attorneys-at-law Rita Evans and Neville Corbin, will reply to the appellant’s appeal on February 3.
