Police officer appeals against sacking over gross misconduct
A police officer fired for gross misconduct yesterday called on the Court of Appeal to allow him to return to the job.
Oswin Pereira was fired by the Bermuda Police Service after he was accused of turning off his body camera and striking a teenage suspect with a baton.
Mr Pereira was acquitted of assault in the Magistrates’ Court and the Public Service Commission found that he should be reinstated and given a final written warning.
But Commissioner of Police Stephen Corbishley challenged the PSC’s finding at a judicial review in the Supreme Court and won the case in February.
Victoria Greening, council for Mr Pereira, told the Court of Appeal at a hearing yesterday the Supreme Court had overreached and that the PSC ruling should stand.
Ms Greening said: “The dispute here is whether the PSC erred in law, and we say they did not.
“We say that the PSC did what was proper and was legitimately open for it do to.
“The court cannot intervene just because they think the position the PSC reached in terms of sanction was less harsh than many would have expected.”
She said the Supreme Court could only intervene if the decision made by the commission was so unreasonable that it is unlawful.
Ms Greening added that the judge for the judicial review, Puisne Judge Shade Subair Williams, did not take into account factors that the PSC carefully considered and intervened in a way that she was not allowed to.
“This is an appellant in a high-stress situation trying the best to carry out his duties, and that is something the PSC took into regard,” she said.
She accepted that the PSC had found that Mr Pereira had committed gross misconduct when he deliberately turned off his body camera and given an “implausible account” about why.
But Ms Greening denied that a finding of dishonesty would necessarily make his employment as an officer untenable.
Kevin Taylor, for the Commissioner of Police, however said: “There are accepted findings that cannot be touched that this was gross misconduct, dishonesty in an operational context.
“When we are there, the almost inevitable result must be dismissal unless it is in that residual sliver of cases in which there are exceptional circumstances.
“We say this isn’t one.”
The Appeal Panel will deliver a decision on a later date.
The Supreme Court had heard that Mr Pereira and Pc Joshua Boden were involved in a high-speed chase with Talundae Grant on May 13, 2017 which resulted in Mr Grant’s arrest.
Allegations later emerged that Mr Pereira had struck Mr Grant – who died in an unrelated July 2019 traffic collision – with his baton.
While he was found not guilty of unlawfully wounding Mr Grant following a trial, a BPS disciplinary panel found that he had struck the teenager in the head twice without reason.
The panel also found and that he had turned his body camera off in an effort to cover up the assault.
Footage recovered from the body camera showed Mr Pereira tell his colleague “cameras off”.
Mr Pereira claimed that he had instructed his fellow officer to turn his camera on and that he did not deliberately turn his own camera off.
He appealed his dismissal to the PSC, who found in August 2020 there was no evidence to support the finding of assault, but rejected his explanation about turning off the cameras.
The PSC replaced dismissal with a “final written warning”, but he was reinstated and the Commissioner of Police appealed for a judicial review.
Mrs Justice Subair Williams found in favour of the Commissioner and overturned the decision of the PSC.