A former police officer appealed against a conviction for a sex assault on a female colleague.

Jermari Belboda was found guilty by magistrate Khamisi Tokunbo in 2020 of an assault on a 24-year-old female constable.

Magistrates’ Court heard at the time that Belboda, now 27, inappropriately touched the victim, who cannot be named for legal reasons, as she slept.

The incident was said to have happened in Pembroke in the early hours of December 5, 2018.

But Elizabeth Christopher, Belboda’s lawyer, said yesterday that her client understood the woman to be “awake and consenting”.

She added: “It’s the case that he thought her to be awake and upon observing that she was asleep he stopped.”

The appeal was heard in a virtual sitting of the Supreme Court yesterday.

Ms Christopher said that the magistrate had erred in his approach to the credibility of witnesses.

Ms Christopher said: “In this case it’s clear that the magistrate, I guess, believed the complainant but the problem is, when he actually took us through the evidence, he also said that he believed the defendant.”

She explained that a magistrate had to be satisfied beyond reasonable doubt that Belboda touched the woman for a sexual purpose, that the woman did not consent and that he did not honestly believe that she had consented to be touched.

Ms Christopher said: “We are not saying it was not for a sexual purpose that he touched her … if the complainant says that she did not consent, he did not understand that to be the case.”

She added that Belboda at his trial denied a conversation that the woman claimed took place the morning after the incident, when he was said to have made a comment about her taking off her pants in her sleep.

Ms Christopher told the court that her client said “no” when the discussion was brought to his attention by the Crown counsel.

She added: “It’s our respectful submission that the prosecution failed to prove beyond a reasonable doubt that the appellant did not honestly believe that he had consent and therefore ask that the conviction be overturned.”

Ms Christopher also argued against a retrial.

She said: “He’s lived with this for 19 months with the conviction hanging over his head.”

The appeal was lodged after the conviction, but before sentencing, so Belboda has not been sentenced.

Shaunté Simons Fox, for the Crown, said that the prosecution case did not rely entirely on the conversation that was supposed to have happened the morning after the incident.

She added: “We say that the evidence was very clear throughout that there was no honest belief in consent at any point.”

Both lawyers highlighted that the magistrate found Belboda was largely a credible witness “but for one area”.

Ms Simons Fox said that she believed the judge had referred to “the area of most importance”.

She told the court that evidence from Belboda and the woman about their previous relationship and friendship was similar.

But Ms Simons Fox added: “Where it comes down to the actual assault, that’s where we get two divergent stories of what took place.

“We say that’s where the magistrate then says the appellant is no longer credible.”

She highlighted a reference that Belboda “did what he did as a foreplay move to see how she would react”.

Ms Simons Fox said: “I think that one line in evidence would show that he did something before she offered up any form of consent.”

Bit Ms Christopher told the court: “You’re assuming you have consent when you indulge in foreplay, so I’m submitting that that should not be the subject of an adverse inference against the defendant because he used the word foreplay and at that point all he had done was, I believe, touched her leg.”

Puisne Judge Shade Subair Williams reserved judgment and extended Belboda’s bail.

A Bermuda Police Service spokesman said yesterday that Belboda, who had been a constable, was “dismissed based on conviction”.

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