NASSAU, BAHAMAS — A man convicted of kidnapping, armed robbery and the murder of Rashad ‘Shanty’ Morris will be released from the Department of Correctional Services after nearly 13 years following a Court of Appeal ruling that “it is not in the interest of justice for a retrial to be ordered”.
“Each case must be considered in its own circumstances,” read the ruling handed down yesterday.
“This is not an easy call. However, having considered the various factors, we are satisfied that notwithstanding the seriousness of the offenses and their prevalence, the stark reality is that these offenses took place nearly 13 years ago and the case is now effectively an old case.”
“In the result, having balanced these several matters in the exercise of our statutory discretion and applied the guidance in Reid, we are satisfied that in this particular case, it is not in the interests of justice for the appellant to undergo a fresh trial.
“The appellant’s convictions having already been set aside by the Board on 20 April, 2020, we direct his acquittal and release from custody in accordance with section 13(2) of the Court of Appeal Act.”
Morris was murdered on September 20, 2009, during the course of a break-in at a Burger King restaurant.
Simeon Bain was convicted in May 2013.
The prosecution sought the death penalty.
Bain was subsequently sentenced to life in prison.
He appealed the decision in January 2016.
The appellate dismissed the appeal against the conviction.
However, it allowed the appeal against the life sentence for murder, substituting a sentence of 55 years.
All other sentences were upheld.
On appeal, Bain contended he was unrepresented for the majority of his trial after his counsel withdrew.
He also argued that the withdrawal was mismanaged by the trial judge, resulting in an unfair trial.
Zina Davis, the Crown’s key witness who lived with Bain, was a close friend of Morris, whom she met whilst working at Burger King.
Davis testified she informed Bain that Morris was gay and the appellant devised a plan to use the Burger King employee to rob the restaurant.
According to court documents, the robbery took place, but Morris was unable to access the safe.
The man accompanying Morris stabbed him to death in the street outside and cut his throat.
The incident was captured on closed-circuit television (CCTV).
It showed Morris being struck by a man dressed in black, wearing a ski-mask and light-coloured gloves — the same description Davis gave in evidence on what Bain wore when leaving the home to allegedly pick up Morris under the pretense of the name ‘Dwayne’.
Davis gave evidence that Bain admitted to her he had stabbed Morris and got rid of the car and all his blood-stained clothes.
During his interview with police in December 2009, Bain allegedly confessed to the murder, but later appealed that this confession was beaten out of him with a baseball bat.
In court, Bain said he had been framed and was not responsible for the offences.
In its April 2020 ruling, the Privy Council accepted that Bain was “seriously prejudiced” by the lack of skilled cross-examination of the key witness; and in relation to his confession.
It sent the matter back to the Court of Appeal to consider a possible retrial, ruling a “miscarriage of justice has occurred”.
Justices Maureen Crane-Scott, Sir Michael Barnett, and Milton Evans ruled on the matter of a retrial.
The appellate court noted the retrial issues were not heard until some 21 months later.
In her ruling, Crane-Scott said the appellate court considered the length of time for which the court and jury would be involved in a fresh hearing if one were ordered and estimated with complex legal argument and multiple co-defendants the retrial could take 17 days, noting it was not “inordinately lengthy”.
The appellate court also considered cost, noting that there would be a financial cost to both sides, though it said it is in the interest of justice that “persons who commit violent crimes are brought to justice and the society is well served by putting violent criminals in prison”.
The court also considered the overall length of time between the date of the offense and the likely date of a new trial if one order were ordered, noting that the crime occurred almost 13 years ago.
“We are keenly aware that given the current heavy backlog of criminal cases awaiting trial in the Supreme Court jury trials, a new trial, if one were ordered, would be unlikely to take place in the near future,” red the ruling.
“Indeed, in light on the heavy criminal caseloads in the Supreme Court, we are unable to estimate when that might be.”
Additionally, the appellate court noted the “ordeal” with which a new trial would cause the appellant, who has been incarcerated since 2009, the victim’s relatives and the public, noting they have “all placed their trust in the criminal justice system to ensure that the matter is concluded in a timely and efficient manner”.
“In the circumstances of this particular case, we do not consider the strength of the case which was presented at the previous trial so overwhelming as to be a determinative factor by itself to order a new trial,” read the ruling.
“As the Board appears to have recognized, this is a case where, on the one hand, if a jury properly directed, accepted Ms Davis’ evidence together with the appellant’s confession, they could on a retrial still convict the appellant.
“On the other hand, assuming that the confession were to be admitted into evidence on a new trial, with proper representation and more robust cross-examining of Ms Davis as to what she saw at the police station, a jury properly direct, could just as easily reject the appellant’s confession on the basis that it was coerced and acquit him.”
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