NASSAU, BAHAMAS — The Privy Council has sent the kidnapping, armed robbery and murder case of Simeon Bain back to the Court of Appeal to consider a possible retrial, ruling a “miscarriage of justice has occurred”.
“Having gone through all of these consideration and factors, it is apparent that they nearly all indicate mismanagement by the judge,” the Privy Council ruled.
“This was also the conclusion of the Court of Appeal, but to a much more limited extent.
“In the Board’s view, this is a case of serious mismanagement and the likelihood is that if matter had been handled properly the appellant would either have been persuaded to retain Mr Seymour or would have obtained alternative representation.”
The ruling was handed down yesterday.
In May 2013, Bain was convicted of a September 2009 kidnapping, robbery, housebreaking and murder of Rashad ‘Shanty’ Morris, who was killed during the housebreaking of a Burger King restaurant.
The prosecution sought the death penalty.
Bain was subsequently sentenced to eight years, 19 years, 12 years, and life in prison, which were to run concurrently.
He appealed the decision in January 2016; however, the Court of Appeal dismissed the appeal against the conviction and 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, and the withdrawal was mismanaged by the trial judge, resulting in an unfair trial.
Zina Davis, the Crown’s key witness, lived with Bain and was a close friend of Morris, whom she met whilst working at Burger King.
Davis testified she informed Bain that Morris was homosexual, and the appellant devised a plan to use the Burger King employee to rob the restaurant.
According to court document, 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 attempted robbery was captured on closed-circuit television (CCTV), and 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 the Bain wore when leaving the home.
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.
He denied contacting Morris and denied confessing to Davis.
During trial, Bain asked the judge for disclosed material, to which she directed him to his counsel to act on his behalf in such matters.
However, counsel for the defendant, Calvin Seymour, said he may not be competent to represent Bain as “he’s saying that I must do it his way, and if I have to do it his way, I must ask the court to excuse me in these difficult circumstances”.
The trial judge agreed.
The Privy Council said competent counsel would have challenged the admissibility of a written report by a doctor, identified as Dr Reddy, whose report said Bain’s medical examination was “unremarkable”.
The doctor did not attend trial to give evidence.
The Privy Council said that evidence was central to admission of the confession.
In its ruling, the Board of the Privy Council said if there appeared to be an impasse between the defendant and his then counsel, consideration should be given to exploring whether there were any ways in which it might be overcome.
It said the judge did not explain what difficulties the defendant may face without counsel; nor did the judge allow for a cooling-off period for reflection or outline the implications of Bain representing himself; nor did there appear to be an adjournment to allow for the defendant to obtain alternative representation.
The board said evidence indicated Bain was a man of “limited education and reading ability”.
It took note that the appellant stated repeatedly that he wished to represent himself, but said this was in circumstances where the only choice on offer was representation from Seymour.
The council said it was important for Davis’ credibility to be properly tested, but it was apparent from the transcript that Bain was unable to do this.
“He did not even put it to her that she was lying,” the Privy Council ruling read.
The Privy Council accepted that Bain was “seriously prejudiced” by the lack of skilled cross-examination of the key witness, Davis; and in relation to his confession.
“Had he been represented the evidence may well have been materially different,” the Privy Council said.
“In such circumstanced the Board does not consider that the proviso can be relied upon to dismiss the appeal.
“In the Board’s view a miscarriage of justice has occurred.”
Lords Hodge, Black, Lloyd-Jones, Sales and Hamblen ruled on the matter.