The Tribune

By RASHAD ROLLE

Tribune Senior Reporter

rrolle@tribunemedia.net

THE Court of Appeal has declined to order a retrial in the case of a man whose convictions for murder, kidnapping, robbery and housebreaking were overturned in relation to an incident that happened in 2009.

Thus, the court directed his acquittal.

In the judgment, Justice Maureen Crane-Scott said the case was “not an easy call,” adding: “Having considered the various factors, the court is satisfied that notwithstanding the seriousness of the offences and their prevalence, the stark reality is that these offences took place nearly 13 years ago and the case is now effectively an old case. The foregoing matters have convinced the court that the interests of justice will not be served by ordering a new trial in what is now a nearly 13-year-old case.”

In 2020, the Privy Council allowed Simeon Bain to appeal his convictions and overturned them, finding the conviction was unsafe and was prejudiced by “serious mismanagement” by the trial judge. Mr Bain was not legally represented at the trial, resulting in what the Privy Council called an unfair trial. The Privy Council then sent the case back to the Court of Appeal for that court to consider whether a retrial should be ordered.

Mr Bain was accused of murdering Rashad “Shanty” Morris on September 20, 2009, during a burglary of a Burger King restaurant.

During the Supreme Court trial, Zina Davis, a close friend of Morris, alleged she told Mr Bain that Morris was gay. Government lawyers then alleged that after learning this information, Mr Bain made a plan to use Morris to rob Burger King. Ms Davis alleged Mr Bain told her the plan.

When the alleged attempted robbery took place, Morris could not access the safe and he was subsequently stabbed to death in the street. In addition to stab wounds, his throat was cut.

According to the Court of Appeal’s judgment: “Davis said that before the murder, the appellant had texted Morris, using the name ‘Dwayne’. This was apparently to gain his confidence, because he was gay. On the day in question, her evidence was the appellant went to pick Morris up, brought him home and locked him in a room. She said she saw the appellant and Morris leaving the house together and gave a description of the clothes they were wearing. She described the appellant as wearing a black jeans jacket, black jeans pants, white tennis shoes, a pair of beige gardening gloves and a black tam.

“The attempted robbery was captured on CCTV, and showed Morris being struck by a man dressed in black, wearing a ski mask, with light-coloured gloves, who tried without success to make Morris open the safe. Davis gave evidence that, although the CCTV footage was blurry, she could identify the man in black in the video, by his clothing and his build, as the appellant.

“Davis said that when the appellant returned home, he was wearing a t-shirt and greenish boxer shorts and had blood all over him and he told her that he had stabbed Morris. She said that he told her that he had got rid of the car and all his bloody clothes. He also had a Blackberry mobile telephone that she did not recognise as his and $500 that he told her he got from the Burger King counter. Morris had owned a Blackberry.”

During the trial, Mr Bain alleged he was framed for the murder and was not responsible for any of the offences. He also rejected police claims that he confessed to the murder, saying he was physically oppressed to obtain a confession.

The Privy Council found Ms Davis gave testimony during the trial that ought to have led to “robust further questioning” but which did not because Mr Bain was unrepresented. This testimony includes the fact that Ms Davis testified at the police station she saw Mr Bain “on the floor” being beaten. The Privy Council found if a retrial was ordered, this would be explored in ways it was not during the first trial.

“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,” the judgment says.

“As the board appears to have recognised, 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 directed, could just as easily reject the appellant’s confession on the basis that it was coerced and acquit him.”

Appellate judges also said the time that has elapsed since the alleged offences were committed was factored into their decision.

“The most troubling aspect for us in considering whether to order a retrial in this matter is the nearly 13 years that have expired since these offences were committed,” the judgment says.