Simeon Bain v R

CourtCourt of Appeal (Bahamas)
JudgeMadam Justice Crane-Scott, JA
Judgment Date17 February 2022
Neutral CitationBS 2022 CA 29
Docket NumberSCCrApp. No. 222 of 2013
Simeon Bain

The Honourable Sir Michael Barnett, P

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Evans, JA

SCCrApp. No. 222 of 2013


Criminal appeal — Conviction for murder and other serious offences quashed on appeal to Privy Council — Parties heard in relation to the retrial issue — Whether retrial in the interests of justice — Balancing of relevant factors — Exercise of discretion — Section 13(2) Court of Appeal Act

On 20 April 2020 the Privy Council allowed the appellant's appeal against his May 2013 conviction for the offences of murder, kidnapping, robbery, and housebreaking committed almost 11 years before on 20 September 2009. The Board declined to apply the proviso and remitted the case to the Court of Appeal to consider the question of a retrial.

The retrial issue was not heard before the Court of Appeal until 20 January 2022 — some 21 months later. After hearing the respective submissions, the Court reserved to consider whether, in all the circumstances, the interests of justice require that the appellant undergo a new trial.

Held: It is not in the interests of justice for a retrial to be ordered. The appellant is acquitted and released in accordance with section 13(2) of the Court of Appeal Act, Ch. 52.

Each case must be considered in its own circumstances. This is not an easy call. However, 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.

Ajodha v The State and other appeals [1981] 2 All ER 193 considered

Bain v. The Queen [2020] UKPC 10 considered

Bennet (Andre) and John (Augustus) v R (2001) 60 WIR 123 considered

Blake and another v R (2017) 91 WIR 463 considered

Dennis Reid v. The Queen [1980] A.C. 343 applied

Dominic Thompson v. Attorney-General SCCrApp No. 228 of 2016 mentioned

Donna Vasyli v. Regina SCCrApp. No. 255 of 2015 mentioned

Giordano Rolle Jr. v. Regina SCCrApp No. 231 of 2018 mentioned

Jason Glinton v. Regina SCCrApp. No. 129 of 2017 mentioned

Kadero Munroe v. Regina SCCrApp. No. 98 of 2018 mentioned

Nicholls (Everard) v R (2000) 57 WIR 154 considered

S.S. v. Regina SCCrApp. No. 268 of 2015 mentioned

Shivnarine v The State (2012) 80 WIR 357 considered

Zintworn Duncombe and Cordero Saunders v. Regina SCCrApp. Nos. 14 & 17 of 2017 mentioned


Mr. Martin Lundy II with Miss Raven Rolle, Counsel for the Appellant

Ms. Darnell Dorsette, Counsel for the Respondent

JUDGMENT (Retrial issue)
Madam Justice Crane-Scott, JA

Judgment delivered by The Honourable


. In April 2020, in its Judgment in Bain v. The Queen [2020] UKPC 10, the Privy Council allowed the appellant's appeal against his May 2013 conviction for the offences of murder, kidnapping, robbery, and housebreaking, committed almost 11 years earlier on 20 September 2009.


. The Board in its judgment allowing the appeal of Mr. Bain held that a miscarriage of justice had occurred in his 2013 trial before the Supreme Court and his conviction was unsafe. Their Lordships found that the appellant had been seriously prejudiced by “serious mismanagement” by the trial judge. This resulted in his not being legally represented at the trial, resulting in an unfair trial.


. The Board declined to apply the proviso and remitted the case to the Court of Appeal to consider the question of a retrial.


. The retrial issue was heard before us on 20 January 2022 — some 21 months later. After hearing the respective submissions, we reserved to consider whether, in all the circumstances, the interests of justice require that the appellant undergo a new trial.


. We have exercised our discretion against ordering a new trial. The reasons for our decision appear below.

The case against the Appellant

. Before considering the issue of whether or not it is in the interests of justice to order a retrial, it is necessary to set out the nature of the case against the appellant. It is set out fully in the judgment of the Board at paragraphs 4 to 16:

“The case in outline

  • 4. Rashad “Shanty” Morris (“Morris”) was murdered on 20 September 2009 during the course of the house-breaking of a Burger King restaurant.

  • 5. The key witness for the Crown was Ms. Zina Davis (“Davis”) who lived with the appellant. Davis was a close friend of Morris whom she had met whilst also working at Burger King. Davis gave evidence that she had informed the appellant that Morris was gay. It was the Crown's case that upon acquiring this information the appellant hatched a plan to use Morris to rob Burger King and Davis gave evidence that the appellant told her of his plan.

  • 6. The attempted robbery took place, but Morris could not access the safe. The man accompanying Morris then stabbed him to death in the street outside. In addition to the stab wounds, Morris' throat was cut.

  • 7. 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 that the appellant went to pick Morris up, brought him home and locked him in a room. She said that she saw the appellant and Morris leaving the house together and gave a description of the clothes that 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.

  • 8. 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.

  • 9. 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 recognize as his and $500 that he told her he got from the Burger King counter. Morris had owned a Blackberry.

  • 10. The appellant was also allegedly linked to the murder by the evidence of a private investigator, Mr Oswald Beneby (“Beneby”), who obtained an extract of Morris' cell phone records from Batelco. This showed calls made to him by a phone registered to the appellant, including a transfer of minutes shortly after the time of the murder, indicating that someone had both phones at that stage. It was the appellant's case that this was a number used by Davis.

  • 11. After his arrest, the appellant was interviewed under caution on 31 December 2009 by Detective Sergeant Antoinette Hall in the presence of Detective Sergeant Basil Evans. During this interview, which was not recorded, the appellant allegedly confessed to the murder. It was the appellant's case that this confession was beaten out of him, that he was hit with a baseball bat, stamped on the chest and that a plastic bag was put over his head. A voir dire was held to determine the admissibility of the confession.

  • 12. Dr Hastings Johnson was called at the voir dire and at trial to tender the medical report of Dr Reddy who had examined the appellant while he was in custody. Dr Johnson was called as a witness because, as he explained, Dr Reddy had since retired and left the jurisdiction. Dr Johnson said that he did not see that Dr Reddy had recorded the appellant as having any injuries consistent with having been beaten with a baseball bat or being stamped on the chest. Dr Reddy recorded the appellant's medical examination as “unremarkable”.

  • 13. At the voir dire, as well as the evidence of Dr Johnson, evidence was given on behalf of the prosecution by DS Hall and DS Evans, who said that they had not threatened or beaten the appellant. The appellant gave evidence and also called Davis in order to seek to support his case that he had been beaten. Davis had been at the police station at the same time and it was the appellant's evidence that Davis was beaten in front of him, that he did not want Davis to be hurt, and that it was these beatings that led him to confess.

  • 14. The judge found that the appellant was not oppressed and that his confession was voluntary. Accordingly, the judge ruled that it should be allowed into evidence.

  • 15. The appellant gave evidence at the trial. His defence was that he had been framed and that he was not responsible for any of the offences with which he was charged. He denied being the person who contacted Morris using the name Dwayne. He stated that his cell phone had been stolen by two girlfriends. He denied planning or carrying out the kidnapping and robbery. He denied stabbing Morris. He denied confessing to Davis. He said that he confessed to the police, although not in the written statement, which they had doctored, but he had only done this because he had been badly beaten by the police. He had also seen them beating up Davis and was very afraid for her.

  • 16. The appellant called the following witnesses

    • ( 1) Mr Calvin Seymour, his former counsel, who said that he did not request phone records on the appellant's behalf before his dismissal as it was not part of his strategy for putting the appellant's case.

    • (2) Ms. Deidre Young, an operations manager at Burger King, who testified that a reward of $10,000 had been offered by Burger King for information in connection with the...

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