By LEANDRA ROLLE
Tribune Staff Reporter
A MAN who faced life in prison for murdering a fast food restaurant manager in 2009 had his conviction overturned yesterday by the Privy Council because he did not have an attorney during his trial. The matter has been sent back to the Court of Appeal, which will determine if there should be a retrial.
Simeon Bain, convicted of killing 21-year-old Rashad “Shanty” Morris outside Burger King in September 2009, appealed his conviction and 55-year sentence for the crime along with other related offences to the Privy Council in 2016. He was initially sentenced to eight, 19, 12 years and life imprisonment for the crimes.
Bain appealed his conviction and sentence, and though his appeal against his convictions were dismissed, the appellate court granted his appeal against his sentence. The Court of Appeal consequently substituted a 55-year sentence to be served concurrently with the other sentences.
On March 6, 2017, the appellate court granted Bain conditional leave to appeal his convictions and sentence to the Privy Council, the country’s highest court.
Bain challenged the conviction and sentence on multiple grounds, including the withdrawal of counsel during his murder trial.
Bain’s attorney withdrew from the trial following a request made by the accused for a copy of disclosed material, ultimately causing the court to inform Bain his counsel was to address the court on his behalf.
Noting that he “may not be competent to represent” the appellant, Bain’s attorney then informed the court that the defendant wanted the case handled “his way”.
The judge then warned Bain that “if he told him how to run the case”, the attorney may withdraw from the case, leaving him to fend for himself.
“There was then a discussion about the provision of disclosed material and how the crown was only obliged to provide one set, which culminated in the appellant stating that, as he understood it, he was being told that the only way he could get a copy of the material was if (legal counsel) was not representing him anymore and ‘for that reason’ he would represent himself.”
The matter was heard on March 17 before the panel of Lords Brian Kerr, David Lloyd-Jones, Philip Sales, Nicholas Hamblen, and Lady Jill Black, who concluded yesterday that Bain, a man of “limited education and reading ability” who was facing a death penalty, should have had legal representation during the trial.
“While there is ‘no absolute right to legal representation throughout the course of a murder trial’, it is obviously highly desirable that defendants in such trials should be continuously represented where possible,” the Privy Council said.
The Privy Council further noted that while the judge did not directly encourage the counsel to withdraw his services, he also did not make an attempt to dissuade him.
“Their lordships can sympathise with the anxiety of the judge to proceed with a trial whose start had already had to be postponed on many occasions but where a defendant faces a capital charge and is left unrepresented through no fault of his own, the interests of justice require that in all but the most exceptional cases there be a reasonable adjournment to enable him to try and secure alternative representation,” the council added.
Considering the impact of the defendant being unrepresented, the Privy Council judges said they found that Bain’s case was “prejudiced” in two respects, such as the lack of skilled cross examination of the key witness and the fact that “the prosecution improperly referred to identification evidence from a witness they did not call, but no objection or application for a retrial was made.”
Describing Bain’s case as one “of serious mismanagement”, the Privy Council noted that “if matters had been handled properly”, the defendant would either have been persuaded to retain his original attorney or would have obtained an alternative choice, giving him a fair trial.
According to the evidence, in September 2009, Bain was in a romantic relationship with a former Burger King employee who was close friends with Morris.
During the course of normal conversation, Bain’s girlfriend told him that Morris was a homosexual who was about “to come out of the closet”.
Under the false name “Dwayne”, Bain arranged to collect Morris from Burger King’s Charlotte Street location for a date.
However, the crown’s case was that Bain instead took Morris to his home and locked him in a room. Afterwards, Bain took Morris to South Beach where he was beaten in a bid to obtain the codes to Burger King’s safe.
However, Morris refused to give Bain the codes.
It was alleged that at 1am on September 19, 2009, Bain drove Morris to Burger King’s Tonique Williams-Darling location, where he was the manager, and forced him to disarm the security alarms and attempted to open the safe in the manager’s office.
After failing to do so, he was stabbed in the restaurant’s parking lot before his throat was slashed. Bain denied charges of murder, robbery, attempted robbery, housebreaking and kidnapping.
However, on May 2, 2013, Bain was unanimously convicted of kidnapping, robbery, housebreaking and Morris’ murder.
Immediately after his conviction, the case’s lead prosecutor, then Director of Public Prosecutions Vinette Graham-Allen, announced the crown’s intention to seek the death penalty, however he was given a sentence of life in prison.