Bain v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hamblen |
| Judgment Date | 27 April 2020 |
| Neutral Citation | [2020] UKPC 10 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0088 of 2017 |
| Date | 27 April 2020 |
[2020] UKPC 10
Lord Hodge
Lady Black
Lord Lloyd-Jones
Lord Sales
Lord Hamblen
Privy Council Appeal No 0088 of 2017
Easter Term
From the Court of Appeal of the Commonwealth of the Bahamas
Appellant
Martin A Lundy II
Edward Fitzgerald QC
Amanda Clift-Matthews
(Instructed by Simons Muirhead & Burton LLP)
Respondent
Tom Poole
(Instructed by Charles Russell Speechlys LLP (London))
Heard on 17 March 2020
On 2 May 2013, the appellant, Simeon Bain, was convicted of offences of kidnapping, robbery, housebreaking and murder alleged to have occurred on 20 September 2009. He was subsequently sentenced on 30 July 2013 to sentences of eight, 19, 12 years and life imprisonment respectively, which were to run concurrently.
The appellant appealed against conviction and sentence. On 21 January 2016, the Court of Appeal (Allen P, Conteh and Adderley JJA) dismissed the appeal against conviction and allowed the appeal against the life sentence for murder, substituting a sentence of 55 years. All the other sentences were upheld.
On 25 September 2016, the Court of Appeal granted the appellant final leave to appeal his conviction and sentence to the Judicial Committee on a number of grounds. The principal ground of appeal against conviction arises out of the fact that following counsel's withdrawal the appellant was unrepresented for nearly all of his trial. It is contended that counsel's withdrawal was mismanaged by the trial judge, resulting in an unfair trial.
Rashad “Shanty” Morris (“Morris”) was murdered on 20 September 2009 during the course of the housebreaking of a Burger King restaurant.
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.
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.
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.
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.
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.
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.
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”.
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.
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.
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.
The appellant called the following witnesses:
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(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.
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(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 death of Morris.
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(3) Constable Gerard Miller, who gave evidence that on 29 March 2009 the appellant reported to the police that his grey and white Nokia cell phone number had been stolen when giving two women a ride in his car.
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(4) Mr Philip Deveaux, a police officer, who said that at some point he telephoned the appellant regarding the matter of a cell phone, but said that he was unable to remember the number he used to call the appellant nor could he remember the date of the conversation.
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(5) Mr Ernest Green, a programmer at Batelco, who testified that in order for the transfer of minutes to occur, the person who did it had to have possession of both phones. Mr Green said that the sim card allegedly used to contact Morris was an unregistered prepaid sim card, meaning it was not assigned to any given person.
The appellant appealed against conviction to the Court of Appeal on various grounds, principally:
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(1) failure to give a ( R v Turnbull Turnbull [1977] QB 224) direction in relation to the identification by Davis of the appellant on the CCTV footage;
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(2) wrongful admission of the confession into evidence; and
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(3) unfair hearing as a result of the withdrawal of the appellant's counsel.
The Court of Appeal dismissed the appeal on all grounds and further held that, should they be wrong in any of their views, it was an appropriate case for the application of the proviso to section 13 of the Court of Appeal Act (“CAA”) which is in the following terms:
“Provided that the court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if the court considers that no miscarriage of justice has actually occurred.”
In so concluding the Court of Appeal stated as follows at para 35:
“Given the evidence available, particularly the testimony of Zina Davis, and the appellant's confession, we are assured that a reasonable jury properly directed, would on the evidence inevitably have convicted the appellant. We are satisfied, beyond a reasonable doubt, that no miscarriage of justice has occurred in this case and as such dismiss the appellant's appeal against the convictions.”
In relation to the appeal against sentence, the Court of Appeal substituted the term of 55 years for the life sentence for the appellant's murder conviction.
The grounds of appeal against conviction are that the Court of Appeal erred:
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(1) In failing to appreciate the unfairness of the trial and the serious prejudice suffered by the appellant given (i) the lack of discovery and full disclosure by the Crown; (ii) the difficulties in locating and securing the attendance of defence witnesses; (iii) fresh evidence adduced at trial; (iv) the withdrawal of the...
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