Pedro Deray Ellis also known as Pedro Deroy Ellis v The Attorney-General of Barbados
| Jurisdiction | Barbados |
| Judge | Mr. Justice Cecil N. McCarthy |
| Judgment Date | 31 August 2022 |
| Neutral Citation | BB 2022 HC 51 |
| Docket Number | Claim No. CV 1883 of 2017 |
| Court | High Court (Barbados) |
| Year | 2022 |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
(Civil Division)
the Honourable Mr. Justice Cecil N. McCarthy, Judge of the High Court
Claim No. CV 1883 of 2017
Mr. Larry A. Smith QC and Ms. Jamila Smith Attorneys-at-Law for the Claimant
Mr. Jared Richards Attorney-at-Law for the Defendant
“In Mauritius, as elsewhere, the courts are routinely called upon to consider whether an unconvicted suspect or defendant should be released on bail, subject to conditions, pending his trial. Such decisions very often raise questions of importance both to the individual suspect or defendant and to the community as a whole. The interest of the individual is of course to remain at liberty, unless or until he is convicted of a crime sufficiently serious to justify depriving him of his liberty. Any loss of liberty before that time, particularly if he is acquitted or never tried, will inevitably prejudice him and, in many cases, his livelihood and his family. But the community has a countervailing interest, in seeking to ensure that the course of justice is not thwarted by the flight of the suspect or defendant or perverted by his interference with witnesses or evidence, and that he does not take advantage of the inevitable delay before trial to commit further offences.” Per Lord Bingham in Hurnam v The State (Mauritius) 2005 UKPC 49 at paragraph (1).
The above statement is equally applicable to Barbados. In this case, the claimant, Pedro Ellis, was unsuccessful in his attempt to secure bail on a charge of murder, which led to his serving in excess of six years on remand before he was acquitted of the charge of murder by a unanimous not guilty verdict of the jury.
The claimant contends that he should have been released on bail pending his trial, and the repeated refusal of bail by the judges of the courts, among other things, amounted to a breach of his constitutional right to be released on bail if not tried within a reasonable time, pursuant to section 13(3)(b) of the Constitution, for which he should be compensated in damages.
The defendant, although admitting that in the circumstances of the case, certain of the claimant's fundamental rights were breached, argues that on the facts, no award of damages is merited and that the court should simply make a declaration that the Court of Appeal failed to hear and render its decision in a reasonable time, with respect to his appeal against the High Court Judge's order that no bail should be granted to the claimant.
On 8 May 2013, the claimant was arrested on a charge of murder and remanded to prison.
On 4 February 2014, the claimant made the first of many applications for bail, which were all denied.
The last of such applications for bail was heard by a judge of the High Court on 14 December 2016, who denied bail on 13 February 2017.
A Notice of Appeal with respect to this decision was filed on 8 March 2017.
On 17 December 2017, the claimant filed a fixed date claim (CV 1883/2017) claiming constitutional relief as follows:
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(1) A declaration under section 18(8) of the Constitution that the defendant breached his right to have his appeal against the bail decision of the High Court Judge heard within a reasonable time.
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(2) An order releasing the claimant pursuant to section 13(3)(b) of the Constitution.
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(3) An order that the defendant pay to the claimant damages for breach of his constitutional rights, such damages to be assessed.
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(4) All such orders, writs, and directions as may be necessary or appropriate to secure redress by the claimant for the contravention, by the defendant, of the Fundamental Rights and Freedoms guaranteed to the Claimant by the Constitution.
On 27 September 2018, the claimant filed another fixed date claim (CV 1297/2018) against the defendant by which he claimed, among other things:
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(1) A declaration that claimant's fundamental rights and freedoms pursuant to section 11(a) and/or 11(c) of the Constitution were breached.
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(2) A declaration that the claimant's right to a fair hearing within a reasonable time pursuant to section 18(1) of the Constitution was breached.
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(3) An order that the defendant pay to the claimant damages for breach of his constitutional rights.
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(4) All such orders, writs, and directions as may be necessary or appropriate to secure redress by the claimant for the contravention, by the defendant, of the Fundamental Rights and Freedoms guaranteed to the Claimant by the Constitution.
On 8 November 2018, the claimant filed an amended fixed date claim in which he amended the claim for a declaration under section 18(1) of the Constitution to a claim for a declaration under section 18(8).
At the time of filing the first fixed date claim, the appeal to the Court of Appeal had not been heard for approximately 9 months.
The claimant's appeal to the Court of Appeal was heard on 7 March 2018 and the decision of the Court of Appeal was delivered on 7 March 2019.
In an affidavit of 11 December 2017, the claimant set out the history of the matter.
Among other things, he said that he was 39 years old. He referred to the fact that he was convicted for manslaughter after pleading guilty in 1998. He was imprisoned for that offence and was released on 26 May 2006.
The claimant deposed that in the period since his conviction for manslaughter, he had changed and was now a responsible family man who had also married and was raising his son and two stepchildren.
He explained further that at the time he was arrested and charged for the second homicide, he was self-employed as a baker, and along with his wife, was the owner of a bakery and sports bar.
The claimant also deposed that he was acting in self-defence when the deceased was killed.
The claimant deposed that his family life and businesses were severely disrupted and the financial and social harm to his family may be beyond repair by the time that he is acquitted of the charges.
On 20 December 2017, the claimant filed a supplemental affidavit in which he deposed that he wrote the Chief Justice by letter dated 27 November 2017, which indicated that the appeal against the bail decision was accompanied by a certificate of urgency and since this was a matter in which the liberty of the subject was involved, he was entitled to a hearing before the Court of Appeal “without delay”.
With leave of the Court, the claimant filed an amended notice of appeal on 19 January 2018 and a re-amended notice of appeal on 1 February 2018. The re-amended notice, among other things, references section 13(3)(b) of the Constitution which provides for the release of a person who has not been tried within a reasonable time.
The defendant filed an affidavit in response on 22 March 2018. This affidavit was sworn by the Registrar and set out essentially that the Registrar had complied with the responsibilities of her office. No attempt was made to confront the details set out in the claimant's affidavit which, in substance, remained unchallenged.
The Court of Appeal, in delivering its judgment on 7 March 2019, refused the claimant's application for bail.
In arriving at its decision, the Court of Appeal, after considering the matters set out in section 5(2) of the Bail Act, gave the essential reason for refusing bail at paragraphs 65 to 69 inclusive of its judgment delivered by Burgess JA.
Burgess JA said:
“65. Having due regard to the relevant factors listed in section 5(2) and the evidence as we have just reviewed it, we are of the view that the appellant should be refused bail in this case. The offence for which the appellant is charged is very serious and the penalty for that offence severe. But, in our judgment, section 5(2) does not intend this consideration to be conclusive. It requires more. In our view, the correct approach to the factors in section 5(2) is fully captured in a statement of the Privy Council in Hurnam v The State 2005 UKPC 49 at para 15. It was stated there that:
“The seriousness of the offence and the severity of the penalty likely to be imposed on conviction may well… provide grounds for refusing bail, but they do not do so of themselves, without more: they are factors relevant to the judgment whether, in all circumstances, it is necessary to deprive the applicant of his liberty.”
66. What is the something “more”, in the context of “the protection of the community”, which has led us to our conclusion? It is also the strength of the evidence that the appellant has committed the killing: he has admitted to it, albeit he claims to have done so in self defence; and it is that the appellant has a previous conviction for manslaughter.
67. In our judgment, these considerations weigh very heavily in favour of refusing bail to the appellant. It must be that the public has every right to be protected from persons who repeat offences involving the taking of human life. Of course, the appellant has a right to remain at liberty and not to be deprived of his liberty, unless or until he is convicted of the present crime with which he is charged. But he admitted to manslaughter in 1998 and has admitted to the killing in the present case.
68. In light of these facts, we would exercise the section 5 discretion and refuse the appellant's application for bail.”
The claimant's trial for murder eventually took place between 8 October and 25 October 2019, when the jury returned a unanimous verdict of not guilty of murder. However, this did not result in the immediate release of the claimant, who was again remanded in custody, while the Director of Public Prosecutions (DPP) determined whether to charge him for manslaughter.
The claimant appeared in court before...
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