Pedro Deray Ellis a.k.a. Pedro Deroy Ellis v The Director of Public Prosecutions
| Jurisdiction | Caribbean States |
| Judge | Saunders,Wit,Rajnauth-Lee,Barrow,Jamadar,Mr Justice Barrow,Burgess JA |
| Judgment Date | 02 March 2020 |
| Neutral Citation | [2020] CCJ 3 AJ,BB 2019 CA 7 |
| Date | 02 March 2020 |
| Docket Number | CCJ Civil Appeal No. BBCV2019/001,Civil Appeal No. 3 of 2017 |
| Court | Caribbean Court of Justice (Appellate Jurisdiction) |
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
The Hon. Andrew D. Burgess, The Hon. Kaye C. Goodridge, Justices of Appeal and The Hon. Margaret A. Reifer, Justice of Appeal (Acting)
Civil Appeal No. 3 of 2017
Mr. Larry Smith, Ms. Shanna Goddard and Mr. Fabian Walthrus for the Appellant
Mr. Oliver Thomas for the Respondent
Criminal practice and procedure - Bail — Appeal against refusal of application for bail — Whether court should interfere with judge's exercise of discretion — Whether judge acted on misunderstanding or misapplication of either the law or the evidence in refusing to grant bail.
This is an appeal against the decision of Weekes J, delivered on 13 February 2017, in which she denied the application of the appellant, Mr. Pedro Deray Ellis, also known as Pedro Deroy Ellis, for bail based on the submissions made by the respondent, the Director of Public Prosecutions. At the time of the hearing of the appellant's bail application before Weekes J, there had been no trial of the matter.
In this appeal, the appellant seeks an order that the decision of Weekes J be set aside and that he be granted bail. The appellant also seeks an order that the respondent pay the costs of the appeal and the High Court application.
On 8 May 2013, the appellant was charged with two offences which arose out of the same incident, namely, the murder of Antonio Charleston Omar Harewood and criminal damage. He was remanded to her Majesty's Prison at Dodds, St. Philip.
On 4 February 2014, the appellant applied in person for bail for the first time. This application was denied.
After a series of delays and adjournments, the appellant retained Mr. Larry Smith, attorney-at-law, to act as his legal counsel. On 2 December 2016, the appellant again applied for bail and filed an affidavit in support of his application.
In his affidavit, the appellant deposed that he was 38 years old. He also deposed that he had previously been convicted of manslaughter after pleading guilty to that offence in 1998, that he was imprisoned on that conviction and that he was released from prison on 26 May 2006. At the time of his conviction, the appellant was 20 years old.
The appellant stated that while he was incarcerated, he had acquired the skill of baking and had spent time reflecting on “the way that he was living his life”. He also stated that, during this time and after his release from prison, he built strong family and community ties and became an upstanding citizen.
According to the appellant, after his release, he rekindled his relationship with his girlfriend in 2007, got married to her in 2011 and became the stepfather to his wife's two children. One year later he became the father to their son of the marriage.
The appellant stated that he was given a house by his father which he converted into a 4 bedroom, 2 bathroom house. The appellant also stated that he owned and operated a bakery and sports bar, called Fixies Enterprises Bakery and Snackette, from his home and that his wife assisted him in running the business.
After his release from prison in 2006 until 2013 when he was charged with murder, the appellant was never charged with any offences. The murder offence, according to the appellant, was as a result of him acting in self-defence. The appellant swore in his affidavit that the deceased attacked him with a knife and that during the struggle the deceased was fatally wounded with his, the deceased's, own knife. The appellant stated that there is evidence that he, the appellant, was also injured during the struggle.
The appellant averred that his family suffered financial and emotional difficulties as a result of him being remanded while awaiting trial on this matter. He claimed that he cooperated fully with the police and that there are persons who are willing to act on his behalf as sureties. Moreover, the appellant urged the court to take the above considerations into account in assessing his application for bail.
On 5 May 2015, two years after he had been charged, Gibson CJ gave consent for the preferment of a voluntary bill of indictment for murder against the appellant.
On 14 December 2016, Weekes J heard the appellant's application for bail. At the hearing, the appellant was represented by Mr. Larry Smith.
On 13 February 2017, Weekes J delivered her decision in which she denied the appellant's application for bail on the basis of the submissions of the prosecution. It is that decision which the appellant has challenged in this appeal.
The appellant filed a notice of appeal accompanied by a certificate of urgency on 2 March 2017. The basis upon which the notice of appeal was certified as urgent was that Weekes J's denial of the appellant's application contravened his entitlement to bail under the Bail Act, Cap. 122A (Cap. 122A) and infringed his fundamental right to liberty under the Constitution.
By letter dated 7 March 2017, the Registrar of the Supreme Court wrote to Mr. Smith advising him that the certificate of urgency should be supported by affidavit.
On 8 August 2017, the appellant filed an affidavit in support of the certificate of urgency.
On 1 November 2017, Mr. Smith wrote to the Deputy Registrar of the Court of Appeal, Ms. Shanna Codrington, indicating that he had filed an affidavit in support of the certificate of urgency notwithstanding that he had been unable to find the legal requirement for such an affidavit. He also inquired as to the date for the hearing of the appeal.
By letter dated 15 November 2017, Ms. Codrington informed Mr. Smith that the Registrar was still awaiting the reasons for decision from Weekes J.
On 19 January 2018, the appellant filed an amended notice of appeal and on 1 February 2018, the appellant filed a re-amended notice of appeal after obtaining leave to do so in both instances.
The re-amended notice of appeal was made “pursuant to Section 11(a) and/or 13(3)(b) of the Constitution of Barbados and/or Section 52(1) and/or Section 54(1)(g), of the Supreme Court of Judicature Act, Chapter 117A, of the Laws of Barbados and/or under the inherent jurisdiction of the Court…”
The grounds were set out in the appellant's re-amended notice of appeal as follows:
“(a) Weekes, J erred as a matter of mixed fact and law in failing to give any or any sufficient weight to the evidence of the Appellant regarding him being a fit candidate for bail set out in the Appellant's affidavit sworn on the 2 nd day of December, 2016 in support of his application for bail filed on the 2 nd day of December, 2016 particularly in the circumstance where the Respondent provided no evidence in support of its objection to bail;
(a) Weekes, J erred in law by solely relying on the oral submissions of the Respondent as her basis for denying bail and/or failed to give any or any sufficient weight to submissions of counsel for the Appellant;
(b) Weekes, J erred in law by failing to give any adequate reasons for her decision to deny the Appellant's application for bail;
(c) Weekes, J erred in law by failing to have regard and/or to give due consideration to the import of Sections 11(a) and/or 13(3)(b) of the Constitution of Barbados upon the Appellant's right to bail provided by the provisions of the Bail Act, Chapter 122A of the Laws of Barbados;
(d) Weekes, J erred in law by failing to give due consideration to the provision of Section 4 (1) of the Bail Act, Chapter 122A of the Laws of Barbados; and/or
(e) Weekes, J erred in law in the exercise of her discretion pursuant to Sections 5(1) and/or 5(2) of the Bail Act, Chapter 122A of the Laws of Barbados by failing to give due consideration to the statutory exceptions and/or relevant factors to which these provisions refer which arose on the evidence of the Appellant.”
The grounds of appeal and the written and oral submissions of counsel on both sides in this appeal are predicated on the premise that the refusal of Weekes J to grant bail to the appellant was made in pursuance of the discretion which resides in her under section 5 (1) of Cap. 122A. In this regard, two principal issues have been raised in this appeal for our determination. The first is whether this Court has jurisdiction to hear appeals against bail decisions of a High Court judge (“the jurisdiction issue”). The second is, assuming that this Court has jurisdiction, whether it should interfere with the exercise by Weekes J of her section 5 (1) discretion. (“the exercise of discretion issue”).
A subsidiary issue is raised by the appellant as to costs.
We consider these three issues seriatim hereafter.
Much of the argument addressed to us centred on the jurisdiction issue. Of this, Mr. Smith contended vigorously that there are at least three legal sources of appellate jurisdiction in bail appeals in this Court. These are (i) under section 11 (a) and section 13 (3) (b) of the Constitution; (ii) under section 52 (1) and/or section 54 (1) (g), of Cap. 117A (Cap. 117A); and (iii) under this Court's inherent jurisdiction.
We consider first Mr. Smith's argument on jurisdiction under the Constitution.
Section 11 (a) of the Constitution provides:
“Whereas every person in Barbados is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely-
(a) life, liberty and security of the person”.
Section 13 (3) (b) provides:
“Any person who is...
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