A Civil Court judge recently ordered that costs be paid to a former murder accused who was unlawfully detained in prison without charge.
Pedro Deroy Ellis had been acquitted on October 25, 2019 of murdering Antonio Harewood on May 5, 2013 after a unanimous verdict by a jury. The jury was unable to reach a majority verdict required for a manslaughter conviction and was discharged. There was no other charge left for Ellis to answer.
Lawyer Larry Smith Q.C., the defense attorney, made an application for bail, while the Senior Crown Counsel Oliver Thomas suggested a bail sum of $155 000 and told the court that there would be no justice in retrying the case. Justice Carlisle Greaves adjourned the application for October 30, 2019. On that date, Deputy Director of Public Prosecutions Alliston Seale made new submissions telling the court that “only the substantive Director of Public Prosecutions and not anyone acting with the ostensible authority of the office of Director of Public Prosecutions could make the decision to discontinue a matter”. He said, the Crown needed more time to decide whether there would be a re-trial or a dismissal of the matter. He objected to bail and Justice Greaves remanded Ellis until November 13, 2019.
Smith approached the Court of Appeal on November 1, 2019 asking that they set aside the order by the trial judge as his client was being unlawfully detained. The Court of Appeal held that since there was no fresh indictment, nor was the applicant charged with any offence, he was to be released immediately. The court also said that the judge erred in believing that it was up to it to consider bail after the jury had found the applicant not guilty of murder on a single count indictment for murder. Ellis was awarded costs to be assessed if not agreed by the parties. Given the release order, Smith discontinued the application for habeas corpus as the court determined that it served no practical purpose.
Smith then approached the civil court to consider Pedro Ellis’ application for costs relating to the habeas corpus application filed on November 1, 2019, as the Court of Appeal ordered the release of the applicant on the 12th day of November 2019.
The civil court was asked to consider whether Ellis should be awarded costs and if so, how those costs would be quantified. Justice Cecil McCarthy referred to the Supreme Court (Civil Procedure) Rules, 2008 (the “CPR”) 64 (2) which states that the court may, in an exceptional case, order a successful party to pay all or part of the costs of a successful party.
Considering that Ellis had been detained for over 10 days without charge, Justice McCarthy made the order for the Crown to pay costs of the application of habeas corpus up to the date of its discontinuance, including the cost of the notice of discontinuance. Costs are to be assessed in default of agreement.
In the civil matter Smith, Desiree Browne, Kashka Hemans, Safiya Moore and Jamila Smith appeared for Ellis for the Applicant. Jared Richards represented the Superintendent of Prisons and the Attorney General of Barbados.