Privy Council to rule on demerit point appeal forum

The content originally appeared on: Trinidad and Tobago Newsday

– File photo

FIVE Privy Council judges have reserved their ruling on an appeal of new traffic laws’ demerit point system.

The London-based court, Trinidad and Tobago’s final appellate court, has to determine if the local courts got it wrong in determining that the Court of Appeal, and not the High Court, was the proper forum for an appeal of a decision to disqualify a driver from holding a driving permit after racking up ten demit points.

A challenge to the appellate process of the Motor Vehicles and Road Traffic Act was mounted by Arouca driver, Zachary Da Silva who racked up ten demerit points for various traffic violations, including driving with a cell phone, breaching a traffic sign and because his passenger, on one occasion, was not wearing a seat belt.

He paid the penalties and thought as a result, he would not get demerit points. However, he was told that he had accumulated ten demerit points, and of the intention to suspend his permit, and he was invited to respond. He did so within the statutory period under the legislation.

Da Silva was then told his permit was suspended. He sought to appeal the decision to suspend his licence to the High Court.

A fixed penalty traffic ticket can be challenged in the magistrates court. However, his attorneys argued that the MVRT Act allowed for an appeal against such a decision to a “court of competent jurisdiction.”

In February 2021, Justice Frank Seepersad dismissed Da Silva’s challenge. The Court of Appeal later upheld this decision in August 2021.

Both courts held that those sections of the act on the issue of an “appeal” were poorly drafted as they did not precisely state the forum for such appeals to be made.

Seepersad had held that an appeal of a decision of the transport commissioner to suspend a driver’s licence must be done at the Appeal Court and not the High Court.

In their unanimous decision, the Court of Appeal agreed with Seepersad.

“Given the historical context, the court of competent jurisdiction for an appeal involving the imposition of a penalty can only be the Court of Appeal unless the relevant statute states it is to be some other body,” the Appeal Court’s ruling said.

In his ruling, Seepersad said the act, which referred to “a court of competent jurisdiction,” such a “court” was not adequately defined in any part of it.

He also said a pivotal purpose of the amendment was to remove many traffic matters from the magistrates court.

“Against such a backdrop, the court asked itself, ‘Why would Parliament now place an additional burden on the high court, while at the same time streamlining the procedure in order to reduce the number of traffic matters going before the summary courts?’” Seepersad had asked.

The Court of Appeal, comprising of Justices of Appeal Alice Yorke-Soo Hon, Peter Rajkumar and Ronnie Boodoosingh, held that it was illogical to infer from the structure of the legislation that one rationale may have been to ease the workload of the magistrates courts by removing from them the administrative aspects consequent upon a decision that the requisite number of demerit points has been obtained.”

However, on March 20, Da Silva’s attorney Christophe Rodriguez argued before Lords Reed, Sales, Hamblen, Leggatt and Lady Rose, in London, that the new road traffic regime was different and it would be unusual for an appellate court to hear evidence in the absence of a trial process. He said this was different from contesting a traffic ticket in the magistrates court which can then be appealed to the Court of Appeal.

“Your first shot at a trial (arising out of a decision from the transport authority) is when you come before the court and we say this should take place before the High Court.

“It is not unusual for the right of appeal to be given to the High Court. It would be a waste of resources to have three of the country’s most senior judges hear what the State says is a plea in mitigation on the tossing up of points.

“That is not a good place for the Court of Appeal to be in.”

However, he said the “appeal” of a decision of the Transport Commissioner was not merely an appeal in mitigation but reasons would have to be given when such a challenge is filed.

This, he said, does not take place.

“They (the Licensing Authority) are now going to have to give reasons when an appeal is filed and show why they did not accept the show of cause and the mitigation. Those are matters factual in nature and are triable issues not suited for a Court of Appeal.”

In response to questions by the panel of judges, Rodriguez said the Licensing Authority was the transport commissioner who could delegate to an assistant commissioner, none of whom, he said was legally trained.

“They are not attorneys. It is not a tribunal of people with legal training. He is just rubber stamping where there is a number of demerit points.

“Full due-process rights must ensue. A trial of issues is better at the first-instance judge rather than before three judges in the Court of Appeal.

“The fact that the consequences (of amassing a number of demerit points) are serious, a trial of the issues would be appropriate.

In response to the appeal, UK attorney Rowan Pennington-Benton, who represents the Transport Commissioner and the Licensing Authority, said the legislation did not allow for a transfer to the High Court for a full factual inquiry since a “special tribunal” was given the job to determine if a driver with ten demerit points should be disqualified.

“The prospect of having a trial before the Supreme Court seems to be a fancy appeal.”

He said the act, as it stood before, had no appellate role for the High Court. “The role of the High Court was for indictable matters relating to matters under the Motor Vehicles and Road Traffic Act.”

He said if the new regime, enacted in 2017, intended to create a new jurisdiction for the High Court, then Parliament would have expressly said so.

“Parliament probably didn’t intend to create a new role for the court. Before, the Court of Appeal had the appellate role.

“Appeals against disqualification are to be dealt with in the same way an appeal against a conviction…There is only one place that goes. It still leads back to the Court of Appeal.

“It makes sense that appeals should lie with the Court of Appeal.”

The Law Lords have reserved their decision.