Appeal Court: Cops cannot issue summons for ticketable offences

A DIEGO Martin man has been partly successful in his appeal against his conviction on charges of resisting arrest and causing an unnecessary obstruction on a roadway for parking his car on the Diego Martin main road interrupting the flow of traffic in 2012.

In a ruling on April 24, Justices of Appeal Alice Yorke-Soo Hon and Malcolm Holdip held that the police should have issued a fixed-penalty notice to Marlon Brizan instead of a complaint under the Summary Courts Act.

In their ruling, the judges held, “It is clear to us that since the obstruction charge fell squarely within the first schedule of the Enforcement Act… The complainant did not possess a discretion as to whether a fixed penalty notice may be issued, rather he was bound to issue a fixed penalty notice.

“There are no exceptions created by the legislation and a complainant is not authorised to create any of his own.”

The judges said that once issued with a fixed-penalty notice, an offender has two options: either pay the penalty or challenge it in court.

“In the instant matter, it is clear that the obstruction charge was wrongly laid. In our view, although the appellant had an opportunity to be heard through the summary process, he was deprived of the options available to him by way of a fixed penalty, in particular, the choice of paying a small fine and not having a conviction recorded.

“The manner in which the complainant chose to initiate the process resulted, therefore, in prejudice to the appellant as he had a conviction recorded against his name as well as the penalty of a larger fine.”

The judge said when reading the two pieces of legislation together, it was clear that Parliament’s intention was to create a system “for the charging and punishing of relatively minor road traffic offences and one that would lead to the expedient disposition of cases which otherwise may be in the system for years.”

They said the Enforcement Act diverted less serious road traffic offences from the courtroom.

Brizan was, however, unsuccessful in his appeal against the resisting arrest charge.

At his trial at the magistrates’ court, it was the prosecution's case that constables Marlon Turner and Abiola Benjamin were driving along the Diego Martin main road close to Wendy Fitzwilliam Boulevard when they realised the traffic was at a standstill for some 15 minutes although the traffic lights were on green.

When they got closer, they saw a van parked on the road, obstructing the flow of traffic. Brizan was cautioned but refused to comply with the officers’ instructions. He was then arrested but not before struggling with Turner and Benjamin.

At his appeal, he was represented by Raphael Morgan while Wayne Rajbansie prosecuted.