Alice York-Soo Hoon

Derek Achong

The Court of Appeal has reserved its decision on an appeal over the appropriate court to hear challenges against the suspension of driver’s permits due to the accumulation of demerit points. Following a virtual hearing yesterday, Appellate Judges Alice Yorke-Soo Hon, Peter Rajkumar and Ronnie Boodoosingh deferred their decision in the case brought by a driver from Arouca, whose driver’s permit was suspended for six months after he received three tickets in the space of five months, last year. In the appeal, Zachary De Silva is claiming that High Court Judge Frank Seepersad got it wrong when he refused to hear the case because he felt that the Court of Appeal was the more suitable forum for such a challenge. The case centres around the interpretation of Section 88 (m)(9) of the Motor Vehicle and Road Traffic Amendment Act, which merely states that persons can appeal to a competent court when the Transport Commissioner suspends their permit for demerit point accumulation after consultation with them. Presenting submissions on De Silva’s behalf, his lawyer Christophe Rodriguez claimed that if Parliament had intended to give the Appeal Court exclusive jurisdiction over such cases it would have done so expressly in the legislation. He pointed to other segments of the legislation, which specified that the Appeal Court would hear appeals over the suspension or disqualification of motorists by Magistrates for specified offences.“The whole point was to decriminalise the whole process,” Rodriguez said, as he noted that Parliament passed the legislation with the intention of freeing magistrates from having to deal with thousands of traffic offences. Rodriguez also said that a High Court judicial review lawsuit against the commissioner’s decision to suspend was not possible as such public law cases are not permitted when litigants have alternative redress such as a right to appeal in the legislation. Responding to the submissions, attorney Ravi Nanga, who represented the Transport Commissioner and Licensing Authority, claimed that the ambiguous language in relation to his clients executing suspensions was the result of “unfortunate drafting”.He suggested that the there was no good reason for Parliament making the distinction to split the jurisdiction of the Court of Appeal to hear appeals under the legislation.“You must interpret the act so it would not lead to an absurdity,” Nanga said.Justice Rajkumar also raised the same point over the split in jurisdiction as he questioned Rodriguez.“Is that dichotomy not illogical?” Rajkumar asked.Justice Boodoosingh also questioned whether the interpretation being proposed by De Silva’s lawyers could possibly lead to confusion. He highlighted a scenario where the Appeal Court overturns a conviction for a driving offence, while the High Court is hearing a challenge over a suspension due to points accumulated from that conviction. The Court of Appeal will deliver its decision on a date to be announced. De Silva received his first ticket after he was caught using his cellphone while driving in May, last year. Two months later, he received another ticket for breaching a traffic sign. The last ticket was issued in September for having a front passenger without a seat belt. In his court filings, De Silva said he believed that he would not receive demerit points if he paid the fines. The authority gave De Silva an opportunity to present a mitigation plea and then still decided to suspend his permit for having between 10 and 14 points within a three year period.Under the legislation, suspensions vary between six months and two years depending on the number of points accumulated. In the lawsuit, De Silva was claiming that the authority’s move to carry out the provisions of the legislation was harsh, oppressive, and disproportionate in the circumstances.Although Da Silva lost the case at the first instance, Seepersad did use his discretion to not order him to cover the State’s legal costs as he said that the case raised an important legal issue that required clarification. “The evident uncertainty required the court’s interpretation and the appellant’s decision to file the instant matter before this Court cannot be criticised in the circumstances,” Seepersad said. De Silva was also represented by Devvon Williams and Kimaada Ottley while Rachel Theophilus and Savitri Maharaj also represented the authority and commissioner.