DEREK ACHONG
A man from Diego Martin has partly succeeded in his appeal over being convicted of resisting arrest and obstructing a roadway.
Delivering a judgment on Wednesday, Appellate Judges Alice Yorke-Soo Hon and Malcolm Holdip upheld Marlon Brizan’s appeal over his conviction for the roadway obstruction.
The appeal panel’s decision was based on police officers charging Brizan with the road traffic offence as opposed to giving him a fixed penalty ticket.
The judges said, “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.”
They noted that the police officer who charged Brizan did not have a discretion to decide on the method of prosecuting him for the offence.
“There are no exceptions created by the legislation and a complainant is not authorised to create any of his own,” they said.
The appeal panel sought to illustrate how Brizan was negatively impacted by the procedural decision.
“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,” they said.
“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,” they added.
Despite the judges’ finding on the obstruction charge, they upheld his conviction and sentence for resisting arrest as they could find no fault with how the police and the magistrate dealt with that charge.
According to the evidence presented during his trial, Brizan was arrested after police officers found that his vehicle was causing a pile-up along Wendy Fitzwilliam Boulevard in Diego Martin.
The officers claimed that he refused to comply with their instructions and struggled with them before he was restrained.
Brizan was represented by Raphael Morgan, while Wayne Rajbansie represented the Office of the Director of Public Prosecutions.