Prove it!

Jamaican motorists who were compelled for 15 years to pay traffic fines that were unlawfully imposed by the government will have to provide proof of payment to get a court-ordered refund, the Supreme Court has ruled.

Acceptable forms of proof are the traffic tickets issued to the motorists along with a receipt confirming that the fine was paid or, alternately, a receipt that shows the offence and confirmed payment, a panel of three Full Court judges stipulated in their decision handed down on Monday.

The documents, along with the motorists’ banking information, are to be submitted to a tax office and refund payments are to be made after they are verified by Tax Administration Jamaica (TAJ), the court ordered.

Notices to be approved by the court alerting the public to the refund are to be placed in three local newspapers; the entrances to tax offices islandwide; as well as the TAJ and attorney general’s websites.

Lawyer ‘disappointed’

Gavin Goffe, one of the attorneys for the motorist whose lawsuit uncovered the unlawful fines, said he was “disappointed” that the court did not agree with their submission that TAJ’s website, www.trafficticketlookup.com, “is prima facie proof that a traffic ticket was paid”.

“Particularly as the court had earlier refused our application for the State to disclose its records of traffic fines received,” Goffe said.

The motorist, software engineer Maurice Housen, was named by the court as the representative claimant for the class of drivers and vehicle owners who are eligible for the refund.

Approximately 4.77 million traffic tickets with total fines of $5.7 billion were issued by the police in all but one year between June 2006 and November 2021 when the unlawful fines were enforced, The Sunday Gleaner reported in July last year, citing a review of the Economic and Social Survey of Jamaica (ESSJ).

Full Court judges Dale Palmer, Carole Barnaby and Tara Carr acknowledged that the acceptable forms of proof stipulated in their order will cause some persons to be excluded from the refund.

“For example, where it is impossible to locate the documents for submission,” they said, alluding to tickets and receipts that were issued years ago.

“While sympathetic to the plight of persons who find themselves in the position of not having a receipt showing the relevant nexus between offence and payment, or both the fixed penalty notice/traffic ticket and corresponding receipt, the best proof that someone falls with the class [of motorists to be refunded] … appears to be the fixed penalty notice/traffic ticket and corresponding receipt evidencing payment,” they said.

Further, the judges said the requirements avoid conflicting claims and disbursements for each ticket that is eligible for a refund.

Responding to the suggestion that TAJ’s website be used as prima facie proof that the fines were paid, the judges said it appears they were being invited to “take judicial notice” of “the veracity of the information which is said to be accessible thereon and warranties given for relying on such information”.

“This conclusion is arrived at with no evidence having been led in the proceedings in this regard.”

In addition, they noted that relying on the TAJ data could trigger questions about who is to be regarded as the proper beneficiary of the refund in a context where the driver and the owner of the vehicle at the time the ticket was issued were not one and the same person.

“An example which comes to mind is where the owner of a motor vehicle who has engaged a driver to operate it as a taxi pays the … traffic ticket issued to his errant driver. If the owner pays the fixed penalty and retains the receipt, what is to prevent the driver from accessing information and printout from a website using his driver’s licence number and TRN to receive a refund of monies he did not pay,” they explained.

Speeding ticket

The refund was ordered by the Constitutional Court in January at the end of the lawsuit filed by Housen challenging a $5,000 ticket he was issued by police in July 2021 for a speeding violation.

The $5,000 fine was six times more than the $800 stipulated for a speeding violation in the 1938 Road Traffic Act (RTA), the legislation that was in effect at the time. The 1938 RTA has since been replaced by new legislation.

The sharp increase in fines for speeding and other traffic offences were ‘implemented’ in 2006 and again in 2007 through separate orders signed by then Finance Minister Dr Omar Davies, under the Provisional Collection of Taxes Act (Road Traffic) Act.

However, Housen, through his attorneys Goffe, Jahmar Clarke and Matthew Royal, from the law firm Myers, Fletcher & Gordon, argued in their lawsuit that this approach was wrong.

At the time Housen was ticketed by police, during a 2006 traffic stop, the fines or fixed penalties for traffic offences listed in the 1938 RTA were not increased by the legislature or the transport minister, as mandated by Section 116 of the 1938 RTA, but instead by the then finance minister, the attorneys argued.

A panel of three Constitutional Court judges who heard the lawsuit agreed, declaring the orders signed by Davies “null and void and of no legal effect”.

They also ordered that drivers and owners of motor vehicles in Jamaica who paid fines for traffic tickets issued between June 15, 2006 and November 3, 2021, which exceeded the amount stipulated in the old 1938 RTA, are entitled to a refund of the difference “on proof of payment”.

Housen was also awarded $250,000 in damages after the court found that the $5,000 speeding ticket was a breach of his constitutional right to due process, as guaranteed under Section 16 (11) of the Jamaican Constitution.

livern.barrett@gleanerjm.com