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|Police Sgt. survives criminal charge, inquiry for improper conduct|
|Saturday, 12 May 2012 15:04|
THE appellant, Police Sergeant Bollers, was charged indictably with fraudulent conversion of money.
The charge against him was dismissed for want of prosecution, and he was then charged with improper conduct under Reg. 54 (44) of the Police Regulations, [BG].
One of the allegations against him was that he had failed to account for money entrusted to him.
The respondent, a Police Officer, was appointed as a Court of Inquiry to investigate the charges, and commenced the inquiry. The appellant applied for a Writ of Prohibition to prohibit the respondent from proceeding with the inquiry, and obtained a rule nisi, which was subsequently discharged.
Upon appeal, he contended:
(a) That Reg. 54 (44) did not apply to improper conduct, which might be the subject of a criminal prosecution;
(b) that criminal charges were not cognizable by the Court of Inquiry; and
(c) that criminal proceedings against him were still pending, and the inquiry was automatically suspended by the operation of General Forces Order 35, made under Reg. 189 of the Police Regulations [B.G.].
The Federal Supreme Court, constituted by Chief Justice Hallinan and Justices Lewis and Marnan, held:
(i) There was an end to the criminal proceedings against the appellant when the information against him was dismissed;
(ii) Reg. 54 (44) had to be read together with the other sub-regulations, and improper conduct within the meaning of the sub-regulations referred to acts of indiscipline, which might be the subject of criminal charges; and
(iii) the respondent had not exceeded his jurisdiction.
The appeal was from a decision of the Supreme Court of British Guiana (Trial Division – J.A. Luckhoo, Ag. C.J.) dated September 29, 1960. Mr. L.F.S. Burnham, Q.C., appeared for the appellant, while Mr. S. Ramphal, Solicitor General, and Mr. M. Shahabuddeen appeared for the respondent.
Justice Hallinan, who narrated the facts, disclosed:
“The appellant, a sergeant of police in British Guiana, in September 1957, had an information laid against him; charging him with an indictable offence; namely, fraudulent conversion of $128.75, being part of a sum of $1,908 and entrusted to him as secretary of Berbice Library.
“This information was dismissed for want of prosecution in February 1959. The appellant was never called upon to plead to the indictment, the issue was never joined, and there was no decision on the merits, or at all.
“In May 1960, the appellant was charged with improper conduct under reg. 54 (44) of the Police Regulations, made by the Governor under the Police Ordinance, Cap. 77 [B.G.].
“Three cases of improper conduct were alleged, which, without going into details, might be described as (i) buying toys on the credit of the library, and instead of utilizing part of the $1,908 received by him for that purpose; (2) failing to inform Senior Supt. Griffith, from whom the appellant received the sum of $1,908, that he had done so; and (3) failing to account for $128.75 out of the money entrusted to him.
“The respondent was appointed to hold a Court of Inquiry into these disciplinary charges preferred against the appellant. In June, 1960, the present proceedings were brought on a writ of prohibition to stop the respondent from proceeding with the inquiry.
“The Acting Chief Justice, who heard the application, held that the proceedings before the respondent were judicial in respect of which the writ might issue, but no grounds had been made by the appellant why the writ should go.
“Counsel for the appellant relied on two principal grounds of appeal: (i) that sub-reg. (44), which relates to improper conduct, could not be the subject of a disciplinary charge which might also involve a criminal charge. He submitted that because the other sub-regulations in reg. 54 contained a number of breaches of discipline, which might also be the subject of criminal charges, the intent of the Governor in making the regulations would be to enumerate in the regulations specifically all acts of indiscipline which might also be the subject of a criminal charge.
“I am unable to accept that construction. On the contrary, I think that sub-reg. (44) is in the nature of an omnibus clause, which should be construed in conjunction with the other sub-regulations of reg. 54; and since these sub-regulations refer to acts of indiscipline which might also be the subject of a criminal charge, improper conduct within the meaning of sub-reg. (44) might also involve conduct which might be the subject of a criminal charge.
“Counsel for the appellant has also advanced the argument that the provisions of General Order 35 should be so construed that in its effect it would deprive the respondent of jurisdiction to proceed with the inquiry. The General Orders are made under reg. 139 of the Police Regulations, and General Order 35 begins as follows:
“SUSPENSION OF DISCIPLINARY ENQUIRY WHEN CRIMINAL CHARGE IS PENDING
“In cases involving both a criminal charge and a disciplinary charge, the latter will be prepared and communicated to the Inspector, non-commissioned officer or constable concerned at the earliest possible moment, but no steps will be taken to enquire into disciplinary charge until the result of the criminal proceedings is known. The facts on which a disciplinary charge is based must not be the same, or analogous to those facts which form the basis of the criminal charge.
“Counsel for the appellant has submitted that the results of the criminal proceedings are not known, and therefore the proceedings are still pending. In my view, when the prosecution intimated that they would not proceed, and the criminal proceedings were dismissed without the appellant’s plea being taken, that was an end of the criminal proceedings, which are not now pending. I think that is an answer to all the submissions of counsel for the appellant on the first sentence of this General Order 35.
“Counsel for the appellant has also submitted that the second sentence of General Order 35 - the sentence beginning “The facts on which a disciplinary charge is based …” precludes the respondent from proceeding with the inquiry.
In my view, the object of this second sentence of the General Order is this: If the criminal proceedings result in an acquittal, it would not be just to charge the person concerned in these proceedings on the same issues. If the man is convicted and punished, then a disciplinary charge should not be preferred against him on the same issues, nor even on the same facts. I assume that dismissal from the force is not a punishment that could be imposed upon a conviction for a breach of discipline under reg. 54.
“If one applies those considerations to the present case, I do not think that the appellant can possibly suffer any injustice if this Court of Inquiry is held on the disciplinary charges which have been preferred. He has not been acquitted on any issue, the subject of these charges; and has not been punished, not only on any of those issues, but on any of the facts upon which the disciplinary charges are based.
For these reasons, I think the decision of the Acting Chief Justice to refuse the writ is right, and this appeal should be dismissed with costs,” Chief Justice Hallinan declared.
The other judges concurred.
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