Police Officer dismissed of Criminal charge for want of prosecution

To face Inquiry into charges of improper conduct

IN 1957, Sergeant Bollers of the British Guiana Police Force had an information laid against him for fraudulent conversion, dismissed for want of prosecution.

George Barclay

Consequent to that, Bollers was then charged with improper conduct under reg. 54 (44) of the Police Regulations [BG], one of the allegations being, that he had failed to account for money entrusted to him.

The Respondent Cannon 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 that one of the allegations being that he had failed to account for money entrusted to him.
The Respondent was appointed as a Court of Inquiry to investigate the charges and commenced the inquiry.

He, 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 ; (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. 139 of the Police Regulations [B.G.]
The Federal Supreme Court in its Civil Appellate Jurisdiction 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-regulation referred to acts of indiscipline which might be the subject of criminal charges;
(iii) the Respondent had not exceeded his jurisdiction. The appeal is dismissed.
Queen’s Counsel L. F. S. Burnham appeared for the appellant Bollers while Solicitor General and Mohamed Shahabuddeen represented the Respondent Cannon.
The Federal Court was constituted by Chief Justice Hallinan, Justice A.M. Lewis and Justice J.F. Marnan

Delivering his judgment . Chief Justice Hallinan said that 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 ar 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 Pollce Ordinance , Chapter 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 instead of utilizing part of the $1,908 received by him for that purpose ; (2) failing to inform Senior Superintendent 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 out 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.

Continuing, C. J. Hallinan added, 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 refers 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 is 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
I n 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 the 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.”

Dismissing the appeal, Chief Justice Hallinan , whose judgment was concurred with by the other two judges of the Federal Court, said of the Appellant, “He has not been acquitted on any issue, the subject of these charges, and he has not been punished, not only on 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.

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