-but faces charges of improper conduct
IN 1957, Sergeant Bollers of the British Guiana Police Force had a charge laid against him for fraudulent conversion dismissed for want of prosecution. Consequently, he was charged with improper conduct under Regulation 54 (44) of the Police Regulations [BG], one of the allegations being that he failed to account for money entrusted to him.
The respondent, one Cannon, was appointed by the Court to investigate the charges and commence the inquiry.
The appellant, this being Bollers, applied for a writ of prohibition to prevent the respondent from proceeding with the inquiry and obtained a rule nisi, which was subsequently discharged.
Upon appeal, he contended that (a) Reg.  54 (44) did not apply to improper conduct, which might be the subject of a criminal prosecution; (b) criminal charges were not cognizable by the Court of Inquiry; and (c) 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 [BG].
The Federal Supreme Court, in its Civil Appellate Jurisdiction, held that:
(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 as acts of indiscipline, which might be the subject of criminal charges; and

(iii) The Respondent had not exceeded his jurisdiction.

Queen’s Counsel, Mr. Forbes Burnham appeared for the appellant, while Mr. Mohamed Shahabuddeen represented the respondent. The Federal Court was constituted by Chief Justice Hallinan, and Justices AM Lewis and JF Marnan.
Delivering his judgment on the matter, Justice Hallinan  related that the appellant was in September 1957 charged with the fraudulent conversion, an indictable offence,  of $128.75 which was part of the sum  of $1, 908 entrusted to him  as secretary of the Berbice Library.
This information, he said, was dismissed for want of prosecution in February 1959, as the appellant  was never called upon to plead to the indictment, nor was the issue ever joined, and there was  no decision  on the merits or at all.
But in  May, 1960, Justice Hallinan related, the appellant  was charged  with improper conduct  under Reg.  54 (44) of the Police Regulations, made by the Governor under the Police Ordinance, Chapter 77 [BG].   “Three cases of improper conduct  were alleged,” he said, “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 ;  (ii) failing  to inform Senior Superintendent Griffith, from whom  the appellant received  the sum of $1, 908, that he had done so, and (iii) 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 with his argument, Justice Hallinan said: “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 is the subject of a criminal charge.”
Noting that Counsel for the appellant had 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, Justice Hallinan said: “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 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,  Justice Hallinan, whose judgment met with the approval of his two other colleagues 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.”