Mr. Ramphal & Mr. Shahabudden for Respondent

IN 196l, the Federal Supreme Court Chief Justice Hallinan held that the Acting Chief Justice J. A. Luckhoo of British Guiana was right when he dismissed a writ of prohibition to stop the respondent from proceeding with a writ of inquiry against Sgt. Bollers of the Guyana Police Force.

The facts of the case disclosed, a sergeant of police named Bollers, was charged indictably with fraudulent convention of money.

The information against him was dismissed for want of prosecution and he was then charged with improper conduct under reg. 54 (44) of the Police Regulations [B.G.], 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. 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 cognisable 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 regulation 139 of the Police Regulations {B.G.]

The Appellate Court 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 Court of Appeal ruled that the appeal from a decision of the Supreme Court of British Guiana, dated September 20, 1960, be dismissed.

The appellant was represented by L.F.S. Burnham, Q. C. .

Mr. S. Ramphal, Solicitor General, and Mr. M. Shahabuddeen, represented the respondent.

The Court was constituted by Chief Justice Hallinan and Justices, C.J. Lewis and Marnan.

In his judgment, Chief Justice Hallinan noted that the appellant, a sergeant of police in British Guiana, in September, 1957, had 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 the 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, Chapter 77 [(B.G.]
.
Three cases of improper conduct were alleged which, without going into details might be described as (1) buying toys on the credit of the library
instead of utilising part of the $1, 908 received by him for that purpose; failure 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 out by the appellant why this writ should go’

Counsel for the appellant relied on two principal grounds of appeal: (1) 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 regulations in reg. 5l4 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 disclosed that Counsel for the appellant had also advanced the argument that the provisions of General Order 3254 should be so construed that in its effect it would deprive the respondent of the jurisdiction to proceed with the inquiry.

Chief Justice Hallinan said that for the reasons he had given, he thought that the decision of the Acting Chief Justice to refuse the writ is right and this appeal should be dismissed with costs.

Justice Lewis and Justice Marnan concurred with Chief Justice Hallinan.

In a few remarks, Justice Lewis said, “I concur and would only add this, that if the construction which counsel for the appellant seeks to place on Order 35 is correct, it seems to me that it would not only tie the hands of the Commissioner of Police in cases where, after the filing of a charge it is felt that it may be preferable to discontinue the charge and proceed with disciplinary action only, either because it was discovered that there was no offence in the criminal law or because it was felt that in the interest of the morals of the force it was preferable that the matter should be dealt with disciplinarily, but it will also result in hardship to members of the Police Force themselves, because the Commissioner would be bound to proceed with criminal charges which might result in damage to the reputation of the policeman and perhaps more severe punishment would be meted out to him than if he were merely charged disciplinarily.”