REDRESS SOUGHT

Evening Post, Volume CXXVI, Issue 78, 29 September 1938, Page 11

REDRESS SOUGHT

ISLANDS POLICE CHIEF

INSUBORDINATION CHARGE

REMOVAL FROM POST

The removal from his post as Chief Police Officer at the Cook Islands of Albert Carry on, now of Pahiatua, following the upholding of a charge of insubordination laid against him by Stephen John Smith, then Resident Commissioner of the Cook Islands Administration and acting Chief Judge in the absence of Judge Ayson, was the basis of a motion brought to the Supreme Court today, before Mr. Justice Reed, to have the determination of the inquiring Public Service Commissioner, John Henry Boyes, quashed. The charge arose from the action of the police officer in entering the" Commissioner's office under, a search warrant and seizing papers relating to a, pending Court case. Mr. W. P1! Rollings appeared for the plaintiff, and Mr. A. E. Currie for the defendant, J. H. Boyes.

The inquiry into the conduct of Carlyon was conducted by the defendant at Avarua, Rarotonga, on April 25 and 26,1938, and on April 27 the charge was found to be sustained. Ori.e week's salary was ordered to be deducted by way of penalty, and the plaintiff was ordered to be transferred from the Cook Islands to New Zealand by the first available'vessel to report, for duty to the Commissioner _. of Police. The quashing of the decision of the inquiry was sought on the ground that the determination of the defendant was made without jurisdiction because the plaintiff was not subject to the "provisions of the Public Service Act, 1912, and that he was refused his statutory right to be represented by counsel at the inquiry. STATEMENT OF CLAIM. The statement of claim set out that the plaintiff had been a police constable since October 18, 1926, and from December 24, 1935, acted as Chief Police Officer at Rarotonga. On March 29, 1938, he was charged with two acts of insubordination by S. J. Smith, purporting to act under section 11 of the IPublic Service Amendment Act,

1927. The plaintiff denied the charge. Mr. Rollings said that in March difficulties arose between the plaintiff and Smith. A case was pending iri the Court at Rarotonga concerning a charge against a native of cohabiting •under age, and the plaintiff, as Chief

of Police, took a certain view of the t ( case and interviewed the parties. \ He conceived, it, to be his duty to bring certain proceedings, and while the case was pending it came to his know- - ledege that Smith, who was also acting as Chief Judge, had been concerning himself with the case. Perplexed by the legal position, the plaintiff, conceiving that the Commissioner of Police,in New Zealand was his superior, sent radiograms at his own expense, seeking advice from the Commissioner.

He was charged with insubordination in communicating with the Commissioner of Police without permission, said Mr. Rollings, but that charge, at the later inquiry, was dismissed. $& a later stage of the proceedings thie plaintiff found certain papers in the office of the Resident Commissioner which indicated that Smith was prejudicing the pending case. The plaintiff, obtained a search warrant, which seemed to be a valid warrant, and under it searched the office of the Commissioner, His' Honour: Do you defend that action; that a policeman can go into a Judge's room? Can you possibly defend that,, even if this police constable suspected that the Judge was inclined to favour one side rather than the other and had taken certain steps in connection with the matter? Can you defend the action of a'police constable an getting1 a search warrant? Mr. Rollings said that in the cirrastances he3 did. The plaintiff had extremely difficult task in administering justice, and a case was pending «x which he thought there might be a miscarriage of justice. The Judge .was a layman. His Honour: Is Mr. Smith a Solicitor? '-■■■'. A.." ■ . Mr. Rollings: Kb, sir—just an official of the Civil Service. When oudge Ayson is there his duties are purely administrative, but when Judge Ayson is away he is invested with judicial power.' It was submitted hy Mr. Rollings that the plaintiff's bona fides was beyond question, as was shown by the sending of the radiograms. . When he entered the office of the Commissioner he found, at 8 a.m. on March 24, a written decision in a case which was set down tor1 hearing at 9.30 ajn. on that day, together with notes of "evidence." The plaintiff was told by letter that a Public Service Commissioner would probably visit the Islands by a certain vessel, but what was virtually his summons to attend the inquiry was received by the plaintiff at 7.30 ; a.m. on the day of the inquiry. It "was submitted that the plaintiff made it perfectly clear at the inquiry that he had been denied the rights of representation to which he was entitled. HIS HONOUR'S VIEW.

.His Honour: I can't understand a man, unless they afre affected by the climate down, there, doing a thing like this. His duty was perfectly clear. If he thought the Judge was not going to act impartially he should have gorie on with'the matter and simply told his superior officer! afterwards. The offence was one of two Maoris cohabiting, and yet he goes and searches the office of his superior officer for the time being. I have never heard of such a childish thing in all my life. Mr. Rollings: The wisdom of his doing that might be open to question, but this man's bona fides was above question. The very fact that at his own expense he communicated . by radiogram with the Commissioner of Police shows that. His Honour: Is it suggested that he submitted the question of taking out a warrant to the Commissioner of Police? Mr. Rollings: I don't suggest that for a moment. There was no one there he could turn to to obtain advice on legal matters. The only riian there, in his view was acting in an unjudicial and improper manner. The plaintiff, said Mr. Rollings, was told that an appeal did ndi lie with the Public Service Board of Appeal. It was submitted that the proper procedure was to have reported the man to. t«e Police Department (Proceeding.)

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