INSUBORDINATION

Timaru Herald, Volume CXLV, Issue 21155, 30 September 1938, Page 8

INSUBORDINATION

Official Removed from Post Quashing of Decision Sought By Telegraph—Press Association WELLINGTON, September 29. The removal from his post as chief police officer at the Cook Islands of Albert Carlyon, 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 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 plaintiff in entering the Commissioner’s office under a search warrant and seizing papers relating to a pending court case. Tire 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. One 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 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. 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 in Raratonga. On March 29, 1938, he was charged with two acts of insubordination by S. J. Smith purporting to act under Section 11 of the Public Service Amendment Act, 1927. Plaintiff denied the charge. Counsel’s Submissions Mr A. E. Currie, who appeared for the Public Service Commissioner, submitted that plaintiff’s motion for a writ of certiorari could not succeed against the Public Service Commissioner in respect to a decision by him under section 11 of the Public Service Amendment Act, 1927, which brought public servants in the Cook Islands under the Public Service Commissioner. Secondly, Mr Currie submitted that the motion could not succeed because it was too late, effect having been given to the decision. Thirdly, the Commissioner had acted within his jurisdiction hi holding the inqury. Fourthly, there had been no excess of jursdiction in declining any application which the plaintiff might have made for an adjournment. “It is on record that Smith prejudged the case and also that he interviewed a litigant beforehand," said Mr Currie. “It is only fair to this man, who is not present, that I should say very briefly that there is another side to that. Sworn evidence in the inquiry indicates that a native had come to Smith to consult him in his capacity of Commissioner and without indicating that legal proceedings were pending. The notes said to have been a prejudging of the case were memoranda to be used in addressing the assessors should the case take a certain turn.” In the proceedings the plaintiff had been treated in a kindly manner. He had a good record in the Police Force and had been carefully selected for the position in Rarotonga. After hearing legal argument throughout the day, his Honour reserved his decision.