Knowles v Attorney General et Al
| Jurisdiction | Bahamas |
| Judge | Nathan, J. |
| Judgment Date | 03 June 1999 |
| Court | Supreme Court (Bahamas) |
| Docket Number | No. of 199 |
| Date | 03 June 1999 |
Supreme Court
Nathan, J.
No. of 199
Mr. Damian Gomez for the plaintiff.
Mr. Milton Evans for defendants.
Employment law - Dismissal — Whether plaintiff policeman was wrongfully dismissed — Whether he had been denied natural justice
Plaintiff was dismissed from the Police Force. Claimed wrongfully dismissed and breach of contract. Defendants contended that the plaintiff was dismissed pursuant to sec. 26C of the Police Act. Plaintiff failed to pursue his statutory right of appeal to the Governor-General.
A Certificate of Discharge is not mandatory to effect dismissal for misconduct. The plaintiff was informed of the nature of the charges and given a reasonable opportunity to be heard. The Commissioner of Police was not a judge in his own cause as the Act mandated him to act in the way he did. The time limits relative to an appeal to the Governor-General have expired. Plaintiff was not denied natural justice, procedural fairness or access to his appeal rights. Action dismissed.
(Derek Knowles) Knowles was a policeman. He was dismissed from the police service (the force) by the Chief Commissioner of Police (the COP) who is the second named defendant. His dismissal was effected through the office of the first named defendant (AB) who at the material time was the deputy to the COP.
Knowles says his dismissal was wrongful, and seeks various declarations to that effect. This short recitation of the facts obscures difficult questions of law and fact which I shall deal with on a question and answer basis.
The Pleadings:
Knowles joined the police force in June 1988. In early 1989 he was charged before the magistrate's court with being a robber in company and possession of a machine-gun (the offences).
In January of 1989, Knowles asserts he was acquitted by a magistrate of the charges relating to the offences. This allegation of acquittal has become a central issue in the case.
Knowles contends that not only was he wrongfully dismissed but that his dismissal was also in breach of his contract of employment. I interpolate that in June 1990, the commissioner asserts he rightfully dismissed Knowles from the force in conformity with the relevant Police Act, chapter 191, (the Act).
On the other hand, Knowles asserts that he was never informed he had been dismissed and was not issued with a Certificate of Discharge (CD), in contravention of the Act, section 25. As a consequence, Knowles says his discharge was merely a purported event and the limitation period for appealing to the Governor General in respect of it, under the Act, has not expired.
The pleadings proceed to assert that Knowles was denied procedural fairness, and that the rules of natural justice which the COP was obliged to apply were contravened. These contraventions relate to three rules, namely: That the commissioner acted as a judge in his own cause; secondly, that Knowles was not informed of the details of the matters justifying his dismissal; and thirdly, that he was denied a proper opportunity to be heard in his own defence. He also seeks declarations that any CD relating to him is null and void; damages for breach of contract, and declarations to the effect he remains or should be reinstated as a member of the force. Declarations that the defendants conspired to injure him were not pursued at trial.
The defendants in a joint defence contend that a proper determination was made by the COP on the 17th of July, 1989, that in the public interest, and pursuant to section 26C of the Act, Knowles should be dismissed. The defendants state that Knowles had constructive notice at least, of his statutory right of appeal to the Governor General, but he declined to pursue it. Knowles was obliged, as a condition of his recruitment to the force, to read the Police Act (section 101) which informed him of that right.
As to an argument raised at trial that the constitutional rights of Knowles had been breached, in that his dismissal was contrary to Article 120 and 121 of the Constitution, the defendants say the Constitution and the Act are not repugnant to the other and that both have been complied with. I interpolate that there is provision in the Constitution which prohibits double jeopardy, that is, a person acquitted of an offence in a court cannot be tried elsewhere for substantially the same offence. This provision merely reflects the common law position.
The defendants say that the appropriate limitation period applies to Knowles in respect of his right of appeal to the Governor General and it has long since effluxed. But, in any event, he has chosen to bring these proceedings rather than pursue his appeal rights.
The Facts and Documents:
When Knowles was charged with the offences, he surrendered his police uniform and weapon and was placed on half pay. The Act provides that policemen awaiting trial be put on half pay. Knowles claims reimbursement for this loss in the event of success.
The charges against Knowles were adjourned on at least three occasions.
The Court Docket:
The only record I have of the magistrate's court proceedings are contained in a court docket which is numbered 3580 of 1988. The identity of the magistrate is unclear. Neither of the parties before me could provide positive identification.
The docket is divided into four columns, complainant, defendant, witness and nature of the offence. Under the heading complainant, the initials COP appear. It is unquestioned these stand for Commissioner of Police; various defendants are noted as are witnesses in the appropriate columns.
Under the column, nature of offence, there follows, “Armed robbery, contrary to Section 383(2) of chapter 48. Particulars are: That you, on Monday, the 27th of June, 1988, at New Providence, armed with an offensive, to wit, a machine-gun, did rob Wellington Brown of $5,800.”
There follows the second offence, “Possession of a firearm whilst committing an indictable offence, contrary to section 34(4) of the Firearms Act, 1968. Particulars are that you, on Monday, the 27th of June, 1988, at New Providence, did have in your possession a firearm, to wit, a machine-gun, whilst committing an indictable offence, namely armed robbery.”
Endorsed on the docket, apparently in the hand of the prosecutor there follows: “No prosecution witnesses appear. I requested the defendant be discharged under section 226(2) of CPC. However, counsel for the accused requested section 226(2)(b)(i) applied. The magistrate then dismissed the charges and discharged the defendants. Witnesses absent on 17/1/89.
The docket does not disclose any notation by the magistrate, let alone the terms of any order he or she may have pronounced. How it was that the prosecutor appears to have written on the court's docket was not explained.
Correspondence:
On the 21st of June, AB wrote to Knowles at the direction of the COP. It reads:
“As a result of the police investigation, you were arraigned in the magistrate's court on the 30th of June, 1988, and charged with (there follows the details of the offences I have already recited in the docket).
“Due to some administrative difficulties, the prosecution was aborted and was not allowed to go to its merits. It is felt, nevertheless, that your undoubted participation in this matter has done much to bring discredit on the reputation of the Royal Bahamas Police Force and indeed the entire Commonwealth of The Bahamas.
You are hereby required to give in writing within 14 days from receipt of this letter, cogent reasons why in accordance with the provisions of section 26C of the Police Act you ought not to be discharged from the Royal Bahamas Police Force in the public's interest within the time frame allowed.”
Knowles did reply to AB and in the following terms:
“Acknowledgement is made of your letter dated the 21st of June, 1989, which I received today (17th of July, 1989). As I understand the law, a person is presumed innocent until found guilty in a court of law, and despite the pressure put on me by my superiors and colleagues.
At all material times I have expressed to the police and the court my innocence. Whatever course the court had adopted, my position would have undoubtedly been the same — Free From Any Criminal Charges.
It is unfortunate that I have been dragged through such a trial, and I trust that my behaviour on the police force over the many years would convince you, my colleague and countrymen, that I stand firm as an honest and innocent man, arrested only because of what I now term as envy, jealousy and an attempt to prevent my promotion as a deserving officer.”
Endorsed in this letter under the hand of the COP and dated the 2nd of August is the note:
“Staff officer, kindly arrange for DC Knowles to be brought in for discharge, earliest please.”
The COP has sworn that he gave personal consideration to this matter and it was at his direction that Knowles was brought in for formal discharge by AB.
At the meeting a short time later between Knowles and AB, Knowles contends he was simply told of his dismissal and not given a chance to further challenge it.
It is on these facts that Knowles asserts his dismissal, if in fact it occurred without the formal issue of a CD, was wrongful and in breach of the rules of natural justice.
The Relevant Legislation:
As to the docket:
Section 226 of the Act, as appropriately edited provides for the following:
Subsection (1) “With the leave of the court — the prosecutor may at any time before a final order is made — and in which the accused person has pleaded not guilty, withdraw the complaint.”
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(2) “On any withdrawal, (a) where the withdrawal is made after the accused person is called upon to make his defence, the court shall acquit...
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