EX-CONSTABLE POWER’S APPEAL

Hokitika Guardian, 28 March 1929, Page 6

EX-CONSTABLE POWER’S APPEAL

TERMS OK JUDGMENT. -

(By Telegraph—Press Association)

AVELLIXGTON, March 27

In :the appeal case, Rex. v. Power, (March 18), the judgment of the Court, delivered by Air Justice MacGregor, was ns follows: The first, and fundamental, question of law to he determined is whether the powers of summary dismissal by tho Commissioner of Police gave rise to any cause of action by Power for damages’ for wrongful dismissal. The answer tb that question, ol course, depends upon the terms on which Power held his office of Police Constable. In New Zealand, all police officers are the servants of the Crown. Now it is tl/e clear law that, except where it is otherwise provided by statute, all public officers and servants of tho Crown in England hold their appointments at the pleasure of the Crown, and all, in general, are subject to dismissal at any time without tbe cause being assigned. If our construction of tbe relevant statutory provisions be correct, it is, in our opinion.’obvious that the respondent in the present case can have no cause of action against the Crown, inasmuch as his dismissal under Section 9 was justified by the express terms of the Statute. It was contended for respondent that this construction should not he followed, because to adopt It would mean that the respondent had been punished twice for tho same offence. How then do matters stand in this respect. ? Eor an act of misconduct, respondent was lined by an inspect .r the si: "i of £3- under the Provisions of Section 4 (J) (ol the Police E. no Act'. MM3). lie was subsequently dC> : ;-sod :rum the Force l>v tluv Comm sCimcr of Police, acting under Section 9. \Yo do not think that, in these circumstances, it can be affirmed that lie lias been “ punished ” more than once. The fine nil £3 was no doubt, inflicted as a punishment, but the power of dismissal vested in the Commissioner by Section 9 was not t> act as a judicial officer in conducting inquiries and hearing proof of charge* and indicting punishments therefor, but to act summarily in a high administrative capacity in order to keep the whole service disciplined and efficient by removing unfit constables therefrom. Further, it appears to us that, even i 1 the dismissal and fine could properly be regarded as separate ” punishments." still they were not both inffieted for the same offence. Ihe maxim “ Nemo debet his puniri pro utio delicto” (Broom P 2.'il) does not apply here, inasmuch as the two punishments were not inflicted 11 pro uno delicto.” On the whole case, we are satisfied that the respondent has no cause of action against the Crown, and that the appeal must therefore he allowed. f ßlie first question should he answered “ No.” The two remaining questions need not he answered at all. The appeal will he allowed, with costs on the highest scale. The proceedings are remitted to the Supremo Court to ileal with the question ol costs there reserved, after which final judgment is to he entered tor the Crown under Rule 248 of the Code of | Civil Procedure.