The Guyana Court of Appeal last Tuesday dismissed an appeal filed by a former policeman, who was sacked from the Guyana Police Force (GPF) after an internal investigation found him guilty of accepting a $50,000 bribe.
Patrick Austin, who was based at the Anna Regina Police Station, had challenged his dismissal in the High Court but lost. The Court of Appeal has since affirmed the decision, which was made by Justice Brassington Reynolds in May, 2013, that there was no prejudice, illegality or procedural unfairness, thereby dismissing Austin’s action.
After a review of the evidence, the appellate court said, “…While there may have been procedural lapses in the conduct of the investigation and inquiry and that there may not have been strict compliance with every subsection, and some delay in the commencement of the investigation, we are not persuaded that the process taken as a whole was unfair and resulted in any miscarriage of justice.”
Justices of Appeal Dawn Gregory, Rishi Persaud and Senior Counsel Rafiq Khan heard the case, in which Austin was the appellant and the Commissioner of Police was the respondent.
Justice Khan, in reading the judgement, noted that Austin, a Corporal, received a letter on June 7th, 2002, informing him that his services with the GPF had been terminated on the ground that he had been found guilty of the disciplinary offence of receiving a bribe. The letter was signed by the then Police Commissioner, who stated that he was acting in accordance with the powers vested in him by Section 212 (3) of the Constitution. The dismissal took effect from June 15th, 2002.
Justice Khan said that the dismissal was the end result of an investigation into an allegation that Austin had collected a bribe to obtain two drivers licences.
Prior to or during the month of January 2001, an anonymous letter, signed “concerned citizen,” was received by the police informing of the bribe. The letter was shown to Austin and on November 21st, 2001 he received a letter from the force informing him that investigations were being carried out into a report that during the year 2000, while being a subordinate officer in charge of the licencing and certifying office at Anna Region, he received $50,000 as a bribe from Abdul Kamal to secure the licences for Abdool Wazim Kamal and Abdool Aswazeem Kamal, contrary to Section 4 (k) (1) of the Police (Discipline) Act.
He was informed of his right to refuse to make a written or oral statement and an inquiry was subsequently convened. During the inquiry, Austin cross-examined witnesses.
Abdul Kamal testified that Austin solicited a bribe from him in the sum of $25,000 for a licence for his son, Wazim. He claimed that the money was paid over by his nephew, Shazad Alli, who was given an additional $25,000 to obtain a licence for another son, Aswazeem. He was cross-examined by Austin and denied he was being untruthful.
Wazim confirmed his father’s story and said the bribe was for him to obtain a driver’s licence for a motor cycle without taking the requisite written examination.
Aswazeem, during the inquiry, related a similar story.
Alli testified that he collected the money, which was paid over to Austin at the police station and in his presence the appellant checked the money, which was wrapped.
Also testifying was an inspector attached to the force’s Office of Professional Responsibility, who said when he checked the driver’s license book he observed that licenses were issues to two persons whose addresses were given as somewhere in Georgetown. He contacted Kamal, his sons and nephew and later submitted his findings for legal advice.
The inquiry officer found that “the charges had been proven and recommended the dismissal of the appellant.” It was as a result of this that Austin was sent a dismissal letter.
Austin later instituted proceedings in the High Court, seeking to quash the dismissal and compel his reinstatement.
On May 7th, 2003, Justice Reynolds concluded that the proceedings leading to the dismissal were fair.
Being dissatisfied with Justice Reynold’s decision, Austin, through his attorney, Roysdale Forde, approached the Court of Appeal. He contended that the trial judge erred in law on several instances, gave no reasons for disbelieving the evidence of Austin, in arriving at his decision misapplied the principles of proprietary estoppel against Austin, and was unreasonable and unjust when in light of the evidence allowed the Police Commissioner to unjustly enrich himself.
Justice Khan explained that the Police (Discipline) Act set put the procedure for the investigation and inquiry into an alleged commission of an offence.
It was pointed out that the procedure was not followed properly. Section 5(1) required the investigation to be carried out a soon as practicable by a member of the force not below the rank of sergeant, while the preceding section required the investigator to be from the same station or branch who had direct supervisory responsibility for the person accused, unless otherwise directed by the officer in charge of the division or station or branch.
The rank who conducted the investigation was not from Austin’s station and had no direct supervisory control over him. Justice Khan pointed out other deviations from the legal process.
He said that having considered all of the facts, the court’s view was that Austin was fully aware of the offence, that there was an investigation of that charge, took part fully in the inquiry and declined to call evidence in his defence. Further, he said the Commissioner of Police acted in accordance with the Constitution and that the officer conducting the inquiry, in accordance with the Act, made a recommendation to the disciplinary authority.
He said that the court is of the view that any failure to follow the procedural provisions strictly, “did not in the circumstances result in any serious injustice to the Appellant or miscarriage of justice.”
The Commissioner was represented by State Counsel Judy Stuart-Adonis.
