LEAVE WITHOUT PAY

Evening Post, Volume CXXXVIII, Issue 95, 19 October 1944, Page 8

LEAVE WITHOUT PAY

JOHN HOGAN'S ARMY STATUS

The hearing of the charge against John Hogan, that he had failed to obey the direction of the Man-power Officer to take up work at the Petone Woollen Mill, was continued before* Mr. A. E. Dobbie, S.M., at Lower Hutt yesterday. At the previous hearing the case was adjourned to enable the Crown to meet the contention that Hogan was not subject to direction as he did not come within the description of a person who was absent from the Armed Forces on leave without pay. It was contended that as the defendant had never been mobilised he could not be a soldier, and therefore could not be on leave without pay.

Mr. W. R.-Birks appeared for the Crown and Mr. E. F. Rothwell for the defendant.

Sergeant-Major R. G. Chadwick, a warrant officer at Headquarters, said Hogan had been called on September 15, 1942, and was automatically transferred from the Reserve to the Army the following day. Hogan was not required to perform any military service apart from attending for medical examination and except for pay received for attending for examination he had not been on Army pay. He was then attached to an area pool. As a member of such pool he was not required to perform military duties and was regarded as being in the Army without pay. He was not issued with an Army pass, nor a certificate that he was on leave without pay, but he was entitled to such a certificate if he had applied for it. Hogan was definitely a member of a pool by reason of his being gazetted, and so far as the Army was concerned was on leave without pay. *

Mr. Rothwell: If he is . a soldier should he not have a leave pass? Mr. Chadwick: If he were a soldier in the ordinary way he would be entitled to a pass. As a member of the Armed Forces not mobilised he was entitled to a leave certificate if he had applied for it. If he had never been mobilised he would not be entitled to a leave pass. The leave certificates were issued under Army instructions, but he could not say on what authority the instructions were issued. The certificates had been issued from time immemorial.

Mr. Rothwell asked that the case be dismissed, as it had not been proved Hogan was absent on leave without pay. Hogan was not a soldier, he had not been mobilised, and therefore could not be absent without pay. He had not teen issued with a leave pass— not even with a leave certificate. The last witness had been unable to give any authority for the contention that Hogan was on leave without pay.

Quoting from the Army Act, Mr. Rothwell said that the only person who could grant leave without pay was the Minister of Defence, and then only to men on full-time service in the New Zealand Forces. It might have been the intention that such persons as Hbgan should be on leave without pay, but such persons did not come within the scope of the Act, and therefore the direction given to Hogan must be declared void.

Mr Birks said there was evidence that Hogan was a member of the Army under regulation 17 and evidence he was a member of the Army pool under regulation 7. As such he was on leave without pay. It was clear that such persons were regarded as being in the Army, as regulations 18 and 19 made such persons subject to the commands of Army officers. The Magistrate said he found there was evidence that the defendant was liable for direction, and the case must proceed.

An adjournment for one month was granted on the application of the defendant, on the ground of the illness of an essential witness.