THE RULES OF PROCEDURE.

Dominion, Volume 3, Issue 720, 20 January 1910, Page 6

THE RULES OF PROCEDURE.

/■ ; "AN AIJCKLAND OPINION; i. : (By Telegraph.—Special 1 Correspondent.) ; . Auckland, januiny 19.So much has' been said and written of the Knyvett: case ;that ebme of the'real issues have been oonfused.' ■ The speakers at the.'indignation meeting did nbt/go into the real points of the case, and the Auckland publio is some-whit aggrieved because Wellington criticism omits to take notice of some of the mam , points. . Mr. E. ;W.; : Munton,- who has : made ".a somewhat-extensive study of military law, pnts the, argument v .'more .clearly than anything • that has previously appeared in the press. After'quoting freely from .the .books issued, by the War.. Office)' he goes on to say: "It is thoroughly well laid :down 'that,there ia no offence in'.!making charges against one's 6enior officer, ■provided that they can be established. The offence would.be in.the maHnßofafalse charge. In fact,", there are cases on reconl where a junior officer has. actually ordered his commanding;officer under arrest!..whilst' on parade for military offences Get alone merely making a charge against him), and been supported in his action •after trial and proof. of the correctness Vof the .charge, (vide ,, "Case of , Lieutenant: Colonel.. l£," . "Manual. Military Law," Folio 33).-.ln , the case' of Captain Knyvett, as. there was no opportunity; given to establish , the.truth of ..his allegations, ■ the sole...charge, really ambuntea to . the eeiidiog ■ of the .letter , them, and, 'tis the'ipers'on to whom; he 6ent -it-was the .properly-ap-pointed political head of the service to which, both he and Colonel Eobin, _of whom he complained, ibelonged, I; would ;.unhesitatingly say- that-such a, letter was' .the subject of an absolute ;privilege,. and the sending of it did not constitute any . military offence; and would not: have'done . so_.eyern if there had been no question of privilege. -It was sent through the proper channels,' and/ the; information it' con- ■ ttiined,. if true, was' palpably of -such a nature as,.the .recipient ought, to be in.formed of, and it would have been wrong >f, Captain Knyvett in : the interests! of :Jhe service, as a .whole to' have withheld it. : ,I'.therefore contend- that .the'-pro-' ceedrnga have'been stopped the mo. ment the question was raised, and,would have !been stopped by a' Court of law had a .writ: of: prohibition: or! certibrafi' been .applied.fbr, .bnVth'e' ground, of the board's! having no. jurisdiction to deal with anything, outside :the' specific ch'arge!■'laid before them. (Grant y, ; Gould M'Afthuf, on folio 120.) . ■ 'fit,seems!.extraordinary -that ..Captain Knyvett should have,, been-summarily, de-. prived of fiie'assistance either, 'as 'friend', or. counsel- of Lieutenant: Pullenj. seeing that, under the Bules" of Procedure;' 1883, Rule .87,'■ it is' expressly' provided that a prisoner !may have a : person-to. assist'him the'.trial (whether a:legal adviser. ..or.any..other; and.-tb.emphasise generally what. I; meait'as ..to the .rights! of \ the' accused,.l cannot !do betler.i than'quote' the ..'following admirable.' dictum: laid: down .'.in "the Eiiles ■ of •PrbceduTO.Cl&le .60'. et.sjq) •.--;■.'■;. :.■!?:■ ' '■■■ "It 'is'jUMj , duty, of; the! prosecutor to .assist the. Court-in-.the.,administration fit, justice; to beJiave impartially, to bring! the .whole of! the; transaction;'before the. Court; 'and not!.to , take' anyi uirfair: ad-i 0f, , -or suppress any evidencei in ■favour;of,; the. prisoner.';....• ■.■.•j'The',.prosecutor ;is'''-.an officer' for', securing! , that justice'.is;.donb, not .a.partisan':to obtain, a conviction;' '. ..'.*. 'The. .Court, should ;allow!' great/■ latrtu'deoto.'.thejprisoneri in making-Ms! defence.' •"..';•" Tie may, -for. the purpose of his defence, impeach,,the evidence, and the, motives of the iritnesses . and "prosecutor, ■ and. oharge. ; persons .with ' blame and .even', criminality, .subject;!!! -he does 'so, .to other: proceedings; if unable t» substantiate;his charges,' etc.' .'■!■:- ;' "When.one reads the account'of thepro-' ceedings at the , trial one ia .not'impressed' as. to r .the, imjiartiality,. of ..those,' ,' ; vraether . ! 6n.-''tte,: : the -prisoner.;-. .In the; inatterr , of punieh'mente it is expressly laid down 1 that they, should be ■ neither, vindictive.nor excessive, nor. disproportionate to the offence. In 'this' case .the , maximum penalty' has -been given, l and .it is rin'teresting,.to:note' in the .text, books on .the' Army. Ao't, that : 'A maximum punishment is. only intended to be imposed when-the offence committed; is the"worst !of "its' class,.,and is oqmmitted'.-by •anj.habitaiil - offender, or iscommitted under edreurnstanoes .whiph require an example; to'be',made.' ' I do not think that ;either..of ..these, propositions could be applied to the case we are disenasing.": -\ ; '..: ' ■ ;:.; !;.;•,' . ■:> ; . ; \^\.