END OF THE WAR

Evening Post, Volume CXL, Issue 118, 15 November 1945, Page 4

END OF THE WAR

LEGAL DEFINITION

O.C. ROTORUA, Nov. 13. The position of military defaulters in relation to the end of the war was explained at length in a judgment by Mr. S. L. Paterson, S.M., in Rotorua today, when Henry John Francis Gallus pleaded not guilty to a charge of escaping from the Hautu detention camp on November 3. Gallus's defence was in effect that his escape was not an offence because, the war being over, he believed .'he was illegally held.

Mr. Paterson said the legal situation regarding the defence raised by Gallus was quite clear. Whether or not a state of war existed was an Act of the State, of •which the ■ Courts were bound to take judicial notice. It was explained in 1939 by the Master of the Rolls, Lord Greene, that if the questions arose whether or not that country (England) was at war with another country that was a matter of which the Courts would take judicial notice and if a Court found itself unable from its own knowledge to take that notice the source of information to which it must address itself was one, and one only—namely, the Executive Government, whose function it was to make war or not to make war and whose decision as to whether a state of war existed or not concluded the matter.

The Magistrate said there was also in New Zealand the considered judgment of Mr. Justice Reed in 1921, in which his Honour held that as a matter of law the termination of hostilities did not .end a state of war, which continued until a formal peace treaty had been signed and ratified by Parliament. The law recognised a state of peace or a state of war, but knew nothing of an intermediate state, After stating that section 16 of the Finance Act. 1945, on which the defence of Gallus relied, did not make any new law, Mr. Paterson said that tlie state of war would continue to exist until put an end to by an executive Act of State.

Gallus was convicted without additional penalty, the Magistrate saying he accepted his statement of his motive for escaping. Another defaulter, Stuart Shaw, was charged with escaping from the Whitanui (Shannon) detention camp on October 9, 1943. The Magistrate said the fact that Shaw had been at large for 772 days brought its own retribution, as the defendant would be required to serve that additional time after the release of other defaulters. He would be transferred to prison for the duration of his detention.