DURATION OF WAR

Manawatu Standard, Volume LXV, Issue 305, 23 November 1945, Page 5

DURATION OF WAR

DEFAULTER SEEKS RELEASE. (Press Assn.) WELLINGTON, Nov. 23 An application for the release from detention by writ of habeas corpus of a military defaulter on the ground that the war, for the duration of which he had been committed to detention, had ended; was refused by the Chief Justice (Sir Michael Myers) in the Supreme Court yesterday. The applicant was Patrick James Hourigan, of the Whitanui detention camp. During the hearing a Ministerial statement that the war with Germany and Italy still existed w'as presented to the Court.

On behalf of applicant, Air R. E. Harding said Hourigan was sentenced uhder regulations which came into force on August 28, 1941, when the only war was with Germany and Italy, and by the force of those regulations he was held “for the duration of the present war.” On July 26, 1945, a Finance Act was passed, a section of which provided that the term' “the present war” should be interpreted as including the war with Japan and be taken to continue till a date to be prc.rlaimed. It, was 15 months after the 1918 armistice that the proclamation ending the First World War was issued. Air Harding said the questions which arose were : Before the Act of July 26, 1945,\ was the period of applicant’s senteiree to be ascertained with reference to the termination of the wars with Germany and Italy? If it was, did those wars end before July '26 ? If so, were the provisions of the Act retrospective so- as. to extend applicant’s sentence. His Honour: The whole question comes down to what is the duration of the war.

After hearing further submissions and receiving the Ministerial statement referred to, His Honour *said the person in detention was entitled to know the Court’s decision without delay, but the case was important and he would give an extended judgment later. There was no intermediate state between peace and war. An Act of State started the war, and there had been no corresponding Act. of State showing that it had ceased. It seemed. therefore, that applicant was lawfully detained up t.'o July 26. The Act of that date seemed to be only a declaration of the position as it existed in common law and was in conformity with international law. The Court could not disregard the declaration of the Minister of External Affairs, so that there was the Statute, the Minister’s declaration and the absence of an Act of State in New Zealand terminating the war to support the view that the war to which the regulations referred had not ended.