CAPTAIN KNYVETT'S CASE

New Zealand Herald, Volume XLVI, Issue 14250, 22 December 1909, Page 8

CAPTAIN KNYVETT'S CASE

MILITARY INQUIRY OPENED.

A DAY ON LEGAL POINTS.

ONE CHARGE THROWN OUT.

The military inquiry into the charges preferred against Captain Knyvett, officer commanding No. 1 Company, Auckland Garrison Artillery division, in connection with a letter dated November 11, which he wrote to tho Minister for Defence, was opened at the Defence Office at 9.30 yesterday morning. Colonel Chaytor, of the Permanent Force, Wellington, presided, and associated with him as members of the Board were Captain Sandtmann, of Napier, and Captain Bosworth, intelligence officer of the Auckland district. After half an hour's private consultation the Board notified Captain Knyvett and . Colonel Wolfe, officer commanding the district, who were waiting in the garrison officers' clubroom, , that their presence was required, and representatives of the press were admitted at the same time. THE CHARGES. Captain Knyvett was charged on four counts with having committed an act to the prejudice of good order and military discipline in that in his letter to tho Minister for Defence he made use of the following expressions: — (1) " Preventing any possibility of a scandal leaking out to the public of the want of tact and interference of the chief of the general staff-" (2) " It seems to me that the chief of the general staff has personally gone out of his way to belittle, discourage, and damp tho enthusiasm of the whole volunteer movement." • (3) " Since these articles appeared I have been approached by many officers throughout the whole of the North Island who have had similar experiences of the unwarranted interference and unexampled officialism of Colonel Robin." (4) " I have documents in my possession which, if published, would have created a grave- scandal in volunteering throughout the whole Dominion." At his own request Captain Knyvett was allowed to have Lieutenant Pullen sit beside him as his friend and Lieutenant Greenhough as his stenographer, both being officers in his company. The President: Before we start I want to know whether you object to myself as president or to either of the other officers as members of the Board? Captain Knyvett: No, sir; Ido not object. The President Are you guilty or not guilty of the charges ? Captain Knyvett: I plead not guilty to ihe charges as preferred. I consider I have done nothing whereby I can be charged under tho Defence Act of 1908. Under what am I charged? The President: You are charged under section 180 of the New Zealand Defence Regulations, which says that although it is intended that every opportunity shall bo given for inquiry into well-founded complaints and the redress of grievances, members of the defence forces shall be personally responsible if they prefer complaints of a litigious, frivolous, or malicious character. Captain Knyvett: Well, sir, do you consider my letter is of a litigious, frivolous, or malicious character?

The President: No; but these extracts are covered by the charge of committing an act to the prejudice of good order and military discipline. A PROTEST. Captain Knyvet't: Then I protest against being charged under that regulation. If I am charged under that regulation I have to be charged with doing something of a litigious, frivolous, or malicious character, which I am not. You can't charge me under that. - The President It comes under the heading of insubordination. ' < Captain Knyvett: I have already been charged with insubordination, and those charges have been withdrawn. Do you mean to say the act I am charged with comes under that ? The President: Where not specifically defined in the New Zealand Act the nature of the offences may be charged under tho English Act. You object? Captain Knyvett: Yes, sir. The President: I will note your objection. After further discussion Captain Knyvett said ho wanted to know under what part of regulation 180 lie was charged. The president was about to reply, when, Captain Sandtmann said: "It appears to me that it is not a question of under what he is charged. He is charged." Captain Knyvett: Fortunately we are not working under the laws of the Medea and Persians. You must tell mo tho section under which I am charged. , ENTITLED TO A FRIEND. The court was cleared while the Board considered tho matter. Upon resumption the President stated that all officers except Captain Knyvett must leave the table and sit at the back of the hall. Captain Knyvett, in reply, pointed out that under the English Act the accused person was entitled to have a friend to assist him at the trial. The President: Our Act cays that except where otherwise provided for the English Act shall apply, but our Act specifically lays down that the accused shall not receive any assistance. Section 209 says he must not be assisted by a barrister and solicitor during the inquiry Captain Knyvett: It makes no comment about the friend at the trial. You say a friend is not permitted by the New Zealand Act, but lie is by the Army Act, to assist the accused person. . The President: Is your friend a solicitor? Captain Knyvett: I respectfully refuse to answer that. Ho is an officer in my own company, and if he is a solicitor it is fortunate for me. I may just as well object to any member of the Board being a solicitor or a member of the Civil Service. The President: We will consider that point next. The Court considers the charges may come under section 54 of the New Zealand Defence Act and regulation 180. Captain Knyvett: Are any of the sentences complained of litigious, frivolous, or malicious? Tho President: It is for the Court to consider. Captain Knyvett: Does the Court refuse to tell me which definition the paragraphs come under? Colonel Chaytor' It is for you to prove they do not. Captain Knyvett: An accused person is innocent till proved guilty. I submit it is for the Court to prove "the charges. It is not for me to prove my innocence. The President: Up to a certain extent it is for the Court to prove you guilty, but beyond that it is for the accused to prove his innocence. RIGHT TO APPEAL. 1 Captain Knyvett pointed out that under regulation 178 he had the right to appeal through the proper channel as laid down, but that if any appeal or communication was made otherwise it would be considered a breach of military discipline and he would be liable to have his commission cancelled. He had, he submitted, appealed through the right channel by sending the letter on to his superior officer for transmission. The President: There is. no question about that. You did appeal through the proper channel, but you are responsible for the statements you made. A lengthy discussion ensued as to what was the meaning of the word "act," Captain Knyvett contending that it could not be applied to extracts from the letter, but only to his action in sending the letter. Surely, he said, he should have been charged with sending the whole letter and not with extracts, which taken away from their context might mean anything. The president defined the act as the writing of the letter. " I am," he said, " in a difficulty., You have evidently had legal advice, and I have not. You may write a letter and the whole offence be committed in

the 'last few words. Those words must be quoted." Captain Knyvett: I object to being charged with four passages out of a letter as an act. The President (after the Court had deliberated) : The Court disallows your objection. i COMPLETELY EXONERATED. Proceeding, Captain Knyvett stated that after his journey to Wellington with the members of his company an inquiry was held by Colonel Wolfe, officer commanding the district, into his conduct, and he was completely exonerated, it being stated by Colonel Wolfe that he got official leave to proceed to Wellington. Considering that he had a grievance against a superior officer, he wrote the letter in question, couched in the most respectful language, to the Minister for Defence, asking for an inquiry. Ho respectfully submitted that the Court must give a finding as to whether the charges -were right or wrong. When arrested the charges preferred against him wore of insubordination, but these had now been completely altered, and he wanted the Court to know it. The charges now preferred were totally distinct. It was also usual before placing an officer under arrest to hold a preliminary inquiry, but he would like to point out that this was not done in his case. This was a gross breach of the New Zealand Defence regulations. He had evidence to show why that was done. The President: Your superior officer may uso his discretion in that respect. WHO GAVE THE ORDER FOR ARREST ? Captain Knyvett: I would like to point out further that it was not, as should nave been the case, the officer commanding the district who placed me under arrest. Captain Bosworth : May I ask who placed Captain Knyvett under arrest? Captain Knyvett: Perhaps the Board knows. I want to know. The President: I know nothing about it. Captain Knyvett: It is a very vital thing. The President: Well, I will look it up and let you know later. The Court ruled that the new charges as preferred were not vitally different to those which had been withdrawn. Captain Knyvett objected that the charges were unusual and improper, and the Court noted his objection. The Court at this stage adjourned for lunch. Upon resumption Captain Knyvett contended that before the charges could be substantiated it must, according to military law, be shown that he wrote the words meaningly and with guilty intent. He read the letter, the greater part of which the president admitted was purely statements of fact and reasons for his action. " I want to know," said Captain Knyvett, " if this is not a proper complaint, couched in proper language The President: I won't discuss that now. That is a question the Court will have to form an opinion on. HE ASKED FOR JUSTICE. Captain Knyvett: All I asked the Minister for was an inquiry, saying that I knew that from him I would obtain justice. I think it is a modest request to ask "the Minister for— justice. The President: Yes, that is what you asked for. Captain Knyvett: I respectfully ask the Board whether it considers the letter was couched in respectful terms to the Minister'/ The President: You now want us to discuss whether you are innocent of the charge or not. Captain Knyvett: No, lam not. lam asking you whether the charges are properly .'aid. The President: You admit this letter. Well, the Court does not propose to call any witnesses at all, and leaves it to you to prove whether you were within your rights. If you read military law you will find that certain statements are privileged, but such accusations must be relevant to the claim, but you have no right to apply for an inquiry' into the conduct of any officer in the service. Your claim must be only, for the purpose of exonerating yourself. , Captain Knyvett: That is all I have asked for. . v.,.,'* 5 «

The President: The charges are that you made certain statements, for which you were responsible. We • are here to inquire into those charges, whether those charges are relevant to your claim for exoneration. A FIGHT FROM START TO FINISH. Captain Knyvett: Without wishing to be disrespectful to the Court, I must tell you that I am going to fight this through from start to finish. I want the Court to decide if there has been an offence. If not, I should not be here. The President: You want to start at the finish. The Court is here to decide whether your complaint is litigious or malicious? • Captain Knyvett: No, it is not. It is here to say whether I committed an act to the prejudice of good order and military discipline. The Court must rule on this before it can proceed further and before I call my evidence. » The President: You consider the Court: must deliver a decision. Captain Knyvett: I don't consider at all. It must bo. The President (after the Court had deliberated) : The Court has considered your objection, and decided that it cannot rule on it. ■ AN OFFICER'S PRIVILEGE- • Captain Knyvett, quoting legal" authority, went on to submit that the Minister was an officer of State, and that he (Captain Knyvett) in his official capacity only did his duty in bringing under notice what he had very good reason to believe true. He quoted a case which lie described as the leading English case, and said the circumstances were exactly the same as in his case, with the exception that a higher officer than Colonel Robin was involved. He warned the Court that a military court could not overrule the decision of a civil court. Tho President: That is right. A civil court always overrules a military court, except where the civil court has no jurisdiction. Captain Knyvett went further into legal authorities to show that a communication at a military board of inquiry, or addressed to it, or to someone else for the purpose of creating such board, was absolutely privileged. The Court was cleared while the Court considered the point. On resuming, the Court ruled that the case quoted did not apply to the present case. Captain Knyvett: You rule, then, that the letter —? The President: Was not privileged. Captain Knyvett: The Court, then, has over-ruled the highest legal decision in the matter. I desire to notify the Court that I intend to take the matter to a higher authority. The President: In certain circumstances your letter would have been privileged, but your charges must be relevant to your desire to seek redress. CHARGES REVIEWED. Captain Knyvett proceeded to review the charges. The first, he contended, as taken away from the context, was a meaningless phrase and was absurd. The second charge, he declared, was also absurd. As regards the third charge, he pointed out that he did not state a definite fact, but only his belief. It was still his belief, and he would go on believing it until it was proved to the, contrary. The President: We are not here to try the*charges you made. We are here to try whether you committed an offence in making certain specific charges against your superior officer. We won't allow you to go into those charges. Captain Knyvett maintained that the phrase "unexampled officialism," used in respect of an officer who did his duty properly, was really a term of flattery. As regards the fourth charge of having documents in his possession which, if published, would create a grave scandal, what crime was there in that? he asked. He did not say anything about Colonel Robin. The 'thing was absolutely ridiculous. He had not stolen the documents. The Court, after deliberation, upheld the objection to charge four, and said it would refer it to the officer, who framed it for amendment or withdrawal. The inquiry was adjouned until two p.m. to-day. Captain Knyvett announced that he had something like 40 witnesses to call,