DEFENCE APPEAL CASE.

New Zealand Herald, Volume XLIX, Issue 15003, 27 May 1912, Page 5

DEFENCE APPEAL CASE.

mmrn ii -1... ... ■ 1.. i PENAL CLAUSE VALID. FULL COURT UPHOLDS APPEAR [by TELEGE &.PBT. —e?s ASSOCIATION*.] . Wellington, Saturday. The penal clause of the Defence Act haa proved valid, and the decision of Mr. W« G. Riddell, S.M., in reference to attend-, ance at military parades has ,been re-4 versed. This was in effect the ruling oS the Full Court to-day, in the Defence) appeal case of Dempsey v. Fyrness. In the course of a lengthy judgment, the Chief Justice (Sir Robert Stout) held that tho date for the camp had been fixed, and tho requisite, notices given. The respondent did not attend, and he had no lawful excuse for not attending. Ib was contended that, he might attend another camp during the year, if another, was held in the district, and that until -it was seen whether there was to ba another camp, and therefore not till tho end of the year, could it bo determined whether he had or had not evaded on f&iied to render the personal service required of him. The contention that ifi ho failed to render personal service it. was a military offence, was • governed by, the regulations, which 6aid that a courtmartial could deal only with members of the territorial force when " performing; military duty or going to or from, a place of parade, exercise, or military duty."' He was therefore of opinion that tha magistrate's opinion was wiong, and must) •be set aside, and the case remitted to him, so that ho might deal with the respondent, and inflict such fine, not exceeding £5, as he thought proper, the respondent to pay, the costs of the appeal, £5 ss. Mr. Justice Cooper held that the conn struction put npon section 51 of the Act by the magistrate was that a member of tho territorial force could not bo proses cuted under that section until 12 months had elapsed. The result of .such construe | tion would lead to the Gilbertian absurd in ties mentioned by the Solicitor-General, and the constitution of camps and the fixing of time and place would be of no effect. If the magistrate had accurately;.. : construed the statute, the defect was in "* [ the Act, and in such case the Legislature was the only authority to cure the defectIf these consequences were so serious and extraordinary as to justify the Court, ifi it could reasonably do so, in construing! the section in such way as to render the Act. effective, then, in his opinion, that could properly bo done. Judge Cooper: further remarked that a person who wil-i fully failed to obey tho mandate to train and to do the duty to his country rrv quired of him, was properly punished by being deprived of electoral privileges and employment in the public service of tha Dominion, He thought, however, that! the Act should be amended,, and that the deprivation should cease when an offender recognised his duty, and submitted himself to the obligation impost,'by thai statute. In his opinion the appeal mustl : be allowed.

Mr. Justice Chapman said lie had no doubt whatever about the, case. He ■'■was satisfied: ; the •, magistrate ,' had taken a mistaken ■,[.. view of : .; 5 the Act. . Thai reflations: appeared;;;;'him.. to. be carefully framed, and to express clearly -what! the Legislature intended. It was clean -to him that the respondent, ! in this r '- , casei. had committed .an offence *of which thfl( magistrate ought to have convicted hhn^