IS THERE A DEFECT?

New Zealand Times, Volume XXXVI, Issue 8122, 16 May 1912, Page 3

IS THERE A DEFECT?

DEFENCE ACT REVIEWED APPEAL FROM MAGISTERIAL decision. Recently two young men, Victor Furness and F. Murphy, wore prosecuted by the pohco on a charge of failing on March 2nd, without lawful excuse,’ to render the personal service •required of them under part VI. of the Defence Act, 1909. in so far as they were absent without leave from the Garrison Artillery camp at Scatoun. The magistrate (Mr W. G. Riddell) dismissed the informations. Yesterday, before Mr Justice Cooper, at' the Supreme Court, an appeal against this decision was heard. The Solicitor-General CMr J. W. Saliond) appeared for the Crown, and Ir R. Kennedy for the respondent, ictor Furness.

THE MAGISTRATE’S FINDINGS. In his statement of the case, the magistrate said : “ I determined as a matter of law that, as all members or the Territorial force wore subject to military law, and as there were regulations in force which gave ample ana special powers to the military authoiities to deal in detail with breaches of discipline, proceedings against offenders for such breaches should be taken under the regulations and not under section 51 of the Defence Act 1909. “ I further determined that, as the personal service required of members of the Territorial force by the Defence Acts was varied in character, and spread over an annual period, and as defendant could not have been compelled to commence his annual training as a member of such force before tho 15th day of November, 1911, a sufficient opportunity had not been given him to render the annual service as required.” EFFECT OF THE DECISION.

The Solicitor-General said the learned magistrate dismissed the information on two alternative and apparently inconsistent grounds. The first ground was that no offence was committed until the end of the year of training. Mr J ustioe Cooper: If that is a ground the whole scheme of the Act is destroyed. It may be valid. If it is it destroys the effect of the whole scheme.

The Solioitor-G-oneral: It destroys the whole effect of the statute. It is absolutely subversive to all military discipline. Mr Justice Cooper: Apparently, if this objection is valid, the person to be trained might refuse with impunity to attend camps for the whole twelve mouths.

The Solicitor-General, continuing, said the magistrate’s second ground was that even if therd were an. offence it should be dealt with by court-mar-tial or by a fine for breach of regulations, not under section 51.

RENDERS ACT INOPERATIVE. TTlg Honor: In each instance the point npon which the magistrate dismisses the information, if sound, renders the Act inoperative. The Solicitor-General: “ That is so.” 'The question for determination was: Did the regulation every Territorial to servo seven days in camp moan seven days at a time and place appointed by the military authorities, or at any time and place that the Territorial thought fit. His Honor: There may be a defect in the Act, and if so every soldier may pick out a week to suit him. That is rather Gilbertian.

Mr Kennedy said that .was not his contention.

Hi'h Honor: Mr Kennedy, no doubt, contends that if there are two camps, the soldier may elect which he will attend, although the authorities may fix and order the other one. Mr Kennedy agreed that this was his contention. BATHER GH/BEBTIAN. In that case, urged the Solicitoreneral, members of the artillery ight go into a cavalry camp, and -jmbers of a cavalry regiment might prancing into an infantry camp, or ; the officers might go to one camp ,d all the men to another. His Honor: Yon submit that may be the legitimate resnlt of the magistrate's judgment P _ The Solicitor-General: That is my submission, your Honor. His Honor: It is certainly I’ke a comic opera. The Solicitor-General further urged that on the face of the regulations, apart from any ' reason, it was shown that there was no option. There was an obligation imposed on each officer and man to attend a camp at the time and place named in the notice sent to him. Otherwise he would be an absentee and have failed to render the personal service required of him by the Act, and would, become liable at once for prosecution under section 51.

His Honor: If the camp were fixed for a particular place in the early part of the year, and one man could say, “ I won’t go to that camp,” all the men could say the same, and there would be no camp until the end of the year. Referring to the magistrate’s statement that the defendant had not had nn opportunity of rendering the service required of him, his Honor remarked that defendant had had an opportunity. Apparently what the magistrate meant was that the opportunities had not been exhausted. SCOPE OF MARTIAL LAW.

Regarding the second point, that defendant should have been dealt with by court-martial, the Solicitor-General said that court-martial could only be put into effect with persons subject to military law. The magistrate had assumed that all members of the Territorial force were at all times subject to military law. That sra rot so. Persons subject to military law were defined. There were about 28,000 Territorials in the Dominion, and, according to the magistrate, they were at all times 'subject to court-martial as if they were soldiers. They were ordinary citizens and were not liable to court-martial except when , g. i-.g to and from military duty and parades, or when engaged in military duty. His Honor remarked that the magistrate appeared to havo overlooked the fact that a man who had never attended at camp had never submitted to military discipline. Prosecution by court-martial was limited to persons on military duty. How could a person be prosecuted nnder military law for not putting himself under the law? The Solicitor-General: I do not think I need refer further to that matter. His Honor: No. I do not think I

need hear you further on that point; that is, of course, subject to what Mr Kennedy lias to say. Tho Solicitor-General, referring to tho regulations, said that ho took it that tho power to inflict lines was vested in officers only when en md tary duty and for broaches of ;.;.sciphno. His Honor; ‘'Yes. the regulations empower an officer to impose a hue for drunkenness. "What authority nas any officer to fine a man for being drunk when ho is not on military duty.” The regulations as to fines pointed to penalties for breaches ol discipline. Such breaches could only arise when a man was under discipline. CONTENTIONS FOR THE DEFENCE.

Mr Kennedy contended that no offence under section 51 was committed until tho end of tho Territorial’s year, in this case, November 12, 1912. If a Territorial failed to attend any particular camp ho was liable only for a breach of discipline, assuming that thcro wore regulations bearing on tho case. Tho Governor had power to make regulations empowering the military authorities to deal with such offences and inflict fines, and if there wore no regulations dealing with this particular offence, that did not bring tho offence under tho penal section of tho statute. There was no sense in tho term “annual” used in the statute unless it meant that there was no obligation to attend any particular camp, but at tho end of the year the soldier must have served seven days in camp.

His Honor: Then the Government may provide a camp for 5000 men at a particular date and not one of those men may attend. Mr Kennedy replied that there would be no difficulty if the military authorities had power to impose fines for breaches of discipline. His Honor: There will he difficulty if no power to inflict hues 'is to be found in tho regulations.

MIGHT OBEY AND YET BE FINED

Continuing his argument, M' - Kennedy said he proposed to chow lhat it would be exceedingly unreasonable to adopt the Solicitor-General’s construction of the Act. Until tae end cf the year it was impossible to tell whether a Territorial was to be classified, in accordance with the regulations, efficient or non-efficient. Therefore, no proceedings could be taken until the end of the year, or until it was physically impossible for the Territorial to complete'the required training.

His Honor: According to the Soli-citor-General, the liability commences with the refusal to attend any particular camp or parade. Of course, 1 admit that if I am forced to your construction it does not matter whether it is reasonable or not. But I have to see if the statute nan bo reasonably construed without doing violence to the language. Mr Kennedy said that, if the Solici-tor-General’s contention were true and sound, a person might be convicted under section 51 of the Defence Act, 1909, and yet have done everything required of him by sections 35 and 25 of the same Act. The second point, as to whether the defendant is liable to military law, counsel said he proposed to argue, but did not rely on. The magistrate had evidently considered the severe penalties provided under section 61 and the smallness of the offence,' and being of opinion that there were remedies outside section 51 had exercised his discretion and dismissed the information. MAGISTERIAL OBLIGATIONS.

Hia Honor questioned the right of any magistrate to adopt such a course if a breach of the statute were proved. He could not hold, however, that the magistrate in this case dismissed the information as trivial. He dismissed it because he found that there was no breach of section 51 of the Act.

After further argument on both sides his Honor intimated that he would take time to consider c : s decision. “ I desire to say,” added Ids Honor, “ that this case has been very well argued. The Solicitor-General is always very clear and concise, and 1 desire to compliment Mr Kennedy—this is the first time ho has appeared before me—as his argument lias neon an excellent one.” His Honor regretted that, in view of the importance o c the case, ho had not been able to I ring it before the Pull Bench. He might yet find it necessary to refer to the other judges.