ALLEGED WRONGFUL SENTENCE.

Press, Volume LIV, Issue 16256, 5 July 1918, Page 5

ALLEGED WRONGFUL SENTENCE.

• VALIDITY OF COURT-MARTIAL QUESTIONED. (press association telegram.) WELLINGTON, July 4. The Appeal Court to-day started the hearing of tho case S. E. Fitzgerald v. Colonel Macdonald and' others, claim £1000. The plaintiff was a ship's steward, who was drawn in a ballot while on a to San Francisco. He was arrested as a deserter on March 10th, 1917, and sentenced to 12 months' imprisonment by a court-martial, of which Major R. C. Kirk was a member. It is contended that Major Kirk was not qualified to sit, being at the time on the retired list, also that Fitzgerald, wa-i not a deserter,, and only pleaded guilty because the Court did not inform him of his rights. f The defence denies that the Court was not duly constituted, and even if so, that the decision was unanimous, and not affected by Major Kirk's presence, also that action was not taken within three months, as prescribed by the Defence Act. The Court of Appeal has, by way of f»reliminary,_ to hear argument on the aw points involved. _ _ Mr O'Regan is appearing for plaintiff, and the Solicitor-General and Mr Pren- j derville for the defendants. | The contended that j Major Kirk was qualified to 6it on a military oourt. If not qualified, this action would not lie. The Court consisted of a sufficient number ,of qualified officers, so the presence even of an unqualified person would not nullify its decisions. Further, the man could not have been released on an application for habeas corpus, as the present defendants had no jplower to release him, and even 'if appellant was held too long pending trial, "that was not a ground for action for damages. Dr. Salmond continued that section 94 of the Defence Act, 1909, which provides that no action can be brought against any member of the forces for anything aone under the Act unless brought within three months, was a bar to any action against any of the defendants. The Court sat on March 10th, the man was released on September 12th, and the action was begun m October. His last contention, was that an officer on the retired list was qualified to te a member of a court-martial. The qualifications were that a man must be an officer, subject to military I law, and must have held a commission i for two years. Major Kirk's lommis- | sion had never been cancelled. He was i still a member of the Defence Forces, and still subject to military law, Mr O'Regan contended, in reply, that if a court-martial were not properly constituted, then there was want 1 of jurisdiction, and its acts were open < to review. To be properly constituted, all the members detailed must be quali- j fied, if not so, the Court was not properly constituted, and its proceedings were ultra vires, and the members com-, prising the Court were liable to an , action. The detention of Fitzgerald was protracted because of the sentence that j was unlawfully passed on him. /