THE COURT-MARTIAL

Dominion, Volume 4, Issue 1123, 10 May 1911, Page 6

THE COURT-MARTIAL

MR. KNYVETT ON TRIAL. LETTER TO A MINISTER. WAS IT PRIVILEGED? POINTS IN MILITARY LAW. At , 10.23 a.in;' yesterday Frank Berners Knyvett, formerly captain commanding No. 1 Company of the Auckland Garrison Artillery Division, faced court-martial here. He was attended by his counsel, Captain T. H. Dawson, of. the Auckland . Cycle and-Signalling Corps. -The Court assembled .at the. Wellington Garrison Hall, Buckle Street, and the charge which the ex-officer had to meet was that of having written a letter to tho Defence Minister, wherein certain statements concerning 'the Chief of the 'General Staff (Colonel A. W. Robin, C.8.) wero expressed in terms constituting "an offence to the prejudice of good order and military discipline;." To the casual eye of the man in the street, the scene at the Garrison' Hall as tho Court assembled was somewhat aweinspiring. The dark bluo uniforms, scarlet gorgets and gold lace of the General Staff officers, stood out in contrast to the civilian attire of tho man whoso case has been .tho subject of so much discussion— Ex-captain Knyvott. Various orderlies were in attendance, and the casual •civilian who strayed into the hall was ; promptly pounced upon, and asked to give an account of himself. . The Trial Begins. • •> At the appointed time the Court asfseinbled'in the Club' Room. Cbl-ionel-E.. S.'Heard, the President of the 'Court, took his seat at the head of the 'table. On his riglit at another table sat J Colonel J. R. Reed, Judge-Advocate-General, iu uniform,-while on his left at ja table sat tho prosecutor, Captain D. C. .Spencer-Smith,.' and. his counsel, Mr." ,Heave. The members of the Court— ■Lieut.-Colonel J. T. Burnett Stuart, D.5.0., Major D. R. Menzies, Major C. Harcourt-Turner, Captain A. i\ Roberts, Captain Thornton—were ranged on either side of the President's table. There was also a "public gallery" for the convenience; of a number of officers who were interested spectators of the proceedings. ■ Tho trial was the occasion of the first appearance iu his official capacity of the Judge-Advocate-General, and ofheer appointed recently under the new defence scheme, to superintend the administration of military law in the Dominion, give advice on matters leading up to tho convening of- courts-martial, and review tho. proceedings with a view to seeing ■whether they have been regular and legal. In the event of -it being necessary to quash the proceedings lie makes recommendations to the Minister for Defence with this object. He is the custodian of the confirmed proceedings of all general and district courts-martial and -assists the Minister-'for Defence in the formulation of any advice it may be necessary to givo the Governor regarding tho proceedings of general courts-martial or other such matters.

Having disposed of. certain formalities, the President of the Court ordered the accused to be brought in, and the trial commenced, Mr. Knyvett, with'his, sel, taking'his seat at a small table directly in front off' the President's table. Tlio-i charge-sheet and summary' of evidence having been laid before tho Court, " the question was raised: Was Mr. Knv- : vett amenable to military law? The ruling of the Judgp-Advocate-Gcneral was that the accused was subject to military law at the time the alleged offence was ' Section-.158 of -the Army Act peririitted a person'whb had committed an' offence during the time he was subject to military law .to be tried after he had ceased..to 'be so subject.' ' Under., the ArmyjAct the time' for- taking such ■proceedings was limited to three months; but Sub-section G of Section 13 of the Defepco Act, 1910, extended the-time'for taking such proceedings as in tho present casej 'He advised that accused was amenable 'to. military law and to tho jurisdiction of the Court.

Captain Dawson then'intimated that he appeared as "prisoner's friend." not as counsel, and raised -the question of the propriety of counsel for the prosecu-tion-being present. Tl\e Judge-Advocate-General pointed out that if C'nptain Dawson elected to appear as "prisoner's friend," he could not^address the Court; he could only advise the accused. If he desired to address the Court he must appear as "officer counsel," and in/ that eWSnt tho prosecution .would also be entitled to counsel. .

' Captain Dawson elected to act as "officer counsel.".

'Do-you object lo the Court?" aslccd the president of J[r. Knyvett. "No, sir."

I'll? members of Hie Court, and ' the '.initial shorthand writer, were accordingly sworn in. all witnesses wore requested to leave the room, niul the president read out.-the charge, which set forth that under Section of the Army Act the accused had been puiltv of "conduct to the prejudice of good order and military discipline, in that he, at Auckland, on' November 10, 1909, being then canta'n of the No. 1 Company, of Auckland Division. G.A.y., in a letter written and addressed toy him. to the Hon. the Minister for Defence, did comment nnon the actions of his sunerior officer, the" Chief of the Renernl ..Staff,'in an improper and insubordinate manner." '

Mr. Knyvett Objects. "I . ask my counsel to object to the charge," said Mr. Knyvett. Capiain Dawson, on behalf of tile accused, contended that the charge as laid, •did -not disclose an offence under the Army Act. Captain Knyvett's letter of November 10, 1909, was an official complaint under ths regulations which existed lit that time, and under which the voiunteer force was then working. Under I'egulatiou 170 of the No. 2 Regulations, IEIOS, it was sufficient'.for the purpose.of making a complaint that a man should consider himself aggrieved. The use of the word shall" iu the regulation referred to implied that a ;dutv was cast, upon a man who considered he had a grievance to represent that grievance. It was, he might say,- a safeguard of discipline in a force, and if properly carried into effect must inspire confidence amongst" tho junior rjmks. It had been admitted that the proper procedure had been followed in laying the complaint in Knyvett's letter. . It was, however, alleged, that improper comment had been used in tho context. ■ Kegiilatiim IsO, a qualifying paragraph to No. 17G, placed a responsibility upon complainants if they preferred matters of a litigious, frivolous, or malicious character. The point "licre was. he contended, that no complaint could be said to be litigious, frivolous, or malicious, until, it had. been inquired into. In civil law, nialico must be proved, not assumed.

Further, contended Captain Dawson, since all matters not specifically dealt ivith in the New Zealand Regulations were to be ccnsidorcd in their relation to the King's Regulations, claims advanced by a soldier were, according to No. 139 of the King's Regulations, to bo fully and distinctly stated, and such explanations anuexed thereto as were necessary, with the object of subsequent investigation and adjustment a material difference from tho "general terms" in which it had been contended Mr. Knyvett's letter should have been expressed. In Knyvett's case, the complaint had neither been acknowledged nor inquired into. Privileged Commont, Captain Dawson then proceeded to argne the question of privilege, which, he contended, covered such complaints. Referring again to tha King's Regulations, he quoted that "expressions, however offensive to a superior, that nrc used in the course of a judicial inquiry, by a party to that inquiry upon a matter pertinent to and bona fido' for the purpose of that inquiry, are privileged and cannot bo made the subject of a criminal charge." This,' contended Captain DawMin, covered and iirotected Mr. Knyvett up to the hill. The first slop in a judicial inquiry was the application for it. The statement of claim commenced.

firstly,, with a ventilation of the {.lets of the case; secondly, set forth the allegations; and thirdly, concluded with fho pra.ver. If the inquiry asked for in Kuvvetts letter of November 10, 1309, had been granted that'letter would have'formed the basis of the inquiry, and they would have been confined to the allegations set'forth-therein. Had the allegations not. been sustained, then it would have ' been possible for them to have been .punished ■ for- making false"-state-ments, Had the inquiry asked for been held, the letter would have formed part of the proceedings, and its contents would have been privileged. ' oene.fnGffiVr etaeV-ne' etaeu ne etaoinene •Counsel was proceeding to read a statement referring to his client's career and character to show that a complaint by an officer of the high reputation as'had been possessed by the' accused while in active service must bo held innocent of dishonest or subordinate intent in sending such a letter, -when he was interrupted by the President; who remarked that such matters were irrelevant at that stage. "The Court doesn't doubt his record," he said. Mr. Neave in Reply. Replying to defendant's counsel, Mr. Neave contended that the matter disclosed nn_ offence.'There was no dispute on the point that the accused was entitled to make a complaint. But'tho accused, in preferring his complaint, had done' more than was necessary—he had made his letter tho vehicle of scapdal and impertinence; had behaved in a manner subversive of discipline in a military force. As to the officer's 'counsel's plea on the question' of privilege, this, he considered, was astonishing in view of .the fact that the present proceedings were, based upon accused's request for a new trial. In the capacity of an appellant, this ''plea in bar," if allowed, would, in elfcct, relegate Mr. Ivnyvett to the position ho occupied immediately prior to the setting up of the Court—that of an officer dismissed from tho New Zealand forces. Counsel's view of privilege was not correct in law, and was not pertinent to military proceedings arising out of breaches of discipline. In civil proceedings, a privileged statement was subject to the provision' that it was not used as a vehicle of scandal or impertinence, and a breach) thereof would constitute contempt of Court. Captain Dawson asked that tho question of privilege be decided at. once. If decided in their favour, evidence need not be called, as they, had no desire to bring up past matters—somo of the mud, if he might so express it, might undeservedly besmirch tile present administration of tho-Forces, and it was their desire, before all things, to refrain from any action whiiih might bo to the detriment of tho hew defence scheme.

The Judge-Advocate-General gave it as his opinion that the letter was not privileged. It was entirely apart from the proceedings. '

"Not Guilty, Sir." The president: The charge holds good, and the accused is ; arraigned. Do you plead guilty or not guilty? "Not guilty, sir," replied Mr. Knyvett. Counsel for the prosecution then* read the letter which formed the subject of tho charge, and recited the subsequent events. The solo considerations with which the Court had to deal, he contended, were: (1) Did the accused write the letter; and (2) were tho contents calculated to he to the prejudice of good order and military discipline? Any other consideration was . entirely irrelevant. The . matter of the truth of tho allegations made against Colonel Kobin • was-irrelevant, and the matter of provocation also was irrelevant; any evidence led as to these matters would be objected to. Even, argued Mr. Neave, were it conceded - that the allegations stated _ were true; and that the plea of provocation-were upheld, these considerations w-ould. not constitute n defence to the charge. Colonel Wolfe Gives Evidenfce. Mr. Neave'then called. Colonel-G." C. B. Wolfe, officer commanding tho Auckland Military Distrift, who recounted the events connected with the writing of the letter and tho subsequent Court of Inquiry at Auckland. , Ho had warned Mr. Knyvett. of the consequences of this' action, and urged him to recast the letter. To Captain Dawson: His principal motive was to avoid having to the letter officially, and, acting accordingly, had sent two letters to. the AdjutantGeneral at .Wellington—one a sealed packet, containing Mr. 'Knyvett's letter and other papers; and the other a resume of the facts, accompanied by a request for advice on the matter befonyr+he sealed packet was opened. , Captain Dawson: Do you think that Knyvett had in his mind the idea' that advice of some sort would be tendered by Colonel Tuson before his letter was finally received officially? Colonel Wolfe: I cannot speak with any certainty. lie could not havo misunderstood my own expressed opinion, that tho jetted was insubordinate., Captain Spencer-Smith was then examined on formal points. Prosecution Closed. This closed the case for the prosecution, and Captain Dawson then replied at length, and contends.U that he was entitled to call evidence'as to the newspaper articles written, when Knyvett was in Wellington. He would endeavour to prove that when the letter was written Knyvett was smarting _m\der a senso of grievous wrong. Furtiier,: that' it went' via the proper channel, his colonel. A man's colonel was something more than a superior officer—he should bo, and in many cases had been, his father, his adviser, and his best friend. Knyvett had been warned that unless he could substantiate his charges, he would be in serious trouble. Counsel would endeavour' to show further that nothing had been said by Colonel Wolfe as to the impropriety of the contents of tho letter, though that officer had seen it. Xo 'copies of tho letter had been distributed, nor had 'anybeen handed to . the newspapers. They simply did wha'. they regarded as tho correct thing, and their lack of knowledge of the strict etiquette of military matters had probably led them on a course which was not deliberato in intent. Mr. Knyvett's Evidence. Mr. Knyvett, examined by Captain Dawson,, detailed the circumstances surrounding the sending of the letter. His senior officer, Jjieut.-Colonel had seen the letter, and had warned him to be sure of his facts, or trouble would ensue. Colonel Wolfe also saw the letter and warned him, afterwards getting him to sign a memo, to that effect, to protect hi in (Colonel Wolfe). Colonel Wolfe also told him that Colonel Tuson was a personal, friend .of his,, and-.he would 'ask his advice with regard to the letter, and let him (Knyvett) know as soon as the. reply came.

Caption Daw son: arc Quite clear about that?

Mr. Knyvett: Absolutely certain. Captain Dawson: You intended to abide by Colonel Tttson's decision? 1 Mr. Knyvett: . Most certainly. No senior officer who saw tho letter had told him tha.t it was insubordinate or impertinent. They merely warned him to bo sure of his facts. He had pledged himself with the company that he would have an inquiry instituted when they got back from their Wellington trip. Mr. Neavo: "Was it not possible to have preferred the charges without using abusive language? Mr. Knyvett: Not under the circumstances. I simply dictated the facts as they came into my mind, and expected that Colonel Robin would ask for an expianation.

Mr. Neave: To take an example—could you not have written-something else for unexampled officialism ?" No-at the time I wrote I did not' think

Mr. Neave: Do you think so now? Mr. Knyvett, after a pause: I respectfully submit that I should hot be pressed to answer that question. . Ml'- Neave did not press it. Continuing: Had one of your subordinate officers written.in -similar terms about you to your superior officer, would it have impaired the discipline of vour corps? Mr. Knyvett: If ho didn't send it through me—ves. This closed Mr. Krfyvctt's evidence, arid the proceedings at this stage (5 p.m.) were adjourned till 10 o'clock this.morning.