IS IT GOTO OPERA?

Dominion, Volume 5, Issue 1441, 16 May 1912, Page 6

IS IT GOTO OPERA?

•,; MILITARY CASE, MAY WRECK DEFENCE ACT- ;-.: GILBERTIAN POSITION. ! POT BEFORE SUPREME COURT. . Whether the defence system shall .maintaiirorue dignity, or "whether it shall (for thostimo being, , at all events) , assunio a somewhat humorous and Gilbertian aspecty will depend a good deal on the tceulfcof an appeal that was hoard before itr."sustico Cooper in the Supreme Court . yesterday. It'', will be remembered that towards , ther'end of March last, two .young ineri iVore charged with having failed to render (■"the service required under' Part VI of the Defence Act, 190!); in .that they were, absent without leave from" the camp duty ordered at Seatoi»v;;'.'which commenced on Saturday, March-2.. The defendants ■ wero Victor' Furne'ss and F. ■Murphy. Furness was ■ .represented at the time by Mr. E. M. Sladden, arid Murphy ty Jlr. R. Kennedy, and botli pleaded not. iguilty. \-.;•■ -■;•-.; - ■ ■ "What Mr. Riddcll, s!.M;,,F,ound. .;,"

1 On tho facts placed before liim, tho aiagistrnto (Mr. \V. G^Riadell),;ideter,mined that, as all members of "the'Terri- , ; •'torial Force were subject to'military law, :andas thero were regulations which gave powers to the military authorities to deal with'.'breaches of discipline, proceedings, against offenders should be taken-under-theso regulations, and not under Section; -51 of; the Defence Act,'l9o!). -••--■;,; Tho Magistrate further determined thiit, as tho service required by the.. Defence Act was varied in character, and spread over an annual period, and as the defendants could not have been compelled to commence annual training beforo November, 15, 1911s. ft: sufficient opportunity.'iiad not been ..-. given them to render.-tho annual ser-;..-; vice. The informatiQiisV..'.\Vere:;;.tliere-;';.';.; fore dismissed. •'.';:*'.-;;::: From this decision i thft'.r Defence;an--thorities appealed, onrtho'-gTOund-th'afc.-.it, , was -erroneous in .point , .\bf:-,"'laiV.::/'*,Th'a' Solicitor, General (Mr.'; J. ': W. ; ;. Salmoiul); appeared, for tho' appollarit,' hhd L .3ii':f E. for t\if: respondent.;:; ; :';";:";.. '. ilf the Magistrate is'■Right,'the-Defence ; ; ; Act'ls. D.estroyed.v ':' :, -:. : '^\,;■'.-. The Solicitor-General! Mr ; the course .of ' his opening, rcmarkedi.fhatjtlio:magistrate had "dismissed the .information." .'on..:;,two" alternative and apparently inconsistent groijnds. The first ground-was that no •olfence was cominitted"'until;the-cnd of ! the year of training. '. .'■■,' His Honour: If that is a ground, the • vhole of the scheme o'f the Act i« d»- ' Btroyed. It may be valid, but, if it is, it destroys the effect of the whole scheme. The" Solicitor-General: And the whole (effect, of the statute. • His HonDiir: Apparently, if this objection'.'is valid, the person to be trained migW refuse with impunity to attend ■camps for the whole twelve months, -t I Continuing, tho SolicitpjrGeneral" said that -if there were any oft'enciy the-Magis--'trate'lield that it should.be:.'."dealt"\rith by court-martial or; by. a; fine for breach of the regulations, not-under Section 51 ,«f the Act. .:„.'.:,.,'" :.. . :;■ . '.. .. ~: His ■ Honour :-In-«ach instance thopomt «pon which"',tlie"Magistrato dismissed tho. information, if.spund, renders the' Act inoperative. ■-—•-' ..-. ■'.. v.-■ ' The SolMtW-General;, agreed, that that yas-'Bo; " :>!- ; -'-;V ■'.-■:■■ "j;. u "- ; •'■ ' : ■ "-;■'■

"It is Rather Gilbertiah, of. Course."

, Mr; Salrnonpj;. then referred 'to the regu ; latio'n requiring "every:-so'lilier"" to'., serve eeyen,' The question was: Did'thut mean seven days at n timo and place appointed by, the, military authorities, ,T or at any time and place that the fcoldior .■ ■; -. ',\ Hig' Honour; Tliera may be a defect in tho and, if so, every'soldier may pick'out a week when he thinks fit.'.' That is rather Gilbertian, of course. -

Mi£ Kennedy remarked that he did not ■jcontond that point ..at all. . '. The Solicitor-General remarked that he understood that that was what the Magistrate hold. He would liko to know lvhat'ground Mr. Kennedy stood on if it JUM ;not that.

•was ;not that. \ His Honour said that Mr. Kennedy no iloubt contended that, if there were two. camps, tho soldier : might; elect' which' he ■would; attend, although the • authorities 'onight fix and order, the other.one. j Mr.'> Kennedy "then intimated that -that iwas his point. ' If "Cavalry Pranced In On Artillery. , The Solicitor-General contended that, in ftb.-it case, members of the artillery might go into a cavalry camp, and members of a !oavalry regiment , might come prancing into an artillery' camp. Moreover, all the officers might go to one- camp and all tho men to the •either, where,'ot course, they .would be without officers. His Honour: You submit that that may ! be tho legitimate result of tho magistrate's judgment? The Solicitor-General: Tes, your Honour. His Honour: It is certainly like a comic ppera. ' • . The Solicitor-General: The further quee-' tion arises as to whether the men or the military authorities are best able to determine tho most suitable timo and place 4<>i gun practice,' and so.on. "An Extraordinary Result." . After a little further discussion his Hontiur remarked that if the magistrate's judgment wore correct it would no doubt lead to an extraordinary result. If anyono fconld say. that he would not go to any camp, the whole of them could jeay it, and it might follow that tho military authorities could uevor get a camp ', until the last period of the year. The Solicitor-General urged that the regulations showed, on the face of them, that there was no option. An obligation •was imposed on each officer and man to attend camp at the time and jilace named in the notice sent to him. Otherwise he ■would fail to render the personal service required of him, and would become liable ot once for prosecution under Section 51. His Honour heie remarked that when (the magistrate said that tho defendants Iliad not had an opportunity of rendering ?the service .'required.,' .what ho apparently ■meant 'wus that tho opportunities had not 'been "exhausted. . . ','. '. , Was Court-martial the Procedure? Regarding tho point that tho defendants jshould have been dealt with by courtimartial, the Solicitor-General contended ithat court-martial could only bo put into effect in the case of persons subject to military law. The magistrate had assumed that all' members of the Territorial 'Forces wero "at all times'-■subject'to.nlili-£ary law. That was not so. The, 28,000 '/.Territorials in the Dominion were ordinary citizens, and were not liable to courtmartial except when .going. to. and from .parades, or when actually engaged in military duty. His Honour remarked that the magistrate appeared to havo overlooked the tact ,4hat a man who had never attended at canip had never submitted to military dispipline. Prosecution by court-martial was limited to persons on military duty. How could a person be prosecuted under military law for not putting himself under the law? The Solicitor-General: I do not think 3. need refer further t» .that matter. His Honour: No, I do not think I need hear you further on that point. That is, of course, subject to what Mr. Kennedy las to say. The Gilbe'rtian Aspejt- Again. The Solicitor-General -then"said -tkat.'he took it that.tho power to impose fines was vested in officers odly when on- military duty. '.'."- ."J 1 -IT-'." His. Hono,ur: Tea, the regulations empower an officer to impose a fine for

drunkenness. What authority .has any officer to fine a man for being drunk when he is not on military duty? The regulations as to fines point to penalties' for broaches of discipline. Such' Drenches can only arise when, a man ig under discipline. . . Mr, Kennedy in Reply. Mr. Kennedy contended that no offence under Section 51 was committed until tho end of (lie Territorial's year The Governor had power to make regulations, empowering the military authorities to ileal with such broaches .of. discipline as absence.fr.om camp, aiid.if there were no regulation dealing with this offence, that did notbring th,e offense. 31nd.ee the penal

section. Counsel agreed with tho Solici-tor-General that defendant in tho action was a Territorial .transferred, to the Territorial forces, and then proceeded to review those clauses of tho statute which denned the training that) must bo done by b Territorial. His point was that those regulations did not impose an obligation to attend any particular camp or parade, but only to havo attended so many parades and carried out bo much training nt tho end of the year. Counsel submitted that there was no sense in the term "annual" as used in tho statute

unless it meant that thero was no obligation to attend any particular camp, but, at tho end of tho year, tho soldier must have served seven days in camp. If No One Went to Camp? His Honour: Then the Government may provide a camp for 5000 men at a particular date, and not one of thoso men may go inlo that camp. Mr. Kennedy submitted that there was ■no'difficulty "if the military authorities "could-fiiio for.breaches of discipline-. His Honour replied that there was difficulty if no power could be found in tho regulations for inflicting fines. Mr. Kennedy intimated that, ho pro-posed-to show that the adoption of the Solicitor-General's construction of tho Act would be exceedingly unreasonable. Counsel submitted that until tb>. end of the year it was impossible •to tell whether or not a Territorial was "efficient or nonefficient," aa the regulations . rw(uirec! them to be' classified. No .proceedings could therefore be taken until the end of the year, or until it was physically impossible for hiiii to complete the. required.

training. ' ■ ""■',.. His Honour: According to the SolicitorGeneral, the liability commences when he refuses to attend: any.particular camp or parade: • Of course; I admit; if I am forced toi. your construction, that it does not matter whether it is reasonable or not. 'Hut I have--to see if the-statute can be reasonably-construed'.without doing violence ;tp ■ the; language..' i.';.Old'story—How Acts Are Drafted. "iris Honour here referred to the remark of a. well-known lord Chancellor that iiiiproper drafting often led to gross absurdities. Mr. Kennedy's contention apparently was that the joint oft'ect of the-military-authorities in preparing, the Act and the legislature.in passing it was :that;;-no;; 'person need go to camp until '"the'end of the year.' ■>;•■-. v After -further discussion ■- Mr.vlCcnnedy ; submitted' that, if'the S6l.icitoi' ; f.sencral*s Contention was sound a person might pos.fiibl.v bo convicted under. Sectitfn, 51 of thp"'Defcnce Act of 100!) and. yet havn,;done all the training which ho was required to do by Sections" 35'dn(l 25, of "the same Act.■'"'The- magistrate, in ' exercising his discretion .'and-dismissing, the information, evidently, had consideration iW.the severe penalties -provided- -for under -Section 51 aiid'the.smallness of'-the. offeh.ee. . Ho was of opinion, that there were remedies outside, Section 51.' . ,' '_.•'" His-Honour: nas lie any right to do so? A magistrate lias no'right to dis.miss an information because the penalties are too .severe, if, a breach of tho statute is proved. 'But-I cannot hold that the magistrate' dismissed this information as trivial.' He dismissed it because there was no , breach within Section 51. Of course if I find that there has been a breach, I shall have to refer tho matter back to the magistrate to impose the penalty. Mr. Kennedy went on to refer.in detail ■to the-wording of sections of the Act. In . conclusion he said that he Telied •mainly on the magistrate's second ground for dismissing".the information as set forth in- the special case, namely, that the- words "personal service" could not betaken to refer' to any one parade, but only to''a. survey of the year's work.

After tlie Solicitor-General had replied his Honour intimated .that lie would take time to ;consider his decision.

' Judge. Compliments Both Counsel. "I say that this case has been very well 'argued,-", concluded his Honour, "the. Solicitor-Generaf is always very clear, and concise, and I'desire to compliment Mr. Kennedy—this is the' first time ho has appeared before me—as his argument has been a very excellent one." His;Honour./expressed, regret that ho had not "hoeif .able/ to brini? the case before the Full Bench as-it was a very important one. He might yet find it necessary to refer it to-tho I'ull Court.