THE MILITARY CASE.

Dominion, Volume 5, Issue 1449, 25 May 1912, Page 3

THE MILITARY CASE.

ACT ENFORCEABLE? COMIC OPERA CASE AGAIN. IN FULL COURT. PLAY OF THE LEGAL MIND. Under tho titlo of Dempsey v. Furness tho military case, of which a good deal has been heard lately, was taken before threo judges of the Supremo Court yesterday. Their Honours on tho bench wero the Chief Justice (Sir Robert Stout), Mr. Justice Cooper, and Mr. Justice Chapman. In March last Victor Furness was charged before Mr. Hiddell, S.M., with having failed to render • tho personal service required of him by Part VI of tho Defence Act of 1909, in that ho was absent without excuse from the camp which commenced at Seatoun on' March 2. Sir. Riddel 1 held that as all members of the Territorial Force wero subject to military law, and as there were regulations which gave powers to the military authorities to deal with broaches of discipline, proceedings against offenders should be taken under theso regulations, and not under Section 51 of the Defence Act, 1909. The magistrate held, also, that, as the service required by the Defence Act was varied in character, and spread over an annual period, and as the defendant could not have been compelled to commenco annual training before November 15, 1911, a sufficient opportunity had not been given him to render the annual service. On those grounds his Worship dismissed the information. From this decision tho Defence authorities appealed, on the ground that it was erroneous in point of law. The subject of the appeal was argued before Mr. Justice Cooper in the Supreme Court on May .15 by, the Solicitor-General (Mr. J. W. Salmorid), who appeared for the appellant, and Mr. R. Kennedy, who appeared for the respondent. At the conclusion of those proceedings his Honour expressed regret that he had not been able to bring the case before, the Full Bench, as it was a very important one. Ho added that he misht vet find it necessary to refer it to the Full Court. Subsequently it was announced that tho Full Court would hear argument in the case, and yosfcjrday morning was devoted to tho matter. "Elaborately and Excellently Argued." Mr. Salmond opened by making a brief statement of foregoing proceedings. Mr. Justice Cooper remarked that, when the case had been before him it had been very elaborately and very excellently argued by Messrs. Salmond and Kennedy. Mr. Salmon: The magistrate dismissed the information on two distinct grounds. Hβ hold that every man has one year in which to perform the personal service required of him' and that the whole year had not elapsed. The Chief Justice: And suppose that there are only camps in the first half of the year, not dn the second half, he need not go to camp at all? Mr. Salmond: I must leave that to Mr. Kennedy. , ■ Mr. Justice Cooper: If Mr.. Kennedy's, (argument is right, the Act is so defective that it is not enforceable. Mr. Salmond: The second ground on •which tho maeistrate dismissed tli9 information is that the proceedings should have been under a court martial, or, at anyrafcs, by way of fine for a breach of rceulations. Tho Chief Justice: The Act provides, does it not, for an offence under it? Mr. Salmorid: That seems to me to have been.the magistrate's.main point, but not Mr.'Kennedy V.'" '•'' ■•. ■■'".,' Mr. Salmond: Tho general training ?ecf.ioiv is governed by Part 6 of the Act. the !Territ<irinl force is governed by Part B.' Part G of the general training section b»gins at Section 35 which imposes a general obligation . for military training iinon male inhabitants of this country. Tho Torritorinl force governed bv Part B which, bemns at Section 19: "It shall be lawful for the Government to raise and' maintain n force, to bo called the Territorial Force, consisting of such number of men as «=liall from time to timo be decide;! by Parliament." Tho Territorial Force consist? of two classes of perron. First, the old volunteers, who have been incorporated into it. and. secondly, members of the general training section who have been transfprred to tho Tentorial force under Section 23. . . . That is the local position.' The practical position is.that all members of tho sreneral training section .have been transferred, so rrreat have been the numbers required by Parliament, to constitute the Territorials, fio, there, is no ■ training going on as a general rrainin? section. Mr. Justice Cooror: So that we need not tro'iWe atvmf Section 41 at all. Mr. Salmond: No: Section 41, dealing with the ceneral trainnnp section is irrelevant. That Ixnnir so tho question is: W'fit i= the personal snrvicp required? The Chiff Justice: You then have to refer to Section ?"> to find what is r»ntiirptl. , It says that Hip' training for th» Territorial force shall bo as prescribed. So. then you go to the regulations. Mr. Fnlniinil "aid that, prescribed meant prcscribwl by the Act, bv the regulations, nr bv military orders. There was nothing in the Act prescribim? ("lining, so the regulations must be turned to. Mr. Justice Chapman: What is the afaninT of milibirv orders—a command? Mr. Salmond: I fata* it so. . ■'. • . The 'only way ho could fail to nerform the 80 -?L lce i , was fo fail to comply ■with the requirements of tho repulations—by violafincr the ventilations as to time ami place and duration of son-ice. Tf then he is not liablo to conviction under Section 51. I can only imagine tvo conceivable alternatives— that, an option is to be iriven the-soldier jm to what canto he siinll go to; and. secondly, that tho regulations are ultra vires. ■ • ■ If the.so possibilities were realities, Mr. Rnlmond continued, the defence system would .be reduced to "chaos and absurdity. "A Gilbertian Opera." Mr. Justice Cooper: Mi , . Kennedy may bo right, but if he is. Parliament has created m Act which is nothing more than a Gilbertian opera. Mr. Salmond: Xo" such system could have been contemplated, and if ir exists there_ must have beon an extraordinary oversight on the part of those who framfd the regulations. Camn training is not ta bs a training of individual soldiers; the company to which the soldier belongs i= to be trained. . . . There is nnnthor section referring to the personal femes required.. Every pm-son is liable to a fine of .ElO who prevents any person from rendering the servicp required. Supposing a prosecution hod been against nn employer, it is the employer would havono defence. How. then, can the Territorial who voluntarily absents himself escape.? Tho Chief Justice: A? far a= I can see there is nothing to destroy tho jurisdiction of th" ordnmrv civil court. He mav be liable to military law ns.woll. It was remarked' Hint '.lie magistrate sppmp.d to have rpcrarrled Section 51 as holding fpvpi"? penalties—fine, disqualification from Government service, and dis-frnnchi-Pmmt. Tli!>.Chip' Justice: If n man won't fro to rami) for a week, why should he be kept in th« f>nvrrnr"pnt service anv longer? I 'Inn'f mp anything srvore in that at nil. _Mr. Justice Cooper: If a man won't, jissist in the defence of his country, why °hou!d he assist in the making of our laws? The i matter of life disfranchisement fallowing on something done in youth was mentioned, nnd something was said about retwmtnncp. Thi Chief Justice: Thp.rc seems to n. movement that there is always room for rer>»nrpncp. p V pn after death!' Mr. hpnnody paid that thor.p wprp four cmirpiniMp irnys in which the Legislature tTiieht have dpalt with absence from camn. First; the Act might have been fo drafted as to givp the authorities power over a man for failure to attend a particular camp, and to enforce such iiidcnienf- by o. particular method, as in Section 10 of the Act of 1910. Secondly, it was possible that no»'or might have been given to n snwial Court Id donl with that, one thing while not having jurisdiction over other thins?. Courts-raortial suggested theniSfilves. Thirdly, for pvpit such breach Tecour=p to' n criminal Cntirt might have bn?n lind. am! n ninn fined, convicted, disfranchised, and debarred from Government employment. Fourthly, a man

might not be punished for failure to attend ono camp, but punished if a certain amount of training lia<i not been carried out in-the year. Mr. Kennedy contended that "personal service" did not refer to any particular parade, but referred to the training which had to bo done in tlio coursoof n year. lie argued, also, that tho Act had given power by which the military authorities could have made regulations providing a fine for absence lrom camp. "In the Early Days." The Chief Justice: In the early days in New Zealand, wlien a militiaman <li<ln t appear on parade they sent a picket for him, and simply brought him there, lhcy didn't need any military court. And one very peculiar thing was that a man so brought was the only man in that company killed iu battle. Tli» Chief Justice asked if Mr. Kennedy meant that proceedings could not bo taken against the absentee from camp until the end of the year. Mr. KeiiDedy: Yes. The Chief Justice: He i 3 like Mohammed's comet—in the nir. ' Mr. Justice. Chapman: I suppose all tha camps had finished and tho raeu had dono their training—he has to find a camp which is non-existent, and to find his placo in tho unit, which, also, is non-ex-istent. Mr. Kennedy: Yes; that may bo so. Mr. Justice Chapman: Well, doesnt it strike yoa that you are on an irrational track, , Mr. Kennedy: There may bo additional camps. Mr. Kennedy contended that when the time for assembling in camp came, respondent, having received an order to attend, was subject to the military law which, ruled in that camp. The Chief Justice: There can t bo two camps in the one year, because that is not prescribed. Tho word "prescribed 6eems to govern, the whole thing. The prescription is tho commandant s order. Mr. Kennedy: Assuming that he doesn't attend a particular camp he may be fined, and there may bo another camp afterThe Chief Justice: He could only attend tho other if he got a military notice to do so. Mr. Kennedy: Well, I submit ho would get the order. . The Chief Justice: Well, ho need not attend. He could say he had been fined for not attending the first. That would raise the point of whether a man could be twice fined. Mr. Kennedy: A person might, therefore, bo convicted while having done as much as a person who is not convicted. Chimneys for Analogy. The Chief Justice: That always happens. Suppose o man is charged with not sweeping his chimney and is fined, if he goes and sweeps it next week it won't help him in the matter of the fine. Mr. Justice Cooper: Suppose a man is required to sweep liis chimney three times a year, he may, on Mr. Kennedy's argument, sweep them on the three last days of the year? Mr.. Kennedy: The analogy docs not npM'r. Justice Cooper: No doubt the statute might have been clearer, and there is a good deal in what you say, but we must struggle to construe the statute to find you wrong. I say candidly that if by any means I can overrule your contention and find the Magistrate wrong. I shall do so, for one can't help seeing that if you are right the system of. military training in New Zealand is a mere farco. The Chief Justice: There has been a great deal of talk in New Zealand that this military training is new here. Why, in the old days, in 1864, when the militia were called out, every man had to enrol —even men in the South Island—and there was no excuse. Even in Otago, where there was no war, tho militia were called out. It was thousht a right of the State to insist on military training oven so far back as that. Mr. Justice Chapman: They wero embodied in 1885, at the time of the Russian pcare. They were not called out, nor uniformed, but they were all embodied. Tho Chief Justice,; Ami, propitiation was made that every man "who could carry a musket should be available for service. I only mention this to show that the idea tlift this is something new is all wrong. The Court reserved its decision.