COURT OF APPEAL

Dominion, Volume 11, Issue 246, 5 July 1918, Page 6

COURT OF APPEAL

CONSTITUTION -OF COURT-MARTIAL NULLITY OF SENTENCE INTERESTING MILITARY CASE A case bearing on the validity of a sentence passed by a court-martial Bitn beforo tho Court of Appc-al yesterday morning. On tho Bench were His Honour the Chief Justice (Sir .Robert Stout), ILis Honour Mr. Justice ChapHis Honour Mr. Justice Stringer, al '« His Honour Mr. Justice Herdman. Jho caso was that of Samuel Edward Fitzgerald, ship's steward, v. tho members of ft court-martial which tried his case on March 10, 1917. Tho circumstances of the case weie that in December, 1910, tho plaintiff was drawn in the first ballot held under tho Military Service Act, and at the time he, was acting in the course of his duty in a vessel I on tho high seas. On March 1, 1917. ho ! was arrested as a desertei, and nine days later was tried by court-martial. Ho was found guilty and sentenced to twelve months' imprisonment. On September 12, 1917, ho was informed that a portion of his sentenco had been remitted, ami he was sent to Trentliam Camp as a soldier, where he remained until turned out on the crround of heing medically unfit The ground of t,lio action originally was that tho court-martial was not properly constituted, as one of its members, Richard Clement Kirk, of Wellington, barrjstei' and solicitor, was not' eligible to sit on it, he being at the time an officer on tho retired list and not subject to military lnw. It was also claimed on behalf of the plaintiff that tho defendants should have known that the courtmartial was not duly constituted and that the plaintiff was wrongly imprisoned; also that the plaintiff pleaded guilty under a misapprehension. By way of damages ho claimed .£IOOO. When tho caso was first set down certain questions of law were removed into the Court of Appeal for argument, and this argument was taken yesterday. v The main questions were:— (1) Whether an officer on the retired list of the Defence Forces is qualified to be a member of a court-martial under tho Defence Act, 1909, tho Defence Amendment Act, 1912, tho Expeditionary Forces Act, 1915, and the Military Service Act, 191 G. (2) Whether the cause of action (if any) disclosed by the statement of claim is barred as~ against the defendants or any of them by Section 91 of the defence Act, 1909. (3) Whether under the above-mention-ed Acts and the Army Act so far as incorporated therein an action for false imprisonment or for any other cause disclosed in the statement of claim will bo at the suit of a plaintiff subject to military law in respect of acts done by the defendants in their military capacity. (■() Whether jthe unanimous judgment and sentence of a court-martial consisting of tho necessary number of qualified officers is a nullity because in addition to the officers so qualified an unqualified person acted as a member-of that Court. (5) Whether a man subject to military law, lawfully arrested on a charge of an oll'ince triable by court-martial in duo course of law, has a cause of action for false imprisonment or on any other ground against the members of an im-properly-constituted court-martial which during his detention as aforesaid has nasscd a sentence of imprisonment upon him. Mr. P. J. O'Kegan appeared for the plaintiff and tho Solicitor-General (Sir John Salmond, K.C.), with him Mr. .T. Prfiuleville, for the Defence Department. Sir John Salmond said the most important point was raised under question No. I, and lie would deal with it first. It was obvious that the plaintiff had to go I lie lenglh of holding that this judgment was a nullity, and he submitted that tho answer to the question must be j in. the negative' for two reasons: First, that Major Kirk, even if disqualified, was de facto ji .Titdye, as lie was appointed as such. 'The Court was constituted of a full number of officers even without Majo'r Kirlc. Courts-martial were constituted under the Defence Amendment .Act. 1912. That Act ei'/ibled the Gover-nor-General-in-Council to make regulations, but no regulations had been made. 1 Tho result was that district eourts-mar-tial must consist of no fewer than three officers. Tn this case six were summoned, and under Section 53 of the Army Act it was clear that three formed a quorum. The matter was also regulated bv the rules of procedure. Was the judgment three officers to'be turned into a nullity becausa a fourth officer was disqualified? This would be an irregularity, but it was submitted that it did not reduce the judgment to a dead letter. Tf this happened in ail inforior civil Court the proceedings would be quashed certiorari. - The proposition was undoubted that where a judicial officer had been appointed by the proper Authority and acted Iwna fide in the exercise of his office his judicial acts were not nullities which could bo treated as Bitch in a collateral proceeding such as habeas corpus or an action of trespass, but could only bo attacked, if at all, directly as by way of prohibition certiorari or writ of error. The second ground was that the court-martal consisted of a sufficient number of duly qualified officers without Major Kirk at all. The Chief Justice: Supposing thero were thirteen jurymen ? ■Sir John Salniond: "Thero was a special class of law governing courts-martial which were constituted under tho Defence Act, 1912. The necessity for distinction was the necessity of (onfiriuation of a military sentence. Confirmation validated, allirregularities oxcent want of jurisdiction." Continuing, tfio Solicitor-General said, as to Question 5. if tho senteuce was good plaintiff was properly detained, and if the sentence was a nullity then ho continued to bo under lawful arrest and had no grounds of. action. Ho was subject to arrest under tho Crimes Act and under tho War Regulations. Delay in trying a man lawfully in custody awaiting his trial was not a ground ol' action for f\lse imprisonment. If lie was wrongfully imprisoned. when did his imprisonment become unlawful ? The Chief Justice! Then, he was sent to gaol under a wrong warrant? Ho was kept in gaol by virtue of the wrong warrant, and was not merely awaiting trial. Is there no remedy? Sir John Salmond: The only - remedy would bo an action for maliciously not bringing him to trial within a reasonably time. The Chief Justicet What return would tho gaoler have made to a writ of habeas corpus? Sir John Salmond: The plaintiff could not at any time have been released oil habeas corpus. There was never a moment at which lie could have been released by this Court under habeas corpus. Mr. Justice Stringer: Tou say that when lie was arrested he was held until he was 'dealt with by law, but that if the court-martial was invalid ho was not dealt with by law? .Sir John Salniond: Yes. The plain? ■tiff cannot blow hoi and cold. If any civil remedy was available io a man for not being brought lo trial apart from bail or habeas corpus it must bo an act'on for abuse of process. Proceeding the Solicitor-General dealt with Clause 2 of the statement of claim, whether action was barred against ilie defend,' Pits or any of H>em bv Secliou 91 of the Detcnce Act. 1909. .Hi: said thero were (Itfoe no=sib!" conlenli'ons by which tho plaintiffs mipht urge tn exclude the operations''of tlvit Act. He might say that the act of the defendants was a "■'dinning net, mulcted unt : l IheplainvifV w-'s veloiifpd from gaol. A courtmarlial issued no warrant. It was merely a body of judicial advisers. Tho members mi,!" '■ecnmnien.lilio'is. and their recommendations im.v be confirmed. mn(lifir> ( ], or rejected. The issue rested with Ihe conlinnip? aulhoritv. He furcoo'ended Mm n'efion <-nme w : thin Hie prescrlvvl limlhtion, as il was decided on March Ifl | )V Mie courtThe nro'ected the. qualified offi-ors. h"- not Major Turk. ii l ". v t<s nn oHj?r of the Defence T'orces. "he (motion wns whcMier tli" protection afforded to officers extended if Major Kir'-, who was acting in good faith ns an officer. He thought ho was % protected. Passing on to deal willi the last question as to whether an officer on tho retired list was qualified to sit on/ a court-martial. Sir John Salmond quoted Section H of the Defence Amend-

went Act. 19]5, and contended that all officers of tlio Defence i'orces abould be subject to military Jaw. The Chief Justice: Is there anything in tlio Act relating _io the military standing of retired officers? Sir John Salmond: No. Mr. Justice Chapman remarked that there was 110 reference to tlicm in any Act, but counsel's contention was that retired officers were officers. Mr. Justicc Herdir.au: ]f the military authorities summon a retired officer to act on a court-martini, inn ho refuse? The Chief Justice: If he cin refuse, then to is not subject to military law. Mr. P. J. O'Eegan, in replying, said he was appalled by the great volume of aigument advanced by the SolicitorGeneral. He. could now appreciate Sir John Salmond's opening statement that tlio position of a retired officer ivas somewhat obscure and difficult to define. According to the argument of the Solicitor-General a. court-martial might be composed of thirteen officers, only three of whom must bo qualified. The military regulations made it clear that a court-martial that was not properly constituted acted without jurisdieion. \ Mr. Justice Chapman: But what is tlio meaning of "properly constituted"? Mr. O'Eegan: That is the whole question. It is quite dear that, a courtmartial which comprises hi officer on the retired list is not properly constituted. Continuing, Mr. O'Eegan quoted from tlio "Manual of Military to show that a court-martial must consist of no fewor than those detailed to act on it. This was conclusive that the whole of tlio members detailed must have the proper qualifications. Sir Jolin Salmond: And what would be tho result? Mr. O'Eegan: That tho Court is not properly constituted, and that the sentence was therefore a nullity. Continuing, Mr. O'Eegan said that the verdict given in Fitzgerald's case was unanimous by the members. What would be the position if the "erdict was not unanimous? The verdict nust then go by the majority, and in such a case the vote of an unqualified officer might determine the sentence. He contended that tlio court-martial was not properly constituted, and : tlie sentence of that court was a nullity. Dealing with Question 3, ho 6aid he agreed with the authorities quoted by t.he SolicitorGeneral. There were only _ '.wo points where the civil oourt was let in, and these were when the military court rcted without jury or in excess of jurisdiction. If the principle contended for by the Solicitor-General were to be taken absolutely, action for damages against members of military tribunals would never hold at all, but numerous cases vero on record where damages had been obtained, and in all these cases the civil court intervened either respecting acts of a military tribunal without jurisdiction or in excess of jurisdiction. There w'.s no special status conferred on military men. The hearing of argument had not concluded when the Court rose last evening.