COURT OF APPEAL

Dominion, Volume 11, Issue 275, 9 August 1918, Page 7

COURT OF APPEAL

INTERESTING MILITARY CASE

CONSTITUTION OP COURTMARTIAL

Reserved judgment was delivered in the Cou-.-t of Appeal yesterday morning in tho case of Samuel Edward Fitzgerald, steward, Wellington, v. Colonel C. R. Macdouald, Lieut.-Colonel D. Pringle, Captain W. B. P. Thring, Captain I'. H. Salter, Captain W. O. Kewish, Colonel J. E. Hume, and Richard Clement Kirk, barrister ami solicitor, of Wellington, members of a. tourt-mnrtial.

Argument was heard bv His Honour tho Chief Justice (Sir Robert Stout), His Honour Mr. Justice Chapman, His Honour Mr. Justice Stringer, and His Honour Mr. justice Herdman.

Mr. P. J. O'Rcgan appeared for tho plaintiff and tho Solicitor-General (Sir John Salmond, K.C.) and Air. J. Frendovillo for tho defendants.

In this case certain questions of law had been raised, and were removed to tho Appeal Court for argument. An action was brought by the plaintiff against tho seven defendants for wrongful imprisonment. His averment was that he was arrested on .March 1, 1917, as a military deserter, and that he was tried at Wellington before a .tribunal purporting to be a district court-martial, of which all the defendants, with the exception of .Coluuel ,1. E. Jtume, were members. The, plaintiff was sentenced to twelve months' imprisonment. Tho sentence was confirmed bv Colonel .tlumo, Commandant of (ho Wellington District, and the plaintiff was removed to the Waikeria Prison, and remained tliero until his pardon on September 12, 1917. A further allegation was that the tribunal was not properly constituted, as olio of the defendants, Richard Clement Kirk, was ineligible to sit thereon, he being at tho time an officer on the retired list

and therefore not subject to military law. 'There was also an allegation to the effect that tho plaintiff was afforded no opportunity to properly stale or explain his position and that the conduct of the defendants was wrongful, illegal, and malicious. Five questions of law were stated for argument:— !l) Whether an officer on (he retired list of tho Defence. Forces is qualified to bo a member of a court-martial under tho Defence Act, 1909, the Defence Amendment Act, 1912, the Expeditionary Forces Act, 1915, and tho Military Service Act, 1910. (2) Whether the cause of action-(if any) disclosed by tho statement of claim is tarred as. against the defendants or any of them by Section 91 of the Dcfonco Act, 1909. (3) Whether under (he 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 tho suit of a plaintiff subject to military law in respect of acts done by tho defendants in their military capacity. (1) Whether tho unanimous judgment and sentence of a court-martiaL consisting of tho necessary number of qualified officers is a nullity because in addition to tho 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 offence- triable by court-martial' in due course of law, has a cause of action for falso imprisonment or on any other ground against tho members of 'an im-properly-constituted court-martial which during his detention as aforesaid has passed a oeutenco of imprisonment upon him.

Tho judgment of tho Chief Justice, which was concurred in by tho other Judges except His Honour Mr. Justico Stringer, who differed on one point, wa,s as Jo question 1 that it was admitted I luit Major Kirk was an officer on tho retired list. Tho Governor-General might by warrant give a genoial authority to any qualified officer to summon a district court-marlial. Colonel Hume was so apiwiiited, and consequently hud authority to do so. Section 17 of tho Defence Act Amendment Act, 1912, provided that tho provisions of iho British Army Act wero to apply. Under this Aci a district courtmartial consisted of no fewer than threo officers, tho repression "officers" mean-' ing an officer commissioned or on pay as 'an officer in His Majesty's Forces or in any arm, branch, or part thereof. It also included a person, whether retired or not, who, by virtuo of his commission or otherwise, was legally entitled to tho .style or rank of an officer in His Majesty's said forces or of any arm, branch, or part thereof. The expression "officer," as used ;':i tho New Zealand Defence Act, mean I. any com-

missioned officer appointed under tho New Zealand Act to the Defence Forces or any branch thereof, and tho expression "Defence Forces" meant all officers ami men in the Permanent Force, Permanent Staff, Territorial Force, and Reserve. The question therefore was, was Major Kirk an officer in any of tho branches of tlio New Zealand Defence Forces? Ifis Honour said: "In my opinion it is clear that an officer, once hoi is placed on tho Retired List, becomes no longer a member or officer of the Permanent Force, tho Permanent Staff, ....•- any other branches of the Defence Fours, and is, therefore, not subject to milii.iry law." Military law, the judgmeni states, was tho law which governed the soldier in peace and war, wherever hi' might bo serving. All all limes and in all places the conduct of officers and soldiers, as such, was regulated by military law. Military law as concerned the military forces of New Zealand serving in tho Dominion was contained in the Defenco Act, regulations mado under tho authority of that Act, and in Orders-in-C'ouncil and general orders issued from time to time. "Major Kirk was not serving anywhere, and I am of opinion that ho was not an officer in the Defenco Forces of New Zealand, and was, therefore, ineligible as a member of the district courtmartial. Tho first i question should, therefore, in my opinion, by answered 'No.'"

As to the second question, tho judgment went on to say that if Major Kirk was not an officer of tho Forces, tho limitation could not apply to him. As to tho other officers, Colonel Humo stood in a different position in that he was not a member of the court-martial, bat was tho officer who convened it, and also the officer who confirmed its decision, and on the confirmation of tho finding the plaintiff was imprisoned. The act of which the plaintiff complained was the imprisonment, and it was argued that if the sentenco was not warranted by law on the ground that tho tribunal was not properly constituted, then the imprisonment could bo justified on rue ground that lie was still under arrest. "nis status as a person under arrest had ceased; he was no longer in tho position of i. person awaiting trial—he had been tried. He appeared beforo a tribunal, and his arrest was ended. I am of opinion that if Hie sentence cannot bo .justified, there is no excuse for his imprisonment. The second question should, therefore, be answered 'No. 1 "

Continuing, His Honour said: "Broadly staled, it is asked in the third question whether there can be an action by a person subject to military law against a military authority. So, broadly slated, it would mean that however illegally a military officer acted, even acting without warrant or jurisdiction, Ihero could 1)!' no appeal to a civil tribunal. lam of opinion that acts done by those in a military capacity may entitle a person to sue them in a civil court. IF the law wero not so, I hen persons subject to military law would lose all tho rights of citizens, and would be wholly unprotected by civil law. This will assumo Hint a. civil court can never supervise a military court or military authority; in fact, the question does not deal with a military court, but only with a military authority, and unquestionably a person under military law does not lose nil his rights as a citizen. ... No doubt it will have to be a flagrant a.buso of military authority before ihe civil courts will interfere, but, as I have, stated, this question is nut too broadly K wen-ant any answer but one, namely, 'Yes.'"

Questions -I and 5. lli« Honour held, must be taken together, and. afto.' piloting authority, His Honour said: "I am, therefore, of opinion that (iMostimi* ( and .1 inu*l be ansivcred In Ih- «lUH that the sentence passed on the plaintiff (Fitzgerald) was not a. nullity, and, if that is so. then it cannot bo eaid that tho imprisonment was improper, and conse-