SUPREME COURT

Dominion, Volume 12, Issue 9, 5 October 1918, Page 13

SUPREME COURT

STATUS OF A RESERVIST

NEED HE ATTEND TERRITORIAL ".'.'/'•PARADES? '" :

His Honour -Mr.. Justice Obapman .had. before, him the appeal of.-John Edwards, constable, against, a decision of Mr';"-'S, B;' M'fiartliy,.S'.M.,. in. the AlngislratVs Court. , 'AVeltinytQii The re&pondbd Was Harold : Esau. "'

' Sir.flohit SiUmoiid, K.C., appeared for tin),appellant'.and ;Ur. 11. F/ O'Leary for .-the-respondent... : lii opening, Sir John Salmond stated that tbV was au- n-ppoo-J on a .fjuostioi , of law.fvoin.t/hc.decision of tho Majr-s----trnte ulider tho..Defence Act;.. Tlio defendant was charged liiidisr Section 5J of tlio- Defence Act, 1909, with failing to 'Tender "the , services required i;f liim under, the Defence Act."' T!io-defendant was.liable bo-compulsory military trairiiiiii under part 6" of, tho Act AVhilo ho was a. member of the Tci'rir torial Fordo he'"was called up,for sw vice iii tho. Expeditionary For'co. and thereby acquired a' : d'oiiblo' .'military status-.' ' Defendant- having been so called up .was ordered to-come up for medical .examination. .-.' Hβ.. was foimd unfit;.and g'v.en iiideliiiito leave witliout "pay..' : When.he wa.kordered to parado with the Territorials"he"refiised in .do so, conteiiding that lie was a. member of the- Expeditionary-Force,- -that-ho had been declared unfit for military service, and had been given indefinite leave. CbunsolcNplained that tbo defendant was , not the originator of tbo plea., but was'led intoit by a former judgment of Miv.S. E.M'Cai-'chy, S.M. In this latter case-tli6"Dcfenco Dopartment did not appeal in time, hence a second test case had to be brought.' Continuing, J]e..,sa ; id_t!iat.the Territorial Force and tlie Expeditionary Force were pntiiely .distinct, and- that had -been decided by. the Court; , The only .adequate oxciiso that- a'Territorial .could givo in α-onse of. his kind Vould lie that lie -was prevented • from "performing" his .Territorial obligations because lie- was actually serving'in tho Expeditionary :Eorcc. This man .was ..not actually se"rving-.';:-.ho w r as granted-: .indefinite .leave': , ' Tlie'cm'.tih'cate 'Of.; .exemption held : by tho defendant was given' hiiii.uncler the'.Jlili--far.v Service. Act, and- lie was 'eridcavonj iiig - to make .use of it under the Defence Act. : - : ''• '•'.- '■ ■■■/■,"'

' For tlie l'esjinmlent; Mr: ,H.'",..JP. O'Leary said.the Soljcitor-Gcnernl/niid clearly stated ' tlio''' case ris regards tho . offences..-■.■•Mγ.- ■/•O'Loary.'coiiteritled :_ that : the /Jtafistrato had ba-scul his judgment on (1) That "the-reservist: having boeu classed 02 enme. within' Section 49 "of tlio Defence Act, 1909; arid (.'H-'iliat as tlip resen'i.at was a member, .of tho Bxpeditionary.' Forces,. arid. '.Via vine lisen gninted iridpfiiiilo leave 'by «n authorised officer, ]w is not mnoiiahle.to the training provisions of the. ; Def erice Act; tliat the ojie ''suspended the .operation of the otlipr; Govinsbl was (,f bpiniw that tlie first ground \vns r&t tenable. If was,. however;' arguablo''; .that the eecorid". ground; wasi ; sound -," : "- ; The ■■»- Rorvist, <)n'h'e.coinirig'.a..ineinb;er...of the Expodittoriiiry , vntilhe was difohargorl from,.that, Force, .was only subject, to . cpmniancis with reference to. that force, and. was not 'subject-to , and other comiii'aiids, when called up in. tfre'' ballot,- as. the lesp'ondent was became membors of ihe Expeditionary Force. Tito Territorial Force- and the... Expeditionary Force wevo two distinct forces, hs stated by Sir John S.ilniond. nnd could a man become a soldier .bf-libtlr forces, nnd, if so, was ho amenable to the commands of bothJorcesS-y'-Bospoi'tdent-was'-'istili eC member of the Force, and hopontended'.-that- n r "'<32 Vc3orvist was in the same position'-p's'a, mall classed Fit A, 'and'nvns.; jmt''aiiicnablo to'"comhiqnds' from' TerrHpnal .nfficers and '■Expeditionary Force, officers.. 'He was not amenable, to. two commands. ,■

IJis IToiiour.: .Tlift, two. commands conic from'f-ho pno tCiiig. Mr. O'Lcary: Yes, biit tlie two commands are given by" different nuthorities. It wastho on)y'm'(.;umont that. couM he put forward .t)iat.)espomleiit was not ainenablo to 'two commands given "by" two different authorities. Hs Hoiioui , i;eservcd his (Icci.sioti.