SUPREME COURT

Dominion, Volume 12, Issue 12, 9 October 1918, Page 7

SUPREME COURT

THE TWO FORCES

STATUS OF A C 2 RESERVIST

In the Supreme Court yesterday His Honour Mr. .Justice Chapman delivered reserved judgment in a case on appeal against a decision of Mr. S. hM'Carthy, S.M. Tlio Magistrate dismissed mi information charging the respondent, Harold Esau, under Section 51 of tho Defence Act, 1909, that ho did on June 24, 1918, without lawful excuse, fail to render the personal ser-vi-o required of him under part t> <it the Deleuco Act, 1909, in that lie uid uot attend drill. The respondent was called up in tho eiciith ballot iwdor tho Military .Service Act, 1916, and was on medical examination classed Gi, as unlit to serve in the Expeditionary l'orco. He attended drill until the result of what was spnkon of as tho i'etono ease, in which a man claimed that, being so classed, ho was exempt from al.liability, including the duty to attend drill', was known: The contention ot the Petono man was upheld by tho Magistrate, and as tliero was no appeal tho respondent then committed the al-len-ed offence. The respondent so acted in order to bring a test case io a

Tho judgment went on to say that the Magistrate relied on Section 4 J or the Defence Act, winch exempts fum liability to-be'trained any person who was certified to be medically unlit tor such training, llespamlent's exemption was. obtained through his classification with reference to the *' x P ed,t » n . a 'J Force only, though as the result ot medical examination by a dnteiwrt hoard. The training under the Men o Act was carried out by tto Territorial Forco. The Magistrate held that t was only when α-nian in respondents position as a member of the Expw - tionary -Force lost his status, as men by transfer to tho Territorial _ Force that he was liable to be trained in timt force. His Honour thought this was a mistake. Every man of respondent s D»e was liable to bo trained, and there was no reason why he should not have, and in fact did have, the double status of member of an Expeditionary Foice and member of tho Territorial I'orce. Section 11 of the Military Service Act, 1916, merely transferred from the ieserve to' tlie Expeditionary l'orco all men calledr up ' for service in that force. Tho reserve was the whole n.ass of unembodied men. **At™ Expeditionary Forces Act, 1915, neither exacted nor recognised an exemption on which , respondent could rely. . Respondent does not come under this mction: ho has never been discharged from the Expeditionary Force - but is merely on indefinite leave. 'Hie whole scheme-of the'legislation is proporly relied on as showing that the Expeditionary Force is a separate unit of tho Forces coming under the Defence. Acts, and I am satisfied that its action in classifying the respondent in no «T relieves him from liability to be trained as a member of the Territorial The appeal was allowed, and the Crown did not ask for costs •At'the hearing the Solicitor-General (Sir John Salmoud, K.C.) appeared for the Defence Department, and Mr. ii. F. O'Leary for the respondent.