APPEAL COURT.

Taranaki Daily News, 5 July 1918, Page 2

APPEAL COURT.

APPEAL AGAINST SE'NTENCK By Telegraph.—Press Association. Wellington, July 4The Appeal Court to-day is hearing S. 10. Fitzgerald versus Colonel MacDouald ami others, a claim lor £IOOO. Plaintiff was a ship's steward who was drawn in the ballot while on a voyage to San Francisco, wiio was arrested as a deserter on March 10, 1917, and sentenced to 12 months' imprisonment by a courtmartial, of which R. C. Kirk was a member. It is contended that Kirk was not qualified to sit, being at the time on the retired list, also that Fitzgerald was not a deserter, and only pleaded guilty because the court did not inform him of his rights. The defence denies that the court was not duly constituted, and, even if it was, that the decision was unanimous and not' affected fey Kirk's presence, also that action was not taken within three months as prescribed by the Defence Act. The Court of Appeal has, by way of preliminary, to hoar argument on the law points involved in the case- Mr. O'Regan is for plaintiff and the Solici-tor-General and Mr. IPrendeville for defendants. Mr. O'Regan contended that the military court acted without jurisdiction, and in such a case its acts are ultra vires, and can be reviewed by the civil court. The Solicitor-General contended that Major Kirk was qualified to eit on the Military Court, (but even if not qualified, this action would not lie. The court consisted of a sufficient number of qualified officers, so the presence even of an unqualified person would not nullify the decisions. Further, the man could not have been released on an application for habeas corpus as the present defendants had no power to release him, and even if held too long pending trial, that was not a ground for an action for damages.