WHO IS IN CONTROL?

Gisborne Times, Volume XXXV, Issue 3952, 7 June 1913, Page 2

WHO IS IN CONTROL?

MAGISTERIAL JURISDICTION

DISCUSSED

INTERESTING LEGAL POINT

WAIVED

After Nlr Etherington’s opening in the senior cadet assault case before Mr R. S. Florance, S.M., yesterday, Mr F. W. Nolan said there was a point lie might raise on the facts put forward. He wished to raise the point as to whether this was a matter for the ruling or the Magistrate’s Court, his contention being that the cadet was under military law and had committed a breach cf military discipline. ’ It was therefore a matter triable by the channels provided by the “Defence Act” regulations. His friend had admitted that the boy was a senior cadet ancl that Lieut. Bishop was the boy’s superior officer, and botn members of the Defence Forces. On these premises he would nlaee the law before His Worship. Section 14 of. the Amendment Act, 1912, was the section dealing witli courts martial, .and it dealt with the governing of the Defence Forces in time of war and peace. In time of war, the whole of the Defence Forces were subject to military law, ancl section 14 provided that in times of peace, at certain times, cadets were subject to military law. From the' time that a cadet left home for the purpose of carrying out military duties or exercise lie was subjected to military law until lie returned home. As to the obeying of the commands oil a military officer _or superior officer, he was under a similar obligation to him. On my friend’s admission that it was in the hall counsel took it that he was therefore subject to military law. If Lieut. Bishop’s act was wrongful at all, it could only amount to a breach of discipline. The regulations only _ provided a proper means for regulating an offence of this kind. TlTe complaint could he made and it would go to headquarters, and, if necessary, the authorities would cause the proper military court, a court-martial, to deal with the matter. Counsel submitted that the Magistrate’s Court was . not the proper Court to deal with the case now before it.

His Worship said lie would then have to consider the point before going on. Mr Etherington said he could not help admitting that a lot of what Mr Nolan said was quite correct, and lib was inclined, legally, to agree with him to an extent. But this did not settle the question. Supposing the complainant put the complaint to headquarters and did not get redress in that way, would he he debarred then flrom taking civil action ? He took it the question was to decide whether civil action could be taken in the matter. Another question was whether the military force could use corporal punishment, but that of course would not arise if His Worship decided that tho case could not go on. He w T as, personally, inclined to think that Mr Nolan was right in his contention. > lb was obviously a, case, if decided against complainant, that should never have been gone on with. The question of costs would follow what His Worship ruled. Mr Nolan said lie did not, of course, know His Worship’s intentions with regard to this point and his client, Lieut. Bishop, in the event of His Worship deciding against tho point raised, would like the case proceeded with at once, and if His Worship was thinking of reserving his decision counsel would bo prepared to go on with the case and have it dealt with on its merits. ■

His Worship said it was a ; novel Eoint, and one never raised in the •ominion before, he took it. It was a matter of considerable importance to officers to find whether they had to submit this to the ordinary rules of discipline, as laid down by the Army •regulations. There was nothing to prevent counsel from waiving his rights and going on with the case. Mr Nolan: I am quite prepared towaivo the point if going on with it would mean delay. His .Worship: It would certainly mean delay. A court-martial, too, would mean bringing officers from other parts and would mean great cost. Mr Nolan: Then I do not force the point, and am prepared to go on with the case now. lam prepared to deal with it on its merits. Mr Etherington : I do not object and am quite prepared to go on, provided the onus remains on Your Worship. The case, reported elsewhere, was then gone on with.- * ' ' ' "■ . A ; '