Special Committee Defence Bill, 1951 debate -
Thursday, 24 Apr 1952

SECTION 187.

Captain Cowan

I move amendment No. 237:—

To delete sub-sections (1), (2) and (3) and substitute the following:—

(1) A general court-martial shall consist of a president and four other members of equal rank to the president appointed by the convening authority.

(2) Where the person to be tried is an officer the president shall be an officer holding a rank equal to or higher than that of such person.

(3) No officer shall be appointed as president or member of a general court-martial who has less than 15 years' service as an officer of the Defence Forces.

This amendment introduces something that may be considered novel in the constitution of courts-martial. I put the amendment down because, for a considerable period, I have thought that something on those lines would be desirable. At present and under this section a general court-martial normally consists of a president, a colonel and four other officers. On occasions there was a feeling that the president of a court-martial, by virtue of his superior rank, was able to influence other members, perhaps against their better judgment. I feel that that objection to courts-martial could be removed by providing that the officers constituting the court would be equal in rank. The president would take the position of president by virtue of seniority rather than by rank. Where the person to be tried is an officer, the president and members should be of a rank equal to or higher than that of the accused person and no person should be a president or member of a general court-martial who had less than 15 years' service as an officer of the Defence Forces. I always feel that it is desirable that before an officer sits on a court-martial he should have a considerable amount of experience. It is very useful thing to have and I do not see that there would be any difficulty in having general courts-martial consisting of officers with at least that experience. The amendment is undoubtedly new and novel and perhaps will not commend itself, but I am putting it forward for consideration.

Minister for Defence (Mr. Traynor)

This is one of the amendments which I could not accept. I think the Bill as drafted is right in laying down a minimum and very senior rank for the president of a general court-martial. The rank of the president indicates the importance and enhances the status of the tribunal. It is only in the most exceptional circumstances, where the exigencies of the service might prevent it, e.g., during active service, that there would be any question of the president holding a rank lower than colonel.

Under the first portion of the Deputy's amendment, if a colonel or other senior officer were selected as president, all the other members would have to hold the same rank. That would be administratively very difficult, and more important still, where a junior officer was being tried, it might create the impression of a packed jury. It must be remembered that the members of a court-martial are a jury as well as being judges. A junior officer's offence could arise out of a sense of grievance felt by the junior officers as a body and it would be well that the court should include some members not too senior in rank. As the Deputy knows, the most junior member of the court speaks first when a decision is being taken.

Furthermore, I am afraid that the Deputy's stipulation of 15 years' commissioned service might mean in effect that all the members of the court would have to be senior officers in any event.

I think it equally essential that only an officer of high rank should be qualified to be president of a general court-martial and that officers of the rank of captain should form part of the court where a junior officer is being tried.

I would also remind the Deputy that persons from the age of 21 upwards are eligible to act as jurors, whereas his amendment would prevent an officer sitting on a general court-martial until he is 35 years of age. A court-martial has full legal guidance and advice from the judge-advocate.

Lastly, I would point out that the Deputy's amendment would remove a very important portion of the section providing that there must be a naval member on any court trying an officer or man belonging to the Naval Service.

Captain Cowan

I naturally was prepared for strong objection to my proposals because to some extent they would be revolutionary so far as courts-martial are concerned. I agree to a large extent with what the Minister says and I think that in recent years the same objection did not exist to courts-martial, with regard to the president by virtue of his rank endeavouring to influence the junior members against their better judgment. The Minister has stated and, of course, it is the actual practice in a court-martial, that on matters on which opinion has to be given the junior member is asked his opinion first. I remember a practice—which, happily, was stopped—where the president would immediately say to the junior member when he declared that the officer or accused person was not guilty: " Why is he not guilty ?" and he was subjected to cross-examination. Then, when the next senior was asked his opinion, he felt it so much easier to say " guilty " than " not guilty". I am glad to say that that practice has long since disappeared. However, in actual fact it did occur. It was a case where the president was endeavouring to force the members of the court to accept his point of view. I would say that my own personal experience for some years has been that nothing like that could occur now.

While I think that my proposals are good proposals and may at some time in the future be accepted, I realise that they are top revolutionary for 1952.

Mr. Colley

Would the proposal not be hard to administer?

Captain Cowan

I realise that there would be a very strong objection to my proposal and I, perhaps, did not put it as conclusively as I might. Where a colonel is being tried he should be tried by a court of five colonels and I believe similarly that if a lieutenant-colonel is being tried the correct court would be five lieutenant-colonels. Courts-martial have two functions; one is to operate discipline, but in another sphere their function is to be to an extent courts of honour to decide whether a particular accused person is fit to be an officer or not. I believe that it would be great protection and that it would serve the interests of the Army as a whole if, where a person was charged with an offence, he were tried by his peers. That was the old idea even in civil law. Where a man came up for trial in a civil court, he was tried by a jury of his peers, his equals, and that was the fundamental conception of justice. Looking far into the future, I think that something like that may be adopted but I have to leave it until the Canadians or somebody else adopt it first. Naturally I did not expect to get it carried to-day.

Chairman

You must have regard to the administrative difficulty in an Army such as ours.

Amendment, by leave, withdrawn.

Question proposed: " That Section 187 stand part of the Bill."

Chairman

On the section I would like to say two things. Sub-section (2) (a) provides for the president of the general court-martial:

" Where the person to be tried is an officer, the president shall in no case be an officer holding a rank lower than that of such person."

I am contrasting that with the words in Deputy Cowan's amendment which we have just discussed:—

" The president shall be an officer holding a rank equal to or higher than that of such person."

Which is the better way of putting it? I wonder whether Deputy Cowan's drafting is not better.

Mr. Traynor

The section as it stands would not prevent you from having an officer of higher rank.

Chairman

It is purely a matter of wording.

Mr. Traynor

It can be a higher rank.

Chairman

There is no doubt about the meaning but from the point of view of elegance of drafting I wonder whether Deputy Cowan's actual wording is not more elegant than that of the Bill. Paragraph (b) provides:—

" Where it appears to the convening authority that an officer holding the Army rank of colonel or the naval rank of captain or higher commissioned rank is, having due regard to military exigencies and the public service, not available to act as president, the convening authority may, upon endorsing a certificate to that effect on the court convening the general court-martial, appoint, subject however, to paragraph (a) of this sub-section, as president an officer holding the Army rank of captain or the naval rank of lieutenant or higher commissioned rank."

That is the case very properly to be allowed for. The intention is quite clear but I wonder whether it might not at first blush be read that you have to appoint an Army captain or higher rank.

Mr. Traynor

You think that the words " higher commissioned rank " might be construed as referring to the naval officer only?

Chairman

Yes. Again it is merely a matter of wording.

Mr. Traynor

We can clarify that, if necessary.

Captain Cowan

I must say that I do not agree with sub-section (3). I see no reason in the world for a naval officer being on the court-martial. If it is an ordinary disciplinary offence I do not see why the court martial should not be of Army officers or of officers of the Naval Service but this idea of putting on one Naval officer is not of any use. It is like the provision in the old Act where if a member of the medical service was charged, you put an officer of the medical service on the court-martial. I ask the Minister to re-examine this matter. If a court is going to try a member of the Naval Service what is the purpose of having a member of the Naval Service on the court-martial ?

Mr. Traynor

The purpose is the same as that which I mentioned in connection with the trial of a junior officer, in the case of whom an officer of junior rank is always on the court. An officer of the Naval Service would be au fait with the position of the accused to a greater extent than the five colonels the Deputy wants. The colonels would be so senior to the young lieutenant that they would look at the case from an entirely different angle. In the same way I believe that a representative of the Naval Service would be valuable from the point of view of clarifying the mind of the court on naval and technical matters.

Captain Cowan

That is the real point of the objection I have to it. He would be interpreting for the other three or four members of the court naval matters in the secrecy of the court-martial whereas if he were not there these points would have to be made in open court. There is the danger that this individual would be looked upon as adviser to the court on naval matters and that he would to a large extent be himself the court. Where it is a question of technical naval matters, I would prefer a court martial of naval officers. Then the man has a fair trial but you are putting the entire responsibility on the one naval officer in this court and that is very objectionable. I can see that the Minister and whoever put that sub-section in had the idea of giving protection to the officer under trial but the effect is the reverse.

Mr. McQuillan

I think that the intention in this section is good all right, but one naval officer is not sufficient on a court martial like that. We are planning on the basis that our Naval Service will be the limited service it is at the moment but if you envisage a case in the future where our Naval Service expands and forms a big portion of our defences in the same way as the British Navy to-day, then if a naval officer were tried for some offence his comrades and superiors in the Naval Service would prefer the court-martial to be composed completely of naval officers. It should be left open in the section so that if possible the court-martial would consist completely of naval officers where an officer of the Naval Service was being tried. You are actually giving predominance to Army officers in a court-martial for a naval officer. Every naval officer would have more confidence in the composition of courts-martial generally if he felt that he would be tried by a group of his own peers. If the service did expand as we would like to see courts-martial for naval officers should be composed of officers of the Naval Service.

Mr. Traynor

If the Naval Service expands, that is exactly what would happen. Even as the section stands, it does not prevent an entirely naval court if the authorities find it possible and desirable. It says " at least one member " but it does not limit it to one member. I must point out that at present there is not a large number of officers in the Naval Service. You might find extreme difficulty——

Mr. Collins

That is the problem which was worrying me.

Mr. Traynor

——in convening a court of naval officers of suitable rank. There is no doubt that, with the expansion of the Naval Service, that would be met and in any case it could be met by an amendment of the Act itself.

Mr. McQuillan

Suppose that tomorrow morning the Naval Service were in actual fact as big as the Army then the section would be unjust as far as the Navy is concerned.

Mr. Collins

I wonder are we at cross purposes ? According to the wording of the Bill it is possible if the situation warrants it that the court should consist completely of naval personnel. What worries me is the very genuine difficulty from the point of view of administration, of numbers and of the availability of senior officers in the Navy. There is a point to be taken quite seriously as the Minister has suggested: with this limitation it is possible that a member of a naval service going for court-martial might himself be most anxious that the court should not consist completely of naval officers. If we recall our own period in the Army we remember that the general difficulty about the convening of courts-martial was the availability of officers. The tendency was in the main in a brigade area and certainly in a division area to try to find officers within that area for courts-martial. I feel that the same would be true of the naval service; if it were possible for them to find naval personnel for the court they would be inclined to look for it. You have the same difficulty regarding the Air Corps. They consider themselves an integral part of the Army but they feel that they are in some way different from the general run of the Defence Forces. Again there has always been an effort to find a court-martial which would consist of Air Corps officers.

I did not hear the full discussion but what I feel about this is that possibly we have too strong advertence to theory instead of an appreciation of what any of us who has been in the Army and indeed other members of the Committee know, namely, that the position is in fact the reverse. I think the Chairman will bear me out and I am sure Deputy Cowan and Deputy McQuillan know that, up to date, the tendency has been to try to find officers for a court within the brigade or divisional area of the person who is alleged to have committed the offence and I think it would be safe, on the wording of the section, to assume that the Navy, when they have people for court-martial, will endeavour as far as possible to fill their court from their own personnel or from officers who may be on attachment or loan to them.

Chairman

Deputy Collins has made one point of importance. If you want to try a person with equivalent rank of lieutenant-colonel in the Navy I wonder would you have five to try him at the moment and, if not, could you not try him.

Mr. Traynor

What is much more difficult is that our shore establishment—that is what you have to depend on; the others may be at sea—is so limited that you could not possibly get the number.

Chairman

There would be certain objection to making certain people necessarily the court-martial personnel and every one to know it. You want some choice. Apart from that, in answer to Deputy McQuillan, the wording of this section is quite wide enough to meet the point Deputy McQuillan is making. If the thing develops as he suggests, the normal tendency would be in that direction and all that sub-section does is to prescribe that at least one member of the court-martial shall be a person holding commissioned naval rank. It does not stop you having the whole lot.

Captain Cowan

As the Minister and the Committee will realise, my objection is to putting in the one. You put in one naval officer. You put him in because you think you are helping the accused because he is a person who would know more about procedure in the Navy and the other four officers might know nothing about procedure in the Navy.

Chairman

There is something to be said for the Minister's point of view, to leave it to the Army authorities to select the most suitable officers and leave it to themselves to select naval officers, if necessary. There is something in that point of view. The section seems to me to be all right.

Mr. Brennan

If technical matters arise, the military members of the court would have to depend on the naval member.

Captain Cowan

My idea is that the facts should be established in open court rather than by the advice of one man behind closed doors. That one man, being out of a small service, may have a prejudice, not against the accused but in one way or another.

Mr. Traynor

Would that not fully apply to a court trying a military man?

Captain Cowan

No.

Mr. Traynor

Why would it not?

Captain Cowan

In a court-martial trying a military man there are certain things which need not be proved. In other words, there are certain things that come within the military knowledge of the court and it is not necessary to prove them. In the naval service they have completely different ideas about a lot of things. Their drill is different. Their procedure is different. The language they use is different. They talk about watches and the dog watch and queer things that an army officer would not know anything about, and it is the knowing of these things that can often decide the issue. If you put it that way, that one officer at least will be put on, the Adjutant-General, who is, in fact, the man who convenes every general court martial, will say: " We must put one naval officer on." Under the subsection that we have already approved we say that the president is to be a colonel or of the naval rank of captain and the other members are to be captains or higher ranks or the naval rank of lieutenant or higher rank. We make provision there that the whole court may, if necessary, be naval officers, and I would like to leave it to the Adjutant-General to form his court in what he considers is the just way to do it. I know that the intention here was to be just to the accused but I am afraid that by simply putting one man on—and that is, in fact, what would happen—you can create an injustice. Under the old Act—I am glad it is being eliminated—you put in a clause like this: that an officer of the Army Medical Corps shall not be a member of a court-martial unless an officer or soldier of the Army Medical Corps was the accused person, in which case an officer of that corps may be detailed to act as a member or waiting member thereof. In all cases in which a member of the medical service was tried they put on a medical officer just because the Act said he might be put on. The Act did not compel them to do it. It said that he might be put on and they always did it, believing they were doing right by the particular person who was charged. I simply ask the Minister to consider with his advisors the elimination of that sub-section. That is all. I do not put it any stronger.

Mr. Traynor

We will have the views expressed here to-day brought to the attention of the authorities.

Question put, and agreed to.