Special Committee Defence Bill, 1951 debate -
Wednesday, 30 Apr 1952

SECTION 243.

Captain Cowan

I move amendment No. 282 :—

In sub-paragraph (ii), lines 47 and 48, to delete " may, whether it convicts him of the offence or not " and substitute " and convicted may ".

This is a little more than a drafting amendment. If a man makes away with an article of uniform, he is guilty of an offence. Under this section the court, " by which he is tried " may order the accused to pay the value of the article whether he is convicted or acquitted. I do not think that is right and have put in " the court by which he is tried and convicted." It is contrary to the principles of justice that a man who is acquitted should be ordered to pay the value of a particular article. If he is charged and acquitted, that should be the end of it. It would be a very bad principle of law for the district justice to say : " I acquit you but order you to pay £2 to the Department of Defence."

Mr. Collins

I have a good deal of sympathy with the amendment, but one point has occurred to me and I wonder if it occurred to my good friend, Deputy Cowan. Take the case of a man who had some item of uniform and had the use of it until it was of no further value. He is brought before the District Court and, maybe in the sense that it is an old charge or out of date he is acquitted. Would there be anything improper about his having the refund the value of the article of which he had had the use ? That was the only objection I could see. Otherwise I would be completely behind Deputy Cowan in the amendment. It is one difficulty I know of, as it is the position I might be in myself. If the Minister for Defence were to come after me, I might have certain articles.

Chairman

That is on the record.

Mr. Traynor

There is another argument which you may wish to hear. It can happen that a district justice while satisfied that an offence has been committed may not wish to record a conviction, and will be happy not to do so provided that he can order the offender to pay the value of the equipment. If the Deputy's amendment were accepted the district justice would find himself in the difficulty that in order to make the man pay he would have to convict, even though he might be very reluctant to do so owing to the man's good character or other such reason. Other military codes contain a provision of this kind. I think, therefore, that Deputy Cowan would be wise not to press this amendment.

Chairman

From the point of view of the law it is an offence if a man designedly—that makes it more grave—sells, pawns, damages or negligently loses any article issued to him. Presumably any charge must be based on proving (a) that he once had the article ; (b) that he did dispose of it within the terms of the section ; and (c) that he did it with intent. If these things are proved he is guilty of an offence. If a demand had been made on behalf of the Minister he could be brought under that. Under (b) if it were proved that he had the article, that a demand was made and that he refused he would be guilty of an offence. If he is charged with that and the charge fails what is his position ? That is what we have to inquire. The Minister has to prove that he got the article and at least, to get him under the section, that he refused. Then he is guilty of an offence, should be convicted and made to pay back. If the charge fails what is implied ? That he did not get it.

I agree with Deputy Cowan that it would be very wrong to leave this. A man might be completely discharged under the section and still ordered to pay although the State had failed to prove that he ever had got the article. I agree with the Minister's idea ; it is a question of draftsmanship. Could you not meet the situation first of all by incorporating Deputy Cowan's amendment as far as it goes and then providing that the court must be satisfied that the article was in the possession of the accused and that in all the circumstances of the case it would be equitable that the man should pay the value of the article ? Then you could give the court jurisdiction. I would limit that jurisdiction however by stipulating as a protection for the individual at least a modicum of proof that he had the article.

Mr. Collins

Does the Chairman seriously think that his first hypothesis would be accepted? Where a man appears before a district justice or some other court and the State cannot prove he had possession of the article and on that basis the charge fails, could he conceive any court ordering the payment? I could not.

Chairman

Whether you could conceive it or not, what we are concerned with is the law in black and white and according to the law a district justice could do so. It is an unlikely thing to happen but the case might fail because it was not proved that the man ever had the article and the district justice might say " I dismiss the charge but for safety's sake you had better pay the sum." That is not as far fetched as it may seem. A certain objectionable practice of a similar sort has grown in our civil court. Certain justices were too apt to say to the offender where the charge was a difficult one " All right, if you put so much in the poor box that is the end of it." This has happened even though the charge would have failed on its merits.

Mr. Collins

It is a type of bribery.

Captain Cowan

I raised that formally in the House on one of the Justice Estimates and the result was that the practice has disappeared.

Chairman

It had become very nearly an abuse. I agree with the Minister that I am giving him a good deal of trouble with regard to words but this is an important Bill. The Minister might adopt Deputy Cowan's amendment and then add another sub-section doing what he wants to do. There should be a minimum modicum of proof that the article had come into the man's possession and that in all the circumstances of the case it would be just and equitable for him to pay. The Minister would get 100 per cent. of what he wants and it would safeguard the accused adequately.

Captain Cowan

We must be very careful in making laws to see that they are in accordance with the general concept of justice as we understand it and while this section may be all right from the point of view of the Department of Finance who are trying to get the money in any way, it does offend my sense of justice. If a man commits an offence—and we have several offences here—undoubtedly he should be found guilty and should receive such punishment as would be appropriate, and the justice would then be entitled to make a restitution order or an order for compensation, but to say that whether he is convicted or not he must pay is unjust.

Mr. Traynor

If you want to have this copper-fastened, I will certainly have it examined.

Chairman

To have it examined would be much more desirable. I agree with Deputy Cowan that it is objectionable as it stands.

Captain Cowan

We have experiences of appearing before justices and they sometimes do extraordinary things. I might be defending a man and be satisfied that he was innocent but the justice would say : " I will not convict him but he must pay £2 to the Minister." There would always also be a difficulty about appeals.

Mr. Collins

I am with you there.

Chairman

In framing an offence you must look at it from the point of view of the unfortunate judge, whether the officers on a court martial, a commanding officer, or a district justice in a court. Few criminal cases are so clearcut that the man who is making the decision has not some niggling doubts in his mind and if he is handed an easy way out by which he can give a little to everybody it will be a human temptation to take it.

Mr. Collins

He will not convict but will achieve the same purpose.

Chairman

He is tempted to say : " I will not convict this man of a crime, but maybe the State should be protected. Looking at it from the broader aspect we cannot let equipment go." But it is bad law.

Captain Cowan

The Minister said that he would have it examined and on that undertaking I will withdraw the amendment.

Amendment, by leave, withdrawn.

Question—" That Section 243 stand part of the Bill."—put, and agreed to.