I oppose the section. My opposition is that it is tantamount to saying right away that the accused person is guilty. The person having power to convene a court-martial is generally the Adjutant-General or an officer commanding a command. That is putting it in the broadest way. If an officer commanding a command wants a person to be court-martialled without preliminary investigation he must be satisfied and, I think, must make an order: " I, Colonel So-and-So, commanding the Western Command, having power to convene a court-martial, am satisfied that there is prima facie evidence of the commission of an offence against Private So-and-So, and hereby order him to be court-martialled.” That is almost tantamount to finding him guilty. The danger is that the officer who convenes the court-martial, having satisfied himself that there is prima facie evidence, evidence which, if uncontradicted, would lead to conviction, appoints three officers, being officers serving under him. They will probably say : “ The boss, the old man, is of opinion that this man is guilty and that is the end of it ”. It gives an accused no fair chance, and there is no necessity for this procedure.
SECTION 180.
I would call your attention to the words: " If he is satisfied that there is prima facie evidence.” How does he satisfy himself? The rules of procedure governing courts-martial provide that when a charge is, made, the commanding officer or investigating officer will bring together the person making the charge, the accused, the available witnesses, including witnesses desired by the accused, and will informally investigate the charge. The accused is permitted to cross-examine the witnesses. On this informal investigation, the commanding officer or investigating officer decides whether the charge should be dismissed or should go to trial.
Section 180 of this Bill provides that the informal preliminary investigation which I have described may be waived where there appears to be a prima facie case. This power is already contained in the Act of 1924. It is very rarely used, and only in cases which have already been very fully investigated by a court of inquiry and where a number of witnesses spread over a large area have already given evidence. As the accused would have been present at the court of inquiry with a right of audience and cross-examination, the preliminary procedure relating to a court-martial, especially the taking of a summary of the evidence of all the witnesses, would be a troublesome and unnecessarily expensive process. A convening officer will never avail of this section, unless he is quite satisfied that there is a prima facie case, and since the court of inquiry will already have covered the ground ordinarily dealt with in the preliminary investigation of a charge, there is no injustice for the accused person.
That would be first class if it was in the Bill, but Section 180 simply says " if the officer is satisfied that there is a prima facie case ” and it does not say how he is satisfied. He can simply remand for court-martial in any case at all. We are being asked now to rely on an administrative custom. It is no answer to say that the case does not frequently arise or that the cases which will arise will only be dealt with after a court of inquiry. We are dealing with a hard Act of Parliament empowering an officer having power to convene a court-martial to convene it and send a man to court-martial without preliminary evidence. We must guard against the danger that if that power is there in black and white in the Act an officer could reasonably say: “ I have power under Section 180 of the Act to say that I believe that I have a prima facie case and I will do it.” He would be quite entitled to do it if Section 180 stands as it stands now.
Let us get to the civil law. It is the universal custom that if a man is to be tried on an indictable offence, which is the analogue of a court-martial offence, that offence is tried before a district justice. Some cases may be dealt with summarily by the district justice, others are indictable offences and some are summary or indictable by election. The man is brought before the district justice, the case is investigated, and the evidence of all the witnesses who will be called by the prosecution is taken down in writing. The accused person will have a copy of these depositions so that he will know the case which is being made against him and which he must meet, and he can prepare his defence. That does not in any way hamper the prosecution. It only puts them in the position that they must make a definite case. They can call additional witnesses and have additional depositions taken. On the other hand, the accused has an opportunity of knowing the case against him, of cross-examining the witnesses and, if he likes, of calling evidence at that stage. The investigating justice would actually have more power than a person in a military capacity investigating the same offence because he could actually dismiss the charge straight away.
The custom regarding courts-martial, as I understand it, is that, in the preliminary investigation a summary of evidence is taken. That is the analogue of the depositions. The accused is furnished with that summary. When it comes to the court-martial there is a fair guarantee of a fair trial on all fours as far as possible with a civil criminal trial. The effect of this section is that if an officer having power to convene a court-martial is satisfied that no preliminary investigation is necessary, he can simply remand the man for court-martial. Then it is conceivable that the man may be wheeled before the court-martial merely knowing the charge against him, but without reasonably detailed knowledge of the case which is to be made against him and without an adequate opportunity of preparing his defence.
I know that the Minister will say to us—and rightly so—that the possibility of such a thing happening is extremely remote and with that I would entirely agree, but here we are providing by Act of Parliament for a judicial process and it is our duty to see that such a process should not be open to abuse. I have great sympathy with what the Minister says about courts of inquiry and if there were something specific here stating that the matter had already been investigated by a court of inquiry and that the accused was fully aware of its results I would be in sympathy with it, but as the section stands it is a dangerous and objectionable section.
I agree with the Chairman and I want to point out that when the Minister referred to the accused person as having the right to be present at the court of inquiry and to cross-examine, he is not entirely correct. The rules regarding courts of inquiry are that an officer or soldier whose military reputation or character is affected by the inquiry is entitled to be present and to cross-examine, but a court of inquiry may set out to investigate something in which there may be no question of a particular person's military reputation or character being at stake. During the investigation, however, it may transpire that some person is guilty or appears to be guilty of an offence and that is the type of person who could possibly under the section be ordered to be tried. He would have had no rights of cross-examination; he would not be present at the inquiry; he would not have heard the allegation against him, or anything else. That is not the important thing, however. But what I am worried about is that the Adjutant-General or the person who will have the right to set up courts-martial to try officers or soldiers could at any time say that he is satisfied that there is prima facie evidence of an offence against any officer or soldier and could order a court-martial. That officer or soldier is denied the right of a preliminary investigation and as whoever would be conducting that preliminary investigation would have power to acquit, he is denied that acquittal.
He is denied the right of cross-examining at that preliminary stage the witnesses who would give evidence before the investigating officer or of seeing the summary of evidence and, while it is the law at the moment—it is one of those sections that never was examined—it has been very rarely used. I cannot recollect if it has ever been used at all. It may have been. Even the military authorities themselves, that is the military authorities as I know them, would not be anxious to use that section. I know the legal advisers of the Adjutant-General would not be very anxious to use it. But, we are not legislating for the people that we know are there at the moment. We are legislating for people who may be there in ten or 25 years time. I would say to the Minister that that section is too dangerous. It has been of no value to the Army. If it has been used, it has only been used in a couple of cases in 30 years. It is of no practical value and the Minister would be doing a good job of work by deleting it.
No one in this room, certainly, has as much experience of courts-martial as Deputy Cowan has and I am pretty certain that he never attended a court-martial yet in which the presiding officer did not ask for the report of either the preliminary investigation or the report of the court of inquiry and I am sure he knows from experience that the officer who would say that there was not a report from a court of inquiry or a preliminary investigation would find himself in a very awkward position before that court-martial.
I can understand the Minister's difficulty.
Is that not a fact?
No, it is not a fact. The summary of the evidence is not produced to a court-martial, except at a particular stage in the proceedings that is, at the very end. Secondly, the evidence of a court of inquiry would not be permitted at all at a court-martial.
It is not evidence.
That is the position in regard to the court-martial. What I see as a most dangerous thing in connection with it is—I mentioned it in opening—that the convening officer or the Adjutant-General satisfied him self that there is a prima facie case. In other words, this man is guilty unless he can prove himself innocent. He is satisfied that this man is guilty and, therefore, sets up a court-martial and appoints three or five officers, depending on the type of court-martial, to deal with it.
I do not think he should have that right, that is, to have that right without preliminary investigation.
I will give the civil references in a moment. I would like to draw attention to Section 199 Under Section 199 of this Bill, the rules of evidence to be adopted in proceedings of courts-martial shall be the same as those which are for the time being followed in civil courts. Then there is a definition sub-section which refers to the expression " summary of evidence " which, by the way, is the same thing as depositions in the District Court. The section then goes on:—
(b) Where a statement of evidence given on oath by a witness against an accused is contained in a summary of evidence—
(i) subject to sub-paragraph (ii) of this paragraph, the statement may be read as evidence at the trial of the accused by court-martial, if it is proved that—
(I) the witness is dead or insane or so ill as to be unable to attend the trial, and
(II) the statement was made in the presence of the accused, and
(III) the accused or his counsel or representative had an opportunity of cross-examining the witness,
(ii) if the witness is insane or so ill as to be unable to attend the trial, the statement shall not be read without the accused's consent.
(3) No person shall at any proceedings before a court-martial be required to answer any question or to produce any document which he could not be required to answer or produce in similar proceedings before a civil court.
In other words, the general principle is that we are going to have the same type of law and the same rules of evidence. The provisions in that section are very similar to the provisions ruling in regard to the taking of depositions. Depositions are considered as such a serious and important matter in our civil criminal law that they are the subject of Statute. If a prisoner was not properly brought before a court, by having the preliminary stage gone properly into, his trial would be a failure. I have not our Act at the moment but it is similar to the English Act. The Acts are quite explicit about what is to happen there and the purposes of these depositions are, generally speaking, those that I tried to outline at the beginning. In those particular circumstances, it is highly undesirable to enact a section which baldly says that you may wipe out all that procedure if you want to.
I know the Minister will say to me that I am stretching it too far, but the hard fact is that if you have that section there, a convening officer—and that, as Deputy Cowan said, could be the Adjutant-General—has merely to come to his own conclusion that the man should be court-martialled and there, without say or do, he remands the man for court-martial. The man has no opportunity of having a preliminary investigation. In the extreme case, it is conceivable that he will be wheeled before the court-martial merely knowing the charge without having the faintest idea of what way the case will be presented. That would not be tolerated by the civil courts or in the civil courts. To provide, therefore, for such a possibility, remote as I am convinced it is, and exceedingly remote, is to my mind extremely dangerous. There is a further fact. It is desperately remote at the moment, but I want the Minister and the Committee to consider it, it is the natural, bona fide, reactions of executives, people who want to get the work done. If an officer who has power to convene a court-martial, here comes to the conclusion, having heard a case and seen the reports of the people who are going to prosecute, is so convinced by it that he says : “ There is no doubt about it. Lieutenant So-and-So should be tried by court-martial for that,” he finds that under the Act he has the power to do it. He will be acting perfectly legally if he does it. It is hard to blame him if he takes that straight-forward course, if you look at it from the point of view of getting work done. The Minister has mentioned expense. There is a further point. If there is expense in summary procedure, and there is explicit power in an Act to do it and save the expense, I am wondering how long it would be before you have a query as to why you had a preliminary investigation, was it not clear that the man should have been court-martialled in the first instance. Maybe the officers in the Department of Finance would have some say in the application of Section 180. I know I am putting the case in its worst light but I am not stretching it too far.
You are straining it.
I am not straining it but I am putting the maximum bad side of the case. If we are going to recommend to the House the passing of a section like that, I think it is an extremely serious thing to do it. I have some sympathy with the Minister and if the Minister could consider, say, that where there has been a court of inquiry at which the accused has been represented, or something like that, that the proceedings of that court of inquiry can be substituted for the summary proceedings. For instance, in the civil case, when he is charged first of all, it is the district justice's duty to ensure that the man understands what he is charged with. After that, as each witness's deposition is taken down, after he has heard the witness, that deposition is read aloud in his presence to the witness and both the witness and the accused have a chance of commenting. The accused is asked does he understand it and does he want to ask any questions. At the end of that, the accused knows the case that is being made against him and, furthermore, is furnished with the document, as he would be furnished with the summary of evidence in the ordinary case to enable him to meet the charge against him. I can see no good valid reason in doing away with that procedure. If the case is as clear-cut as the Minister suggests and as clear-cut as would justify remanding him straight away, there will be very little expense involved. There will be only a couple of witnesses.
If the case is as clear-cut as that, that there can be no doubt that it should go to court-martial, it will be a very clear-cut issue and there will not be very much tediousness about taking the evidence. Supposing there is a fracas in a barrack room and soldier A puts a bayonet into soldier B, it will be pretty certain that a convening officer will say on those facts alone that that was a case for court-martial. In taking the depositions in a case like that you will not have much difficulty. There will be men in the barrack room. It will be a question of saying: " I saw so and so taking the bayonet " and the case will be made. We can take this matter up with the decisions. There have been decisions on what is the right thing to be done at the deposition stage. It has been treated very seriously in the Circuit Court, the District Court and in regard to the Central Criminal Court. Our latest Act was commented on rather severely because some of its provisions in regard to depositions, lawyers felt, were somewhat of an inroad on the system. Nevertheless, it is very far short of this radical suggestion, although as Captain Cowan says, it seems to have been in another Act. I think it is quite objectionable in a military Act, certainly in peacetime. If the Minister wants to limit a section like that to active service I think we should consider it.
Do not depart from the principle at any stage.
I have still a clear-cut idea in my mind. When it comes to active service I am willing to go a long way.
That is where you want protection most against injustice. None of us has adverted to this under this Act the Minister has power to convene a general court-martial—Section 186. You could have a Minister who could come in in a certain set of circumstances, maybe for a temporary period, and he could order this officer to be court-martialled or that officer to be court-martialled because he was satisfied that they had committed offences and he could set up the courts-martial that would try them. That can happen. It has happened in certain countries. There is no use in saying it may never happen here. It can happen here. It may happen here. A particular person might do it. Apart from that, in the normal way, a man is charged and sent forward for trial; there is evidence given against him; he has the right to cross-examine; he hears the evidence the witnesses gave; the evidence that they gave is reduced to writing in the summary of evidence; he has the right to cross-examine and, if they come to the court-martial, and give different evidence from what they gave in the summary of evidence, they can be tested on it and examined on it and that is most important. That is often the only defence a man may have, that opportunity of testing and examination, and if you deprive him of that you are just convicting him.
I would like to quote from Sandes Second Edition.
Do not quote any more. We have had an exposition of the whole situation from a senior counsel and, in Captain Cowan, from a very experienced lawyer, and I must take notice of that. I have to presume that what is wanted is the deletion of this section.
That is right.
Or an amendment.
I will have that examined.
It may facilitate the Minister if I refer to what is an authority for the civil procedure, where he will get the recognised authority in the courts for this country. I have only the Second Edition. I believe there is a new edition of Mr. Sandes' book—Criminal Practice, Procedure and Evidence—from page 72 onwards.
I draw the Minister's attention to the remark on page 75: " If this procedure is not followed, there can be no legal commital for trial." I think it is a matter for serious consideration.
I think the Chairman and Deputy Cowan have made a very good case and the Minister would be very wise to take it into account. As I see it, this section would do away completely with the preliminary investigation and also with furnishing the accused with a copy of evidence.
I do not know if Deputy Gallagher was here when I made my statement earlier. That statement was based on the practice which has been followed since the establishment of the Forces. The rules of procedure governing courts-martial provide that, when a charge is made, the commanding officer or investigating officer will bring together the person making the charge, the accused, the available witnesses, including witnesses desired by the accused and will informally investigate the charge. The accused is permitted to cross-examine the witnesses. On this informal investigation, the commanding officer or investigating officer decides whether the charge should be dismissed or should go to trial. That is the procedure that has been generally followed since the 1924 Act came into operation and, so far as I can see, this section, which has been in operation over all these years, has caused no difficulties for anybody—for the accused or for officers concerned with making investigations.
I do not think it was ever operated. It may have been, but not to my recollection. We will pass the section on the Minister undertaking to have our views considered.