Opinion No. 689
FAILURE BY ACCUSED TO MAKE APPLICATION FOR DISMISSAL OF CHARGE WHERE PROSECUTION HAS NOT ESTABLISHED CASE: WHETHER ADMISSION OF FURTHER EVIDENCE CAN AMOUNT TO SUBSTANTIAL INJUSTICE: IRREGULARITY IN PROCEEDINGS DISTINGUISHED FROM SUBSTANTIAL INJUSTICE
MILITARY REGULATIONS, reg. 377
01 January 1916
The Secretary, Department of Defence
The Secretary, Department of Defence, has forwarded the file in connection with the proceedings of a district court-martial for the trial of Private A.B.C. for advice as to whether the finding and sentence of the court should be confirmed.
Regulation 377 of the Military Regulations(2) provides (inter alia) that if it appears to a confirming authority that the proceedings of a court-martial are illegal, or involve substantial injustice to the accused and he has not confirmed the finding and sentence, he will withhold his confirmation. If the proceedings can be legally sustained, and there is no substantial injustice, but an irregularity, the authority will consider what reduction of the sentence (if any) is due to the accused.
From the papers on the file it does not appear that the documents handed in by the prosecutor were properly proved so as to be evidence before the court, but this admission of the documents would not make the proceedings illegal, but is merely an irregularity in the proceedings of the court.
The admission of the documents did not, I think, involve substantial injustice to the accused.
Even with the evidence contained in the documents I do not think that the prosecution had brought sufficient evidence to connect the accused with the charge, and the accused would have been entitled to a dismissal of the charge at the end of the prosecutor's evidence, if he had made an application for dismissal.
No application for dismissal having been made by the accused the court was entitled to hear any evidence the accused might bring.
In a case of this description the confirming authority should, I think, act on the lines adopted by the English Court of Criminal Appeal.
In Archbold's Criminal Pleading, 24th edn, p. 344, it is laid down that where at the end of the case for the prosecution there is no evidence against the accused, the court on a proper submission should withdraw the case from the jury (see R. v. Joiner 4 Cr.App.R.64), but if the case is allowed to go on without objection by the defence, and in the course of the defence evidence is given which implicates the accused, the appellate court will act on the whole evidence and not merely on that for the prosecution (see R. v. George 73 J.P.I 1).
The confirming authority should in this case consider the whole of the evidence given in considering whether substantial injustice has been done to the accused.
The accused admitted being absent without leave, and the court refused to believe the reasons advanced by him to account for his absence.
The court having had the advantage of the personal evidence of the witnesses, its finding should not be disturbed unless it is manifest that it cannot be supported by the evidence given. I can see no grounds for the confirming authority coming to such a conclusion in this case.
As the proceedings have not involved substantial injustice to the accused, but there has merely been an irregularity in the proceedings of the court, in my opinion, the finding and sentence of the court should be confirmed, subject to any remission of sentence the confirming authority considers is due to the accused owing to the irregularity in the proceedings.
[Vol. 14, p. 252]
(1)This date is attributed. The dating of adjacent opinions in the Opinion Book, together with other evidence, suggests a date around the end of January 1916.
(2)Statutory Rules 1913, No.327.