The Secretary, Department of Defence, has submitted the following memorandum to me for advice:

With reference to Defence 48583 of 8 October 1921, asking for advice as to the extent of the application of section 119 of the Defence Act, I am directed to ask for the favour of consideration in connection with that correspondence of the following particular case.

2. Quartermaster and Honorary Captain A.B.C. was tried by a court of summary jurisdiction on 21 and 22 October 1920, for two offences against section 74 of the Commonwealth Crimes Act and the Magistrate dismissed the charge, and the hearing of the case on the second charge was allowed to stand over pending a decision as to appeal against the Magistrate's decision.
3. The appeal came on for hearing before the Full Court on 31 March 1921. After the hearing of argument the Court referred the appeal for hearing before the Full Bench of the High Court, and the hearing of the appeal came before the Full Bench on 7 April 1921, judgment being reserved.
4. The appeal again came on for hearing on 27 April 1921, but the Court reserved judgment pending delivery of judgment by the Full Bench on the questions referred to it.
5. The latter judgment was delivered on 2 May 1921, and the case was remitted to the Magistrate.
6. On 25 June 1921, the case was reheard and C. was convicted of the offence charged and the Magistrate imposed a fine of 2s 6d.
7. From 14 October 1920, to the date of conviction C. was suspended from all military duty until the date of the conviction, and the suspension was continued for a period beyond that date pending a decision on the question of his retention in the Service. During the period of the suspension (15.9.20 to 5.9.21) he was paid at half rates of pay. He has been retained in the Service.
8. There appears to be no doubt that C. is entitled to the full pay of his rank from and including the date of his conviction, but there is doubt whether section 119 of the Defence Act operates so as to disentitle him from the receipt of all pay during the period while he was under the charge of which he was afterwards convicted, i.e. from and including the day on which the information was laid against him to and including the day preceding the day of conviction 25.6.1921.

Quartermaster C. was charged under section 74 of the Crimes Act 1914-1915. An ingredient of the offences created by that section is that the person charged is a Commonwealth officer. In the case under consideration, the person charged was an officer of the Defence Department and a member of the Forces.

The charges, therefore, had relation to his position as a member of the Forces and I am of opinion that, unless the case is covered by prescribed exception, section 119 of the Defence Act operates to deprive C. of pay during the period he was under the charge.

C. was under charge for a considerable length of time and judging from the penalty imposed the Court did not take a serious view of his offence. A deprivation

of pay appears on the facts before me to be a matter of some hardship and it is suggested that consideration be given to authorising payment under regulation 563A of the Military Regulations.

[Vol. 18, p. 183]