The Secretary, Department of Defence, has forwarded for advice the following memorandum by the Adjutant-General:

With reference to the attached proceedings of a field general court-martial held at Rabaul for trial of A.B. a prisoner of war on parole attention is invited to the procedure adopted in this case.

In the first instance the accused was found 'not guilty'. On this verdict being referred to the Deputy Judge Advocate General, he stated an opinion that the finding of the court was ultra vires and illegal as being contrary to established international law and that such finding was null and void.

As a result of the advice of the D.J.A.G., the court was directed to reassemble and on reassembling found the accused guilty and sentenced him to imprisonment with hard labour for twelve months and at the same time strongly recommended the accused to mercy.

In finding the accused 'not guilty' in the first instance the court probably was in error but the propriety and legality of the action taken in reassembling the court and its subsequent finding appear to be questionable.

I am unaware of any special rules in regard to the trial of enemy prisoners by court-martial which enable the latter to be dealt with by court-martial in a manner so distinctly contrary to the procedures laid down in the Manual of Military Law and the ordinary rules of justice as was adopted in this case.

Under military law a finding of 'not guilty' is final and is not subject to confirmation or review (vide Army Act section 54 (3) and note 4 to section 54, Manual of Military Law, 1914, page 437).

Unless, therefore, there are some rules applicable to enemy prisoners which admit of the course taken by the Administrator on the advice of the Deputy Judge Advocate General it would appear that the reference of the proceedings back to the court for revision, and their subsequent revised finding and sentence are illegal and of no effect, notwithstanding that the court may have grievously erred in connection with their original finding.

Attention is also invited to section 157 of the Army Act which provides that a person subject to military law who has been acquitted by a court-martial for an alleged offence shall not be liable to be tried again by court-martial in respect of that offence.

It is recommended that these papers be referred to the Attorney-General's Department for urgent advice on the above matters.

As a general rule, in criminal procedure, immediately a verdict of not guilty is returned by a jury, the defendant must be discharged: Halsbury, Laws of England, Vol. 9, p. 374. A judge is not bound (unless the jury insist on having it recorded) to receive the first verdict which the jury give, but may direct them to reconsider it; and the verdict which the jury ultimately return is the verdict to be recorded. The jury may, before the verdict is recorded (or even promptly after the verdict is recorded), rectify their verdict and it will stand as ultimately amended. This may be done even after the defendant has been discharged out of the dock (in pursuance of a supposed verdict of acquittal) if it is done before the jury have left the box: Archbold's Criminal Pleading Evidence & Practice, 24th edn, p. 234.

In the Regulations made by the King on 3 August 1914 for the maintenance of discipline among prisoners of war who are interned, regulation 25 provides that:

25. The finding of acquittal, whether on all or some of the offences with which the accused is charged, shall not require confirmation or be subject to be revised, and if it relates to the whole of the offences shall be pronounced at once in open court, and the accused shall be discharged.

The Rules of Procedure for Military Courts assembled for the Trial of Prisoners of War-which are published as Appendix C to the Regulations above referred to-include the following:

36 (D) Where the court are of opinion as regards any charge that the facts proved do not disclose an offence, the court will acquit the accused of that charge.

36 (E) If the court doubt as regards any charge whether the facts proved show the accused to be guilty or not of an offence, they may, before recording a finding on that charge, refer to the confirming authority for an opinion, and, if necessary, adjourn for that purpose.

37 (A) If the finding on each of the charges in a charge sheet is 'Not guilty', the president will date and sign the proceedings, the findings will be announced in open court, and the accused will be released in respect of those charges.

Although these Regulations and Rules of Procedure do not appear to apply to the present case, yet, in the absence of rules governing a case like the present, the principle of these Rules should, in my opinion, be followed.

In view of these Rules, and of the general practice prevailing under the criminal law, as set forth above, I am of opinion that it was not competent, after the court-martial brought in a finding of acquittal, for the court-martial to be reassembled as was done in this case.

[Vol. 14, p. 108]

1. This opinion is unsigned in Opinion Book, but it is attributed to Mr Garran.