Opinion Number. 715

Subject

DEFENCE FORCES: COUR TS-MAR TIAL WHETHER OATH OF ENLISTMENT IS CONDITION PRECEDENT TO BECOMING SUBJECT TO MILITARY LAW: STANDARD OF PROOF OF OATH: PRESUMPTION FROM RECEIPT OF PAY

Date
Client
The Secretary, Department of Defence15 June 1916

The Secretary to the Department of Defence has forwarded for advice the following memorandum by the Adjutant-General relative to the sentence imposed by court-martial upon Private A.B:.

. . . the attached appeal by Private A.B., A.I.F., against his conviction by district court-martial is referred.

Private B. was tried on the following charges:

  1. Deserting His Majesty's service;
  2. When in lawful custody, escaping;
  3. When in confinement, escaping.

He was found guilty of all the charges and was sentenced to be imprisoned with hard labour for seven months and to be discharged with ignominy from His Majesty's service.

The accused was indentified as a member of the A.I.F. by [various named sergeants and privates] who were witnesses for the prosecution. Expert evidence was also called by the prosecution to prove that the signatures to certain pay sheets and the signatures of the accused appearing in five places in the summary of evidence were written by one and the same person.

The accused, however, raised a plea of mistaken identity and said in evidence that he was never in the Military Forces in Australia during the years 1914, 1915 and 1916. He also called four witnesses in corroboration of his statement.

The case then depended upon the opinion of the court as to the respective credibility of the witnesses for the prosecution and defence. The court determined that the accused was the same person who signed the pay sheets (Exhibit 'J'). They then decided to refer to the confirming authority for opinion as to whether the taking of an oath of enlistment was a condition precedent to the accused becoming subject to the Army Act.

This opinion was given and is attached to the proceedings (Exhibit 'H').

The court then found the accused 'guilty' and awarded the abovementioned sentence.

I fully concur in the decision of the court but in view of the nature of the case recommend that the proceedings be referred to the Attorney-General's Department for advice as to whether the conviction of the accused should stand or be quashed.

The confirming authority when referred to for opinion as to whether the taking of an oath of enlistment was a condition precedent to the accused becoming subject to the Army Act advised in the negative.

So far as the Expeditionary Forces are concerned, I do not agree with the confirming authority that the taking of an oath of enlistment is not a condition precedent to a member becoming subject to the Army Act.

I do not think, however, that it is necessary that the taking of the oath should be proved strictly in all cases. In the present case there was, I think, presumptive evidence sufficient for the court to act upon, that the accused had actually received pay as a member of the Forces, and might therefore be presumed in the absence of evidence to the contrary, to be a member of the Forces.

After a perusal of the evidence I see no reason why the sentence of the court-martial should be quashed.

[Vol. 14, p. 355]