The Secretary, Department of Defence, has forwarded for further advice papers dealing with the trial of A.B. by a field general court-martial at Rabaul.

I have already advised upon certain aspects of this case as appearing on the file (see opinion of 23 October 1915⁽²⁾)-

A copy of that opinion has been forwarded to Rabaul and in reply the Deputy Judge Advocate General points out several facts which were not before me on my previous advising.

It appears that the court arrived at its original finding of acquittal at 6.30 in the evening, and without announcing its finding adjourned until the following morning. During the evening the proceedings were referred to the Deputy Judge Advocate General who advised that the finding was ultra vires and illegal and null and void. Upon this advice the convening authority directed the court to reassemble on the following morning-the date to which the court had previously adjourned. The court accordingly reassembled and after consideration of the advice of the Deputy Judge Advocate General arrived at a finding of guilty. The Deputy Judge Advocate General contends that as the verdict of acquittal was not pronounced in court it was not really a verdict and cites in support section 54 (3) of the Army Act which provides as follows:

(3) 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.

In addition he contends that the fact that the President waited on the convening officer with the proceedings before the finding had been announced in court and before the prisoner had been discharged, amounts to a reference to the convening officer under Rule of Procedure 44 (E); and that the fact that the President of the court submitted to the convening officer a written dissent from the finding of the court 'contrary to the provisions of section 52 of the Army Act' ⁽³⁾ had invalidated the finding arrived at by the court and that the only course open would have been to have directed the court to reassemble and arrive at a fresh finding.

Upon this submission by the Deputy Judge Advocate General the Adjutant-General has made certain comments, and the papers with those comments have been referred to me for further advice.

After careful consideration I have come to the conclusion that in the circumstances of the case the fact that the finding of acquittal was not actually pronounced in court is immaterial. The case was, apart from the actual pronouncement in court, completed, and the finding recorded, for the proceedings were laid before the convening officer by the President and those proceedings included a written dissent by the President from the finding of the court. It appears from section 54 (3) of the Army Act that where the finding by a court-martial of acquittal relates to the whole of the charges it should be pronounced at once in open court and the accused should be discharged.

As regards the question whether the reference by the President to the convening authority was a reference to the confirming authority within the meaning of Rule of Procedure 44 (E), I do not think that it was. That Rule permits the court, before recording a finding on the charge, to refer to the confirming authority for an opinion. It appears from the papers that what happened in the present case was that the President (not the court) referred the matter to the convening authority by way of protest against the finding which had been arrived at by the court, and not for the purposes of an opinion to guide the court.

Nor do I think that the finding of not guilty was invalidated by the action of the President. It appears to me that the recording of the verdict of not guilty in effect concluded the trial, and entitled the prisoner to discharge; and that no subsequent action by the court or by any member of it could affect the matter.

For these reasons, I am of opinion that the additional facts presented do not affect the opinion expressed by me on 23 October 1915.

[Vol. 15, p. 209]

(1) Date in Opinion Book incomplete.

(2)Opinion No. 662.

(3)This section, dealing with the administration of oaths, is not relevant. It is believed that the reference should be to Rule of Prdoedure II9 (A), which in providing that ‘ . every question will be determined by the majority of opinions, and in case of equality, the president shall have a second or
casting vote’ precluded, by implication, the rendering of dissenting opinions.

(4)This opinion is unsigned in the Opinion Book, but it is attributed to Sir Robert Garran.