The Secretary, Department of Defence, has forwarded the following memorandum for advice:

An accused person was tried by district court-martial on the following charge:

Deserting His Majesty's Service, in that he at Headquarters, Enoggera, 1st Military District on the 19th day of November 1916 absented himself without leave from the Hospital Unit A.I.F. until he was apprehended by the Civil Police on the 29th day of June 1917 at Bundaberg 1st Military District, whereby expenses were incurred through the commission of such offence, namely:

Railway fares for escort to Bundaberg and return with accused 1.10.9 (half fares)

Meals for escort on journey 7.6

Meals supplied by Police to accused while in lockup 10.0

Telephone expenses and also whereby a bonus of £1 1.6

became payable to the Civil Police on the arrest of the accused as a deserter.

The court found accused guilty of this charge and awarded a sentence in respect of it of four days' detention but made no award for expenses alleged to have been incurred through the commission of the offence.

Previous instructions have been issued for the expenses of the fares, etc. for the escort of the prisoner in connection with the arrest and also for the bonus of £1 paid to the police for information leading to the arrest of deserters to be shown in the particulars of a charge of desertion, as occasioned by the offence. The prosecutor was to be directed to ask the court to award forfeiture of pay to cover the expenses should the accused be found guilty of the charge.

Subsequently a portion of the instructions dealing with the inclusion of the expenses of the £1 police bonus were cancelled and in regard to the question of the other expenses [certain] instructions were sent to the Commandant.

It is understood that the court refused to make an award on account of these expenses as in its opinion the charges were not legal.

Advice is asked as to whether such forfeitures for such expenses can legally be awarded under section 138 (3) and (4) and section 44 (n) and (12) of the Army Act.

Will you please advise as to the effect of the amendment in this regard to section 97 (c) of the Defence Act which is contained in the amending Defence Bill now before the House.

Section 138 (3) provides (inter alia) that a deduction may be made from the ordinary pay due to a soldier of the sum required to make good 'such compensation for any expenses, loss, damage, or destruction occasioned by the commission of any offence as may be awarded by the court-martial by whom he is convicted of such offence'. Under this section a court-martial has no power to order the payment by the soldier of the ordinary expenses of his prosecution, capture or conveyance or indirect losses of a similar kind (see Manual of Military Law, 1914 edn, p. 506, Note 11).

The railway fares and meals of the escort and the prisoner are the ordinary expenses of the capture and conveyance of the prisoner. As regards the payment of telephone calls, I am unable to definitely advise without knowing the reasons for the calls. If the calls were merely occasioned by the escort desiring instructions or announcing capture, I do not think that the prisoner is liable to pay them. If, however, the telephone calls were occasioned by a wilful act on the part of the prisoner after his arrest, I think that the court-martial has power to order him to pay for those calls.

I do not think that the court-martial had power to order the prisoner to pay the amount of the bonus paid to the civil police.

Since the court-martial in question, section 97 (c) of the Defence Act has been amended on the lines of section 138 (3) of the Army Act, but, in my opinion, that section, as in the case of section 138 (3) of the Army Act, does not apply to the ordinary expenses of prosecution, capture or conveyance.

[Vol. 15, p. 339]