R v Bevan [1942] HCA 12;

R v Bevan [1942] HCA 12; - HCA 1942 case summary — Zoe

[6]

The questions we have to determine necessitate an examination of the relevant statutory provisions relating to the maintenance of discipline contained in Imperial and Australian statutes relating to naval discipline. By sec. 36 of the Australian Naval Defence Act 1910-1934, "The Naval Discipline Act and the Naval Discipline (Dominion Naval Forces) Act 1911 and the King's Regulations and Admiralty Instructions for the time being in force in relation to the King's Naval Forces shall, subject to this Act and to any modifications and adaptations prescribed by the regulations, apply to the Naval Forces." Sec. 5 of the Australian Naval Defence Act "continues" (see sec. 5 of the Defence Act 1903-1941) the application of some of the provisions of the latter Act, of which sec. 98 is relevant to this case. That section prescribed the sentence of death for certain offences, but not including murder. But, as I have already stated, there had been an unconditional transfer pursuant to sec. 42 of the Naval Defence Act of all the vessels of the Commonwealth naval forces together with their personnel to the King's naval forces. Accordingly, by sub-sec. 4 of that section the seamen of H.M.A.S. Australia - one of the vessels transferred - became subject to the laws and regulations governing the King's naval forces. Turning then to the Naval Discipline (Dominion Naval Forces) Act 1911 one finds in the proviso to sec. 1 (1) that "where any forces and ships ... raised and provided by a self-governing dominion have been placed at the disposal of the admiralty, the" Naval Discipline Act 1866 "shall apply without any" of the "modifications or adaptations" mentioned in the body of sec. 1. The expression "self-governing dominion" means, inter alia, the Commonwealth of Australia (sec. 1 (3)). And the Naval Discipline Act 1866 by sec. 45 prescribes that: "Every person subject to this Act who shall be guilty of murder shall suffer death." Dr. Louat, however, contended that the effect of the transfer of the ship in question was not to place her at the "disposal of the admiralty" within the meaning of the proviso to sec. 1 (1) of the Naval Discipline (Dominion Naval Forces) Act 1911 but that it was merely an operational transfer. By that I understood him to mean that the transfer was made for the purpose of the operation of the ships and did not affect in any way the application of the Australian statutory law in its application to the ships. But the transfer was an unconditional and wholesale transfer of ships and personnel. And the word "disposal" aptly describes an effective placing of ships and personnel under the control, direction and management of the Admiralty. Counsel for the applicants further contended that by virtue of sec. 36 of the Naval Defence Act 1910-1934 the application of the Imperial statutes was conditional, and he relied on the expression "subject to this Act and to any modifications and adaptations prescribed by the regulations." Sec. 36, however, is dealing with ships and personnel not transferred to the Admiralty and still under the control of the Commonwealth naval authorities, whereas sec. 42 provides without any modifications for the case of transferred ships and personnel. And this unconditional application of the Imperial code of discipline is reinforced by the proviso to sec. 1 (1) of the Naval Discipline (Dominion Naval Forces) Act 1911. The application of different codes where British and Dominion sailors were serving in the same ship would result in confusion leading to indiscipline and chaos.

[11]

Rule nisi for a writ of habeas corpus or in the alternative for a writ of prohibition. It was obtained by two members of the naval forces of the Commonwealth, which form part of the defence force of the Commonwealth (Defence Act 1903-1941, sec. 30; Naval Defence Act 1910-1934, Part III.), who had been convicted of the murder of a stoker of the naval forces of the Commonwealth, by a court-martial which purported to have been assembled pursuant to the provisions of the Naval Defence Act 1910-1934 of the Commonwealth (See secs. 5 and 36) and the Imperial Naval Discipline Act 1866 (29 and 30 Vict. c. 109) and sentenced to be hanged on board such one of His Majesty's Australian ships and at such time as the Board of Administration for the Naval Forces should direct. The murder was committed on an Australian ship of war on the high seas, but the court-martial was assembled and held on that ship in a port in the South Pacific that was not a British port. On 22nd April 1942 warrants were issued by the captain and commanding officer of that ship to the Officer-in-Charge of the State Penitentiary at Long Bay, Sydney, New South Wales, to receive and keep the men so convicted in his custody, but directed that the sentence was not to be carried out until further directions were given. Pursuant to the warrant the men are now in custody at the Long Bay Penitentiary at Sydney. The validity of this warrant was not challenged upon the argument before this Court, but I have not, myself, been able to trace its authority. The Naval Discipline Act 1866, Part V., does not appear to authorize it. The Order-in-Council regulating courts-martial and the King's Regulations require the convening authority, that is, the officer authorized pursuant to the Naval Discipline Act 1866, sec. 58 (9), (12), to order courts-martial, to appoint a provost marshal, who is required to take the accused into his custody and safely to keep him until he shall have been delivered in due course of law. So soon as the court-martial is dissolved the president is to wait upon the Commander-in-Chief or senior officer with a letter reporting the finding and sentence. The Commander-in-Chief or senior officer must satisfy himself of the validity of the finding before he takes any step to give effect to the sentence, as by the issue of a warrant for imprisonment or detention. When sentence of death is to be executed the Commander-in-Chief or the convening authority gives direction as to the time, place and manner in which such sentence is to be carried out. No sentence of death passed by a court-martial can be carried into effect until confirmed by the Admiralty or by the Commander-in-Chief on a foreign station: See Order in Council, 11th October 1923, Statutory Rules and Orders (1923), p. 659 (1923 1291/L 20); King's Regulations 1936, "Explanation of Terms" p. xi., and ch. IX., Court-Martial, clauses 439 (2), 471 (2), (3), 471 (a); Naval Discipline Act 1866 (29 & 30 Vict. c. 109), sec. 53 (3). The Naval Discipline Act 1866, the Naval Discipline (Dominion Naval Forces) Act 1911 and the King's Regulations and Admiralty Instructions for the time being in force, apply to the naval forces of the Commonwealth subject to the Act and to any modifications and adaptations prescribed by regulations (Naval Defence Act 1910-1934, sec. 36). But no sentence of death passed by any court-martial governed by the Defence Act 1903-1941 can be carried into effect until confirmed by the Governor-General (Defence Act 1903-1941, sec. 98; Naval Defence Act 1910-1934, sec. 5).

[16]

Now this case involves the interpretation of the Constitution, because the position of courts-martial in relation to the judicial power of the Commonwealth comes in question. This Court has held that the judicial power of the Commonwealth can only be vested in courts and that if any such court be created by Parliament the tenure of office of the justices of such court, by whatever name they may be called, must be for life, subject to the power of removal contained in sec. 72 of the Constitution (Waterside Workers' Federation of Australia v. J. W. Alexander Ltd.[17]; British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation[18]; Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation[19]). Judicial power for this purpose may be described as "the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action" (Huddart, Parker & Co. Pty. Ltd. v. Moorehead[20]; Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation[21]). Naval courts-martial are set up (Naval Defence Act 1910-1934 of the Commonwealth, which incorporates the Defence Act 1903-1941 of the Commonwealth (See secs. 5, 36), and Imperial Naval Discipline Act 1866, secs. 87, 45, and Part IV.) and they exercise judicial power in the sense already mentioned. But do they exercise the judicial power of the Commonwealth? If so the proceedings of such courts are unwarranted in point of law. The question depends upon the interpretation of the Constitution and whether such courts stand outside the judicial system established under the Constitution. The Parliament has power, subject to the Constitution, to make laws for the peace, order, and good government of the Commonwealth with respect to the naval and military defence of the Commonwealth and of the several States and the control of the forces to execute and maintain the laws of the Commonwealth. And by sec. 68 of the Constitution the command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the King's representative.

[17]

Under the Constitution of the United States of America the judicial power of the United States is vested in the Supreme Court and in such inferior courts as Congress may from time to time ordain and establish: Cf. the Australian Constitution, sec. 71. And the judges hold office during good behaviour (art. III., sec. 1). Power is conferred upon Congress to provide and maintain a navy and to make rules for the government and regulation of the land and naval forces (art. I., sec. 8, clauses 13, 14). The President is Commander-in-Chief of the army and navy of the United States (art. II., sec. 2, clause 1). And the Fifth Amendment provides that no person shall be held to answer for capital or other infamous crime unless on a presentment or indictment of a grand jury except in cases arising in the land or naval forces, whereas the Australian Constitution (sec. 80) provides that the trial on indictment of any offence against any law of the Commonwealth shall be by jury but there is no exception in cases arising in the land or naval forces as in the American Constitution. But the frame of the two Constitutions and their provisions, though not identical, are not unlike. The Supreme Court of the United States has resolved that courts-martial established under the laws of the United States form no part of the judicial system of the United States and that their proceedings within the limits of their jurisdiction cannot be controlled or revised by civil courts. Thus in Dynes v. Hoover[22] Mr. Justice Wayne, delivering the opinion of the Court, said: - "These provisions" (that is, the provisions already mentioned) "show that Congress has the power to provide for the trial and punishment of military and naval offences in the manner then and now practised by civilized nations; and that the power to do so is given without any connection between it and the 3rd article of the Constitution defining the judicial power of the United States; indeed, that the two powers are entirely independent of each other": See also Kurtz v. Moffitt[23]; Willoughby on The Constitution, 2nd ed. (1929), vol. 3, p. 1542, par. 1011; Willis on Constitutional Law, pp. 447 et seq.

[19]

But this still leaves standing the provisions of sec. 98 of the Defence Act 1903-1941, which preclude any court-martial sentencing members of the defence forces to death for murder. The convicted men had in 1939 been transferred to the King's naval forces pursuant to sec. 42 (1) (d) of the Naval Defence Act 1910-1934. The Order in Council transferring the men imposed no conditions of transfer, but I shall later refer to the precise terms of the order. And sec. 42 (1) (4) provided: "Subject to the conditions of transfer, all officers and seamen of the Commonwealth Naval Forces transferred in pursuance of this section to the King's Naval Forces ... shall, while so transferred, be subject to the laws and regulations governing the King's Naval Forces ... to which they are transferred so far as those laws and regulations are applicable." These final words of the section incorporate, so it is suggested, sec. 45 of the Naval Discipline Act 1866, which provides that every person subject to the Act who shall be guilty of murder shall suffer death. But it must be remembered that the officers and seamen transferred remain members of the defence forces of the Commonwealth. The applicability of the laws and regulations governing the King's naval forces to these officers and seamen cannot be determined without reference to the laws of the Commonwealth. If that law prescribes that members of its defence forces shall not suffer death for murder, then the provisions of sec. 45 of the Naval Discipline Act that they shall suffer death is inconsistent with it, and consequently inapplicable. Much clearer words than are contained in sec. 42 (4) would be required to make sec. 45 applicable. And more clearly is that so when sec. 36 of the Naval Defence Act 1910-1934 provides that the Naval Discipline Act 1866 shall only apply to the naval forces of the Commonwealth "subject to this Act," which, as already stated, incorporates sec. 98; and when sec. 88 of the Defence Act 1903-1941 applies the powers of courts-martial in the King's Regular Land Forces except so far as is inconsistent with the Act. Doubt is also possible as to the operation of sec. 42 (4) upon ships not belonging to the Commonwealth or beyond the Commonwealth, though Croft v. Dunphy[26] may have resolved some of these doubts: See Responsible Government in the Dominions, Berriedale Keith, 1st ed. (1912), vol. 3, pp. 1280, 1281; Imperial Unity and the Dominions, Berriedale Keith, (1916), pp. 313, 314.

[25]

In 1939 an Order in Council was made by the Governor-General in Council pursuant to this Act whereby he ordered that the officers and seamen of the Commonwealth naval forces borne on the books of the vessels of the Commonwealth naval forces be transferred to the King's naval forces and such transfer should continue until the issue of a further order modifying or annulling this order. The Order in Council followed the provisions of sec. 42 (1) (d) and (2). But sub-sec. 4, as already stated, provided that subject to the conditions of transfer all officers and seamen so transferred should while so transferred be subject to the laws and regulations governing the King's naval forces so far as those laws and regulations are applicable. The Naval Discipline (Dominion Naval Forces) Act 1911 (1 & 2 Geo. V. c. 47), as already mentioned, provided that, where any forces and ships raised and provided by a Dominion had been placed at the disposal of the Admiralty, the Naval Discipline Act 1866 and its amendments, e.g. Naval Discipline Act 1922 (12 & 13 Geo. V. c. 37, sec. 90B), should apply without any modifications or adaptations. But the Dominion Naval Forces Act did not come into force in relation to forces or ships raised and provided by any self-governing Dominion unless and until provision to that effect had been made in the Dominion. The Naval Defence Act was amended by the insertion of the following section (1912 No. 21, sec. 3; Naval Defence Act 1910-1934, sec. 36): - "The Naval Discipline Act and the Naval Discipline (Dominion Naval Forces) Act 1911 and the King's Regulations and Admiralty Instructions for the time being in force in relation to the King's Naval Forces shall, subject to this Act and to any modifications and adaptations prescribed by the regulations, apply to the Naval Forces." Dr. Berriedale Keith suggests (Imperial Unity and the Dominions, (1916), p. 314) that the Act "is of doubtful validity, as it makes the application of the Act subject to the power of the Governor-General in Council to modify it, which is clearly not possible, as it is not provided for by the Imperial Act." In my opinion, the transfer of the officers and seamen of the Commonwealth naval forces to the King's naval forces pursuant to sec. 42 of the Naval Defence Act 1910-1934 places them at the disposal of the Admiralty, to adopt the words of the proviso to sec. 1 (1) (a) of the Naval Discipline (Dominion Naval Forces) Act 1911. That Act, however, as already mentioned, was only brought into operation in the Commonwealth subject to the Naval Defence Act 1910-1934, which incorporates by reference secs. 88 and 98 of the Defence Act 1903-1941.

[33]

In my opinion, the rear-admiral had authority to direct the assembly of the court-martial in the manner and form adopted. He had command of the Australian squadron, though the ships, officers and seamen in that squadron had been transferred to, and placed at the disposal of the Admiralty, and in that command were also, it seems, officers of the Royal Navy, serving on ships of war belonging to the Dominion of New Zealand. It is not clear whether that command was conferred upon him by the Imperial authorities or by the Australian authorities, or by both, though, I suppose, the command of Australian ships of war depended upon some Australian appointment or some consent to his appointment. But it is clear that he had the command above mentioned. A commission, as already stated, had been issued to the rear-admiral as such commander by His Excellency the Governor-General, authorizing him to assemble courts-martial, and to this authority may be added the provisions of sec. 44B of the Naval Defence Act 1910-1934. Moreover, the men charged with murder were members of the naval defence forces of Australia placed temporarily, though they were, at the disposal of the Admiralty: the act charged was done upon an Australian ship of war on the high seas and the "circumstantial letter" (King's Regulations, 1936, Ch. IX., Art. 434) reporting the circumstances was forwarded to the rear-admiral. He had authority in these circumstances to direct the assembly of a court-martial pursuant to his Australian commission; his English commission, I think, was inapplicable, for it only extended to persons belonging to the Royal Navy. The officer to whom the direction to assemble a court-martial was given was an officer of the Royal Navy, though serving upon a ship of war belonging to the Dominion of New Zealand. Two other members of the court-martial were also officers of the Royal Navy, though serving upon the same ship of war belonging to the Dominion of New Zealand. The two remaining members of the court-martial were officers of the Royal Australian Navy. All these officers were, it seems, under the command of the rear-admiral. Apart, however, from this it appears from the King's Regulations and Admiralty Instructions 1937, vol. 2, App. XXVI., that in time of war when Dominion ships and men have been placed at the disposal of the Admiralty the Naval Discipline Act applies exactly in the same manner as to officers and men of the Royal Navy and the usual routine is to be followed without any modifications. This does not control the construction of the Acts but it shows that the naval forces at the disposal of the Admiralty are treated, for disciplinary purposes, as one force, though the authority to assemble courts-martial may not all proceed from the same source.

[34]

But I would rather that this case had been decided upon a formal return to a writ of habeas corpus than upon the rule nisi. The case is of grave consequence to the convicted men and of first rate importance to all men of the Australian naval forces placed at the disposal of the Admiralty. The argument before us did not raise many of the matters which I have discussed and the evidence is far from satisfactory in relation to the command and authority of the rear-admiral, the constitution of the court-martial, and the qualifications of the officers who composed it. A formal return would require the return of the warrant under which the convicted men are detained and show that they were held under the lawful sentence of a competent court. The warrants themselves would not be sufficient. The return to a writ of habeas corpus does not require minute correctness if the substance of the facts are stated; it must, however, contain the truth of the matter and convey sufficient information to the court to enable it to see the grounds of the validity of the detention of the persons detained (Canadian Prisoners' Case[30]; Leonard Watson's Case[31]; R. v. Suddis[32]; Souden's Case[33]; Nash's Case[34]). The return does not require verification but is treated as true and its sufficiency alone is examined as on a demurrer (Canadian Prisoners' Case[35]). The nature of the return required depends upon the circumstances of the case. A return that a person was held under commitment by Parliament for contempt or under the sentence of a superior court according to the course of the common law or of a court of known jurisdiction is comparatively simple, but more detail is required in the case of tribunals such as courts-martial, as is illustrated by the Canadian Prisoners' Case[36] and Brenan and Galen's Case[37]. And it is a vexed question, according to Short and Mellor, The Practice of the Crown Office, 2nd ed. (1908), p. 329, in cases in which the Habeas Corpus Act 1816 (56 Geo. III., c. 100), sec. 30, is inapplicable, whether affidavits may be admitted for the purposes of showing defects in jurisdiction, "but the weight of authority seems to be in favour of admitting affidavits." If that statement be accurate it would be very relevant to courts-martial, for their decisions are not open to any appeal. But against it may be cited Case of the Sheriff of Middlesex[38]; R. v. Dunn[39]; In the Matter of Clarke[40]. However this may be, the party who makes the return does so at his peril. If a return be false a remedy is by action. And Lord Denman suggested that in a clear case affidavits might be made the foundation of a motion to quash the return and clearly they may be used in support of proceedings to commit for making a false return whereby, I suppose, a true return might be forced (Canadian Prisoners' Case[41]).

[41]

But before the alleged murder was committed the Governor-General had made an order under sec. 42 of the Commonwealth Naval Defence Act transferring the vessels, officers and men of the Commonwealth naval forces to the King's naval forces. The applicants are bound by this order. The existence of the Commonwealth naval forces as a local naval unit completely under the control of the Commonwealth is by sec. 42 harmonized with the Imperial relations of the Commonwealth; sec. 42 (4) is a special provision which is intended to govern the officers and men of the Commonwealth naval forces while transferred to the King's naval forces or to those of another Dominion. The sub-section says that, subject only to the conditions of the transfer (if the Governor-General thinks fit to impose any conditions), the officers and men shall, while so transferred, be subject to the laws and regulations governing the King's naval forces or those of the Dominion to which they are transferred, so far as those laws and regulations are applicable. The sub-section does not exhibit the intention that the application of these laws and regulations should be subject to the Naval Defence Act and local modifications and adaptations. It is because sec. 36 of the Commonwealth Naval Defence Act is expressed to be "subject to this Act", and sec. 5 of the Act introduces sec. 98 of the Defence Act, that the discipline provided by sec. 36 is subject to the prohibition against the death sentence for murder. But sec. 5 does not say unconditionally that the provisions of the Defence Act, which include sec. 98, shall continue to apply to the naval forces. It says that those provisions shall "subject to this Act" continue to apply to those forces. Sub-sec. 4 of sec. 42 makes no such saving of the provisions of the Naval Defence Act as that made by sec. 36. The transfer under sec. 42 not being subject to any condition, the effect brought about by sub-sec. 4 of sec. 42 is that from the time of transfer the officers and men transferred, who include the applicants, became subject to the laws and regulations governing the King's naval forces so far as they were applicable. These laws included the Imperial Naval Discipline Act 1866 as amended, sec. 45 of which provides that every person subject to this Act who shall be guilty of murder shall suffer death. This Act did not apply by its own force to members of the Commonwealth naval forces as such. It is necessary to inquire whether in consequence of the Order made by the Governor-General under sec. 42 of the Commonwealth Act (Naval Defence) the members of these forces became subject to the Imperial Naval Discipline Act 1866. Have they been made subject to that Act by sec. 42 of the Commonwealth Naval Defence Act? The operation of this section is not confined by the territorial limits of the Commonwealth (Sickerdick v. Ashton[42] - cf. Semple v. O'Donovan[43]); and sec. 5 of the Commonwealth of Australia Constitution Act does not prevent its being in force on ships belonging to the Commonwealth naval forces while they are under the control of the Commonwealth, for they are not the Sovereign's ships of war within the meaning of the section, a distinction which, it may be observed, is maintained by sec. 3 of the Commonwealth Navigation Act 1912. But the application of the provisions of the Imperial Naval Discipline Act 1866 as amended to the Commonwealth naval forces serving on His Majesty's Australian ships of war does not depend wholly upon the operation of sec. 42. By enacting sec. 36 and sec. 42 (4) of the Commonwealth Naval Defence Act the Commonwealth Parliament fulfilled the conditions necessary for the operation of sec. 1 of the Imperial Naval Discipline (Dominion Naval Forces) Act 1911 - See also definition of in sec. 3 of the Commonwealth Naval Defence Act. The result of the operation of sec. 1 of this Act is that the Imperial Naval Discipline Act 1866 as amended, which applies to the King's naval forces, also applies by force of the Commonwealth Naval Defence Act and the Naval Discipline (Dominion Naval Forces) Act 1911 as if the reference in the former Imperial Act to His Majesty's naval forces included the naval forces of the Commonwealth which the Governor-General transferred to His Majesty's naval forces.

[51]

A constitutional question arises when its determination becomes necessary upon the ascertained or asserted facts of the case (Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia[46]). The jurisdiction of this Court once vested is not lost by reason of the rejection of the constitutional point (Ex parte Walsh and Johnson; In re Yates[47]; R. v. Carter; Ex parte Kisch[48]; Hopper v. Egg and Egg Pulp Marketing Board (Vict.)[49]). In the last-mentioned case Latham C.J. said: "The fact that the constitutional objection has failed does not deprive the Court of jurisdiction if the facts relied on were bona fide raised, and were such as to raise the question"[50]. The Imperial Naval Discipline (Dominion Naval Forces) Act only came into force in the Commonwealth upon provision to that effect being made by the Commonwealth Parliament. Where the Imperial Parliament passes such an Act, the question arises whether the Commonwealth Parliament has power under the Constitution to adopt the Imperial Act, and, if it has not, whether the Act, in the absence of some express provision to that effect, was intended to enlarge the powers of the Commonwealth Parliament beyond those conferred by the Constitution to enable it to do so. But in view of the elaborate provisions in the Constitution itself which must be observed to effect such a change, the Court would be very slow to read such an implication into the Imperial Act where to do so would enlarge the powers of the Commonwealth at the expense of the States. In the present case the Commonwealth is empowered by sec. 51 (vi.) of the Constitution to make laws with respect to the naval and military defence of the Commonwealth and of the several States and the control of the forces to execute and maintain the laws of the Commonwealth. Other sections of the Constitution, as pointed out in Farey v. Burvett[51], make this power exclusive to the Commonwealth. As this power would appear to have been ample to authorize the Commonwealth Parliament to adopt the Naval Discipline (Dominion Naval Forces) Act 1911, subject to modifications and adaptations to suit local conditions when its forces and ships had not been placed, and without such modifications and adaptations when they had been placed, at the disposal of the Admiralty, no question arises whether this Act contains an implied enlargement of the powers of the Commonwealth Parliament under the Constitution; but, if it did, no power of the Commonwealth would be enlarged at the expense of the States. As the establishment of courts-martial is necessary to assist the Governor-General, as Commander-in-Chief of the Naval and Military Forces of the Commonwealth, to control the forces and thereby maintain discipline, I think it must follow that the Commonwealth Parliament, like Congress, can legislate for such courts, although constitutional questions could arise as to the extent of the jurisdiction in the case of ordinary criminal as opposed to offences against discipline and duty which could be conferred upon them, but, as it would usually be impossible to separate such offences, a generous view would have to be taken on such questions.

[65]

It appears that Rear-Admiral Crace, who was authorized to convene courts-martial both by the Admiralty in respect to His Majesty's ships employed in the Australian squadron for the trial of persons belonging to the Royal Navy and by the Governor-General for the trial of officers and ratings of His Majesty's Australian ships, convened the court-martial under his Australian authority. It was necessary both under the proviso to the Naval Discipline (Dominion Naval Forces) Act and under sec. 42 of the Naval Defence Act that a court-martial to try members of the Commonwealth naval forces placed at the disposal of the Admiralty should be constituted in accordance with sec. 58 of the Naval Discipline Act. Rear-Admiral Crace was the officer commissioned by the Admiralty to convene the court-martial under this section. The court was constituted and the accused were tried, convicted and sentenced according to the procedure laid down by and in the exercise of the powers conferred upon courts-martial by the Act. Rear-Admiral Crace could have convened the court under the authority conferred upon him by his commission from the Admiralty, but there was nothing inconsistent with the Naval Discipline Act in the Governor-General also commissioning him to convene courts-martial for the trial of officers and ratings of His Majesty's Australian ships or in his exercising this authority, so long as in doing so he complied with the requirements of the Naval Discipline Act, as the Australian law, for the reasons already given, is the same as and operates concurrently with the Imperial law. Even if he did err as to the source of an authority which he undoubtedly possessed his mistake in no way affected the personnel of the court or its proceedings, so that all the conditions on which the right of the court-martial to exercise jurisdiction depended were in fact fulfilled. His mistake under such circumstances would be in a non-essential matter which would not amount to want of jurisdiction (Moore v. Attorney-General for the Irish Free State[52]). Counsel for the applicants attempted to raise the further ground that the proceedings at the trial were such that there had been a violation of natural justice, but it is sufficient to say that I am satisfied the applicants had a fair trial so that there is no substance in this point.

At a glance

Court

Decision date

Before

Source

Judgment (116 paragraphs)

R v Bevan [1942] HCA 12; (1942) 66 CLR 452 (8 July 1942)

Parties

Legislation Cited (18)

Cases Cited (1)