Ferriday v Military Board

[1973] HCA 44

HIGH COURT OF AUSTRALIA

. Barwick C.J., Menzies, Gibbs, Stephen and Mason JJ.

FERRIDAY v. MILITARY BOARD.

(1973) 129 CLR 252

17 October 1973

Defence

Defence—Army—Court-martial—Courts-Martial Appeal Tribunal—Powers—Conviction of manslaughter—Maximum period of imprisonment—Army Act, 1881 (U.K.), ss. 41, 44—Penal Servitude Act, 1891 (U.K.), s. 1 (1)—Army (Annual) Act, 1892 (U.K.), s. 4—Defence Act 1903-1970 (Cth), s. 55—Courts-Martial Appeals Act 1955-1966 (Cth), s. 52.

Decisions

October 17.
The following written judgments were delivered:-
BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared by my brother Stephen in which he concludes that, in the circumstances of the case, it is unnecessary to answer questions 1, 2 and 5 asked in the case stated by the President of the Courts-Martial Appeal Tribunal for the opinion of this Court, that question 3 should be answered in the affirmative and that question 4 should be answered in the negative. I agree with the reasons which my brother gives for the conclusions which he expresses. (at p253)

2. In my opinion, the questions asked should be answered:

Question 1 - No answer. Question 2 - No answer. Question 3 - Yes. Question 4 - No. Question 5 - No answer. (at p253)

MENZIES J. I have had the advantage of reading the reasons for judgment prepared by Gibbs J. and by Stephen J. I agree with their Honours' conclusions and with the reasons stated for those conclusions. (at p254)

GIBBS J. The appellant, then a private in the army, was on 6th March 1971 at Vung Tau in South Vietnam found guilty by a general court-martial of two charges of murder and one charge of malicious wounding. He was sentenced to imprisonment with hard labour for life and to be discharged from the Defence Force of the Commonwealth. Subsequently he was granted leave to appeal to the Courts-Martial Appeal Tribunal ("the Tribunal") constituted under the Courts-Martial Appeals Act 1955-1966 (Cth) ("the Act"). After a hearing which lasted for eight days the Tribunal reserved its decision and on 23rd December 1971 gave its decision. The Tribunal substituted a finding of guilty of manslaughter for each finding of guilty of murder, and substituted a finding of assault occasioning actual bodily harm for the finding of malicious wounding and proceeded to sentence the appellant to be imprisoned with hard labour for ten years and to be discharged from the Defence Force of the Commonwealth of Australia, the sentence to date from 25th December 1970 (the date on which the offences were committed and the appellant was taken into custody). (1971) 21 FLR 86 (at p254)

2. At the request of the appellant the Tribunal, acting under s. 52 of the Act, stated a case which has been transmitted to this Court with the requisite certificate of the Attorney-General. The case refers to this Court the following questions of law:

"1. Whether the Tribunal could substitute for the conviction of unlawful wounding under s. 20 of the Offences Against the Person Act, 1861 a conviction of assault occasioning actual bodily harm against the appellant. 2. Whether the Tribunal in substituting a conviction under s. 25 of the said Act and passing therefor a sentence which the Tribunal thinks proper, is required, prior to the passing of the said sentence on the appellant to hear the appellant in mitigation of the said sentence. 3. Whether the Tribunal in passing a sentence of ten years imprisonment on the appellant in respect of the substituted convictions for manslaughter and assault occasioning actual bodily harm was passing a sentence which could lawfully have been passed on the appellant by the court-martial if it had found the appellant guilty of those offences. 4. Whether the maximum term of imprisonment under the Defence Act 1903, as amended, and regulations thereunder and the Army Act, 1881 and regulations thereunder which can be passed upon a member of the military forces for the said offences committed on active service is five years. 5. Whether under s. 29 of the said Act the Tribunal may direct that the term of a sentence passed by the Tribunal in respect of a conviction substituted by the said Tribunal for a conviction found at a court-martial shall commence at a date prior to the time from which it would have begun to run if it had been passed in the proceedings from which the appeal was brought." (at p255)

3. After the case had been stated and the Attorney-General had given his certificate, the Tribunal on 28th March 1973 amended its decision given on 23rd December 1971 in two respects, namely, by substituting for the finding of guilty of assault occasioning actual bodily harm a finding of guilty of common assault, and by deleting the order that the sentence is to date from 25th December 1970. No challenge was made before us to the power of the Tribunal to make this amendment. It is agreed by both sides that in view of the course thus taken it now becomes unnecessary to answer question 1 and question 5. (at p255)

4. Before proceeding to answer the remaining questions it ought to be recorded that no question was raised before us as to the validity or effect of Pt V of the Act, which provides for the reference to this Court of questions of law. It may be that the validity of those provisions may depend upon their proper construction but it seems to me that it is unnecessary to consider those matters in the present case where we have heard no argument upon them and where the result of the reference should, in my opinion, not affect the decision given by the Tribunal. (at p255)

5. In relation to question 2 it is necessary to add a few further facts. On 23rd December 1971 the Tribunal assembled to give its decision. Counsel for the appellant was present. The Tribunal, after stating that it proposed to substitute for the findings of the court-martial findings respectively of guilty of manslaughter and of assault occasioning actual bodily harm, said that it then became necessary to determine the sentence to be passed on the appellant. In relation to this question the President said:

"We have given careful weight to the appellant's past good character, as well as to the whole of the circumstances surrounding the events of 25th December 1970. In addition to matters that are ordinarily proper and relevant to be taken into account in determining the sentence for an offence of this nature, it is important to bear in mind that death-dealing weapons are readily to hand for members of the armed forces, especially when on active service. For the personal security and safety of members of the armed forces it is necessary to pay particular regard to the deterrent aspects of the punishment to be imposed on the appellant. The ready availability of the means to kill or injure must import a firm and sure retribution upon a person who takes advantage of those means." (at p255)

6. The Tribunal then proceeded to impose sentence. After that had been done counsel for the appellant requested the Tribunal to make a recommendation that the sentence be served on a prison farm or some such suitable establishment. He also assisted the Tribunal by drawing attention to a matter of form in relation to the sentence. However, he did not at any stage request the Tribunal to hear anything further in mitigation of punishment. (at p256)

7. Section 25 of the Act provides as follows:

"Where - (a) a person has been convicted of an offence by a court-martial and the court-martial could lawfully have found him guilty of another offence; and (b) it appears to the Tribunal upon the hearing of an appeal against the conviction that the court-martial must have been satisfied of facts which proved him guilty of that other offence, the Tribunal may, instead of allowing or dismissing the appeal, substitute for the finding of the court-martial a finding of guilty of the other offence and pass on the appellant, in substitution for the sentence passed on him by the court-martial, such sentence as the Tribunal thinks proper, being a sentence which could lawfully have been passed on the appellant by the court-martial if it had found him guilty of that other offence, but not being a sentence of greater severity than the sentence passed by the court-martial."

Although this section does not expressly provide that the appellant shall be heard in relation to the question what substituted sentence should be passed, it is perfectly clear that if in any case the Tribunal substitutes for the finding of a court-martial a finding of guilty of another, less serious, offence, the Tribunal must give proper consideration to the question what sentence should be imposed for that lesser offence. If the appellant has not already been heard on that question he must be given an opportunity to be heard. If there is relevant material in mitigation which he wishes to place before the Tribunal and which has not already been received by the Tribunal, he should be given an opportunity to tender it. In the present case, however, it appears from the remarks of the President, which I have quoted, that information as to the appellant's good character and as to the whole of the circumstances surrounding the events of 25th December 1970, when the offences were committed, was already before the Tribunal. Counsel for the appellant did not tender any further material and did not seek to address further. In these circumstances there is nothing whatever to suggest that the Tribunal in any way fell short of its duty to allow the appellant a full opportunity to be heard in relation to sentence. (at p256)

8. It would be wrong to answer question 2 "Yes", because the Tribunal was not required in the circumstances to which I have referred to hear the appellant further when his counsel did not request it. On the other hand, it might be misleading to answer the question "No". It therefore seems to me preferable to give no answer to question 2. (at p257)

9. The third and fourth questions raise in different words one matter for decision, namely, whether the maximum period of imprisonment that may be imposed on a conviction for manslaughter by a court-martial, and therefore by the Tribunal, is five years. (at p257)

10. Section 55 of the Defence Act 1903-1970 (Cth) ("the Defence Act") provides as follows:

"The Military Forces shall at all times, whilst on war service, whether within or without the limits of the Commonwealth, be subject to the Army Act save so far as it is inconsistent with this Act and subject to such modifications and adaptations as are prescribed, including the imposition of a fine not exceeding Forty dollars for an offence either in addition to or in substitution for the punishment provided by the Army Act, and the increase or reduction of the amount of a fine provided by the Army Act: Provided that the regulations shall not increase the fine for any offence so that it exceeds Forty dollars."

By s. 4 of the Defence Act, "'Army Act' means the Imperial Act called the Army Act as in force on the day on which the Defence Act 1956 came into operation". The Defence Act 1956 came into operation on 29th October 1956. By the same section "'prescribed' means prescribed by this Act", and "'this Act' includes all regulations made under this Act". To discover the law applicable to Australian soldiers on war service it is therefore necessary - anachronistic and confusing as it may seem - to inquire what were the provisions of the Army Act of the United Kingdom in force on 29th October 1956 and then to ascertain what modifications or adaptations to those provisions have been made by the Defence Act and regulations thereunder. It is convenient to notice immediately one section of the Defence Act which does effect a modification or adaptation to the provisions of the Army Act, viz. s. 106, which provides as follows:

"Where the punishment for any offence against the Army Act ... is penal servitude the court may, in lieu of sentencing the offender to penal servitude, sentence him to imprisonment with or without hard labour for the same period as that for which he might have been sentenced to penal servitude or for any less period." (at p257)

11. The Army Act in force at 29th October 1956 was the Army Act 1881 (U.K.) which had been continued in force by successive Acts thereafter and had been amended from time to time. At that date the Army Act, 1955 (U.K.) had been passed but it had not yet come into operation. (at p258)

12. By s. 41 of the Army Act, as it was originally enacted, subject to certain provisos, any person who while subject to military law committed any of the offences mentioned in the section was deemed to be guilty of an offence against military law, and if charged under that section with any such offence was liable to be tried by court-martial and on conviction to be punished as set out in the following provisions of the section, par. (3) of which was as follows:

"(3) If he is convicted of manslaughter or treason-felony, be liable to suffer penal servitude, or such less punishment as is in this Act mentioned." (at p258)

13. Section 44 provided that punishments might be inflicted in respect of offences committed by persons subject to military law and convicted by courts-martial according to the scale set out in the section. It is unnecessary to refer to the scale provided for the case of officers except to say that it included the following:

"b. Penal servitude for a term not less than five years."

The scale for soldiers was as follows:

"h. Death. j. Penal servitude for a term not less than five years. k. Imprisonment, with or without hard labour, for a term not exceeding two years.

l. Discharge with ignominy from Her Majesty's service. m. Reduction in the case of a non-commissioned officer to a lower grade, or to the ranks.

n. Forfeitures, fines, and stoppages."

The section contained a number of provisos of which it is necessary only to mention one:

"(1) Where in respect of any offence under this Act there is specified a particular punishment, or such less punishment as is in this Act mentioned, there may be awarded in respect of that offence, instead of such particular punishment (but subject to the other regulations of this Act as to punishments, and regard being had to the nature and degree of the offence) any one punishment lower in the above scales than the particular punishment."

It is clear that in 1881 a person convicted of manslaughter by a court-martial was liable to suffer penal servitude for life although a less punishment might have been imposed. In 1891 the law relating to the imposition of terms of penal servitude was amended by the Penal Servitude Act, 1891 (U.K.), s. 1 (1) of which provided as follows:

"Where under any enactment in force when this section comes into operation a court has power to award a sentence of penal servitude, the sentence may, at the discretion of the court, be for any period not less than three years, and not exceeding either five years, or any greater period authorised by the enactment."

This section forms the foundation of the first stage of the appellant's argument. It was submitted that the Penal Servitude Act, 1891 applied to the Army Act, and that ss. 41 and 44 of that Act did not authorize the imposition of a sentence of penal servitude for a term greater than five years, so that after 1891 the maximum term of penal servitude that could have been imposed by a court-martial for the offence of manslaughter was five years. In the following year there was passed the Army (Annual) Act, 1892, which by s. 4 provided as follows:

"Whereas by section forty-four of the Army Act the punishment of penal servitude when inflicted is required to be for a term not less than five years, and it is expedient to amend that section so as to bring it into conformity with the provisions of the Penal Servitude Act, 1891; be it therefore enacted that - In the said section forty-four for the word 'five' in each place where it occurs shall be substituted the word 'three'." (at p259)

14. According to the submission of the appellant this section did not affect the application of the Penal Servitude Act, 1891 to the Army Act in so far as the former Act limited the maximum sentence of penal servitude to five years except where a greater period was authorized by the enactment in question. Therefore it was submitted that the maximum sentence of penal servitude which could be imposed by a court-martial on a conviction for manslaughter remained five years, and that when a sentence of imprisonment was imposed in lieu of penal servitude pursuant to the power given by s. 106 of the Defence Act, the maximum period of imprisonment was five years. (at p259)

15. The Criminal Justice Act, 1948 (U.K.) abolished penal servitude. Section 1 (1) provided:

"No person shall be sentenced by a court to penal servitude; and every enactment conferring power on a court to pass a sentence of penal servitude in any case shall be construed as conferring power to pass a sentence of imprisonment for a term not exceeding the maximum term of penal servitude for which a sentence could have been passed in that case immediately before the commencement of this Act."

The word "court" in this section did not include a court-martial: s. 80 (1). However, by s. 73 power was given by Order in Council to apply s. 1 to courts-martial under the Army Act and to make such adaptations and modifications of that Act as was considered necessary or expedient in consequence of the passing of the section. Pursuant to this power, by Order in Council which came into operation on 18th April 1949 (the Courts Martial (Abolition of Penal Servitude and Hard Labour) Order, 1949) it was ordered (inter alia) that s. 1 of the Criminal Justice Act, 1948 should apply in relation to courts-martial under the Army Act as it applies in relation to other courts and that the Army Act should have effect subject to the adaptations and modifications set out in the schedule to the Order. By the schedule a number of modifications were effected to the Army Act but it is relevant only to refer to certain of the modifications effected to ss. 41 and 44. By par. 1 of the schedule it was provided (inter alia) that in pars. (3) and (4) of s. 41 "for the words 'penal servitude', wherever they occur, there shall be substituted the word 'imprisonment'". By par. 8 of the schedule, in s. 44 for par. j. there was substituted - "(j) Imprisonment". (at p260)

16. Section 1 of the Penal Servitude Act was not repealed by the Criminal Justice Act of 1948. It was submitted that the provisions of s. 1 (1) of the Criminal Justice Act, 1948 made it plain that the maximum term of imprisonment that might be imposed as a result of the operation of the section was to be the same as the maximum term of penal servitude that could previously have been imposed in the like case. It followed, it was said, that the maximum term of imprisonment that could have been imposed under ss. 41 and 44 of the Army Act was five years. (at p260)

17. One further statutory provision remains to be noticed. By a regulation made under the Defence Act (reg. 202 (h) as amended in 1963) s. 41 of the Army Act is modified or adapted in its relation to the Australian Military Forces by substituting the word "imprisonment" for the word "death". (at p260)

18. If the submissions of the appellant are correct, the result, which perhaps would have been surprising to some of those who administered military law during the two world wars, is that under the Army Act from 1891 to 1956, and under the Defence Act from its enactment to the present, the maximum period of penal servitude or imprisonment that could have been awarded for any offence, however grave, was five years, unless perhaps the sentence was imposed in respect of an offence formerly punishable with death. However, with all respect to the argument submitted by counsel for the appellant, there are a number of answers to his submissions. (at p260)

19. It is, I think, unnecessary to decide whether the provisions of the Penal Servitude Act, 1891 applied to the Army Act. It is apparent from the terms of the Army (Annual) Act, 1892 that the legislature assumed that they did not apply, for the provisions of s. 4 of the latter Act would have been unnecessary if the Penal Servitude Act, 1891 had already been applicable. Of course that assumption by the legislature did not alter the law. Nevertheless, it may well be that the use of the word "court" introduced an ambiguity into the Penal Servitude Act, 1891 and that the provisions of the Army (Annual) Act, 1892 might have been used as an aid to resolving that ambiguity, within the exceptional rule discussed in Kirkness (Inspector of Taxes) v. John Hudson &Co. Ltd. (1955) AC 696, at pp 710-714, 733-735 . However, it is unnecessary for present purposes to decide whether, before 1949, a court-martial could have imposed a sentence of penal servitude for a greater period than five years. We are concerned with the powers of a court-martial in 1971, and for that purpose must consider the effect of the Army Act as in force on 29th October 1956. (at p261)

20. Whether or not the Penal Servitude Act, 1891 applied to the Army Act it seems to me perfectly clear that it did not amend the provisions of the earlier statute. The Army Act, as amended, gave a power to pass sentences of penal servitude for a term of not less than three years but nothing in the Army Act provided that the term should not exceed five years. The Penal Servitude Act, 1891, if it applied, put a fetter on the power which the Army Act gave. However, after 18th April 1949, when the Courts Martial (Abolition of Penal Servitude and Hard Labour) Order, 1949 took effect, the position was different. After that date, s. 41 of the Army Act, as amended, provided that a person convicted of manslaughter should be liable to suffer imprisonment. Similarly, the scale of punishments in s. 44 spoke not of penal servitude but of imprisonment. Since no limit was put on the term of imprisonment that might have been imposed on a conviction for manslaughter, the term could have been for life. Since the Army Act was no longer an enactment under which a court (assuming a court-martial to be a court) had power to award a sentence of penal servitude, the Penal Servitude Act, 1891 could not have had any application to it. In short, under the Army Act as in force on 29th October 1956, properly construed, a person convicted of manslaughter might have been imprisoned for life and the Penal Servitude Act, 1891 had no effect on the power of a court-martial to impose a sentence of imprisonment exceeding five years. (at p261)

21. The Defence Act renders members of the Australian Military Force while on war service subject to the Army Act as in force on 29th October 1956, subject to such modifications and adaptations as have been effected by the Defence Act and regulations made thereunder. The statute thus applied by reference is the Army Act itself, including of course all amendments to the Army Act made by statutes of the United Kingdom before the relevant date. However, the Defence Act does not adopt or apply any other provisions of the statute law of the United Kingdom notwithstanding that they may have directly or indirectly affected the exercise of the powers given by the Army Act. It is the very words of the Army Act that are taken from their English setting and, in the new setting provided by the Defence Act and regulations, are adopted as part of the military law of Australia. If the Penal Servitude Act, 1891 did on 29th October 1956 restrict the powers exercisable under the Army Act in its application to persons subject to the military law of the United Kingdom, its provisions are nevertheless not adopted as part of the military law of Australia. However, as I have said, in my opinion the Penal Servitude Act, 1891 did not in any case have any application to the Army Act as in force in 1956. For these reasons the Penal Servitude Act, 1891 is of no relevance whatever in determining the maximum term of imprisonment that may be awarded by a court-martial convened under the Defence Act to try an Australian soldier. No reason therefore exists for reading down the provisions of ss. 41 and 44 of the Army Act, which as modified by the Australian statutory provisions are applied by the Defence Act to members of the Australian Military Forces while on war service. Under those sections as so modified and applied a person subject to military law who is convicted of manslaughter by a court-martial may be sentenced to imprisonment for life. It of course follows that the sentence imposed by the Tribunal was within its powers. (at p262)

22. I would answer the questions of law referred to this Court as follows:

Question 1 - No answer. Question 2 - No answer. Question 3 - Yes. Question 4 - No. Question 5 - No answer. (at p262)

STEPHEN J. This matter comes before the Court as a case stated by the Courts-Martial Appeal Tribunal pursuant to s. 52 of the Courts-Martial Appeals Act 1955-1966. (at p262)

2. By this stated case five questions are posed, having been duly certified by the Attorney-General pursuant to s. 25 (2) (a) of that Act following upon a request by the appellant before the Tribunal, Paul Ramon Ferriday, that they be referred to this Court. (at p262)

3. The important constitutional questions which might be thought to arise concerning certain of the provisions of pt V of the Act were not argued and, accordingly, call for no expression of views. (at p263)

4. Ferriday was found guilty by general court-martial at Vung Tau, South Vietnam, on 6th March 1971 of two charges of murder and one charge of malicious wounding and was sentenced to imprisonment for life with hard labour and discharge from the Defence Force of the Commonwealth. This sentence was duly confirmed with an immaterial variation; leave to appeal to the Tribunal was granted and the appeal heard; on 23rd December 1971 the Tribunal announced its decision and, on 28th March 1973 following the stating of this case, amended the order originally made by it. (1971) 21 FLR 86 (at p263)

5. No challenge was made to the course taken by the Tribunal in so amending its order and so the present position is that Ferriday has been found guilty of the manslaughter of one Sgt. Moss, guilty of the manslaughter of one Sgt. Galvin and guilty of common assault on one Sgt. Bowtell and is serving a sentence of imprisonment with hard labour for ten years and is to be discharged from the Defence Force. (at p263)

6. The circumstances of the crimes for which Ferriday has thus been convicted and sentenced are irrelevant to these present proceedings; the nature of the questions posed by the stated case calls for no reference to them. Although five questions of law have been stated, counsel for Ferriday found it unnecessary, before us, to refer at all to two of them, the amendment by the Tribunal of its original decision has disposed of those. The three remaining questions give rise, in substance, to only two distinct questions of law. (at p263)

7. The first of these may be dealt with quite shortly; it is set out in the stated case as follows:

"Whether the Tribunal in substituting a conviction under s. 25 of the said Act and passing therefor a sentence which the Tribunal thinks proper, is required, prior to the passing of the said sentence on the appellant to hear the appellant in mitigation of the said sentence." (at p263)

8. Section 25 of the Courts-Martial Appeals Act 1955-1966 provides that where an appellant before the Tribunal has been convicted of an offence by a court-martial which could lawfully have found him guilty of another offence and it appears to the Tribunal that the court-martial must have been satisfied of facts which proved him guilty of that offence the Tribunal may, instead of allowing the appeal, substitute for the finding of the court-martial a finding of guilty of the other offence and substitute for the sentence of the court-martial:

"such sentence as the Tribunal think proper, being a sentence which could lawfully have been passed on the appellant by the court-martial if it had found him guilty of that other offence, but not being a sentence of greater severity than the sentence passed by the court-martial". (at p264)

9. This power the Tribunal exercised, substituting findings of manslaughter for murder and a finding of common assault for that of assault occasioning actual bodily harm. For the life sentence imposed by the court-martial the Tribunal substituted a sentence of ten years imprisonment. It had, on the conclusion of evidence and addresses, reserved its decision and it later reconvened for the purpose of the publication of the reasons of the members of the Tribunal and the announcement of its decision. Counsel who represented Ferriday throughout the court-martial and the appeal to the Tribunal was then present and there is no question of any application by him for the opportunity of making a plea being rejected; the complaint is, rather, that the Tribunal did not invite the making of any such plea but instead, after the publication of the reasons of its members, then proceeded to announce its decision, included in which was its substituted sentence of ten years imprisonment. (at p264)

10. The power conferred upon the Tribunal by s. 25 is one which does, in my view, when exercised by it, require it to consider for itself and independently of the decision of the original court-martial what sentence should be imposed in respect of the offence of which it finds the appellant guilty, being a different offence from that in respect of which the court-martial found him guilty and sentenced him. It is clear from the terms of the decision of the Tribunal that this was fully appreciated by its members. They had before them the transcript of the court-martial proceedings, including what had been said at those proceedings on behalf of Ferriday by way of plea. In addition they had themselves heard argument over eight days, some of it concerning matters which were necessarily very material on the question of sentence, although no doubt not, in argument, specifically directed to that issue. The decision of the Tribunal dealt with the considerations which led it to the imposition of a sentence of ten years imprisonment and reference was made to the appellant's past good character and to other matters thought by the Tribunal to be relevant to sentence. (at p264)

11. There was, then, no disregard by the Tribunal of what appeared to it to be facts relevant to sentencing and if it was thought by counsel for the appellant that there were other matters relevant to sentence to which the attention of the Tribunal should be directed it was open to him to have sought to place them before the Tribunal when the President had concluded the announcement of its decision or, perhaps, at the earlier stage when, in the course of announcing its decision, the President, having dealt with the substituted findings of the Tribunal, stated that it was then necessary to determine the sentence to be passed. (at p265)

12. It would, I think, have been preferable had the Tribunal directly inquired of counsel for Ferriday, at some suitable moment, whether he desired to address it on sentence. However this is irrelevant to this present question of law which is whether the Tribunal was required to hear the appellant in mitigation of sentence; the absence of an invitation to address on that subject, at least in the particular circumstances to which I have already referred, does not constitute any real failure such as is postulated by the question asked. The point of law sought to be raised does not in fact arise on the facts of this case and the question asked therefore calls for no answer. (at p265)

13. The two remaining questions of law stated in the case were described by counsel for Ferriday, accurately enough, as in truth raising one distinct matter only, namely whether the Tribunal was empowered to impose a sentence of ten years imprisonment or whether, in fact, a maximum of no more than five years imprisonment might be imposed by it following upon a conviction for manslaughter. (at p265)

14. By s. 55 of the Defence Act 1903-1970 a member of the Military Forces whilst on war service, as Ferriday was, is subject to the Imperial Act called the Army Act, as in force on 29th October 1956, save so far as it is inconsistent with the Defence Act and subject to any prescribed modifications or adaptations. Section 41 of the Army Act, 1881 (Imp.) before amendment provided, by sub-s. (3), that a person convicted of manslaughter was liable to suffer "penal servitude, or such less punishment as is in this Act mentioned". Section 44 of that Act then provided that punishments might be inflicted in respect of offences committed by persons subject to military law and convicted by courts-martial according to two scales; the scale applicable to soldiers, as distinct from officers, provided as follows:

"h. Death. j. Penal servitude for a term not less than five years. k. Imprisonment, with or without hard labour, for a term not exceeding two years.

l. Discharge with ignominy from Her Majesty's service. m. Reduction in the case of non-commissioned officer to a lower grade, or to the ranks.

n. Forfeitures, fines, and stoppages. Provided that - (1) Where in respect of any offence under this Act there is specified a particular punishment, or such less punishment as is in this Act mentioned, there may be awarded in respect of that offence, instead of such particular punishment (but subject to the other regulations of this Act as to punishments, and regard being had to the nature and degree of the offence) any one punishment lower in the above scales than the particular punishment." (at p266)

15. By the Penal Servitude Act, 1891 (U.K.) the law relating to penal servitude was amended and s. 1 (1) was as follows:

"Where under any enactment in force when this section comes into operation a court has power to award a sentence of penal servitude, the sentence may, at the discretion of the court, be for any period not less than three years, and not exceeding either five years, or any greater period authorised by the enactment." (at p266)

16. It was contended on behalf of Ferriday that whereas under the Army Act, 1881 a term of penal servitude of any duration exceeding five years might have been imposed on a conviction for manslaughter, the effect of s. 1 (1) of the Penal Servitude Act, 1891 was to limit to a maximum of five years the period of penal servitude that could be so imposed. Although s. 41 (3) of the Army Act, 1881 also contemplated that in the case of manslaughter there might instead be imposed "such less punishment as is in this Act mentioned" par. 1 of s. 44 limited the "less punishment" of imprisonment to a term "not exceeding two years". Accordingly it was said that following upon the Act of 1891 only a maximum sentence of five years penal servitude or of two years imprisonment could be imposed upon those convicted of manslaughter by courts-martial. (at p266)

17. This, it was said, remained the position until the Criminal Justice Act, 1948 (U.K.) which, by s. 1, provided, inter alia, that every enactment conferring power on a court to pass a sentence of penal servitude should be construed as conferring power to pass a sentence of imprisonment for a term not exceeding the maximum term of penal servitude for which a sentence could have been passed before the commencement of the Act. The definition of "court" in that Act excluded courts-martial and, in recognition of this fact, s. 73 provided for the making of Orders in Council for applying, inter alia, s. 1 of the Act to courts-martial and for making such adaptations and modifications of the Acts under which courts-martial were conducted as might be considered necessary or expedient in consequence of the passing of s. 1. Such an Order in Council, the Courts Martial (Abolition of Penal Servitude and Hard Labour) Order 1949, had been made, one effect of which was to substitute for the words "penal servitude" wherever occurring in pars. (3) and (4) of s. 41 of the Army Act the word "imprisonment". (at p267)

18. The result was, it was said, that the original power to impose terms of penal servitude was by this Order in Council altered to imprisonment but remained subject to the limitation imposed by the Penal Servitude Act, 1891, restricting such a sentence to a maximum of five years. (at p267)

19. One further piece of legislation of the United Kingdom should be referred to. The Army (Annual) Act, 1892 provided by s. 4:

"Whereas by section forty-four of the Army Act the punishment of penal servitude when inflicted is required to be for a term not less than five years, and it is expedient to amend that section so as to bring it into conformity with the provisions of the Penal Servitude Act, 1891; be it therefore enacted that - In the said section forty-four for the word 'five' in each place where it occurs shall be substituted the word 'three'."

The terms of this enactment were, as counsel for Ferriday conceded, hard to reconcile with his interpretation of the Penal Servitude Act, 1891 and its effect upon the Army Act but this, it was contended, did not adversely affect the substantial argument put on behalf of Ferriday. (at p267)

20. The argument put on behalf of Ferriday not only involves an erroneous interpretation of the enactments on which it is founded but also neglects the effect of other legislative provisions which on examination prove fatal to its acceptance. (at p267)

21. The Order in Council of 1949 not only amended s. 41 of the Army Act; it also amended s. 44 of that Act by substituting for "penal servitude for a term not less than five years" in par. j. the word "imprisonment". The effect of that amendment was to authorize the imposition of imprisonment, without any limit as to term, following a conviction for manslaughter. It was in that form, having been amended by the Order in Council, that s. 55 of the Defence Act made the Army Act applicable to members of the Defence Force of the Commonwealth; only by disregarding this amendment to s. 44 of the Army Act, the effect of which is to provide clear and unambiguous authority for the imposition by the Tribunal of a sentence of ten years imprisonment, can the submission made on behalf of Ferriday bear any appearance of cogency. (at p267)

22. However even in the absence of this amendment to s. 44 of the Army Act the submission, in my view, fails. It depends for its force upon what is said to be the effect of s. 1 (1) of the Penal Servitude Act, 1891 in restricting sentences of penal servitude to a maximum of five years. In my view s. 1 (1) did not have that effect in relation to s. 44 of the Army Act because the latter, in its original form, authorized sentences of penal servitude for greater periods than five years; indeed there was no limitation upon the term of such sentences. It follows that s. 44 of the Army Act was such an enactment as s. 1 (1) of the Penal Servitude Act, 1891 speaks of when, in fixing a maximum period of penal servitude, it refers to "either five years, or any greater period authorized by the enactment". (at p268)

23. Once it is appreciated that the Act of 1891 did not have the effect of imposing any maximum upon the period of penal servitude which might be imposed under the Army Act the terms of s. 4 of the Army (Annual) Act, 1892 can be seen as conforming to a rational pattern of legislative intent and no longer bears the apparently irrational character which it is forced to assume if the appellant's argument be accepted. The Act of 1891 did not in terms amend the wording of s. 44 of the Army Act although it did affect the operation of that section, not by imposing any maximum sentence of penal servitude but by reducing the minimum term for which penal servitude could be imposed from five to three years. The Act of 1892 then took up the work of actual amendment left undone by the Act of 1891, it amended s. 44 by substituting for "five" the word "three", thus giving effect to the Act of 1891. (at p268)

24. It was also necessary, for the purposes of the argument put on behalf of Ferriday, to accept that the word "court" in s. 1 (1) of the Penal Servitude Act, 1891 encompassed courts-martial. I am very doubtful whether it does so and if it does not this provides a further reason for rejecting that argument. In the circumstances, however, it is unnecessary that I should determine this question. (at p268)

25. It follows that in my view the Tribunal was authorized to impose upon Ferriday the sentence it did and I would answer accordingly the two questions of law which are concerned with this aspect. (at p268)

MASON J. I am in agreement with the reasons for judgment which have been prepared by Gibbs J. (at p268)

2. I would therefore answer the questions asked as follows:

Question 1 - No answer. Question 2 - No answer. Question 3 - Yes. Question 4 - No. Question 5 - No answer. (at p268)

Orders

The questions referred to this Court by the President of the Courts-Martial Appeal Tribunal pursuant to s. 52 of the Courts-Martial Appeals Act are answered as follows:

Q.3. Whether the Tribunal in passing a sentence of ten years imprisonment on the Appellant in respect of the substituted convictions for manslaughter and assault occasioning actual bodily harm was passing a sentence which could lawfully have been passed on the Appellant by the Court-Martial if it had found the Appellant guilty of those offences.

A. Yes.

Q. 4. Whether the maximum term of imprisonment under the Defence Act 1903 as amended and regulations thereunder and the Army Act 1881 and regulations thereunder which can be passed upon a member of the military forces for the said offences committed on active service is five years.

A. No.

Having regard to the reasons for judgment published this day there is no need to answer any of the remaining questions.