Skitch v Pratt [1940] HCA 29; (1940) 64 CLR 191 (24 October 1940)

HIGH COURT OF AUSTRALIA

Skitch Defendant, Appellant; and Pratt Complainant, Respondent.

H C of A

On appeal from a Court of Summary Jurisdiction of South Australia.

24 October 1940

Rich, Starke, and McTiernan JJ.

Alderman, for the appellant.

T. W. Smith, for the respondent.

Alderman, in reply.

The following judgments were delivered:—

Rich J.

In this case the defendant was charged under sec. 76 of the Defence Act 1903-1939 that being a person liable to enlist for service in the defence force he did refuse to take the oath set out in the Third Schedule to the said Act when tendered to him by an officer.

It is conceded that the defendant was a person who fell within the description contained in the section, he being in fact a person who had been called upon by proclamation under sec. 60 of the Act to serve in the citizen forces. It is also conceded that a form of oath was tendered to the defendant by an officer and that he refused to take it.

The principal question raised is whether the oath which was tendered was in the form set out in the Third Schedule, and two objections were taken to the form tendered. The first objection was that the insertion of the word "military" in the blank space appearing in the schedule immediately before the words "Forces of the Commonwealth" was improper. In my opinion the word "military" was the correct word to insert in this space. The defendant's obligation as stated in sec. 60 of the Act was "to enlist and serve as prescribed." What was prescribed appears in reg. 140A of the Australian Military Regulations, which states that every person called upon in pursuance of sec. 60 of the Act to enlist and serve in the citizen forces shall after enlistment, if so required by notice, serve within the Commonwealth during the time of war as a member of the citizen forces. The meaning of the expression "citizen forces" in this clause is defined by reg. 3 of the Australian Military Regulations (Statutory Rules of 1927, No. 149) as being citizen military forces. I think that it is sufficient if there is inserted in the blank space in question the name of that one of the three branches of the defence force in which the person taking the oath is to serve and that it is not necessary to indicate in the form of oath whether he is a member of the permanent forces or the citizen forces. I think, therefore, that the word "military" was the correct word to insert in the blank spaces in question.

The second objection was that in the form of oath tendered to the defendant the words "until the cessation of the present time of war" were inserted in place of the words "for the term of years" which appear in the schedule. The schedule contemplates that the person tendering the oath shall insert in it a correct statement of the period for which the person taking the oath is to serve, and in the defendant's case that period is fixed by sec. 39 (1) (b) of the Act, which provides that subject to that section a soldier shall be entitled to be discharged, if serving under Part IV. of the Act, when the time of war has ceased to exist. Although the form in the schedule contemplates that the period of service will be capable of being expressed as a term of years, I do not think that the provisions of sec. 76 should be held to be inapplicable to a person like the defendant whose period of service cannot be so expressed. The description in the section of the persons to whom it applies is quite general and in terms includes persons called up under sec. 60, and it is difficult to see what reason could exist for distinguishing, when imposing an obligation to take the oath, between persons called up under sec. 60 and other persons who have enlisted or are liable to enlist.

I think, therefore, that the person tendering the oath is authorized, in the case of persons called up under sec. 60, to insert in the form of oath the period of their service as defined by sec. 39 (1) (b). The second objection therefore fails.

A further objection taken is that the form of oath should have included words limiting the obligation of the defendant to serving within the Commonwealth: See reg. 140A of the Australian Military Regulations. In my opinion, however, this matter is sufficiently provided for by sec. 49 of the Act itself, and it is not necessary to include in the form of oath the words suggested.

The conviction should therefore be affirmed, but on the question of penalty I am of opinion that in the circumstances the sentence of imprisonment should be set aside and that instead the defendant should be fined the sum of £1. The defendant will be ordered to pay to the respondent the sum of ten guineas for the respondent's costs of this appeal.

Starke J.

I agree.

McTiernan J.

I agree with the order proposed by Rich J. However, I think that there is room for grave doubt as to whether the form of oath tendered was appropriate to the defendant's case. The difficulty has arisen from the failure of the authorities to include in the regulations under Part IV. a form of oath to be administered to persons called up for service under that Part.

Order as indicated in judgment of Rich J.

Solicitors for the appellant, Alderman, Reid & Brazel.

Solicitor for the respondent, H. F. E. Whitlam, Commonwealth Crown Solicitor.