R v Cox [1945] HCA 18

R v Cox [1945] HCA 18

Where persons subject to military law are discharged from the forces, s. 158(2) of the Army Act makes them subject to the Act during the term of detention; however, they are not deemed members of His Majesty's forces for the purposes of s. 7(3). Thus, a court-martial lacks jurisdiction to try a charge of joining in a mutiny in His Majesty's forces where all alleged participants are discharged confinees, as such conduct does not constitute mutiny in the forces under s. 7(3) of the Army Act.

Parties
Prosecutor: The King; Applicant: Bruce Malcolm Smith; Respondents (members of General Court Martial): Major E. R. Cox, Major-General E. C. Plant, Brigadier B. E. Klein, Lieutenant-Colonel J. Moyes, Major C. M. Howie, Major J. L. Maroney, Captain D. C. Black
Jurisdiction
Australia
Procedural Posture
Application for Writ of Prohibition / Determination of Order Nisi
Outcome
Order absolute for writ of prohibition.
Legal Topics
Jurisdiction of Courts Martial, Effect of Discharge and Detention on Military Status, Interpretation of Army Act S. 158 (2), Judicial Power of the Commonwealth
Military Law Constitutional Law Jurisdiction of Courts Martial Effect of Discharge and Detention on Military Status Interpretation of Army Act S. 158 (2) Judicial Power of the Commonwealth

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Parties

The King

Prosecutor

Bruce Malcolm Smith

Applicant

Major E. R. Cox, Major-General E. C. Plant, Brigadier B. E. Klein, Lieutenant-Colonel J. Moyes, Major C. M. Howie, Major J. L. Maroney, Captain D. C. Black

Respondents (members of General Court Martial)

Procedural Posture

Application for Writ of Prohibition / Determination of Order Nisi

Legal Issues

  1. 1 Whether a court-martial has jurisdiction to try a discharged soldier for mutiny under s. 7(3) of the Army Act (Imp.)
  2. 2 Whether persons discharged from military forces but under detention are subject to military law and liable for offences during detention
  3. 3 Effect of Army Act s. 158 (2) on status of discharged and detained persons

Ratio Decidendi

Where persons subject to military law are discharged from the forces, s. 158(2) of the Army Act makes them subject to the Act during the term of detention; however, they are not deemed members of His Majesty's forces for the purposes of s. 7(3). Thus, a court-martial lacks jurisdiction to try a charge of joining in a mutiny in His Majesty's forces where all alleged participants are discharged confinees, as such conduct does not constitute mutiny in the forces under s. 7(3) of the Army Act.

Court Disposition

Order absolute for writ of prohibition.

Orders

  • Writ of prohibition granted prohibiting the respondents from proceeding with the trial of Smith for joining in a mutiny in His Majesty's Military Forces under s. 7(3) of the Army Act.