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Problems of 2 NZEF


page 213


THIS is not intended to be a treatise on discipline, but only a record of a few points that caused trouble, and which might be avoided in the future. Fundamentally the whole code of military law was intended for a regular army in peace and war. Despite some changes after the experience of the first war, it was still at the beginning of the second unsuitable to a citizen army; and if it was not suitable to a citizen army drawn from the United Kingdom, it was even less suited to a citizen army from the Dominions. It was unfortunate that in peacetime there had never been either the staff or the time to work out a system of military law of our own, keeping all the principles of the British code, but modifying the procedure to New Zealand conditions and the New Zealand temperament.

In the Emergency Regulations creating the Expeditionary Force in January 1940, the force was placed under the governance of the Army Act, with the exception that no sentence of death was to be put into effect without the concurrence of the Governor-General, which meant in practice that the death sentence became null and void. Later in the war, and partly at the suggestion of HQ 2 NZEF, other modifications were made, including the introduction of one or two additional punishments for officers on what may be called an intermediate scale.

Our position in regard to King's Regulations was not so clear, although at first we accepted that we must observe the disciplinary paragraphs; but as the war went on we began to pick and choose, and almost to make our own regulations. Again it would have been better if there had been separate New Zealand regulations of a similar type. Our ideas of what is essential to the discipline (in the broadest sense) of an army differed from those of the United Kingdom – and from this difference, somewhat regrettably, arose a number of unfortunate disagreements with British authorities, especially in that plague spot, Cairo.

The intention of the Army Act and of the Rules of Procedure is, inter alia, to ensure beyond reasonable doubt that an offender page 214 gets a fair trial, and with this intent both classics lean over backwards to avoid prejudicing the accused in any way. In fact, they lean so far that they have wellnigh emasculated themselves, or, in other words, have succeeded in making it very difficult to punish a genuine offender during the course of a modern war. From the point of view of the British way of life and deeply-ingrained sense of fairness, this is all to the good, as it ensures that an alleged offender remains innocent until proved otherwise; but another result is that those who are responsible for discipline in a war such as the last hesitate before attempting to set the machinery in motion to try an offender by court martial, for the machinery is slow-moving, while the war is the reverse.

It might well happen – it often did happen – that an offence might occur in one spot, but by the time it was reported, even only as far as to the CO, the unit might have moved miles away and be still moving, and the witnesses might have moved the opposite way; and all the time the machinery of preliminary investigation, hearing before the CO, summary of evidence, application for court martial, and trial was slowly grinding its way forward, the movement of all the troops concerned was continuing also. The difficulties mounted by almost geometrical progression for every stage, and by some sort of astronomical progression if civilian witnesses were involved. Some fixed point was necessary; and often we had to form a small camp, at which all concerned could stay while the machinery of investigation, etc., went its way. Witnesses, etc., would be withdrawn from all the units concerned and assembled at one spot, and would stay there until it was all over. Not all trials were like this. Many, of course, concerned only one unit; but even then the unit often found it easier to drop off all those concerned and leave them, while the rest of the unit got on with the war.

The results of all this were either long delays in coming to trial, or the abandonment of the whole idea. And while the latter course is free from any possibility of unfairness to accused men, it meant that too many offenders escaped punishment, small consolation to the well-behaved. It is not proposed to suggest a solution. It may well be that this is a price that must be paid if we are to have fast-moving war instead of the trench warfare of 1914–18.

The Judge Advocate-General (JAG) in New Zealand commented adversely on many occasions on courts-martial delays in 2 NZEF, i.e., that there was too long a delay in bringing a man to trial. Prima facie he had cause for his complaints, for on a purely factual estimate the length of time between offence and trial appeared to be beyond visible explanation; but our contention was that in the majority of cases the delays were due to the fortunes of war and were not the fault of the unit. The JAG, in addition to being an page 215 eminent lawyer, had served with distinction in the First World War, where the total advance of the New Zealand Division from August 1918 to the Armistice three months later was 50 miles, where the maximum side-slip of the division during all its time in France was 60 miles, where units stayed for months in one area and, if they did move, went no further back than a matter of ten or twenty miles, and after a period came back to where they had started, where all transport was horsed and men moved on their feet. The manoeuvres of the division in France were like the movements of a dancer on a congested night-club floor. In the second war distances were measured in hundreds and even thousands of miles, the Division once moved over 800 miles in ten days, its journey from Tunisia back to Maadi was 1800 miles, and even in Italy, where distances were not so great, some of its cross-country moves involved over 200 miles of travel.

During furlough in 1943, OICA explained this to the JAG, and his comments were adapted accordingly. Notwithstanding the tirade in the preceding paragraph, it can be admitted that units sometimes did let the difficulties daunt them, and that there were cases of genuine dilatoriness. Once or twice during the war Headquarters had to remind unit and formation commanders about it, even to the extent of thundering out the terms of Section 21 (1) of the Army Act, which reads:

Every person ….ho ….nnecessarily detains a person in arrest or confinement without bringing him to trial ….hall, on conviction by court-martial, be liable, if an officer to be cashiered….

Courts martial in non-divisional units sometimes caused extra delays in that members of the court might have to be drawn from outside the group, the officer establishment of which was not large enough to supply independent officers in sufficient numbers or of the appropriate ranks. We were firm that we preferred to try our men in all-New Zealand courts, even though it was legal to use British courts.

One way and another, it is little wonder that COs preferred if they could to avoid courts martial, and that very many offences never reached a formal trial.

The outstanding case, as far as difficulties were concerned, occurred in Tripolitania in 1943, while the Division was on the way back to Maadi from Tunisia. Four New Zealanders left the convoy and, after making a lot of trouble with a family of Italian settlers, raped the wife of the householder. By the time the complaint caught up with the Division, it was already back at Maadi; for the complaint had to pass through many channels, commencing with the Military Government of Tripolitania. An initial inquiry page 216 was held in Maadi; but before the suspects could even be formally charged they had to be identified, which meant that the officer conducting the inquiry, together with the suspects, escort, and enough personnel from the unit concerned to allow of a proper identification parade, had to be sent all the way back, some 1200 miles. Thereafter the official summary of evidence had to be taken, and later the members of the court, with spare officers, had to be sent all the way to the place. One way and another, there was a series of convoys going up and down the road, each journey taking several days. It was fortunate that the trouble was not in vain, for the identification was made by the civilian complainants beyond any doubt, the evidence was convincing and the men were found guilty. And this was not the whole tale, for in the meantime another suspect had managed to get away to New Zealand on furlough. The case was too bad to ignore, so we arranged for him to be sent back to the Middle East; and, nearly a year after the offence, the whole procedure had to take place again. Luckily again the identification was made beyond doubt, and this last man was found guilty also. The case created a great sensation among the Italian settlers generally, and was most favourably commented on as an outstanding example of British justice.

Most of our cases were tried by Field General Courts Martial, which are intended to be simple in form, to omit some of the ceremony of a normal court, and to retain the validity of their proceedings despite inadvertent slips in the Rules of Procedure, always on the understanding that the accused's defence has not been prejudiced thereby. There were a few odd cases that were quashed in New Zealand on what appeared to us to be purely technical points; but discussions between the DJAG and the JAG helped to obviate this.

Proposals were made once or twice that we should have ‘military magistrates’, officers who dealt with cases in much the same way as stipendiary magistrates in New Zealand, and who would have certain limited powers of punishment; but this was too revolutionary a change to be made without more thought than was possible during the war, and in any case would have meant the passing of elaborate regulations by the New Zealand Government. Another proposal was that we should have permanent courts, or at least permanent presidents, so ensuring uniformity and avoiding breaking into the service of regimental officers during a campaign. This could be done without any alteration to the existing law; and as far as a permanent president was concerned, was tried out at Maadi and Advanced Base in Italy. The proposal has some value in places such as those; but one is loth to depart from the principle that a man should be tried by officers from his own unit, or from units page 217 in the area, who can be expected to have a knowledge of the atmosphere surrounding the case, and can try it with more understanding than can an impersonal court. Nevertheless, the proposals have some attractions.