Oldgateboatdriver said:
While the proper way to lay charge for a theft is to have a single charge per event when a theft occurred, regardless of the number of items stolen on a single occasion (but adding all of their value to determine the category into which the theft falls - as in over or under $5000 for instance), where it comes to a failure to perform a duty, such as the charge of failing to return issued clothing or equipment, a continuing failure can give rise to a separate charge being laid for every day where the person fails to return said equipment.
Not generally.
The over/under $5,000 distinction appears under the Criminal Code and creates two separate offences, one of which has distinctly more serious consequences but has no relevance in a s 298 charge. S 298 is an offence "at the relevant time" i.e the time when found in possession or at the time that he refused to deliver up the property etc. A continuing failure per se is not an offence that creates a new offence for every day that he has the property.
Oldgateboatdriver said:
A similar distinction could be made if two distinct causes of failure to return equipment/clothing occurs at different time. Ffor instance, a reserve recruit that requests return to unit in the middle of BMQ and fails to return his loaned equipment at the training base, then fails to show up at his unit and is processed through NES action, where he is advised to return his clothing, then advised again to return his equipment could be subject to two such charges.
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This is potentially possible. If there were, for example, two separate and distinct orders to come in and deliver up the equipment and he fails to attend at either one then two charges could be laid and two fines given.
Oldgateboatdriver said:
The actual wording of some such charges make it clear that they are separate for every day and give rise to separate charge until he duty is performed, while in other cases, it is the case law that made such determination.
You are correct that some charges call for a "per day" offence such as s 294 which provides a separate offence for every training day that the member fails to attend and s 295 which creates a separate offence for every day a member actually parades with his equipment unserviceable etc.
While "case law" can and does expand civil law there must be clear and concise statute law to create an offence particularly where there are penal consequences. There is no case law to support the idea that "a continuing failure can give rise to a separate charge being laid for every day where the person fails to return said equipment" and it's highly unlikely that a judge would ever rule in favour of such a notion.
Let's talk practicality as well.
Many many years ago as a young DJA I had responsibility to take the final action on NES kit recovery within my Militia District. Quite frankly there was very little administrative action going on at the various unit levels to actually recover kit before the file came to me; letters weren't sent, phone calls weren't made etc. After six months to a year of no admin action the units suddenly expected the lawyers to work their magic. Admittedly the folks at the unit are usually much too busy on other things to give NES processing much priority.
You can be pretty sure that when Pte Bloggins had suddenly stopped parading that, much more likely then not, no one had ever actually gotten in touch with him in a way that I as a prosecutor could take before a court and definitively convince a judge that the offence happened on day x.
You can also count on the fact that a) I would under no circumstances lay 180 or 360 separate charges for each day Bloggins had the gear or, b) if I, during some moment of psychosis, had hit the copy and paste key 180 to 360 times on the charge sheet, that the judge would never give multiple convictions or issue multiple fines.
Don't forget that there is a simple truth about NES kit recovery which is that any fines awarded or any compensation for lost kit taken through the civil courts goes into general revenues and is not designated to actually allow for the unit or DND to buy more kit. (In fact when we did want to set examples we always went the civil route rather than the criminal route because the kit was worth a lot more than the fine available so we maximized recovery potential.)
The most desirable result, especially for unique regimental kit issued by the unit, was to get to Pte Bloggins' house and physically get the kit back from him and back into unit stores. The threat of legal action and even actual judgements rarely worked anyway because most judgements and/or fines are usually uncollectable anyway (simply put they aren't worth the effort and costs expended). What does work for NES kit collection is persistent, in-your-face action on Bloggins' door step.
:cheers:
