Morant and his co-ac­cused de­serve post­hu­mous par­don

There’s ev­i­dence jus­tice was not done in 1902, and par­lia­ment is in a po­si­tion to of­fer re­dress

The Weekend Australian - - INQUIRER - JAMES UN­KLES James Un­kles is a lawyer and an of­fi­cer in the Navy Re­serve. His opin­ions are per­sonal and not ex­pressed on be­half of the Aus­tralian De­fence Force. break­er­

There is one case of Aus­tralian mil­i­tary and le­gal his­tory that con­tin­ues to ig­nite pas­sion­ate de­bate: the ex­e­cu­tion of lieu­tenants Harry “Breaker” Morant and Peter Hand­cock and the sen­tenc­ing of Lieu­tenant Ge­orge Wit­ton to life im­pris­on­ment 116 years ago.

The de­bate to­day is not about whether they were guilty of ex­e­cut­ing pris­on­ers dur­ing the Boer War in 1902. It is about whether they were de­nied jus­tice.

In my view, jus­tice was not served. In the eyes of the law and the Aus­tralian com­mu­nity, a wrong is never di­min­ished by the pas­sage of time. It is our duty to put it right. We will get the op­por­tu­nity to start that process on Mon­day, when a mo­tion ac­knowl­edg­ing the in­jus­tice of the sen­tences will be pre­sented to the fed­eral par­lia­ment. The mo­tion, moved by Scott Buch­holz, MP for the south­east Queens­land seat of Wright, and sec­onded by for­mer de­fence min­is­ter Kevin An­drews, ex­presses sin­cere re­gret that the three men were de­nied pro­ce­dural fair­ness, ac­knowl­edges that this had cruel and un­just con­se­quences, and ex­presses sym­pa­thy to the de­scen­dants of the men, as they were not tried and sen­tenced in ac­cor­dance with the law of 1902.

If ap­proved by par­lia­ment, it be­comes a strong and com­pelling step­ping stone to­wards post­hu­mous par­dons for the three.

The Aus­tralians were con­victed of shoot­ing pris­on­ers dur­ing the 1899-1902 Boer War. They served as vol­un­teers in the Bushveldt Car­bi­neers, a Bri­tish unit that was cre­ated for the par­tic­u­lar pur­pose of sub­ju­ga­tion of guerilla ac­tiv­ity in the out­ly­ing ar­eas of the north­ern Transvaal.

In the lan­guage of our time, it was a counter-in­sur­gency unit.

More than 16,000 Aus­tralians served un­der Bri­tish com­mand and al­most 600 died dur­ing the course of the Boer War.

It is not dis­puted that Hand­cock, Morant and Wit­ton ex­e­cuted Boer pris­on­ers while believing they were act­ing un­der law­ful or­ders given by se­nior Bri­tish of­fi­cers, in par­tic­u­lar Lord Kitch­ener. This may lead some to con­clude that nat­u­ral jus­tice was served by the ex­e­cu­tion of Morant and Hand­cock, but why were they treated dif­fer­ently to other Bri­tish of­fi­cers and troop­ers guilty of the same crimes?

Be­fore Morant’s ar­rival at Ford Ed­ward, in north­ern Transvaal, six Boer pris­on­ers, a Boer mem­ber of the Bushveldt Car­bi­neers and sev­eral na­tives were shot by Bri­tish reg­u­lars in sim­i­lar cir­cum­stances. No charges were laid.

It is such dis­crep­an­cies that con­vinced me that they were not af­forded fair tri­als and there is a need to re­view the case and de­ter­mine whether these men were tried and sen­tenced ac­cord­ing to the ex­act­ing pro­vi­sions of the Man­ual of Mil­i­tary Law, 1898, and the Army Act.

Se­ri­ous breaches of law be­gan from the time of their ar­rest and in­ter­ro­ga­tion in Oc­to­ber 1901 through to their trial and ex­e­cu­tion on Fe­bru­ary 27, 1902. Of the many points of con­tention, three stand out: • The men were de­nied le­gal rep­re­sen­ta­tion between their ar­rest and the day be­fore their trial be­gan in Jan­u­ary 1902, when Ma­jor John Fran­cis Thomas, a coun­try so­lic­i­tor from Ten­ter­field, north­ern NSW, with no trial ex­pe­ri­ence, an­swered a plea for as­sis­tance. With no time to con­struct a de­fence and in­ter­view key wit­nesses about the ex­is­tence of or­ders to take no pris­on­ers, he mounted a brave but fruit­less de­fence. • The law of reprisal was a recog­nised de­fence in 1901 and ev­i­dence ex­isted that these men rea­son­ably be­lieved that they had to fol­low or­ders to take no pris­on­ers.

Bri­tish judge ad­vo­cate-gen­eral James St Clair con­firmed that or­ders were given and my re­search has since con­vinced me that Lord Kitch­ener and his sub­or­di­nates gave those or­ders. • The courts mar­tial mem­bers cited com­pelling mit­i­ga­tion for Morant, Hand­cock and Wit­ton. Rec­om­men­da­tions for mercy were made that the three ac­cused be spared death sen­tences. How­ever, only Wit­ton’s sen­tence was com­muted. Af­ter con­firm­ing the death sen­tences, Lord Kitch­ener left Pre­to­ria and told his staff he was un­con­tactable, thereby deny­ing the Aus­tralians their le­gal right to ap­peal to King Ed­ward and seek the as­sis­tance of the Aus­tralian gov­ern­ment. This was a cal­cu­lated per­ver­sion of the course of jus­tice.

This case has drawn the at­ten- tion of se­nior Aus­tralian le­gal coun­sel and MPs, in­clud­ing noted ju­rist and hu­man rights ad­vo­cate Ge­of­frey Robert­son QC, who said: “They were treated mon­strously. Cer­tainly by to­day’s stan­dards they were not given any of the hu­man rights that in­ter­na­tional treaties re­quire men fac­ing the death penalty to be given. But even by the stan­dards of 1902 they were treated im­prop­erly, un­law­fully.”

Sir Lau­rence Street, for­mer chief jus­tice of NSW, has called on the Bri­tish gov­ern­ment to ap­point an in­quiry on the grounds that: “This is an ap­palling af­front to any gen­eral no­tions of jus­tice, and an ap­palling in­jus­tice to the re­main­ing liv­ing man. This was an ex­er­cise of the ad­min­is­tra­tion of crim­i­nal jus­tice which sadly mis­car­ried.” In 2010, the Aus­tralian House of Rep­re­sen­ta­tives pe­ti­tions com­mit­tee de­clared the case “strong and com­pelling and de­serv­ing of jus­tice”. How then to bridge this gap between Aus­tralia’s re­al­i­sa­tion that this case re­flects some in­jus­tice, and Bri­tish in­tran­si­gence and de­nial?

Ever since the ex­e­cu­tions, there has been a view that the three men were used as pawns by the Bri­tish to se­cure a peace treaty to bring the bru­tal Boer War to an end — an event that hap­pened three months af­ter the ex­e­cu­tions. Wit­ton put this propo­si­tion in his book, Scape­goats of the Em­pire.

I hope Mon­day’s par­lia­men- tary mo­tion will be a pre­lude to a for­mal par­lia­men­tary in­quiry to as­sess the mat­ter and, if rec­om­mended, be­gin the process of achiev­ing post­hu­mous par­dons.

It is es­sen­tial that we should seek re­dress be­cause Aus­tralia is an in­de­pen­dent na­tion in con­trol of its own destiny and be­cause, as for­mer at­tor­ney-gen­eral Robert McClel­land put it, the case “goes to the moral val­ues and fab­ric of a na­tion. We know these wrongs were done. There were fun­da­men­tal flaws in the crim­i­nal process that re­sulted in these peo­ple be­ing ex­e­cuted, and when that in­jus­tice oc­curs it needs to be re­vis­ited and cer­tainly it is a mat­ter of pub­lic in­ter­est that that oc­cur.”

The Aus­tralian gov­ern­ment between 1902 and 1904 took ac­tion to gain the re­lease of Ge­orge Wit­ton. The present gov­ern­ment should now fi­nalise the mat­ter of par­dons, 116 years af­ter the ex­e­cu­tions.

The de­scen­dants want and de­serve jus­tice to be done and a com­pelling case ex­ists that should be as­sessed by a par­lia­men­tary in­quiry. Morant, Hand­cock and Wit­ton should get the jus­tice Aus­tralians be­lieve is long over­due.

Why were they treated dif­fer­ently to other Bri­tish of­fi­cers guilty of the same crimes?

Lieu­tenants Peter Hand­cock, left, and Harry ‘Breaker’ Morant (with dog) dur­ing the Boer War; and the au­thor, mil­i­tary lawyer and Navy Re­serve of­fi­cer James Un­kles, above right

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