I am an experienced barrister and solicitor, having worked as a Police, Commonwealth Crown Prosecutor and as an Australian Military lawyer; I specialise in criminal law and administrative and have extensive experience as an advocate.
I became involved in this case in 2009 when I watched the ‘Breaker’ Morant movie. I then decided to research the history of Major James Francis Thomas, the Australian lawyer who defended Lieutenants Harry Morant, Peter Handcock and George Witton on charges of killing Boer prisoners during the Boer War.
I discovered that Morant, Handcock and Witton were not tried in accordance with military law of 1902 and suffered great injustice as a result. The convictions were unsafe and the sentences illegal as appeal was denied. I decided that a review process had to be initiated. The case had never been reviewed and despite extensive literature on the Boer war and the life of Morant, no one had ever examined the details of the trials, questioned the legitimacy of the evidence produced by the prosecution and whether the trials were conducted in accordance with the law of 1902.
My research has produced compelling evidence that orders to shoot prisoners were issued by British officers acting on behalf of and including Lord Kitchener. This evidence is an embarrassment to the British Government and I think it explains why the case for pardons was rejected. I have produced evidence that Morant, Handcock and Witton were not tried in accordance with Military law of 1902. My submissions concern 12 significant appeal points.
In October 2009, I forwarded two petitions for review, one to the Australian House of Representatives Petitions Committee and the other to the Queen. I followed the petitions by lobbying Australian politicians and writing submissions to the British government. I appeared before the House of Representatives Petitions Committee on 15 March 2010. The Committee described the grounds of appeal as ‘strong and compelling’.
There were fatal flaws in the arrest, investigation, trial and sentencing of the accused and unsafe convictions resulted. I have used the historic process of petitioning the Crown for the exercise of the royal prerogative of mercy. I remain committed to having this matter examined and justice delivered posthumously, so the descendants of these men can rest, knowing that Morant, Handcock and Witton served the Crown in a manner that deserves honourable recognition and Major Thomas’ call for an independent inquiry and exoneration of Morant, Handcock and Witton has been achieved
In September 2011, Robert McClelland, MP, the Attorney General announced an inquiry after 109 years of controversy about the case. This was a significant development, as for the first time since the trials, an Australian Government had taken a role in reviewing the matter.
Despite the refusal of the British Governments to hold an independent inquiry into the most controversial chapter of Australian military history, On Saturday, 20 July, I organised a moot court hearing of case for and against the case for quashing the convictions and sentences. The case heard in the historic Banco Court in Melbourne’s Supreme Court. Before a packed public gallery, senior counsel for both the defence and the Crown included Alexander Street, SC and Gerry Nash, QC, judges Andrew Kirkham, QC and Gary Hevey and solicitors, including myself, Daniel Mori, who defended Australian Guantanamo Bay detainee, David Hicks. The court concluded that Morant, Hancock and Witton had suffered a substantial and fatal miscarriage of justice according to the law of 1902 and the convictions should be quashed..
The decision of the moot hearing and the opinions of senior counsel are now being used to press the Australian Government to appoint an independent inquiry into the convictions and sentences.
I also participated in the filming of a documentary, Breaker Morant – The Retrial for Foxtel’s History channel. The film was released in November 2013 and explored the controversy of Breaker Morant, his life and the circumstance that led to his execution and the aftermath 112 years later as a case for review is progressed.
James Unkles far left and counsel pictured at the ‘moot’ Court Appeal 2013