Breaker Morant – The definitive Study, Criminal or Scapegoat?

Work is progressing steadily to complete and publish a book on the life and death of Breaker Morant and his two comrades, Lieutenants Peter Handcock and George Witton.  This enthralling book will expose the conspiracy that has prevented justice being delivered to their descendants and lack of moral turpitude of successive British Governments to instigate an independent judicial inquiry into how these men were treated, the secrecy that surrounded their arrest, trial and sentencing and deception inflicted by the British Government and Military Commander, Lord Kitchener on the Australian Government and its people of 1902.

This work will draw on fact and evidence about Breaker’s life and his execution along with Peter Handcock and will debunk myth and self serving claims of those who seek to prevent the truth from being exposed and justice delivered. A book of military and legal history about a chapter of Australia’s first war and the controversy that continues to this day!

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Prominent Community Leaders, MPs and Senior Legal Counsel Call for Justice

 In 2013, the documentary, ”Breaker Morant the Re Trial” was made for Foxtel’s History channel.  Notwithstanding the success of the film, it became a defining moment in the history of the case for a judicial inquiry.  James Unkles had the privilege of interviewing a number of leading Australians who had studied the evidence that Lieutenants Morant, Handcock and Witton had not been afforded due process, investigated, tried and sentenced according to law of 1902.

The Australians interviewed for the documentary were:

  • Geoffrey Robertson, QC, international and respected jurist and human rights lawyer;
  • Robert McClelland, former Australian Attorney General;
  • Alex Hawke, MP;
  • Greg Hunt, MP, Minister for Environment and Heritage;
  • Tim Fischer, former Deputy Prime Minister;
  • Sir Laurence Street, former Chief Justice for NSWs;
  • Gerald Nash, QC;
  • Alexander Street, SC, now Federal Court Judge;
  • David Denton, QC;
  • Dan Mori, lawyer and former Officer, USMC (now resident in Australia).

These distinguished individuals were interviewed and were unanimous in their views that this case needs independent and transparent review by a judicial inquiry.  Extracts of their interviews appear on the site, breakermorant.com and the word transcripts are attached to this blog post.  They make compelling viewing and reading!

I am of the view that the opinions of those interviewed make a faultless case for an independent inquiry so this controversial case can be put to rest!

Jim Sth Africa and UK 510                            Jim Sth Africa and UK 514

James Unkles with Greg Hunt, MP                  James Unkles & Tim Fischer,

 

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James Unkles with Robert McClelland, MP

 

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James Unkles interview with Geoffrey Robertson, QC

 

 

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A Literary Breakthrough – ”Breaker” Morant – The Retrial

morant email photo

After decades of controversy surrounding the case of Australians, Lieutenants ”Breaker” Harry Morant, Peter Handcock and George Witton tried by the British military for war crimes in the Boer War, 1902, an exciting and compelling book backed by the resources of an international publisher, is being authored by James Unkles, military lawyer and Neil Pigot, award winning actor, documentary writer and presenter.

The book is an exciting, crisply written and intriguing exploration of Morant, a man who has captivated generations of Australians and brings to light newly unearthed documentary evidence to prove that he was not only who he claimed to be but that he was, in fact, a “Scapegoat of the Empire”.

The book will be popular history that reads like a novel, fast paced with short chapters, the book will not be bogged down in extraneous and trivial speculation, but presenting the facts as a clear and engaging narrative.

Unlike other books on the subject, this expose will be based on fact and credible research devoid of speculation and self-serving rhetoric.  It  focuses on who Breaker Morant was, his history, his relationship with Peter Handcock and George Witton and the manner in which they were treated by the British military.

It will culminate in the detail of the case for judicial review focusing on the manner in which these men were unlawfully tried, convicted and sentenced, that resulted in the execution of Morant and Handcock and the sentencing of Witton to life imprisonment.

The book also focuses on the dedicated work of James Unkles, his exhaustive research into the Morant story, both from a legal and historical point of view.  His dogged determination to secure posthumous justice for these men and their descendants is revealed as he has pursued pardons for Morant, Handcock and Witton which culminated in a petition being delivered to the Queen in 2010, having his case supported by the House of Representatives Petitions Committee and battling Governments to appoint an independent inquiry, a campaign that continues to this day.

The book highlights the principle that the passing of time and the fact that Morant, Handcock and Witton are deceased does not diminish errors in the administration of justice. Injustices in times of war are inexcusable and it takes vigilance to right wrongs, to honour those unfairly treated and to demonstrate respect for the rule of law. How we respond to this case remains a test of our values and is vitally important to the descendants of Morant, Handcock and Witton and those who respect the rule of law and seek justice.  In the eyes of the law and the Australian community a wrong is never diminished by the passing of time and it is our duty to put it right.

The book will be of interest to anyone who wishes to understand how three Australian bushmen, volunteers who sought adventure and support King and Country came to pay the ultimate price for the sins of their British superiors and caused a legend to become part of the Australian psyche of injustice and history!

The reader will not only come to understand the legend, but will judge whether these men were rightly treated as criminals or scapegoats of the British military who suffered a gross injustice that remains to be corrected.

Jim Unkles and Neil                    Jim Sth Africa and UK 053

Authors, Jim Unkles and Neil Pigot in Archives, Pretoria doing research and at the Pretoria cemetery at Morant’s and Handcock’s grave (2013)

 

 

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The “Breaker” to Get His Day in Court – The Documentary

Following a Screen Australia board meeting, Sydney independent production company, Film Projects, is proud to announce that their documentary series entitled Breaker Morant – The Re-Trial is now in pre-production. http://www.screenaustralia.gov.au/news_and_events/2012/mr_120817_doco_approvals.aspx http://www.tenterfieldstar.com.au/story/236367/tenterfield-to-feature-in-breaker-morant-retrial/?cs=1514 The 2 x 60 mins series tells the story of the greatest military controversy in Australian history, the trial and execution of Harry “The Breaker” Morant and Peter Handcock. It was commissioned by Foxtel’s History Channel along with international co-partner Sabido Productions inSouth Africaand will screen in 2013. “We’re delighted that this epic story is finally going to be told as a documentary,” said Gregory Miller of Film Projects who is also the film’s Co-Director/ Producer. “Most people know the story through the movie, but there’s a lot more to it than that. This series picks up where the film left off.” “The series will also exploreAustralia’s contribution to the Boer War and why it has become the “forgotten war.” It was the first conflict in which Australian soldiers left these shores en masse and fired a shot in anger. Federation took place in the middle of the war and the events that followed was the first test of Australian nationhood.“ Co-Director Nick Bleszynski, who also authored the history of Morant, Shoot Straight You Bastards!, added, “This film has been 110 years in the making.  There were doubts about the fairness of the trial as soon as the news reachedAustralia and the court of public opinion has never been satisfied.” “This series will pull no punches and is shaping as a major TV event that will live long in the memory.” The historical aspect of the story will be intercut with the contemporary legal campaign to get justice for Morant, Handcock and Witton, the third accused who spent two and a half years in a British prison after his death sentence was commuted. Military lawyer Jim Unkles has built a legal challenge to the original convictions and sentences and Breaker Morant – the Re-Trial will capture a rare moment of living history through the cross-examination of historians, legal experts and the presentation of compelling new evidence. Unkles said, “The series will examine the controversial trial and sentencing in detail and the refusal of the current Australian Government and Attorney General to support the case for review and assist the descendants of these men to get justice. It is my contention that serious legal and procedural flaws denied these men due process and I intend to put that to the test and that will be a focus of the documentary ’ Breaker Morant – the Re-Trial will be shot in Australia, South Africa and theUK and will feature historical re-enactments of key events and unseen archive material.

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Two photos of many, filming for the documentary in 2013, Jim Unkles with lawyers, Dan Mori, David Denton, QC and Jim at archives in Pretoria

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A Blow For The ‘Breaker’ But Not Dead And Buried!!

This Press Release summarises the decision of the Australian Government Not To Support the case for pardons

The Rule of Law and ‘Breaker’’ Morant Compromised !!

The decision of the Australian Attorney-General, Nicola Roxon, not to proceed with either an appeal to the British Government or a public enquiry into the “Morant Affair” was regretful and a failure to appreciate the principles of law, procedure and due process. Jim Unkles’campaign since 2009 to overturn the convictions and sentences in order to obtain posthumous pardons for the descendants of Morant, Handock and Witton will continue.

Roxon  overturned a finding by her predecessor, Robert McClelland, who went on the public record in August 2011 as saying, “…I have been persuaded in large part by the work you and Mr Denton have undertaken, that this case does raise procedural fairness concerns… I want to be sure that the British Government is aware that questions exist as to whether the men received fair treatment, in accordance with the standards accepted at that time.”

“It beggars belief that two Attorneys General, can interpret the same Departmental brief in such an entirely contrary manner. The very obvious legal flaws that were apparent to Mr McClelland must have been apparent to Ms Roxon, yet she, the Chief Law Officer, has chosen not to deal with them, I wonder why”

In his written submission to the Attorney-General Mr Unkles, backed by respected Melbourne lawyer, David Denton SC, maintained that the passing of time and the fact that Morant, Handcock and Witton are deceased does not diminish the errors and these injustices must be addressed to demonstrate respect to the rule of law. Mr Unkles contended that the issue is not whether Morant and Hadcock shot Boer prisoners, which they admitted to, but whether they were properly represented and Military Law properly and evenly applied.  Although Morant, Handcock and Witton admitted shooting Boer prisoners they were not the only ones, yet they were the only ones punished. Furthermore, were following orders – orders which, according to British military legal documents, did exist. Superior orders were a legitimate defence in 1902 according to the British Manual Military Law.

“All the inherent problems of the Attorney General also being a politician are evident in this letter. In an age where political policy seems to be driven by polling, it appears the Attorney General was more concerned with consensus and what people might think, rather than matters of legal principles.” Frankly, it has a Julian Assange ‘stench about it’, politics over legal principles and justice!

“It has been clear for 110 years that there are very divergent opinions on this case and a public enquiry would have allowed all parties to have their say and a retired judge to rule on its legal merits.”

‘’The losers in this decision are the descendants of three veterans and all those who believe in the rule of law’.

“’Nicola Roxon was very concerned about the morality of advocating on behalf of the three Australians, yet made no mention of the morality of the British authorities who denied Morant, Handcock and Witton the legal rights they were entitled to, including a right to appeal death sentences – according to laws and procedures enshrined in the British Manual of Military Law 1902.”

Morant and Handcock were the first and last Australians to be executed during wartime and a century later it remains one of Australia’s most enduring military controversies. Opinion polls have consistently shown that around 80% of Australians feel the men were denied fair trials and were made scapegoats for the illegal and corrupt policies of the British military prosecuting a brutal war in South Africa.

However, Mr Unkles has insisted that this is not the end of the road in the campaign to get justice for the three Australians. He now intends to take judicial appeal action in the British courts to challenge the convictions and sentences of 1902

“I have exhausted all the possibilities and avenues of appeal with regard to the British and Australian governments and the Queen. Consequently, I will be lodging an appeal in the British High Court in London.”

“I look forward to finally having this case reviewed purely on its legal merits without political interference and agendas to appease interests. This controversy was created in a court of law and its only fitting that it should be resolved there.”

 

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Sir Isaac Isaacs, KC, MP, & The Australian Natives Association & the connection with the legal defence of Lieutenant George Witton

Sir Isaacs Isaacs, The Australian Natives Association and George Witton

Boer war historians who have researched the conduct of three Australian volunteers, Lieutenants Morant, Handcock and Witton, and their trials and sentences may have overlooked the significance of Australian jurist and politician, Isaac Isaacs, who in 1902 came to the defence of George Witton.  Isaacs, a Kings Counsel and MP in 1902, (subsequently appointed as the first Australian born Governor General and Chief Justice of the High Court) applied his skills and reviewed the Witton’s convictions and sentence by courts martial. In August 1902, 6 months after Morant’s and Handcock’s executions, Isaacs completed a legal advice and a petition to the King.[i]

His work paralleled the storm of protest from Australians, representations from the South African Government and British politicians, including Winston Churchill for Witton’s release.  Isaacs dogged legal work, combined with protests and the petition eventually secured Witton’s release from prison in late 1904.  Witton served less than three years for offences that had been characterised as capital offences that deserved the severest of punishments!

Background

My interest in Isaacs grew from my research into the case against the three Australian veterans and how such an eminent jurist like Isaacs was so convinced of the injustice done to Witton that he acted on his behalf.  I was also intrigued how Isaacs was retained as counsel, what involvement did George Witton’s brother, Ernest have with Isaacs and how a petition that secured at least 80 000 signatures, was circulated through Australia.?

My research into the Isaacs connection followed from what George Witton stated in his book[ii]

On the 12th of November 1904 after a chequered experience extending over nearly five years, I placed my foot again on native soil.  On my arrival in Australia, I met among others, Mr Wrainwright, general secretary of the Australian Natives Association and his son, Mr Austin Wrainwright who so ably assisted my brother in his efforts towards my release.  I also met Mr Alfred Deakin a true compatriot who during his term of office as Prime Minister of the Commonwealth had been untiring in his efforts to secure my liberty and return to Australia.’

Witton’s reference to the ANA led me to the archives section of Australian Unity.[iii]

Australian Unity is a diversified mutual company that is owned by its customers has a rich history and is founded on creating social value.  It provides high trust products and services in healthcare, retirement living and financial services.  The company has material growth ambitions in all its businesses over the coming five years, and an aspiration of being known as a thought leader on key aspects of community wellbeing

Australian Unity has a long and proud history dating back to 1840. Australian Unity as an entity was formed by the merger of the Australian Natives’ Association Friendly Society (ANA) and the Manchester Unity Independent Order of Oddfellows in Victoria Friendly Society in 1993 and expanded further in 2005 through a merger with Grand United Friendly Society Limited[iv]

The Australian Natives’ Association (ANA) was established in Melbourne in 1871. It was founded as a friendly society whose membership was open to Australian-born males only. It gradually established city and country branches in Victoria. The ninth branch to be formed was in Charters Towers, Queensland in 1879. By 1901, 205 branches had been formed. When the ANA was formed, it had two aims—to act as a friendly society offering financial support to its members in need, and to promote the moral, social and intellectual improvement of its members.

My research (though ANA branch minute books) revealed the following:

  • Isaac Isaacs was a member of the ANA;
  • Alfred Deakin, PM was also a member, who lobbied the British government for George Witton’s release from prison;
  • George Witton had been an ANA member since 1899.  His brother, Ernest was also an ANA member;
  • Ernest Witton circulated copies of the Isaacs petition to ANA branches.   Ernest wrote to the ANA branches as follows:[v]

I have the honour to send you the enclosed petition addressed to His Majesty the King praying for the release of Lieutenant Witton, a famous Australian citizen and one among the thousands who left native land and kindred to fight for the flag.  The petition is founded upon and in accordance with the opinion of the Hon. Isaac Isaacs, KC, MP of Victoria and is circulated for signature throughout the Commonwealth.  It is desired that all signatures should be simply as citizens of the Commonwealth and not in any sense official.   I sincerely trust you will find it agreeable to your sense of justice to sign the petition yourself and help in obtaining other signatures.’

  • An original petition and signature pages were collated and sent by covering letter signed by Ernest Witton to the Australian Governor General, Lord Tennyson.  The letter stated;[vi]

The petition contains over 80,000 signatures, including those of Members of the Commonwealth Parliament, members of the State Parliaments throughout Australia, representatives of commercial and business men, representatives of banking and insurance companies, barristers, clergy and members of all the learned professions. it has been numerously circulated and subscribed to by the Friendly Societies throughout the Commonwealth and has been enthusiastically taken up and signed by members of the rifle clubs.

  • Following his release from prison and return to Australia, George Witton toured Australia and gave presentations to ANA branches.
  • The support Ernest and George Witton received from the ANA is best summarised by the entry made in the ANA’s magazine.  It stated[vii]

Lieutenant G.R. Witton, who arrived from England by the ‘Runic’, recently visited the offices of the Victorian Board of Directors on his return and was warmly welcomed by the General Secretary and the Hon, Alfred Deakin, MP.  It will remembered that the Lieutenant was court martialed and sentenced to imprisonment for life for having been concerned in the shooting of unarmed Boers in the South African War.

He was incarcerated in the Portland prison where he spent two and half years being released in consequence of the representations made by the Federal Government.  His brother, who is a well known member of the Association, worked very hard to secure the Lieutenant’s release and was considerably encouraged in his efforts through the sympathy and assistance of accorded him by the Hon, Alfred Deakin when Prime Minister

The role that the ANA played in assisting tom secure Witton’s release was significant and was achieved through the collaboration members of the ANA and Ernest Witton who circulated the petition though ANA branches

Isaacs’ professional analysis of the case against Witton (and by implication the prosecution evidence against Morant and Handcock), argued that the men obeyed orders that they honestly believed had been issued by their British superiors and that the principle of condonation ought to have been applied at the courts martial.  In this regard, Isaacs quoted from the Duke of Wellington edict on the performance of a duty of honour or trust after the knowledge of a military offence ought to convey a pardon. He also quoted from military lawyer of the time, Clode’s observation, ‘no soldier should be put on duty having hanging over him the sentence of a court martial.’[viii]

Conclusion

Historical argument on this case has filled journals, books, entertained readers and viewers and fuelled the egos of academics.  However, the military law of 1902 that was used to prosecute these men has never been thoroughly examined and re revisited to settle this controversial case.

Fortunately, Isaacs’ opinion still resonates in 2012 and provides compelling reason why these men should be pardoned.  Isaacs’ understanding of the case was contemporaneous with the trial convictions and sentences came from a jurist who held a prominent position in Australia.  My proposition is that Isaacs’ representation of Witton would not have occurred had he not been convinced that the charges against these men were not proved beyond reasonable doubt and they did not receive fair trials

The law of the civilised society is more a more discerning and precise instrument than historical debate and I have focused on the legal aspects of this case.  This is where this saga began and where it will ultimately end – with the law, not history being the ultimate judge of whether Morant, Handcock and Witton were guilty as charged or used as political pawns for the crimes of their superiors.

If flaws were made in the administration of justice, yet to be determined by an independent inquiry, then the British reputation for fair play and justice should prevail, apologies issued and pardons granted



[i] Isaac Isaacs, KC, MP legal opinion dated 28 August 1902 & Petition to Crown for pardon dated August 1902

[ii]G. Witton, Scapegoats of the Empire, The True Story of Morant’s Bushveldt Carbineers, p.240

[iii]http://www.australianunitycorporate.com.au/OurHeritage/FriendlySociety/Pages/AustralianNativesAssociation.aspx

[iv]http://www.australianunitycorporate.com.au/OurHeritage/FriendlySociety/Pages/AustralianNativesAssociation.aspx

[v] Ernest  Witton letter to ANA dated 17 Sept 1902

[vi] Ernest  Witton letter to Lord Tennyson dated 1902

[vii] The Advance Australia ANA magazine dated 17 January 1905

[viii] Clode, Military Forces of the Crown 1869, p. 175

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