Denial of natural justice – Investigation
- On or about 22 October 1901, Morant, Handcock and Witton were arrested and placed in solitary confinement over allegations of shooting Boer prisoners and an investigation commenced;
- The men were kept in solitary confinement for three months, denied contact with each other, visits from other personnel, including the military chaplain. The men were also denied details of the investigation, no opportunity to seek legal advice and be represented, cross examine those who gave evidence or to conduct their own inquiries and arrange defence witnesses;
- The lack of time to consult legal counsel was a ‘gross’ injustice ,noting the seriousness of the charges.
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Denied opportunity to prepare a defence for trial
- The prosecution had three months to prepare cases against the accused before trials commenced on 16 January 1902.
- The men were denied the right to consult legal counsel until 15 January, they only had one day with their lawyer, Major Thomas to prepare for their trial;
- Their confinement and limited time to prepare a defence (including locating and interviewing witnesses) was oppressive and contrary to military law and procedure of 1902.
Condonation
- The men should have been pardoned during the trials under the principle of condonation because they served in the defence of a Boer attack on Pietersburg on 22 January 1902 and again in response to possible Boer hostilities on 31 January 1902. Their alleged offences were also condoned (excused) by Military Command therefore they should not have prosecuted.
Errors by the Judge Advocate
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- The members of the courts martial were not properly directed on the law by the judge advocate on issues including, obedience to superior orders, evidence of provocation, evidence of the accused’s limited military service, their status as volunteers, ignorance of military law, sentencing principles, admissibility and relevance of evidence of shooting of Boer prisoners by other soldiers and direct the court on the law of reprisal / retribution as a defence;
- The significance of recommendation for mercy, mitigating circumstances and character evidence and how these could be used in the sentencing process;
- Failed to ensure the court was directed on issues including, sufficient time and resources to prepare a defence to charges of murder and to ensure the accused were not unfairly restricted in their rights to a fair trial;
- Failed to advise the courts on the requirement to have a trial member drawn from the accused’s unit or another auxiliary unit;
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- Failed to advise the courts martial that only one penalty should have been passed against the accused for multiple charges. Multiple sentences of murder charges was prejudicial.
Convictions and Sentences Lord Kitchener, who confirmed the convictions and approved the death sentences failed to:
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- Provide the Secretary for State a complete and detailed record of the trial proceedings so that they could be reviewed by the Judge Advocate General (a requirement of the Manual of Military Law). The summary provided by Kitchener was misleading and deficient;
- Inform the accused of the verdicts and sentences within a reasonable time so they could seek legal advice about an appeal to the King;
- Ensure that he was available in Pretoria after he had confirmed the sentences and convictions on 25 February 1902 to hear pleas for mercy by the accused and their counsel, Major Thomas and / or forward petitions for review and clemency to the King for consideration;
- Ensure the accused were permitted to contact their relatives and / or representatives of the Australian Government to seek clemency on their behalf. This failure was particularly cruel and designed to ensure the Australian government could not assist;
- Ensure that the petition for mercy prepared by Morant was considered by him while granting a stay of execution;
- Ensure that the need for prompt military justice was balanced against the rights of the accused to exhaust all lawful avenues of appeal for mercy, including by the Australian Government and their relatives;
- Properly consider the recommendations for mercy made by the courts martial;
- Was in error in only commuting the sentence of Witton and not the sentences of Morant and Handcock;
- Ensure the accused did not suffer injustices during the investigation and trial proceedings;
- Failed to ensure that Lieutenant Colonel Hall, the area commander and superior officer of the men was available to give evidence on issues such as orders to shoot prisoners. This failure caused extreme prejudice to the accused’s defence of obedience to superior orders.
Conclusion
- The convictions and sentences were unsafe and contrary to law of 1902. Posthumous pardons are needed to address the substantial errors in the investigation, trial and sentencing of the accused. Injustices resulted and the convictions should be quashed and pardons granted.
Copyright © James Unkles 2010