Peter FitzSimons’ claim about Lieutenant Handcock’s exploits during the Boer war and his insistence that Lieutenant’s Handcock’s name be removed from the War memorial at Bathurst is disputed by Handcock’s descendants who, along with the descendants of Lieutenants Morant and Witton advocate for an independent inquiry to determine how these men were treated by the British military. FitzSimons’ article:
Peter Handcock: Disgraced soldier deserves no war memorial honour (smh.com.au)
The descendants argue these men suffered appalling injustice after a trial and sentencing process that was illegal according to military law of 1902.
The Sub Branch of the Bathurst RSL firmly rejected the call to remove Handcock’s name from the Memorial and insisted that his name remains on the memorial in recognition of his loyal service to the Crown.
The RSL also supported my claim and representations by the descendants of Lieutenant Handcock that while doubt remains about the legality of his arrest, trial and sentence, in strict compliance with the law of 1902, his name remains on the memorial.
The attached letter from the RSL was supported by the Bathurst Council:sub branch letter to council
The descendants of Peter Handcock were very critical of Fitzsimons article and the Sydney Morning Herald’s decision to publish the article on 25 April 2021, on a day that is sacred when Australians come together, in person and in spirit, to commemorate the men and women who have served our nation in all wars, conflicts, and peacekeeping operations.
While FitzSimons is entitled to express his version of history about the Boer war and these men, his conclusion that Morant and Handcock got what they deserved lacks an understanding of military law. He should have respected the day and published his opinion after ANZAC day.
His article drew strong complaints from the descendants to the newspaper and the Press Council about the timing of the article and the accuracy of its content.
One descendant stated; ‘You would think that someone who claims to have “written 10 books on Australia’s military actions” might have developed some appreciation of the importance of the day and chosen some other time to foist his opinions on the Herald’s readership. Under the guise of objective reporting it presented subjective opinions which are not based on fact’.
Another descendant stated:
‘Had the trial of my great grandfather and his colleagues, Morant and Witton, been conducted fairly and fully in accordance with military law in force at that time, they would not have been convicted and would therefore not be ‘war criminals’, as the author so colourfully puts it. So, my great grandfather very rightfully deserves his place on the honour roll in Bathurst.
Therefore SMH and Mr Fitzsimons, my complaint is that your so-called ‘Analysis‘ is fatally flawed and I don’t take kindly to abuse of my family, in any form. Your so-called ‘Analysis’ clearly ignores expert legal opinion and is biased toward an opinion that isn’t well supported. It is your author’s opinion – his ‘story’. It is definitely not history’.
Comment
The conduct of the British Military at the time created a fatal injustice. FitzSimons’ opinion about the case is in stark contrast to the expert opinions from notable community/political leaders and senior legal Counsel, including:
Geoffrey Robertson, AO, QC, International jurist and author who stated: ‘They were treated monstrously. The case of Morant and Hancock, the two men who were executed, is a disgrace. 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’.
David Denton, QC, ‘In my ultimate opinion, based upon the foregoing, there are good grounds for the Australian Government itself to convene a public enquiry into the circumstances affecting the convening, arraigning and conduct of the court martial of the Australian military veterans and to the subsequent conduct of the military authorities having authority over the Australian military veterans in their handling of the rights of the prisoners once they were found guilty of certain offences which carried a death penalty. In my opinion the issues raised by descendants of Morant, Handcock and Witton should be assessed with the assistance of a public inquiry. A public inquiry will also assist in finishing what the House of Representatives Petitions ‘Committee considered in March 2010 and described as a compelling and strong case for pardons’;
Sir Laurence Street, QC, former Chief Justice NSWs ‘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. No judge with any ownership of the criminal justice system in his jurisdiction, or her jurisdiction, could tolerate a… something of this sort going unremedied. This is crying out for judicial intervention.’
Greg Hunt, MP, Minister: ‘Well my view is that any Australian government at any time should seek final resolution, and if we are elected then I will continue to work within the parliament to see that outcome. Well I think the concern is that two Australians were executed in a summary fashion without justice’.
House of Representatives: In 2018, the injustice was addressed by a motion tabled by an MP in the House of Representatives. It contained an expression of sincere regret and apology to the descendants of these men for the manner in which Morant, Handcock and Witton were treated. The motion stated in part:
‘Lieutenants Morant and Handcock were the first and last Australians executed for war crimes, on 27 February 1902. The process used to try these men was fundamentally flawed. They were not afforded the rights of an accused person facing serious criminal charges enshrined in military law in 1902. Today, I recognise the cruel and unjust consequences and express my deepest sympathy to the descendants’.
The other aspect that has been ignored by critics, including FitzSimons is the appalling injustice suffered by these men, the denial of appeal to the Crown, and to state a military redress of grievance, rights enshrined in statutory and common law. They and their legal counsel, Major Thomas were also refused the right to consult the Australian Government for assistance. The evidence that these Australians were not tried and sentenced according to law is compelling.
I also dispute some claims in FitzSimons book. For example, although he agreed Handcock was acquitted of the murder of the German missionary Daniel Heese, he implied that this decision should be ignored because his guilt was declared 29 years later when Wittton confided to defence counsel, Major Thomas that Handcock had confessed to killing Hesse. FitzSimons reliance on a claim made by Witton decades later is unreliable and was discredited by Thomas. I place credibility on a judicial decision made by the courts rather than an unproven claim.
I also dispute his assertion that Morant was not an Australian citizen even though he was born in England.
It is also argued that Handcock was found guilty by the accepted legal process of the time. I disagree, the process used was flawed from the moment of the arrest of these men in October 1901, kept in solitary confinement for three months, denied access to counsel and contact with the relatives and the Australian Government to prepare their defence and collate witnesses to verify orders to take no prisoners existed. While the prosecution enjoyed the luxury of unlimited opportunity and resources to prepare for trial, there was a conspiracy to pervert the course of justice by the convening authority and Command (Lord Kitchener) in failing to ensure these men had access to defence counsel after they were arrested and investigated, permitted to seek support from the Australian government and adequate time and resources to prepare for trial.
For the military convening authority to dictate that these men could not have access to their lawyer, Major Thomas until one day prior to their first trial was a calculated and cruel abuse of process designed to keep the trials a secret from the Australian government, to prevent diplomatic interference and pleas from the families of these men, this was cold, calculated and cruel and an abuse of the rights of an accused person enshrined in military law and procedure, but ignored by Command.
It is understandable that the term scapegoat is used when considering the manner in which these men were treated.
Superior Orders. I disagree with FitzSimons assertion that orders to summarily execute Boer prisoners were not given by British officers.
Evidence of such orders exist and were issued by Lord Kitchener in 1901 and other officers under his command in accordance with the principle of reprisal to address deadly outrages inflicted by Boer combatants against British soldiers. Reprisal was a concept recognised by the law of the time and published evidence of George Witton corroborated evidence of Morant and Handcock that they held a reasonable and honest belief that the orders they were given were lawful and had to be obeyed.
The existence of such orders was also confirmed by the senior Judge Advocate who reviewed the evidence produced at the investigation that led to trials. Col James St Clair’s legal opinion is very clear,
He named British officers, Captains Hunt and Taylor who issued such orders to men serving with Bushveldt Carbineers, including Morant who at one point was reprimanded by Hunt for failing to follow such orders.
The other aspect that has been ignored by critics is the appalling injustice suffered by these men, the denial of appeal to the Crown, and to state a military redress of grievance, rights enshrined in statutory and common law. They and their legal counsel, Major Thomas were also refused the right to consult the Australian Government for assistance. The evidence that these Australians were not tried and sentenced according to law is compelling.
I also dispute some claims in FitzSimons book. For example, although he agreed Handcock was acquitted of the murder of the German missionary Daniel Heese, he implied that this decision should be ignored because his guilt was declared 29 years later when Wittton confided to defence counsel, Major Thomas that Handcock had confessed to killing Hesse. FitzSimons reliance on a claim made by Witton decades later is unreliable and was discredited by Thomas. I place credibility on a judicial decision made by the court rather than an unproven claim.
I also dispute his assertion that Morant was not an Australian citizen even though he was born in England.
It is also argued that Handcock was found guilty by the accepted legal process of the time. I disagree, the process used was flawed from the moment of the arrest of these men in October 1901, kept in solitary confinement for three months, denied access to counsel and contact with the relatives and the Australian Government to prepare their defence and collate witnesses to verify orders to take no prisoners existed. While the prosecution enjoyed the luxury of unlimited opportunity and resources to prepare for trial, there was a conspiracy to pervert the course of justice by the convening authority and Command (Lord Kitchener) in failing to ensure these men had access to defence counsel after they were arrested and investigated, permitted to seek support from the Australian government and adequate time and resources to prepare for trial.
For the military convening authority to dictate that these men could not have access to their lawyer, Major Thomas until one day prior to their first trial was a calculated and cruel abuse of process designed to keep the trials a secret from the Australian government, to prevent diplomatic interference and pleas from the families of these men, this was cold, calculated and cruel and an abuse of the rights of an accused person enshrined in military law and procedure, but ignored by Command.
It is understandable that the term scapegoats is used when considering the manner in which these men were treated.
Recommendations for Mercy
FitzSimons also argued that Handcock murdered without mercy is not an opinion shared by the courts martial of 1902. Handcock was convicted of, inciting the murder of 8 Boers, the manslaughter of Visser and inciting the murder of 3 Boers The courts recognised persuasive mitigation and recommended mercy be granted to Morant, Handcock and Witton on the grounds;
- they were influenced by superior orders and thought they were doing their duty in obeying them,
- Their complete ignorance of military law and custom,
- Morant had suffered extreme provocation by the mutilation of his superior and friend Capt. Hunt, and
- Their good service throughout the war.
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In an inexplicable decision, Lord Kitchener commuted Witton’s capital sentence to life imprisonment while ignoring the court’s recommendation regarding Handcock. His decision was contrary to what the courts had identified and should have been implemented for both Handcock and Witton. The Manual of Military Law of 1899 provided, ‘a recommendation to mercy will be exceptional owing to the prisoner’s character or other exceptional circumstances, he should not suffer the full penalty which the offence would ordinarily demand’.
The decision to commute Witton’s sentence, but not Handcock’s or Morant’s, is one of the many aspects that his descendants seek to remedy through a posthumous pardon. On compassionate grounds alone, the plea is significant and is deserving of independent assessment.
Again, I place credibility on the considerations and ruling made by the courts rather than the ill informed claims made by critics over 100 years after the event.
Conclusion
The sacrifice of any Australian veterans in the past and present should be recognised and respected. If doubts exist as to the manner in which they were treated by their Command then this should be examined by an independent authority. Such an inquiry would determine the facts and matters in dispute and provide reassurance that the rule of law is paramount when reviewing cases in which there is credible evidence of a miscarriage of justice. Taking action in this case reflects Australian values enshrined in the rule of law and due process is as relevant today as it was in 1902.
Critics, including FitzSimons need to appreciate that unless allegations of war crimes are tried according to law, it creates a martyr and unless military law is strictly followed, a sense of injustice having been done is the result and remains unless addressed.
My commitment to this case reflects years of advocacy on behalf of the descendants of these men. The end game is to address the injustice that these men suffered.
This case remains unresolved. It calls for assessment independent of Government. Senior legal counsel and former judicial officers who have reviewed the evidence I have compiled, agree, this case needs an exacting assessment of evidence, findings of fact and an understanding of military law preferably by an experienced and retired judicial figure. The New Zealand Government and Parliament achieved such an outcome when it considered the case of 5 NZ soldiers tried and executed by the British military during WW1. The review by a retired judge led to legislation that granted posthumous pardons on compassionate grounds. The same process could be used in the Morant case to finally bring this matter to a conclusion otherwise the controversy will continue.