Breaker Morant Blog

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.”

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“’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.”

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

article  An extraordinary collection of letters written by Colonel John Francis Flewell – Smith has been released by his descendants recently.  The letters give graphic ‘eye witness’ accounts of the Boer / Anglo war during the period of Frank’s service in 1901 – 1902.

Frank, a farmer from Queensland volunteered to join the war in South Africa and on the 27 January 1901, Frank was made Commanding Officer of the 5th Australian Contingent which sailed on 6 March on the Templesmore for South Africa. After service with the Australian Bushmen as they were called, Frank was transferred to Colesburg as Area Commandant. Amongst a rebel farming population he had 4 District Commandants under him and his area covered 8,000 square miles. He had the power to raise mounted troops and town guards. He had to watch the rebel farmers and supervise all supplies. Frank completed his service and returned home in 1902. On 19 June that year he resigned his commission in the Queensland Defence Force and returned to Lowood on the 13 August.

Frank’s letters discuss tactics used by the Boers against the British and Colonial soldiers, African natives and scouts and Dutch civilians who sided with the British.  Some letters also discuss orders to shoot Boer prisoners.  Some of his assertions corroborate claims made by Breaker Morant and George Witton on the tactics used by both the Boers and the British to prosecute the war.

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I will include some of the extracts of the letters on this Blog topic.  Suffice to say, the contents of the letters challenge much of what has been claimed by historians and provides new insights into the conduct of the war by senior commanders on both sides.

I am grateful to the Flewell – Smith family for their approval for me to study and publish some details of the letters.

Since I have worked on the case for pardons, many people have voted on the poll on the web site, www.breakermorant.com and have also signed the on line petition.  While the majority of people support the case for pardons, there are those who disagree, particularly people from South Africa.   I respect their views.

However, I appreciate the support I have received from other South Africans who understand that Morant, Handcock and Witton were victims of their British Superiors who gave the ‘no prisoners’ order and used these men as scapegoats to deflect responsibility for their own culpability.

A number of South Africans who signed the on line petition include,  John Hall,  Susan Van Staden, Louis du Plessis, Roche Petersenm,  Cobus Strydomm , Rob Marshall and Marga Williams.  The following is a statement from John Hall, (dated 11 Nov 11) who supports the case for pardons.  He made this comment on the petition site:

 ‘lets get over our selfs if need to review the case lets then do it. these people shoulh have been pardoned years ago. i am a white south african, Afrikaans speaking and can not believe we still live in 1901 in the boer war. if there is still people living there shame thats why we get nowhere. PARDON THEM. We are in 2011 leave the past in the past‘

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I appreciate their support and understanding that it is time to deal with this case and deliver justice through pardons.

Regards

Jim Unkles

jamesunkles