Breaker Morant Blog

  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

1.  
   • 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;
2. • 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:

1. • 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

A Plea for George Witton

In 1902, Lieutenants Morant, Handcock and Witton were tried by British courts martial.

On 21 December 1901, Morant, Hancock and Witton, were charged with offences that occurred between 2 July and 7 September 1901.

Morant and Handcock were sentenced to be executed;

 Witton was sentenced to be executed, but his sentence was commuted to penal servitude for life.

Release of Witton.  Witton’s case was reviewed by Isaac Isaacs KC, MP in 1902 (destined to become Chief Justice and Governor General). This review led to a storm of protest from Australians and representations from the Australian, South African Governments and British politicians, including Winston Churchill for Witton’s release. Finally, a petition signed by 80,000 Australians supported a petition for mercy sent to King Edward VII.  On 11 August 1904, Witton was released from prison and returned to Australia.

The consideration in 2010 of the petitions seeking pardons for Morant, Handcock and Witton, should be guided by the eminent opinions of Isaac Isaacs.    There is a need to finally address the matters identified by Isaacs – procedural fairness, respect for the rule of law, appropriate sentences commensurate to the circumstances and degree of criminality. 

The existence of the Witton petiton must send a very strong message to the British government as it discusses the principles that support pardons for the accused.

In 2010, public opinion is again at work, sending clear , message to government that after 108 years, the public in Australia and else where expects a review of the case for pardons.

Australians have long believed that Morant, Handcock and Witton were the victims of “rough justice”, a sentiment supported by 80% of respondents to a 2009 newspaper poll in Melbourne’s The Age newspaper.

The 60 minutes program, ‘Justice Denied’  aired on 5 July 2010 generated considerable public discussion about the case for pardons.

• The on line poll returned a 62% vote in favour of pardons:
• The telephone / SMS survey conducted by 60 minutes returned an 82% vote in favour of pardons;

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Web Site:  www.breakermorant.com reveals:

• an online poll  has a vote of  72 % in favour of pardons
• the on line petition at, http://www.gopetition.com.au/ has recorded 256 signatures in favour of pardons for Morant, Handcock and Witton

The voting trend will continue until pardons are secured and justice delivered after so many years of denial.  The convictions and sentences in this case were flawed, the men denied fair trials according to law and the public expects the miscarriage of justice to be addressed.  The time for more debate by historians must cease and an inquiry to determine the facts of the case must be convened to settle the public doubt over the lawfulness of the arrest, investigation, trial and sentencing of these men.

In addition to the views of the public, the Australian Parliament has spoken,  The Petitions Committee that convened a hearing on 15 March 2010 is continuing to represent the interests of the Australian electorate by pressuring the British government to conduct a fair and transparent hearing into the petition sent to the Queen.  One of the members of the Committee, Mr Alex Hawke, appeared before Parliament on 15 March after the hearing had  finished and reported to the Parliament. Some of his comments as reported in Hansard included:

 ‘ I think in an examination of this issue the current debate regarding a pardon for Harry ‘Breaker’ Morant, Peter Hancock and George Witton stirs passion amongst many Australians one way or the other, throughout our community and my community of Mitchell. There is in my view serious and compelling evidence that some form of redress should be given all these years later to those men executed by the British.’

And finally, from the words of Major Thomas, the officer who defended the men at courts martial has been an inspiration to seek justice.  My motivation is to achieve what Thomas couldn’t.  In March 1902, the Bathurst National Advertiser newspaper published a letter that was written by Major James Thomas to George Witton’s father. The letter contains intriguing insight in to the opinion of Thomas about the manner in which his clients had been treated.  The letter stated in part:

 ‘Your son has been sent a prisoner to England and I think it will be  wise to defer any active steps concerning him till the Australian government is in possession of the facts. The defence maintained was that under the customs of war the shooting of these Boers was allowable as they were merely running bandits or marauders. It was proved that in other cases exactly the same procedure was adopted and approved of by other officers. Consequently, you will see that from a soldiers’ point of view at any rate the crime was not so dreadful as might appear. I only regret that poor Morant and Handcock did not receive a sentence of penal servitude, but poor fellows they were shot at 18 hours notice. As counsel for your son and the other officers I should like to see that all the facts from the prisoners’ point of view are fairly brought forward.’

In Thomas’ words, it is time for the facts to be ‘brought forward’!

Copyright © James Unkles 2010

After the airing of the 60 minutes program, I received many messages of support and opinion about this case and the petitions seeking pardons. I also received a number of messages that were not supportive and that displayed an ignorance of legal process. An example came from an gentleman from South Africa. He stated:

‘He got what he deserved. He was part of a gang of murdering scum. He killed and raped woman and children’

This response is typical of those who resort to generalisations and unsubstantiated claims. For the record, Morant was never accsued of, charged with or tried on counts of rape and murder of women and children.

The difficulty I have had with this case, is the inability of so many people, historians, commentators, the public, those who have been seduced by the 60 minutes program on 4 July 2010, to understand that this case is not about the Boer war. For many, in South Africa, England and Australia, it is about the Boer war, the brutality from both sides in a conflict that is typical of many wars, conflict, suffering and appalling losses, only to end in a peace deal that should have been negotiated in the first place.

In my pursuit of justice and the truth of assertions that Morant, Handcock and Witton were ‘scapegoats’ of a brutal conspiracy of Lord Kitchener, (to avoid his own culpabilty in his war against the innocents, (the Boers, the old men, women and children) imprisoned in concentration camps), Morant has been accused of offences that he was never convicted of.

I have received many assertions of Morant’s crimes far in excess of was charged with, rapes, pillage and brutal killing of children and women.

I reject these assertions, either produce evidence of such crimes or desist from false accusations.

For the record, Morant, was chared and tried on 4 counts of murder, convicted of three and acquitted of killing the missionary Hesse. As far as I am concerned, the speculation of other crimes must rest there. I reject all assertions that Morant deserved the death penalty because he committed so many crimes in addition to what he was charged with.
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The case for pardons for Morant, Handcock and Witton is focused on the charges they faced and the sentences imposed. I am focused on allegations that they were not tried in accordance with the law of 1902. I am not interetsed in speculation of crimes for which they were not charged.   I reject all innuendo, rumour and unproven assertions that they were gulity of other unproven allegations and accordingly deserved the penalty they received.

At the end of the day, the merits of the case for pardons will be judged on the evidence of what offences they were charged with and convicted of.

If the detractors want to make a point about the merits of the case for pardons, I suggest they focus their energy in convincing the British government to convene an inquiry, open and transparent to evaluate the evidence of alleged injustices against assertions that the charges were proven beyond reasonable doubt and the penalties were applied in accordance with the law.

Some will find this analysis frustrating and legalistic. However, it remains, these men were not afforded fair trials in accordance with the law of 1902.

Appreciate your comments.

Jim Unkles

Copyright © James Unkles 2010

The Honourable Sir Laurence Street, AC, KCMG, QC, former  Chief Justice of  NSWs, Lieutenant Governor of NSWs, Judge of the Supreme Court of NSW and Commercial Mediator has been a strong supporter of pardons for Morant, Handcock and Witton.

Sir Laurence noted the petition for pardons and stated in an email dated 6 July 2010:

‘Thank you for your email alerting me to the 60 Minutes program.  I did indeed watch it and am most impressed at your handling of it.  It is encouraging to have support such as this from the television industry and I should like to make a very sincere acknowledgement to you for having taken up this very deserving and worthwhile cause’.
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Sir Laurence Street’s comments are consistent with other notable Australians who support the establishment of an inquiry to consider the evidence in support of pardons.

Copyright © James Unkles 2010

Summary:  A Plea for George Witton

In 1902, Lieutenants Morant, Handcock and Witton were tried by British courts martial.

 On 21 December 1901, Morant, Hancock and Witton, were charged with offences that occurred between 2 July and 7 September 1901:

 The charges were:

 Murder of Boer prisoner Visser on 11 August 1901 – Mprant, Witton and Handcock charged with murder;

 Murder of 8 Boer prisoners on 23 August 1901 – Morant, Handcock and Witton charged with murder;

 Murder of 3 Boer prisoners on 7 September 1901 – Morant and Handock charged with murder.

 Verdicts

 After courts martial between 16 January and 19 February 1901, the verdicts were:

 Morant convicted of the murder of Visser, the murder of 8 Boers and the murder of 3 Boers;

 Handcock convicted of the murder of 8 Boers, manslaughter of Visser and the murder of 3 Boers;

 Witton convicted of murder of 8 Boers and manslaughter of Visser.

 Sentences

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 Witton was sentenced to be executed, but his sentence was commuted to penal servitude for life.

Release of Witton.  Witton’s case was reviewed by Isaac Isaacs KC, MP in 1902 (destined to become Chief Justice and Governor General). This review led to a storm of protest from Australians and representations from the Australian, South African Governments and British politicians, including Winston Churchill for Witton’s release. Finally, a petition signed by 80,000 Australians supported a petition for mercy sent to King Edward VII.  On 11 August 1904, Witton was released from prison and returned to Australia.

What drove such an out pouring of support for Witton, including protests from MPs, and people in South Africa and England. Even Winston Churchill, MP lobbied for Witton’s release?

In a recent development, the petition was discovered along with a letter written by Witton’s brother, Ernest Witton.  Ernest organised for the petition to travel the length and breadth of Australia, through small country towns to the large cities.   He enlisted the assistance of the Australian Natives Association which was a benefit or friendly society that encouraged thrift and educational improvement among those born in Australia.  In  his letter to then Australian Governor General, Lord Tennyson, Ernest declared that the petition had been signed by by ‘all classes of the Australian community including Parliamentarians, professional and business people’. Ernest laboured mightily on the behalf of his brother, George and sought legal opinion of his eminent adviser, Isaac Alfred Isaacs. This extroadinary effort set the scene for a concerted move that suceeded in Witton’s release.

When George Witton reteurned to Australia, he authored a book, Scapegoats of the Empire.  In chapter 25 of the book, Geore Witton acknowledged the work done by his brother toi secure his relaase through the petition circulated throughout Australia.  George Witton stated:

‘On the 12th November 1904, after a chequered experience extending over nearly five years, I placed my foot again on my native soil. On my arrival in Australia I met among others Mr. Wainwright, general secretary of the Australian Natives’ Association, and his son, Mr. Austin Wainwright, who so ably assisted my brother in his efforts towards my release.’

Isaacs’ submissions in the petition on issues such as culpability, obedience to superior orders, Witton’s limited military experience as an officer and in the field, his performance of a duty of honour and trust at Pietersburg and Witton’s sentence being disproportionate to blame were given weight by the King’s advisers and an acknowledgement that the weight of evidence justified his immeidate release from prison.  In addition, some of the submissions in the petition could also be relevant in 2010 in the petition in support of pardons for Handcock, Morant amd Witton.

The consideration in 2010 of the petitions seeking pardons for Morant, Handcock and Witton, should be guided by the eminent opinion of Isaac Isaacs.    There is a need to finally address the matters identified by Isaacs – procedural fairness, respect for the rule of law, appropriate sentences commensurate to the circumstances and degree of criminality. 

The existence of the Witton petition sends a very strong message to the British government as it discusses the principles that support pardons for the accused.

The text of the petition will appear on the documents link on this site soon.

Jim Unkles

Copyright © James Unkles 2010

Purpose:  The Standing Committee on Petitions was established to  receive and process petitions and inquire into and report to the House on any matter relating to petitions and the petitions system

The Committee conducted a ’round table’ hearing on 15 March 2010. The purpose of the hearing was to consider the petition that I had filed with the Committee in October 2009.

The Chairperson, (Mrs Julia Irwin, MP) and members of the Committee conducted the hearing to consider the issues concerning the petition calling for pardons for Morant, Handcock and Witton.  In addition to hearing submissions in support of the petition, submissions were also considered from three persons who argued the case against the granting of pardons.

The committee caused the petition to be considered by the Attorney General. The Attorney’s response advised that ‘the Australian Government has no legal jurisdiction to grant pardons or review the trials conducted by another government in a foreign country’.  However, the Attorney did refer the petition to the British government for consideration.

 A transcript of the Committee’s hearing is at:  http://www.aph.gov.au/hansard/reps/commttee/R11610.pdf

The petition and the Attorney General’s response to the Committee can be viewed at:

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Another significant aspect of the Petition Committee’s hearing was the comments made by a Committee member, Mr Alex Hawke, MP.  On 15 March 2010, he addressed Parliament and made a statement in support of pardons.  In part, Mr Hawke stated, ‘There is in my view serious and compelling evidence that some form of redress should be given all these years later to those men executed by the British’.

In conclusion, although the Committee is limited in what action it can take with respect to the petition, the work of the Committee represents the first time in the history of the Morant case, that an Australian institution has had some involvement in the treatment of Morant, Handcock and Witton, something that shamefully denied to these men after they were arrested in 1901.

The author expects the British government, in its consideration of the petition, will note that Australian Parliament has spoken about the injustice in this case and the importance of the case in Australia’s military history.

Copyright © James Unkles 2010