I was pleased to assist Jim Unkles in preparing for this case by drafting affidavits for the three officers. The moot hearing was conducted on the basis that it was being held following passing of the sentences so the affidavits contain references to the moot hearing rather any real hearing (which was, of course, denied to them). Jim added some detail and the final legal touches and with his permission I have reproduced Peter Handcock's below:
Affidavit In Support of Application For Judicial Review
In the High Court of Justice Division No 3 of 1902Between:
Lieutenants Harry Morant, Peter Handcock and George Witton,
Officers in the service of His Majesty’s Army
Pretoria Prison, South Africa
(the Applicants)
And
The British Crown
(the Respondent)
Affidavit of: Peter Joseph HandcockAddress: His Majesty's Prison, Pretoria, South Africa
Occupation: Military Officer, in the service of His Majesty, the British Crown
Date: xxxx day of xxxx 1902
Contents:
I, the above named applicant, make oath and say as follows:
1. I make this affidavit as in support of the application for the writ on the annexed hereto and marked with the letter ''A''. The content of my affidavit is drawn from my own recollections and my review of the affidavits sworn by Lieutenants Morant and Witton.
2. I am currently under remand in the Pretoria prison with Lieutenants Morant and Witton awaiting the outcome of this application for review
3. I have sought the assistance of our defending office, Major James Francis Thomas to represent me in these proceedings. I understand he is also representing Lieutenants Morant and Witton. I also understand we are being jointly represented in these proceedings by counsel.
4. I have also considered the affidavits of Major James Francis Thomas, Lieutenants Morant and Witton annexed to the said writ and agree with the contents therein.
Background
5. I was born on 17 February 1868 at Peel, New South Wales, Australia.
6. I had a very poor education, my father died when I was aged 6 and I left school at aged 12, apprenticed to a blacksmith. I am married with three young children and was employed as a blacksmith on the New South Wales Railways.
7. I enlisted as a shoeing-smith in C Squadron, 1st New South Wales Mounted Rifles and sailed for South Africa on 17 January 1900. Shortly afterwards I was promoted to farrier-sergeant and saw action in Driefontein, Pretoria, Diamond Hill and Brandwater Basin. When my unit returned home I elected to remain in South Africa and for two months served in the Railways Services Police. In February 1901 I accepted a commission as Veterinary Lieutenant in the Bushveldt Carbineers. I never cared much about being an officer but I knew about horses and liked being a soldier. When I joined the BVC I was required to sign an attestation form promising to obey the orders of my Superior Officers.
8. In early June 1901, I went with 'A' Squadron, under Captain Robertson to the Spelonken. 'A' Squadron was detached from the Bushveldt Carbineers and placed under the command of the intelligence officer for the district, Captain Taylor. On 2 July 1901 Captains Taylor and Robertson ordered a patrol to apprehend and shoot a party of 6 Boers and this was done. I understand that Captain Taylor was later charged with this shooting but was acquitted.
9. Captain Robertson allowed 'A' Squadron to drift into a state of insubordination verging on mutiny. The men did almost as they liked and horses and other captured stock were being divided amongst themselves while stills on neighbouring farms were freely made use of. Captain Robertson was recalled along with several members of 'A' Squadron and replaced by Captain Hunt in mid-July 1901. Captain Hunt was joined by Lieutenants Morant, Hannam and Picton and several members of 'B' Squadron. Captain Hunt ordered Lieutenant Morant and myself to break up the illicit stills and to confiscate the stolen livestock. This resulted in resentment and animosity from some members of the detachment.
10. Captain Hunt informed us that he had received orders from Lord Kitchener through Colonel Hamilton that prisoners were to shot. I had no reason to doubt Captain Hunt, who was an experienced British officer. I believed that if the order came from Lord Kitchener then it must be legal and that it was my duty to obey it.
11. On the 7th August information reached us at Fort Edward that Captain Hunt had been killed at Devilskloof. Lieutenant Morant then being senior ordered the whole of the detachment to proceed with him to Reuter’s mission station, 85 miles east of Fort Edward, to reinforce a small party that had gone there with Captain Hunt. We reached Reuter’s on the evening of August 8, where we learned that Captain Hunt and Sgt. Eland had been killed and that he had been buried an hour earlier. We learned from the troops and from Rev. Reuter that Captain Hunt’s body had been stripped and terribly knocked about. The neck was broken and there were heel marks on his forehead between the eyes. His flesh had been cut into with a knife. Lieutenant Morant was extremely distressed and he vowed there and then that he would give no quarter and take no prisoners.
12. We left Reuter’s and caught up with the Boers on the evening of 9th August and immediately attacked. The Boers fled but we captured one wounded prisoner who was then in possession of several articles the property of the late Captain Hunt, and was wearing khaki. He was taken with us next morning in a cape cart and when we halted at Mamahila Kop Lieutenant Morant called a meeting of the officers and informed us of his intention to shoot the prisoner. I supported his intention as I believed that he was acting in obedience to orders. A firing party was formed and the prisoner, Visser, was shot.
13. I was charged, along with Lieutenants Morant, Witton and Picton with:
When on active service, committing the offence of murder, in that they, each and all, or one or more of them, did, at or near Reuter’s Mission Station, in the District Zoutpansberg, Transvaal, on or about the 11th day of August, 1901, wilfully, feloniously, and with malice aforethought, incite, instigate, and command Troopers Silke, Thomson, Botha, and Honey, Bushveldt Carbineers, then and there under the command of the said prisoners, each and all or one or more of them, to kill and murder one Visser, an unarmed prisoner of war then and there in the custody of the said prisoners; whereupon the said Troopers, Silke, Thomson, Botha, and Honey, being then incited, instigated, and commanded as aforesaid, did, each and all or one or more of them, kill and murder the said Visser.
14. I was tried from 16-29 January 1902 and was found guilty of manslaughter and sentenced to Six (6) c.n. I.H.L..
Lieutenants Witton and Picton were also found guilty of manslaughter. Lieutenant Morant was found guilty of murder and sentenced to death but the court recommended mercy on the following grounds:
- Extreme provocation by the mutilation of the body of Capt. Hunt, who was his intimate personal friend.
- His good service during the war, including his capture of Field Cornet T. Kelly in the Spelonken.
- The difficult position in which he was suddenly placed, with no previous military experience and no one of experience to consult.
15. On the morning of August 23, 1901, I was ordered to join a patrol led by Lieutenant Morant to take delivery of eight Boer prisoners who had been captured by intelligence agent Leonard Ledeboer and were being brought in by a patrol under Sgt. Wrench. It was my understanding that these Boers were members of the commando that killed and mutilated Captain Hunt. After we had taken charge of the prisoners and we had travelled about two miles Lieutenant Morant ordered the prisoners off the wagon, took them off the road and ordered that they be shot. One of the prisoners attacked Lieutenant Witton and attempted to seize his rifle so Lieutenant Witton shot him and the other prisoners were also then shot by our patrol. At the court-martial Lieutenant Morant took the whole responsibility on himself, and stated that whatever part I and the other members of the patrol had taken was by his orders.
16. I was charged, along with Lieutenants Morant and Witton, with:
When on active service committing the offence of murder, in that they, each and all or one or more of them, at or near Fort Edward, in the District of Zoutpansberg, Transvaal, on or about the 23rd day of August, 1901, did, when on active service, wilfully, feloniously, and of malice aforethought, instigate, incite, and command Squadron Sergeant-Major Hammett, Troopers Thomson and Duckett, Bushveldt Carbineers, then and there serving under the command of the said prisoners, each and all or one or more of them, to kill and murder eight men, names unknown, unarmed prisoners of war then and there in the custody of the said prisoners; whereupon the said Squadron Sergeant Hammett, Troopers Thomson and Duckett, being thereto incited, instigated and commanded as said, did, each and all or one or more of them, kill and murder the said eight men, names unknown.
17. I was tried from 3-4 February 1902 and was found guilty of murder and sentenced to death. The court recommended myself and Lieutenant Witton to mercy on the following grounds:-
- The court considered both were influenced by Lieut. Morant’s orders, and thought they were doing their duty in obeying them.
- Their complete ignorance of military law and custom.
- Their good service throughout the war.
The court also recommended Lieut. Morant to mercy on the following grounds:-
- Provocation received by the maltreatment of the body of his intimate friend Capt. Hunt.
- Want of previous military experience and complete ignorance of military law and military procedure.
- His good service throughout the war.
18. These recommendations were ignored by Lord Kitchener, particularly in relation to Lieutenants Morant and myself, and he later confirmed our death sentences.
19. On 7 September 1901 I was ordered to accompany a small patrol led by Lieutenant Morant to apprehend three armed Boers who were reported to be in the vicinity. Lieutenant Morant was of the belief that these men were also part of the commando who killed and mutilated Captain Hunt and he indicated his intention to shoot them on capture. The youngest of the Boers was a youth in his teens and Trooper Botha, a turncoat Boer who was Lieutenant Morant’s batman and interpreter, volunteered to shoot him. The other two Boers were also shot.
20. Lieutenant Morant and I were charged with:
When on active service committing the offence of murder, in that they at or near Sweetwater Farm, in the District of Zoutpansberg, Transvaal, on or about the 7th day of Sept., 1901, did, when on active service, wilfully, feloniously, and of malice aforethought, incite, instigate, and command Troopers Thomson and Botha and Corporal McMahon, B.V.C., then and there serving under the command of the said prisoners, each and all or one or more of them, to kill and murder two men and one boy, names unknown; whereupon the said Troopers Thomson and Botha and Corporal McMahon, being thereto incited, instigated and commanded as aforesaid, did, each and all or one or more of them, kill and murder the said two men and one boy, names unknown.
21. We were tried on 5th – 6th February 1902 and found guilty. We were sentenced to death, but with a similar recommendation to mercy.
22. Once again Lord Kitchener ignored the recommendations to mercy and confirmed our death sentences. I was not informed of these verdicts and sentences until 26 February 1902.
23. On the same day that the eight Boers were shot (23 August 1901) a missionary, Rev. Daniel Heese, was also shot at Bandolier Kop on his return to Pietersburg from Elim Hospital. Rev. Heese had spoken to the prisoners earlier and Lieutenant Morant asked him to move on which he did. To the best of my knowledge he did not witness the shooting of the prisoners nor was he even aware of it.
24. To my amazement I was charged with his shooting and Lieutenant Morant was charged with inciting me to do so. I was not guilty and had no reason to shoot him. Even if he had witnessed the shooting of the prisoners Lieutenant Morant and I had nothing to fear as we believed we were following orders.
25. We were tried on 17th-19th February 1902 and found not guilty which is not surprising since several civilian witnesses proved that I was 20 miles away at the time of the shooting and the prosecution failed to even establish a motive in that they failed to produce any witnesses to testify that Rev. Heese was aware of the shooting of the prisoners.
Grounds of appeal
26. Denial of adequate representation at inquiry and courts martial
27. I had nobody to represent me at the Court of Inquiry. I was staggered at the number of charges laid against me and I was so completely ignorant of military law and proceedings I did not know what to do. On one occasion I was told by Colonel Carter, the court president, that I should make a complete statement laying the blame on Lieutenant Morant and on another occasion I should blame Major Lenehan and responsibility would rest solely with him. I refused and was sent away to solitary confinement for lengthy periods. While I was prepared to admit to shooting prisoners the court seemed determined to get me to confess to a crime I did not commit – the shooting of the missionary. They badgered me repeatedly and used various tactics to trick me into confessing. I found out later from Lieutenant Morant that they used similar tactics with him such as telling him that I had confessed and had even implicated Lieutenant Witton. This was simply not true.
28. I have read the claims made by Lieutenant Witton at paragraphs 18 – 20 and agree with the contents. My health, physical and mental, suffered terribly and I was refused permission to contact my wife and three children in Bathurst. I had not communicated with them since June 1901 and I was fretting about their welfare. I wanted to speak to the prison chaplain to contact my family and ask the Australian government for help. This request was refused.
29. I relied on the advice of Lieutenant Morant and agreed with him that we needed to have a solicitor to consult during the court of inquiry and to assist us to obtain witnesses who could assist us with our defence to the allegations of shooting prisoners. There were many witnesses I wanted to contact including our area commander LTCOL Hall but before we could speak with him, he had been posted to India. He had important information about orders and his knowledge about our obedience to orders not to take prisoners.
30. On the 15th January, twelve weeks from the date of my arrest and just one day before the first trial was to commence, I was served with the charge-sheets. I then learned that Major Thomas, a member of the New South Wales Mounted Rifles, and an Australian solicitor, whom Major Lenehan had secured to undertake his own defence, would act for us all.
31. I had never met Major Thomas and became concerned about his ability to represent five officers with only one day’s preparation. I have never been to court and did not know what to do. I assumed Major Thomas was capable and could represent me, but on 15 January 1901, the day before the first trail, I only had 30 minutes with him to explain my actions. I hadn’t done anything wrong and thought I would be acquitted.
32. Condonation
33. I have read the claims made by Lieutenant Witton at paragraphs ... of his affidavit and paragraphs ... of Lieutenant Morant’s affidavit and agree with the contents. On two occasions during the course of the courts-martial, I, along with my fellow prisoners, was called upon to take up arms to assist in the defence of my captors. I now understand that this action could have been grounds for a pardon or at least mitigation of our sentences, but we received no such consideration from the court.
34. I performed my duty during the attack and was pleased to have assisted in the defence of Pietersburg. Others said I should have been decorated for killing the Boer leader, Pretorius. During the fight we did not try to escape or attack our gaolers, we acted loyally and performed our duty even though we were on trial and did not have to bear arms.
35. I also understand that since Headquarters, in particular our regional Commander LTCOL Hall was aware of the fact that prisoners had been shot, but took no action and allowed us to continue in our normal duties for quite some time that this constitutes another form of condonation which should absolve us from liability for our alleged crimes.
36. Denial of appeal rights to petition the King and submit a military redress
When he learned of our sentences Major Thomas rushed away to find Lord Kitchener, but was also informed by Colonel Kelly that the Commander-in-Chief was away, and not expected to return for several days. He then begged Colonel Kelly to have the execution stayed for a few days until he could appeal to the King; the reply was that the sentences had already been referred to England, and approved by the authorities there.
37. I didn’t understand what an appeal or redress was, but we were lucky that Major Thomas took court action and has allowed us to have an appeal to this court.
38. Being denied contact with the Australian Government and relatives
On learning my fate I wrote, asking neither mercy nor anything else for myself, but begged that the Australian Government would be asked to do something for my three children. My letter was returned to me without any acknowledgement. I don’t think headquarters ever posted the letter which I think was unfair.
39. Solitary confinement and denied opportunity to be represented after arrested to contact witnesses
40. I was held in solitary confinement throughout the three month period leading up to our courts-martial and also throughout the trials. As stated, I was even denied access to the military chaplain, The Reverend Brough.
41. I was charged with numerous murders, questioned repeatedly and then shut alone without a soul from whom I could seek advice. I felt I had been condemned before I was even tried. Alleged statements from others were read out to me in an attempt to make me admit to things I didn’t do. After twelve weeks of this treatment I felt I couldn’t trust anybody and wondered if I was losing my mind.
42. I wanted to challenge witnesses against me but was not permitted to. I also wanted to have my own witnesses called to give statements to the Inquiry. Had it been approved I would have spoken with a military lawyer but this was never offered to me
43. Errors in the warrants signed by Kitchener and report of proceedings to the Crown inadequate
44. Rules of Procedure
I submit that we suffered some disadvantage in not having as one member at least of the court-martial an officer of an irregular corps in accordance with the Rules of Procedure.
45. On one occasion I was found guilty of manslaughter and sentenced to a period of imprisonment, but on two other occasions, for a similar offence, I was found guilty of murder and sentenced to death. I have been informed that under Rule of Procedure 48 I should have received only one sentence in respect of all the findings and, in the opinion of Deputy Judge Advocate Colonel St. Clair, I may have been disadvantaged by this breach of the rule.
46. I am sure being found guilty and sentenced to death several times must have caused me prejudice in being sentenced to an appropriate penalty. However, I was thankful that the court officers recommended mercy and I thought we would be spared a death penalty.
47. Obedience to orders.
As I stated previously, I have had a very limited education and was raised in the country. Prior to joining the Bushveldt Carbineers my only previous military service was as a shoeing-smith and farrier and I have no knowledge of military law and customs. I accepted a commission as a veterinary lieutenant because I am good with horses, but I received no training to equip me to function as an officer. It is my understanding that if I receive an order from a superior officer then it must be obeyed. It has always been my belief that if the order comes from a senior officer then it must be lawful.
48. I agree with what Lieutenant Witton said in his affidavit when he talked about our lack of experience and our liability to obey orders. He said. ‘I must stress that as volunteers in the Boer war we were not professional career soldiers skilled in the refinements of combat, military law and customs and traditions. We came from Australian that had no history of military soldiery, we were simple volunteers back home. The only military training we had was rudimentary parading and riding and shooting in the bush. We were only selected to be appointed as officers in the Bushveldt Carbineers because we could read and write and were keen to make Australia proud and do our duty. When we signed attestation contracts with the British Army we were told one thing above all else and that was to serve the King loyally and obey all orders of our British Superiors.’
49. When I joined the Bushveldt Carbineers I signed a document called Attestation. A copy is attached to the affidavit of Major Thomas. I signed it and took the pledge to serve the King loyally and obey all orders of my superiors and I did just that and relied on what Lieutenant Morant told me
50. Throughout my service in this war I have seen several instances where prisoners have been shot on both sides and no action has been taken against those responsible. Therefore, I can hardly be blamed for not knowing when it is lawful to shoot prisoners and when it is not, particularly when I believed that orders to shoot prisoners came from the Commander-in-Chief himself. Major Thomas produced several witnesses to testify that prisoners were being routinely shot by other units with impunity.
51. While I may have promised to obey the orders of my superior officers on my attestation form, I did not agree to being made a scapegoat to protect those superior officers who issued what I have now been told were unlawful orders. The outrageous treatment I received in the four months following my arrest has led me to the conclusion that our graves were dug before we even left the Speldonken.
52. I respectfully ask this honourable court to give the applicants the opportunity to have our appeals heard by an authority independent of the British military and the agendas that pre-determined our guilt and sentences.
Sworn / Affirmed by the deponent
at His Majesty’s Prison, Pretoria
in South Africa
on day of 1902
Before me: etc.
Well done - very interesting!
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