Saturday 19 April 2014

Good Old British Justice

In 2001 retired Australian Army Colonel Barry Caligari petitioned the British Government for pardons for Lieutenants Morant, Handcock and Witton.

I assume the paper he submitted to the British is the same as, or similar to, the one that I have in my possession written by him and titled "The Morant Affair". This paper also appears to have provided much of the material contained in the appendix to the second edition of Nick Bleszynski's "Shoot Straight, You Bastards!".[1]

The opinion of the British Judge Advocate General, the late Judge J.W. Rant, CB.,QC.,in response to Colonel Caligari’s submission is contained in LOOSE MINUTE JAG/D09 dated 12th February 2002. Judge Rant’s opinion is riddled with research errors which, in fairness to Judge Rant were probably made, not by him, but by the members of his department who briefed him. However, this does not excuse the late Judge Rant from responsibility since he is the person who put his name to the document.

A further petition to the British Government was made by James Unkles in 2010. This was rejected by the then Secretary of State for Defence, Dr. Liam Fox. An officer of Dr. Fox’s department wrote to me on 17 May 2011 confirming that Fox had based his rejection on the opinions expressed by Judge Rant and that “there are insufficient grounds to hold a public inquiry or to revisit the conclusions drawn by the JAG”. I understand from James Unkles that Fox’s successor, Philip Hammond, sent him a further rejection on 25 October 2012 along similar lines.

 David Denton SC, the leading barrister assisting James Unkles said this in The Australian on 29 July 2011:  "a 2002 legal opinion by British Judge Advocate General James Rant, relied on by the British government to reject a petition for pardons …" was "infected with a predisposition to dismissal" and it contained comments that were "high-handed and dismissive".[2]

 I am not qualified to comment on any of the legal opinions expressed by Judge Rant but there doesn’t appear to be a great number of those throughout his 28 page document in any case. It mostly contains a great deal of factual errors which I will deal with page by page. Attention to detail was also missing. For example, he misspelled the names of Peter Handcock and Robert Lenehan throughout, referring to them as Hancock and Lennehan. Such carelessness is most unprofessional and raises questions about the time spent, effort and quality of his opinion.

Pages 1 and 2
 Here Judge Rant describes the source material he used in the absence of the court-martial records. It seems, in addition to military law manuals, he relied mainly on 3 sources:

1. The Times report of 17th April 1902.View Report
He has this to say about it:
This account is given in factual, straightforward terms, and without journalistic or editorial comment. It has all the appearances of a piece of accurate and objective reporting, and there seems no reason to suppose that any major mistakes have been made in it. This renders the report an extremely useful near contemporary document.

 While this is fair enough up to a point, back in 1903 Mr. W.B. Melville, speaking on behalf of a deputation to the South African Premier. Sir Gordon Sprigg, more correctly stated: "We understand that you, Sir Gordon, have devoted some attention to this case, and that the evidence published in the London 'Times’ of 18th April, 1902,[sic] may have come before you. That evidence does not fill a page in the 'Times’, whereas the court-martial proceedings extended to three weeks. Not more than one-twentieth part of the evidence has been made public. Press censorship was responsible for the elimination of questions and answers not deemed judicious for public examination during the war.”[3]

Both Nick Bleszynski[4] and Bill Woolmore[5] published a comment from a former Bulletin journalist in the Bathurst National Advertiser about The Times report. “I have seen the original evidence and compared it with the scant extracts and was amazed by the careful emasculation of the full report. In most essential points the facts were perverted and everything which told in favour of the men was carefully excluded.”

2. The Judge Advocate General’s minute booksView Pages

3. The Cochrane documents (Letter and Memorandum)
Rant relies heavily on these documents throughout much of his opinion and here we have the first major blunder. He refers to Trooper R.M. Cochrane as an Australian Army Officer (later in the document he even promotes him to Major!?) and so affords him and his documents much more credibility and status than they deserve. His lack of any serious research is reflected in his assessment that “The whole document is an extremely interesting and a totally contemporaneous account of the events which led to the courts-martial of the parties in this case. It was compiled from information supplied by Troopers and non-commissioned officers of the BVC. This seems to be a very good source for first hand factual accounts.”

 If he’d bothered to look a little deeper he would have concluded, as Bill Woolmore did that “Most of these groundless allegations, and many were second and third hand, appear to have been discarded before the trials began or were dismissed during the trials.”[6]

The accusations made in the Cochrane letter and memorandum were not made under oath and were not tested under cross-examination so I can’t understand how Rant could use them in handing down his judgement.

Page 5
In response to Barry Caligari’s claim that accused and Major Thomas were given insufficient time to prepare a proper defence Judge Rant wrote: “There is provision for the defence to ask for an adjournment if they are not ready, or if they require a witness to be called. This was not done at these courts-martial. There is no suggestion that the advocate himself felt unprepared for the trial, and indeed never, as far as I understand it, subsequently complained that the verdicts were unjust.”

1. How does he know that the defence didn’t ask for an adjournment when he relied solely on the sanitised Times report of the trials? In the same address to Sir Gordon Spriggs referred to earlier, Mr. W.B. Melville said: "Counsel for the defence (Major Thomas) appeared in court forthwith, as he had no time for the preparation of the many cases entrusted to him. He had scarcely a statement to guide him, and was only confronted with evidence while the trials proceeded. There was no chance of testing credibility, and there was little opportunity of sifting evidence. Evidence objected to was admitted, and rebutting evidence, available under ordinary circumstances, was unobtainable. The defence, not designedly, but none the less regrettably, was hampered throughout."[7]

 Major Thomas had remained in South Africa until August 1903 to assist in this campaign to free George Witton.

George Witton wrote:
“…when certain men, most important witnesses for the defence, were asked for, the authorities at first refused to make any inquiries as to their whereabouts, and stated that the expense of securing their return would have to be borne by the defence. This was acquiesced in, and later on the authorities declared that they were unable to trace the men asked for. Yet at this very time a witness most important to me was travelling by permission of the Pretoria authorities on the Pietersburg line, and had just visited Nylstroom.”[8]

 2. The claim that Thomas never complained about the injustice of the verdicts is a gross insult to his memory. It is a matter of well-documented record that Thomas spent the remainder of his life disillusioned with the fairness of the British military justice system.

 Page 6
In confirming the Deputy Judge Advocate General and the trial Judge Advocate’s view that evidence given by defence witnesses that similar shootings had taken place with impunity in other units was irrelevant Judge Rant said: “Indeed, a considerable amount of latitude was permitted the court although the Deputy Judge Advocate General and the trial Judge Advocate both thought that some of the matters introduced by the defence were irrelevant. In that, in my view they were right. It can never be an answer to a charge of murder (or any other crime) that others are customarily carrying out the same acts, even if it would appear that those others have not been prosecuted, whether for one reason or another.”

Nobody can argue with this pious observation that two wrongs don’t make a right but isn’t it rather simplistic? According the The Times report, Thomas produced witnesses to testify that the shooting of prisoners was fairly widespread in order to establish:

 (1) the orders received; (2) the prevailing custom, having regard to the enemy they were fighting; (3) the practices adopted by other irregular corps against an enemy breaking the usages of war.

 Is Rant suggesting that it is OK for those in command to authorise, ignore and condone “acts of murder” when it suits them but to selectively prosecute similar acts when their own hides and reputations are at risk? It may be legal but it is unjust and highly immoral and seems to be common to every conflict right up to the present day.

 Page 7-8
 He discusses at length the fact that the Deputy Judge Advocate, Colonel Pemberton, commented that according to the rules of procedure “one sentence should have been awarded each prisoner for all the offences of which he was convicted.” And that “This irregularity has not in my opinion inflicted any injustice on Lieut. Morant but I am not prepared to say that it has not done so in the other 3 cases.” i.e., Handcock, Witton and Picton.

 Judge Rant does go on to say that “I can find no reason to think that, in law, the convictions of the court were in any way unsafe as a result of this failure to follow the rules.” but he does also conclude that “It may be that the [trial] Judge-Advocate was in error in this case” and “Such an irregularity might, in a suitable case, commend itself as a reason to mitigate the sentence at some stage, although in this instance that would not have afforded any comfort to Lt. Morant.”

 No comfort to Morant maybe but what about Peter Handcock and George Witton?

Page 8
On this page Judge Rant states:
It is also worth noting, in connection with whether or not the accused received a fair trial that the same rule of procedure to which I have referred (RP 103) requires the Judge-Advocate “equally with the President” to take on the duty of ensuring that the prisoner

“does not suffer any disadvantage in consequence of his position as prisoner, or his ignorance or incapacity to examine or cross examine witnesses or to make his own evidence clear or intelligible….”

As I stated previously I have no legal qualification but reading this as a layman suggests to me that both the Judge Advocate and the Court President had some obligation to inform the accused that they may be entitled to enter a plea of condonation both at the beginning of the trial and also following the two occasions when they took up arms in defence of their captors. Later in this paper I provide a link to Jim Unkles' blog where he provides a very comprehensive explanation of the principal of condonation.

 Page 9
 Here he considers the claim by Barry Caligari that the posting of the Pietersburg Commanding Officer, Colonel Hall, to India just prior to the trials severely hampered the defence.

"There is no suggestion from counsel for the other accused that the absence of Colonel Hall in some way hampered them. The probable view is quite to the contrary. The only way in which he might have assisted the defence is if, when called, he would have been prepared to say that there were direct orders emanating from HQ that all prisoners were to be shot. If such an order ever existed, it does not appear to have been reduced to writing and therefore at best could be taken only to be some kind of unofficial indication of tacit approval. That being so, it is hardly likely that Colonel Hall would be prepared to make any admissions to something like that, thus damaging his own interest."

Once again, how does he know that Major Thomas didn’t complain about the absence of Colonel Hall when he only has the brief Times report as a guide? In addition to questions about the order to shoot prisoners, Hall, as Commanding Officer at Pietersburg, could also have been asked:
  • Why wasn’t Captain Robertson arrested and charged with the shooting of the 6 Boers on 2 July 1901 but instead allowed to resign his commission? 
  • Why wasn’t Robertson charged with ordering the shooting of Trooper van Buuren on 4 July 1901? 
  • Was Captain Hunt sent to Fort Edward with specific orders that no more prisoners where to be shot? 
  • Why, when he was aware of the shootings in August and early September did he not take any action against the BVC officers at that time? 
  • Was command of the BVC detachment at Fort Edward handed over to Captain Taylor as claimed by Major Lenehan and his adjutant Lieutenant Edwards? 
  • Did Taylor report directly to HQ in Pretoria thus bypassing Lenehan and Hall? 

 Such questions could have placed Hall in the difficult position of having to commit perjury to avoid incriminating himself. Others may have come forward to refute his testimony so the safest course of action was to move him far away. Rant seems to be suggesting that there was no point in calling Hall as a witness because he would probably only lie anyway.

“I am unable to agree that Colonel Hall’s posting disadvantaged the defence. My view is quite the contrary”

 Rant’s extraordinary view is evidence enough that he has not grasped the essential points of the defence. Nor does he grasp the defendant's “right” of a fortiori to have witnesses of his own choosing. The “orders” did not come from Hall or Lenehan, however Hall was aware of them, condoned the shootings, and tried to keep a lid on them. Indeed he may have had to not “make any admissions”, but being out of the country was a safer bet.

Page 10
He glosses over Captain Taylor’s role in the shootings in one brief paragraph claiming that “at no point was he in the chain of command relating to the BVC”. Rant’s statement is categorically wrong. This claim is contradicted by various primary sources, e.g.,
  1. Capt. de Bertodano, the HQ Intelligence Officer responsible for the Spelonken region and the man who claimed to have gathered up much of the evidence, believed that Taylor was actually 2IC of the BVC. In his “memoirs” he wrote: “The BVC were under the command of Major Lenehan; Captain ‘Bulala’ Taylor, Adjutant Edwards, Lieutenant Quartermaster Mortimer,…”[9]
  2. When Peter Handcock made a report regarding the finding of the missionary Heese’s body – he addressed it to “Capt Taylor OC Spelonken”.[10] Officers are fully aware of their chain of command and Handcock wouldn’t have addressed the report to Taylor if he wasn’t the officer in command;
  3. A letter from Sir Godfrey Lagden, Secretary of Native Affairs to Director of Military Intelligence, Col Henderson dated 31 Aug 1901 contains the passage: "Lord Kitchener suggests that we should take Taylor over, but I think it would be undesirable to do so so long as he is in command of men performing Military service whose usefulness might be impaired at this juncture by conflicting instructions."[11]
  4. And Col. Henderson, on behalf of Kitchener, in a letter to Lagden on 24 Sept 1901 and referring to the appointment of a civilian native commissioner says: "The intention is that he should have control of Taylor's present force, about 100 men, as police and for protection" .[12] Not Morant’s force or Lenehan’s force but Taylor’s force; 
  5. Major Lenehan, in one of his submissions to the Australian Government wrote: “…the detachment was under Lieutenant Morant who received no orders from me. His orders came direct from Headquarters through a Captain Taylor, on the Headquarters Intelligence Staff. The Detachment was at the time working independently of the Regiment”. (Australian Archives CRS CP 78/1, Bundle 12, Item 382).[13]
  6. Major Thomas wrote to the Sydney Morning Herald (p14) on 16 June 1923 referring to “Captain Taylor’s detachment” at Fort Edward: “Taylor was in supreme command of this special detachment, both before and after the arrival of Hunt and Morant, … “
  7. The Times report of the trials stated during the Visser trial “Major Neatson, staff officer to Colonel Hall, Officer Commanding Lines of Communications, deposed that he had received certain reports from Captain Taylor with regard to engagements with Boers … “
  8. Captain Taylor testified for the defence in Eight Boers case that Captain Hunt had told Lieutenant Morant that prisoners he had brought in should have been shot. Cross examined by the prosecution he was asked: “Were you not Officer Commanding of the Spelonken?” He replied: “Yes; of the district.”[14] 

Apart from conceding that Taylor was “dishonest, devious and very probably a murderer” Rant completely ignores the opinion about the significant guilt of Taylor expressed by the representative of his own department, Deputy Judge Advocate General, Colonel St. Clair following the Court of Inquiry. He does not contemplate the breakdown in justice that allowed Taylor to escape conviction.

Page 11
He attempts to deal with Barry Caligari’s assertion :
“The shootings of prisoners were known to the commander and staff, to a greater or lesser degree shortly after the incidents occurred. Yet no attempt was made to stop the practice or to relieve the perpetrators from positions of command.”
this way:
“this area of the country was wild and Fort Edward was a long way (about 90 miles) from HQ. Communications by land must obviously have been poor and there was no rapid means of sending messages.”

This is another example of shoddy research. There are plenty of documents in existence that prove that Fort Edward was in regular contact with HQ both by telegraph and despatch rider. It is a lame excuse for inaction. If Hall had really wanted to stop the shooting he could have replaced those responsible.

On the same page he tries to claim that if those in command had wanted to cover up the shootings they could have simply transferred out the troopers who had signed Cochrane’s letter to various other units. He totally ignores the fact that it was too late for that because the matter had already come to the attention of the civil administrators (Francis Enraght-Moony and Sir Godfrey Lagden) a month prior to the very convenient Cochrane material.[15] Kitchener’s often strained relationship with the civilian administrators is well documented and he certainly wouldn’t have wanted to be subjected to an investigation initiated by them.

Page 16-18
Here Rant gives a fairly comprehensive summary of the Visser trial as reported in The Times, covering the testimony of all the witnesses except that of Lieutenant Picton who testified that “he had also received orders from Captain Hunt not to take prisoners” and also that he “reported the execution of Visser to Major Lenehan verbally immediately after, and then to Colonel Hall.”

One vital piece of Morant’s testimony was also omitted by Rant: “The court-martial [of Visser] was reported to Colonel Hall within a fortnight after it was held”. Rant also fails to acknowledge Major Lenehan’s testimony that Picton had reported the shooting of Visser to him and that he [Lenehan] had reported it to Colonel Hall.

This is further evidence that Colonel Hall was well aware of the shooting at an early date and by his inaction condoned it.

Page 18
In the Visser trial the defence testified that Visser was wearing, or in possession of, articles of Captain Hunt’s clothing. Judge Rant cites an untested claim in the Cochrane memorandum that Major Lenehan tried to pressure soldiers into supporting this testimony:

 “The witnesses present refused to do so and pointed out that so far from the prisoner wearing Captain Hunt’s clothing it was Lt. Morant who was wearing them himself at that very moment. Lt. Morant was wearing Captain Hunt’s “British Warm”, his riding breeches, his tunic and his leggings.”

The prosecution must have decided not to introduce these allegations at the trial. Perhaps they considered the obvious question that should have occurred to Judge Rant: If Morant was in possession of all of Hunt’s uniform what was Hunt wearing when he was shot, given that his body was found mutilated and stripped naked?

Rant is skirting the issue. The questions should be: Was Visser wearing a British uniform? The ownership of the uniform was immaterial.

 Page 20
“It would appear that Lt Hancock (sic) was acquitted of the murder of van Buren (sic) but, being realistic about the matter, and in light of the subsequent murder of the missionary, it might be necessary to look again at this incident now that rather more background is available”.

Here we have yet another example of poor research. Even though DJAG St.Clair recommended that Handcock be charged with the murder of van Buuren and that Robertson and Taylor be charged as accessories,[16] nobody faced trial for this killing despite the fact that it is clear, from the evidence he gave in the Lenehan trial, Handcock was willing to admit that he shot van Buuren on the orders of the other two. They could hardly try Handcock without charging the others as well – so why didn’t they? I fail to see what “rather more background is available” now than was available to the prosecutors back then.

Pages 22-23
Despite the fact that both Morant and Handcock were tried and acquitted of the shooting of Heese, Rant still raises that matter with a heap of vague circumstantial evidence that was presented at the trial anyway. He attempts to justify this by referring to Witton’s letter to Thomas in 1929. Rant falsely claims that Witton “states that Hancock (sic) confessed to him that he had murdered Heese at the instigation of Lt. Morant” and “Witton asked that it should not be made public until after his death.”. Witton implied Handcock’s guilt in that letter but he certainly didn’t state it as fact and he certainly didn’t ever intend that the letter be made public. The letter was not released until 1970 because Thomas’brother, who found it some time after Thomas’ death, asked the Mitchell Library to respect the feelings of Handcock’s wife and children. A member of the Mitchell Library staff decided on the 1970 release date.[17]

 It is obvious that the members of the Heese court martial were prepared to believe the evidence of the native, Silas Juno, who was the closest thing to an eyewitness they had. He was able to give a very full description of the rider who passed him just before the shooting of Heese[18] but was not able to identify that rider in the court.[19] (so it was clearly not Handcock he saw).

 Rant keeps referring to the “Cochrane document” as if it is some powerful piece of testimony that somehow overrides the evidence presented at the court-martial. The following paragraph left me totally dumfounded:

 “It is right to say that Lt. Hancock was tried for the shooting of the missionary, Mr. Heese, and was acquitted. However, the “Cochrane” document speaks of Lt. Hancock leaving the camp and that he usually rode a chestnut pony. A patrol, comprising Troopers Phillips, Wrangham and Bessadei, were at Cooksley farm when they saw another man called Van Rooyen who had seen one of the BVC nearby. Very soon after the time when Heese must have been murdered Lt. Hancock sent for Troopers Wrangham and Phillips and cross-questioned them very minutely as to the extent of their knowledge and the source of where they had got it from as to the murder of the missionary and Lt. Hancock seemed to be labouring under very great excitement over that matter.”

What does this prove? Handcock left the camp – he testified to that himself at the trial. He usually rode a chestnut pony – so what? (according to Silas Juno the murderer was riding a bay horse). If Rant had taken the trouble to compare the information about van Rooyen with van Rooyen’s own testimony at the trial he might have got some clue about the unreliability of the Cochrane document. Van Rooyen made no mention of seeing a member of the BVC near the shooting of Heese, but rather he testified that he travelled on until sunset (some four hours later) where he then met Handcock who was on foot. The murder of the missionary happened some 20 miles away so if Troopers Phillips and Wrangham knew about it “almost immediately after the tragedy” (as claimed by Cochrane) it is not surprising that they were questioned as to how they came by this knowledge.

 Then there is this profound observation by the judge:

 “Shortly after that Lt. Hancock left the camp armed and three Kaffir boys affirm that they saw Lt. Hancock shoot the missionary. Later on when the men went to search in vain for the body Lt. Hancock went straight to the place where the body was found which was thought to be somewhat suspicious.”

 Judge Rant should have realised that, given the need to obtain a conviction, the Court of Inquiry would have thoroughly investigated these spurious allegations and that anything valid would have been presented at the trial. Quite clearly the prosecutors regarded the testimony of the native, Silas Juno, as the most believable. Lt. Handcock knew where to go to look for Heese’s body because a report had been received as to its whereabouts from another German missionary Rev. Krause. Handcock was sent with a patrol to investigate.[20] A bit more research by the JAG’s department would have uncovered this fact.

Page 25
Under “SECTION 3 : CONCLUSION” Justice Rant begins by referring to another incident:

 “There were other incidents in which Lt. Morant was not involved such as the shooting at wagons containing women and children in which two children were killed and one small child injured. On that occasion the troopers refused to carrying (sic) on firing but shot over the tops of the wagons despite their orders.”

Not one of the accused was involved in this incident so why was it even mentioned? Since when is it a valid legal device to judge one group of people on the basis of alleged crimes committed by others? These are the same devious tactics employed by Kitchener in his telegram to the Australian government 100 years earlier. [21]

He then goes on to conclude:

 “There is no reliable evidence at all of any order emanating from anyone in authority that prisoners were routinely to be shot. Such an order would in any event be unlawful and not in accordance with the Hague Convention.”

 The fact that such orders would be unlawful is the very reason why there are no written orders to shoot prisoners on record. However, I disagree that there is no reliable evidence that these orders existed. For example:

In a speech on 26 February 1901 in the British Parliament Mr. Dillon (Mayo,E.) said “…I say there is sufficient evidence to demand from you an immediate, serious and searching investigation. ["Hear, hear !"] What is this charge? It is that Lord Kitchener has recently in the Transvaal repeated what he is alleged to have done on the eve of Omdurman— namely, that he conveyed to his officers secret instructions to take no prisoners.” Mr. Dillon then went on to refer to letters from soldiers at the front in support of this allegation and read excerpts such as “Lord Kitchener has issued orders that no man has to bring in any Boer prisoners; if he does he has to give him half his rations for the prisoner's keep.”[22]

The Liverpool Courier, February 8 1901, page 5 reported that Mr. Cartwright, editor of the South African News had been arrested by Kitchener for publishing a letter from “A British Officer” asserting that Kitchener had issued secret orders to the troops to take no prisoners.

The diary of HQ Provost Marshall Major R.M. Poore, 7 October 1901 “At about 6pm Bolton (Wilts Regiment) – Assistant Provost Marshall Pietersburg – arrived with some papers about rather bad things which have been taking place North of Pietersburg – the Bushveldt Carbineers accepted the surrender of 8 Boers and after taking them along for some days shot them. If they had intended doing this they should not have accepted a surrender in the first instance.”[23] So the man responsible for discipline in the British Army in South Africa was of the understanding that a policy of “take no prisoners” was at least condoned if not encouraged. His only criticism was in the timing, implying that it is alright to shoot people trying to surrender but wrong to shoot them after they have done so.

 As previously discussed, several officers from other units testified in the courts-martial about “take no prisoners’ orders but for some reason the court officials and Judge Rant preferred to hide behind the “two wrongs don’t make a right” adage instead of seeing it as indicative of the prevailing culture that inexperienced junior officers could be excused for being confused about. Historian Craig Wilcox wrote “After all, the army’s preference was for harsh measures against the Boers. Revenge killings at least followed customary rules and were a calculated and controlled response, however abhorrent, to perceived Boer crimes. And from the ranks it could seem that headquarters was killing too, not only with the spectacular trials and executions of a few Cape rebels and Boers for treason. St John Brodrick may have approved the trial and execution of Boers whose commandos had murdered prisoners. From July to September 1901 Kitchener certainly exhorted senior officers to stamp out armed resistance, leaving no living thing on the veld, and court-martial and execute Boers deceptively wearing khaki. The result was many unauthorised executions of armed men during and just after combat. But headquarters did not endorse these killings; it merely failed to notice them.”[24]

How could Kitchener fail to notice the killings when the matter was raised in Parliament several months earlier and he even imprisoned a man for reporting it in his newspaper? What message did “leave no living thing…” convey to the BVC officers who were being ordered by Captains Hunt and Taylor to take no prisoners? If Kitchener didn’t issue the orders he certainly didn’t try to prevent the killings from taking place and so by his inaction condoned them. While historians have been unable to find any record of written orders to shoot prisoners there doesn’t appear to be any evidence of orders to put a stop to what was a widespread practice over several months either. It seems Kitchener only finally acted when he had to find scapegoats to blame for the shooting of a missionary – a crime he couldn’t ignore.

Page 26
“There is evidence that Major Lennehan attempted to persuade the troopers to give untrue accounts of what had happened…”
It is disturbing that the learned judge regards as evidence unsupported hearsay allegations contained in a memorandum composed by Cochrane and unsigned by any alleged witnesses. The prosecution did its utmost to convict Major Lenehan of failure to report the shootings so if any real evidence existed it would have been introduced at the time. The court-martial acquitted Major Lenehan of this charge.

“A very significant feature of the history is that a large number of ex-members of this troop both non-commissioned officers and troopers went to see Major Cochrane to complain. They did so early in October 1901.” How did Judge Rant conclude that Trooper Cochrane was a major? It is certainly a very convenient error because it confers a great deal of undeserved validity to documents he relies upon so heavily. It also absolves him from having to address the issue of how a trooper can make extremely libellous written accusations about his commanding officer with impunity.

 Rant goes on to say that “This was not a disgruntled party jumping on any kind of band wagon, but a group of men who initiated the whole inquiry.”

 Mr. W.B. Melville, in his address to the South African premier I referred to earlier, disagreed: “…As to the witnesses for the prosecution, whose statements were more or less conflicting, some of them boasted openly that they expected to be rewarded with farms. This will show how much their evidence merited reliance….”[25]

The military chaplain at Pietersburg at the time, Rev. Joshua Brough, observed: "…I was not a friend of these officers of the Bushveldt Carbineers, but my sympathy was aroused by the harsh treatment they received in being kept in close arrest (I myself, the chaplain, was requested not to visit them) for some months before they were tried, and by the way the case was, as it were, prejudged from the statements of bad men…”[26]

It is also worth noting that several of the 15 signatories to the letter were members, or friends of members, of the various firing parties involved in the shootings so self-interest could certainly be considered as an incentive to sign.

Page 26-28
Here Judge Rant gives his interpretation of the legal issues relating to the principal of “condonation” which I will leave alone as I am not qualified to comment. Jim Unkles gives a very thorough explanation of this principal in his blog here. However, Rant's concluding remark is worth noting: “However, taking into account the disgraceful background to the murders in this case, it is hardly likely that the actions of Lt. Morant during the court-martial could spare him his fate…”

Judge Rant goes on to use unsupported allegations contained in the Cochrane documents such as “one at least was a sick boy who could hardly walk” to justify the above conclusion.

It is my understanding that if the principal of condonation was applied in relation to the performance of a duty of honour or trust then it would be a blanket application and the nature or severity of the alleged crimes not a consideration. In an interview with Jim Unkles for last year's Foxtel documentary Geoffrey Robertson partially agrees with Rant's opinion but goes on to say "What it does, or should have done is provide a mitigation and you don't execute men you have pressed into your own service".

Page 28
The document concludes with the following:
“As to singling out Australians as scapegoats or victims, it must be remembered that it was Morant’s fellow Australians who brought this matter to the authorities, begging them to take action. It was not Lord Kitchener who expressed these sentiments.” That should put those damned colonials and their impertinent petitions in their place!

However, it isn’t true. Most of those who signed the letter were not Australian and the correspondence on record proves that Kitchener had taken action well before the letter was written. I stick firmly to my belief that the Cochrane material was a clever ruse by Kitchener to shift primary responsibility for the shootings away from himself and his own man in the Spelonken, Captain Alfred Taylor. It certainly had the desired effect on the British Judge Advocate General’s department one hundred years later.

Lieutenant Colonel Caligari's paper made a very strong and compelling case for a review of the verdicts and sentences imposed on Morant, Handcock and Witton. It deserved much more than the high-handed, careless and dismissive treatment it received from the British Government.

 Richard Williams

1. Bleszynski, Nick, Shoot Straight You Bastards!, Random House, 2nd Ed. 2003
2. New evidence suggests Australian Boer War soldiers were innocent,NICOLA BERKOVIC, The Australian July 29 2011
3. Witton, George, Scapegoats of the EmpireMELBOURNE 1907,p223
4. Bleszynski, Nick,op cit, p414
5. Woolmore, William The Bushveldt Carbineers and the Pietersburg Light Horse, Slouch Hat Publications, Australia, 2002, p144
6. Woolmore, William, op cit, p112
7. Witton, George, op cit, p222
8. Witton,George, op cit, p80
9. Davey, Arthur, op cit, p54
10. Woolmore, William, op cit, pp88-89
11. Davey, Arthur, op cit, p67
12. Davey, Arthur, op cit, p69
13. Carnegie, M. and Shields, F., In Search of Breaker Morant, Graphic Books, 1979, p125
14. Witton,George, op cit, p116
15. Davey, Arthur, op cit, pp65-73
16. Minute Book of Letters (Public Record Office, Kew WO 93/41) p1024
17. Witton to Thomas, 21 October 1929, Mitchell Library, Am77/8
18. Denton, Kit, Closed File, Rigby Publishers, Adelaide, 1983, pp110-112
19. Wedepohl Document, Kit Denton Collection, AWM, PR83/120
20. Woolmore, William, op cit, p98
21. Woolmore, William, op cit, p146
22. Parliamentary Debates
, House of Commons, Hansard, 26 February 1901
23. Woolmore, William, op cit, p113
24. Wilcox, Craig, Australia's Boer War: The War in South Africa 1899-1902, OXFORD UNIVERSITY PRESS 2002, p276
25. Witton, George, op cit, p226
26. Rev.Brough to Mrs. Handcock, Bathurst Free Press and Mining Journal, 3 January 1903, p3


  1. Only in Australia is a war criminal celebrated as a national hero!

  2. Anonymous, I notice the wording you used is exactly the same as a comment posted by Joe West on 24 October 2014 in response to one of Jim Unkles' articles on Did you simply copy and paste it? I see that you are also from the United Kingdom so let's look at how the British reward their war criminals. In Kitchener's case they made him a Lord and even as recently as last year they honoured him with a commemorative £2 coin despite the fact that his many misdeeds have now become well-known!

    Thank you for providing me with the opportunity to list some of those misdeeds. Any fair-minded person would agree that the following would place Kitchener right up there with the worst of history's war criminals:

    1. Following the Battle of Omdurman in Sudan in 1898 Kitchener allowed his troops and camp followers to slaughter thousands of wounded Dervish prisoners. In a well-known and often quoted letter to his mother on 26 January 1899 Winston Churchill wrote: I shall merely say that the victory at Omdurman was disgraced by the inhuman slaughter of the wounded and that Kitchener was responsible for this. (Discussed in "Empire on the Nile: The Anglo-Egyptian Sudan 1898-1934", M.W. Daly, Cambridge University Press, 2003, p3-4)

    2. After one Sudanese battle he had dragged the defeated Emir through a nearby town in chains with a halter around his neck, being whipped as he went. (Carnegie and Shields p108)

    3. In Khartoum he desecrated the tomb of a long dead revered religious leader. This was confirmed in the British parliament by the Under Secretary of State for Foreign Affairs who said: I understand that the body of the Mahdi was taken from its grave and thrown into the Nile because Kitchener felt that superstitious reverence which attached to the Mahdi's memory might cause a recrudescence of troubles in the Soudan. (Hansard 20/2/1899)

    4. He destroyed the homes and farms of some 30,000 Boer families thus ensuring that many women and children perished either in his concentration camps or out on the veldt. 28,000 Boer women and children, along with countless thousands of native women and children perished in the concentration camps started by Lord Roberts but retained and greatly expanded after Kitchener took command.

    5. In the concentration camps, where normal rations were meagre at best, he placed the families of those men who were still fighting against him on half-rations to force them to surrender. This was confirmed in the British parliament by the Secretary of State for War when the subject was raised: I understand that a distinction has been drawn between those who have surrendered with their husbands and fathers and those who come in to be fed while their relations are still in the field (Hansard 26/2/1901)

    It has been suggested that Kitchener's actions in the Sudan were partly conducted in a spirit of revenge for the execution and beheading of General Gordon 13 years earlier. But hold on a moment - didn't the courts-martial acknowledge that Morant's motivation was the death and mutilation of his friend and commanding officer, Captain Hunt? It seems that when General's kill prisoners they are rewarded with a peerage whereas mere Lieutenant's are executed as war criminals.

    Tends to put things in perspective, don't you think?

  3. Kitchener was a very strange character. He allowed atrocities in huge numbers and punished some little officers for following HIS orders! Kitchener got what he deserved, delivered by a mine in 1916.


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