October 2013

The Nation Reviewed

Begging the Breaker’s pardon

By Catherine Ford

On a rainy Saturday in July, a small audience in Melbourne’s Supreme Court building heard the moot court appeal to overturn the convictions of three Australian soldiers made more than 110 years ago in South Africa. Found guilty by courts martial of murdering prisoners of war, lieutenants Harry “Breaker” Morant and Peter Handcock were executed by a firing squad in 1902, and George Witton had his sentence commuted to penal servitude for life. 

The three-plus hours of argument before barristers Andrew Kirkham QC and Gary Hevey, who were sitting in judgement for the day, could not result in a legally binding decision, but they had serious intent. The decades-old campaign to have the Boer War soldiers exonerated had been revived by Victorian barrister James Unkles, who pushed for the moot to honour men who were “unfairly treated”.

Unkles failed last year to persuade the then attorney-general, Nicola Roxon, to ask the British government for pardons for Morant and company. In late 2010, the British government’s secretary of state for defence had declared that an earlier petition did “not identify any new primary evidence [and there were] insufficient grounds on which to take the petition forward”. 

Yet Unkles persists in the remote hope he can show that justice failed in 1902, possibly through pushing the Australian government to grant a judicial review of the case. It’s a desire shared by many of those in the court for the moot. Take Cathy Morant. A “distant cousin of Breaker”, she’d flown in from Canberra for the proceedings, and was seated close to the men defending her relative. The moot was “fantastic, and long overdue”, she told me, even if it made her feel frustrated. “I want to keep raising my hand to object.” Object to what? I asked. “Object to defend him,” she said, with a prickle of indignation. Had she visited Morant’s grave in Pretoria? No, but her father had. What did she think of Bruce Beresford’s sympathetic portrayal of the Australians in the 1980 film Breaker Morant? She grimaced. “It felt like I’d been shot! [The original trial] was so clearly a miscarriage of justice.”

An elderly man in an oversized pinstriped suit had also travelled interstate to be here. “I’m married to a Morant,” he informed me, tilting his head towards a stern-looking woman in a cardigan beside him. “I didn’t know he was a relative then, of course, but someone looking at a family album pointed him out to me, saying, ‘And that is Breaker Morant.’” What was the connection between his wife and the Bushveldt Carbineer? “He was the illegitimate son of a member of her family,” he said, with cheerful bluntness. His wife didn’t demur.

The day’s arguments played out in keeping with the best protocols of an early 20th–century courtroom, yet were hard to hear, despite 21st-century microphones. The long-dead applicants’ counsel – Alexander Street SC and Unkles, instructed by Dan Mori, a former US military lawyer – argued that the Carbineers had been disadvantaged by inexperienced and underprepared representation, a precipitate trial and the egregious injustice of being tried for war crimes: the summary execution of the 12 Boer prisoners of war took place when a “take-no-prisoners” strategy was widely said to be part of British command’s rules of engagement in the Transvaal. 

Mori, best known as the man who extricated Australian terrorism detainee David Hicks from another infamous military proceeding, in Guantànamo Bay, Cuba, smiled shyly when he was introduced to the court and welcomed “into this Australian context”. Mori left his home in Hawaii last year to live and work in Melbourne. No longer in fatigues, and with his trademark crew cut damped down on one side, Mori’s goofy Gomer Pyle expressions seemed to suggest that he was comfortable in an Australian civil court and, as the afternoon wore on, possibly feeling homesick, too.

The Crown case – put by the very senior, and quaver-voiced, Gerry Nash QC – argued, amid a fair amount of arcane legal detail, that Morant had acted out of a premeditated desire for vengeance and, in killing the prisoners, seriously overreached in his duties. Nash, whose wig kept sliding to the rear of his head, referred to Morant as “Captain” a handful of times, before stopping to reprimand himself. “I mean Lieutenant Morant. I seem to keep on promoting him!”

Mention of the Boers’ dirty guerrilla warfare – tactics that Australian soldiers, with their bush knowledge, were expressly enlisted to counter – caused agitation in the man in the pinstriped suit. “Boers?” he muttered darkly. “The Taliban of the day! They were fantastic guerrilla fighters.” A reference to the British commander in South Africa, Lord Kitchener, prompted further disgruntlement. “Kitchener once fired a shot at my grandfather! He introduced the Boer concentration camps. He was the guy who stuffed up Gallipoli. Kitchener was no friend to the Australians.” 

At the close of proceedings, after the judges had deliberated, finding that the Carbineers did not receive a fair trial 111 years ago, Unkles thanked his colleagues for their efforts, and encouraged questions from the floor. “So,” crabbed a woman in a voluminous blue shift, “why was only Morant targeted, when so many men were shooting at Boers? Because he was a larrikin, that’s why.” Unkles, frowning, looked for another question.

A man with a wedge of beard cleaving his chin and a black T-shirt advertising a bikie internet forum (which I later learnt was dedicated to “hilarious outrage, boozy brotherhood and savage hostility”) put up his hand. “So, um, this has been great,” he enthused, “but where do we go from here?” 

Unkles laughed, and glanced at his bewigged colleagues. “We’re going out to dinner, that’s where!”

Catherine Ford

Catherine Ford is a freelance journalist. Her books include NYC and Dirt.

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