But for now these men were caught up in the drama of reaching Australia. For some the years away had been so intense that their country of birth had become a distant memory. Thousands more had made the ultimate sacrifice. Would they be remembered as well? No wonder so many soldiers of the 8th Division were apprehensive and consumed by trepidation as they sailed into Sydney Harbour.
When Alan ‘Butch’ Gaudry, who was so fortunate to have come through the war relatively unscathed, finally stepped back on home soil, his main concern was not what had happened before but what sort of reception he and his pals would get from the people of Australia, especially from the soldiers of other fighting divisions.
‘After all, ours was the first Australian force of Divisional strength ever to have surrendered en-masse to an enemy. We thought that by not fighting to the bitter end we had left our country exposed to invasion and conquest by a ruthless foe. At least some of us would not have been surprised if we had been ostracised by a public unaware of the valiant show our men had put up in the battle for Malaya and Singapore,’ he explained many years later.34
Alan need not have worried. His hero’s welcome put an end to any lingering doubts.
Gordon Bennett could not be similarly assured as he waited for the court of inquiry to assemble in Sydney’s Victoria Barracks. While he had put up a good fight during the Malaya campaign, he had not shared the suffering of the men he had left behind as prisoners of war. While he was escaping by sampan, his men were about to face an indefinite period of captivity in subhuman conditions. While he would spend the next three-and-a-half years a free man, those whom he had commanded would be doomed to a life of hunger, disease and random brutality at the hands of their new masters.
Would Bennett’s argument that he needed to return to Australia in order to brief the government and the military on enemy tactics stand up to close examination? Would Australia’s fair-go attitude give him the benefit of the doubt? Would the military forgive and forget? More specifically would the perception that he had cut and run be upheld by the officers who now sat in judgement on him?
Bennett’s character was about to be tested in a manner he had never experienced in war. Finally his reputation was on the line and there was no one else to take the blame.
Chapter 18
BENNETT PLEADS HIS CASE
The Concise Oxford Dictionary defines the word ‘surrender’ as to ‘hand over and to give in to another’s power or control’. Whereas the word ‘capitulation’ also means surrender, but ‘on stated conditions’.
This small but significant difference was to vex many legal and military minds in both the army’s court of inquiry into Gordon Bennett and the Royal Commission which was to follow.
At the initial inquiry the terms of reference required the court to address the following issues:
What was the precise time that the surrender and/or capitulation of the Allied forces took place?
Was Bennett at any stage under Percival’s command?
Did Bennett relinquish his command of the 8th Division?
If so, did Bennett have Percival’s permission to stand down?
Did he have a responsibility to stay with his men?
Did he issue an order that all members of the 8th Division were to remain at their posts and officers with them?
And could Bennett at any time be considered a prisoner of war?
This last question was the key to Bennett’s guilt or innocence. Officially only a prisoner of war had a duty to escape, but when could that classification be made? After the ceasefire? After the surrender was signed? Or when the men entered the prison camp? Given that the surrender was to take effect from 8.30 pm on 15 February 1942, the timing of Bennett’s escape soon after 10 pm could be crucial to his defence.
The prominent king’s counsel Brian Clancy was to represent Gordon Bennett at the Victoria Barracks hearing, which got underway on 26 October 1945. And from the beginning it was clear that his client had instructed him to go on the attack, questioning the validity of the proceedings on several grounds.
Clancy argued that the court was not properly constituted and only a full judicial inquiry free from military affiliations was appropriate.
He also alleged that General Victor Stantke, who was one of the officers sitting in judgement, was biased against Bennett.1
From the outset of the hearing the atmosphere in the room was heated. Lieutenant-General Sir Leslie Morshead, who was president of the inquiry, overruled the lawyer’s objections, at which point Bennett, on the advice of his counsel, refused to take part.
This placed Bennett in an invidious position. His withdrawal from the inquiry meant that he no longer had the right to defend himself in court or call witnesses. But while some might assume this would weaken his case, Bennett had a far more effective trick up his sleeve. He would wage his defence through the media, issuing a long and detailed statement to the newspapers addressing all the issues raised by the court.
A total of nine witnesses were called during the military inquiry:
Brigadier Callaghan, 8th Division’s artillery commander and the man who took over from Bennett after his escape.
Colonel (later to become Brigadier) John Broadbent, who had been chosen by Bennett to evacuate from Singapore and sail back to Australia two days before the surrender.
Colonel J.H. Thyer, from Natimuk in Victoria, who had been Bennett’s chief staff officer in the 8th Division.
Ballarat-born Brigadier Charles Kappe, who was the Division’s Chief Signals Officer.
Colonel Wilfred (later to become Sir) Kent Hughes, who succeeded Broadbent as Assistant Adjutant and Quartermaster-General.
Lieutenant-Colonel I.J. O’Donnell, Chief Engineering Officer.
Captains Adrian Curlewis and Harry Jessup, both of them general staff officers under Bennett.
And finally Lieutenant-Colonel Charles Moses, who had accompanied Bennett on his escape but had eventually got back to Australia some weeks after his commander.
Of the nine, Moses and Kent Hughes were the most supportive of Bennett’s decision to escape.
The early stages of the inquiry were dominated by questions designed to establish when news of the commander’s intentions emerged.
Lieutenant-Colonel Kappe told the court that the general first revealed details of his plan as early as 29 January, in Johore Bahru. This was before the Allies had even fallen back across the causeway. If this were true then it suggested that Bennett had been formulating his escape plan more than a fortnight before the fall of Singapore.
On 14 February Kappe had heard rumours about the formation of a Headquarters escape party but it was not until the following day that Bennett told him directly that he was going to leave.
Kappe said he did not think too much about the General’s comments at the time, given that the military position appeared so hopeless. But he did recall a general order on the day of surrender that all men were to remain at their positions. However, he told the court he could not remember if Bennett had ordered his officers to stay with them.2
Major-General Callaghan said he had heard rumours of the General’s escape plans but had not taken them seriously. He understood that the commander had ordered the men to remain in their positions and that officers were to stay with them, a claim that was validated by the Royal Australian Artillery’s war diary.3
Captain Curlewis confirmed that he had been told about Bennett’s intentions four days before the capitulation. He remembered discussing the possibilities with Moses and Gordon Walker as they pored over maps for the best route back to Australia. Curlewis later questioned ‘the ethics of this show’ and conceded he had a vague memory of an order that there was to be no breakaway escape by any members of the AIF.4
Captain Jessup told the military inquiry that he had also considered escaping but gave up the idea when he heard that Bennett had ordered his soldiers to stay in position. This view was reinforced in evidence given by O’Donnell and Thyer, the latter of wh
om insisted that Bennett had spelled it out during a meeting on the morning of 15 February that no one was to leave the perimeter.
What had Bennett been up to? Was he on a mission to confuse his colleagues, imparting the truth about his plans to some, while demanding strict adherence to military protocol from others? If this was his strategy, it appeared to have worked.
Only Kent Hughes had an accurate picture of the General’s dangerous undertaking. He told the court that he was under the impression it was general knowledge at Divisional Headquarters and, more pertinently, that he intended to escape after the capitulation.
Hours after the surrender document had been signed Bennett took Kent Hughes into his confidence and sought his views on whether he should escape or not. Kent Hughes suggested only he could make such a decision. He told Bennett to consider his responsibility to his troops as a whole but also his responsibility to the Australian government.
According to the Colonel, Bennett replied, ‘In respect of my responsibility to the Australian government I feel that I should try and get back if I can – I intend to have a go.’
Bennett said he was confident Kent Hughes, Thyer and Callaghan could handle the job if he left and was satisfied he could not make better arrangements for the men in his absence.
Kent Hughes, who went on to become a government minister in civilian life, replied that he would support his commander and never utter a word of criticism against him.5 It was a promise he kept until the end.
Their final farewell in Singapore happened 20 minutes before the official ceasefire at 8.30 pm, when the two men took their leave and Bennett went off in search of Callaghan and Thyer to say goodbye.
The last witness, Lieutenant-Colonel Charles Moses, and one of Bennett’s closest allies, confirmed details of the escape and pointed out that Major-General Callaghan had wished them good luck on their journey.
It was now left to the president of the court to assess the evidence and make his findings, which were handed down on 31 October 1945.
The outcome was not unexpected, given the army’s influence in the investigation and the staff officers’ antipathy towards Bennett.
The inquiry found against him on all counts but most significantly that he relinquished his command without the permission of Lieutenant-General Percival, who as Britain’s General Officer Commanding in Malaya was in overall control.6
This was a severe blow to Bennett, who had believed that he was no longer answerable to Percival after the surrender.
The problem was that the surrender took place in phases. First came the ceasefire at 8.30 pm on 15 February. Secondly the stockpiling of weapons under Japanese supervision at 10 am the following morning. And thirdly the movement of Australian troops to Changi, which began on 17 February and did not conclude until 20 February. As a result of this lengthy process, Bennett did not become a prisoner of war at 8.30 pm on 15 February, the court decided.
So when did the surrender take place? Unfortunately the court was unable to determine this important fact. Although the ceasefire time had been common to all parties, there was no incontrovertible evidence to ascertain the exact time the British forces commenced their surrender.7
Bennett must have been dumbfounded by the court’s interpretation of the facts. It was a muddle. But to cover up the haphazard manner of their findings, the inquiry believed it was important to make one thing clear. After the ceasefire order and until the conditions of the surrender had been implemented, command and control of the troops had to be maintained. And Bennett should have been responsible for this. If the Australian command structure had failed during this period, the repercussions could have been serious, the inquiry noted.
As a result the court concluded that it was Bennett’s duty to remain at his post, unless relieved of his command by proper authority or held captive as a prisoner of war.8
Quoting Percival’s words, the president, Lieutenant-General Morshead, found that Lieutenant-General Bennett had ‘voluntarily and without permission relinquished command of the AIF on February 15, 1942.’
And to reinforce the point, he added: ‘The court is of the opinion, on the evidence, that Lieutenant-General Henry Gordon Bennett was not justified in handing over his command or in leaving Singapore.’9
For the moment the military might have won the battle but they hadn’t won the war. The question now facing the army hierarchy was how to deal with Bennett. Should he be charged with desertion or should the matter be laid to rest?
Blamey was left in no doubt that Bennett’s actions constituted a grave military offence and in normal circumstances he would be charged with desertion. But given the massive public and political interest in the case he realised that the government might not agree, so he suggested two other options. Either Bennett should be retired from the army or the government should hold a Royal Commission into his behaviour.
The commander’s escape from Singapore had transfixed the nation. Newspapers were full of letters about the rights or wrongs of his actions. A readers’ poll published in the Sydney Sunday Telegraph revealed that 123 people supported a full and open inquiry compared with 60 who believed the matter should be closed.10
Even the men from Bennett’s own division weighed in to the debate and sent a telegram to the prime minister supporting their former commander. Not only did they want a public inquiry into the circumstances of their leader’s escape but they also demanded an investigation into the entire ill-fated Malayan campaign. There was no doubt where their loyalties lay.
‘Further this Association wholeheartedly supports General Bennett’s actions in successfully escaping from Singapore,’ the telegram concluded.11
The 6th Battalion Association also requested a Royal Commission ‘to clear once and for all his reputation and that of 18,000 good Australian soldiers and satisfy over one million soldiers plus their dependents’.12
Under pressure from Blamey, the public and the men, the government had no alternative but to agree to an open inquiry under the auspices of a judge.
On the face of it Bennett was more than satisfied. Now he could have his day in court and no one would be able to prevent his words from being reported.
‘I welcome the inquiry and I want to have the whole matter cleared up as soon as possible,’ he wrote in a telegram to the Minister for Defence.13
Was this a genuine response or was he merely putting on a brave face? Privately, Bennett must have had his reservations about further questioning of his motives and the events surrounding his departure from Singapore, given that many of the same witnesses would be called. The findings of the military court had gone against him. Why would a Royal Commission be any different?
This was to be an anxious period for the man who had led the 8th Division in Malaya and whose character and standing as a senior officer were on the line. Would Gordon Bennett go down in history as a deserter or a man of solid moral principles who always had the interests of Australia at heart?
The next few weeks would establish the truth one way or the other.
The Royal Commission got underway in Melbourne on 26 November 1945 and ran until 13 December. The judge appointed to investigate the issue was Mr Justice George Coutts Ligertwood of the South Australian Supreme Court. Fundamentally his brief was to establish the circumstances surrounding Bennett’s decision to relinquish his command and his subsequent escape from Singapore. He would also try to ascertain whether Bennett had the necessary permission to do so from the appropriate authority and if he was at any time classified as a prisoner of war.
Finally the Commissioner had to decide whether, as the commander of the 8th Division and GOC of the AIF in Malaya, Bennett had a duty to remain with his troops or was justified in relinquishing his command and leaving Singapore.14
All this depended on the commissioner’s interpretation of the rules governing the decision to surrender to an enemy. Essentially we were back to the same questions that had dominated the earlier military court. Did the document signed by Perci
val agree to an unconditional surrender at 8.30 pm on 15 February 1942 or did it amount to a capitulation? If it was the former then Bennett had every right under military law to attempt to escape. However, if it was a capitulation he could not be classed as a POW at that stage and would therefore not have had the automatic right to escape.
In the International Convention Concerning the Laws and Customs of War on Land, which was signed by 41 countries – including Japan and Britain – at the Hague in 1907, article 35 dealt with capitulation but, surprisingly, did not offer a precise meaning.
According to the military’s general interpretation of capitulation it is a surrender, but on certain conditions. The 1941 Australian edition of the Manual of Military Law shines further light on the issue: ‘Capitulations are agreements entered into between the commanders of armed forces of belligerents concerning the terms of surrender of a body of troops, a fortress or other defended places.’15
But other specialists in the interpretation of military law would later point out that there was no precise time that expressly confirmed when a soldier becomes a prisoner. As the eminent lawyer Thomas Fry wrote in the University of Queensland Law Journal in 1948: ‘There is no treaty provision defining the moment at which a combatant becomes a prisoner-of-war. The change of status occurs when the over-riding power of control over him passes from his own commander to the enemy.’16
So did POW status occur when the surrender was signed or when the ceasefire took effect at 8.30 pm? Or could it have been any time between the laying down of arms at 10 am the following morning and the arrival of the last of the Allied troops at Changi on 20 February?
This was beginning to sound like the age-old philosophical question about how many angels could dance on the head of a pin. No one knew the answer, and outside this courtroom it didn’t really matter anyway. The fact was that the Allies had thrown in the towel on 15 February and Gordon Bennett saw no further point in staying. Whether it amounted to an unconditional surrender or not was academic. Forget the niceties of military law. They were all now prisoners of war, like it or lump it.
Hero or Deserter? Page 25
