Justification under the law was what it all came down to and Dovey’s was a compelling argument. Gordon Bennett must have sensed that the royal commission had not done him any favours, but he would have to wait more than a fortnight before Justice Ligertwood handed down his findings.
As expected, the commissioner based his decision on the timing of the surrender, which in turn would establish the moment Bennett officially became a prisoner of war. While the first part of Justice Ligertwood’s report gave due consideration to the professed motives for Bennett’s escape, as outlined by his lawyer, he was unable to accept Clancy’s contention that his client became a POW at 8.30 pm when the ceasefire took effect.
It was not the interpretation that the former commander of the 8th Division had been hoping to hear on that warm early January day in 1946. Instead he was told in no uncertain terms that it was the commissioner’s view that none of the Allied forces became prisoners of war until they were held captive in Changi jail.
‘At the time General Bennett left Singapore he was not a prisoner-of-war in the sense of being a soldier who was under a duty to escape,’ he explained. ‘He was in the position of a soldier whose commanding officer had agreed to surrender him and to submit him to directions which would make him a prisoner-of-war.’
Justice Ligertwood said it was Bennett’s duty to remain in command of the AIF until the surrender was complete.
‘Having regards to the terms of the capitulation I find that General Bennett was not justified in relinquishing his command and leaving Singapore,’ he stated.32
If Bennett felt things couldn’t get any worse, he was wrong. Yet he would have been pleasantly surprised by the second part of Justice Ligertwood’s report, which was much more sympathetic to his cause. On the subject of the escape, the commissioner found that the general was not conscious of committing a breach of his legal or military duty, neither was he driven by a desire to secure his own safety:
I think that he acted from a sense of high patriotism and according to what he conceived to be his duty to his country. The conviction hardened in his mind that it would be of great advantage to Australia if he himself could get back and acquaint the authorities with what he had learned. He nevertheless adhered to his primary duty as commander of the forces, and was determined that he would faithfully carry out that duty until the end of the campaign. He had no intention of escaping until the circumstances were such that he felt he was free to go.33
The commissioner listed eight reasons why Bennett had felt the way he did, all of which would have informed his thinking at the time:
He was the first Australian general to confront the Japanese in battle.
He had acquired valuable information and experience about Japanese tactics from his time in Malaya and had developed successful countermeasures.
He sincerely believed that Australia was at great risk and that it was of great importance for him to return home in order to take a leading part in his country’s defence.
He genuinely – but in the commissioner’s view – mistakenly believed that immediately hostilities ceased, that the whole of the British forces in Singapore were surrendered to the Japanese and that he therefore became a prisoner of war with a duty to escape.
He wholeheartedly felt that he had done all he could for his men and that if he remained he would be separated from his troops, preventing him from offering any assistance.
The escape was a hazardous enterprise and involved no reflection on Bennett’s personal courage.
He did in fact bring back valuable information which the AIF was able to utilise for its training in jungle warfare.
His decision to escape was inspired by patriotism and by the belief that he was acting in the best interests of his country.
The commissioner said he had based these findings mainly on Bennett’s own testimony in the witness box.
‘One could not listen to his evidence without being impressed by his sincerity,’ he went on. ‘Having considered all the circumstances proved in evidence before me, I am fully convinced of General Bennett’s good faith.’
For a moment it looked like Justice Ligertwood might find in favour of Bennett, but it was not to be.
‘Whilst my findings as to General Bennett’s reasons and motives establish his good faith, they cannot in my opinion affect the answers which I have given in Part 1 of this report,’ he said.
‘Those answers, although legal in character, are nevertheless based upon the word of a British General, given in an instrument of capitulation, which derives its legal sanction from the express terms of the Hague Convention, requiring the terms of a capitulation to be scrupulously observed.’34
So that was it. Major-General Gordon Bennett might have done the right thing by his own set of values, but not under international law.
Even so Bennett drew some comfort from the report. The next day his considered reaction was reported extensively in the Australian press.
‘Now that I have digested the Judge’s findings, I am elated with the result. The only adverse comment deals with a purely legal technicality, which most laymen would naturally debate.
‘On the main point at issue, so far as I am concerned, the Judge decided that I acted on unselfish and high motives. It pleases me to know that he appreciated the fact that I was able to bring back useful information to my country.’
However, the fact remained that the Royal Commission had essentially reached much the same conclusion as the military inquiry – that he had relinquished his command without the permission to do so and was not at liberty to escape from Singapore.
Unless he was deluding himself, Bennett could not fail to see that both inquiries found that he had not met his duty as a senior officer.
No greater charge could be laid against a soldier of his rank. While his character was not under question, his decision-making certainly was. He had been humiliated by his peers and his career was in ruins.
On 7 January 1946 the Melbourne Age reckoned it was time to ‘bring down the curtain on this episode’.
‘Those who were emphatic in their support for or opposition to Lt. General Bennett’s action probably will not be affected by the report; those who were open-minded will be grateful to Mr Justice Ligertwood for a very fair and lucid exposition of the law and the facts,’ it declared.35
Yet the nation remained divided over the Bennett case, with newspaper correspondence pages and editorials debating the outcome for years afterwards. Clearly it was not going to be the last we would hear of the man who commanded the 8th Division.
Chapter 19
RALLYING TO BENNETT’S DEFENCE
With the war over, those officers and men who had fought for their country and endured three-and-a-half years of imprisonment under the brutal fist of a cruel and savage conqueror could now follow the Gordon Bennett case with interest. The 8th Division may have been disbanded but the veterans who had formed this fighting force continued to support their former leader and respect his legacy. In truth they had both been unfairly disparaged in the aftermath of the Malaya campaign. Critics had accused the troops of throwing in the towel too early and their commander of shooting through and abandoning his men.
A few days after Justice Ligertwood handed down his findings, the Melbourne Sun reminded its readers:
A blunder, whatever motives might have prompted it, remains a blunder. And the chief value of the report lies in its unequivocal finding that General Bennett’s action was mistaken. Personalities and the attribution of unworthy motives have tended to obscure the main issue but the principle has now been clearly stated that while troops are carrying arms and are under the control of their officers, the place of a commanding officer is with his men. Should any similar emergency arise, the judge’s findings should leave no no officer in doubt where his duty lies’1
Such was the level of antipathy to Bennett and his division that their achievements in battle and the bravery they so often displayed, especially at Gemas and Muar, wer
e largely ignored. Their efforts to stop the enemy may have been unsuccessful, but Bennett had every right to be proud of his troops and the courage they showed under fire. Only in the dying days of the fall of Singapore did their esprit de corps begin to crumble and that was due in part to the island’s poor defences and the inadequately trained reinforcements Australia sent to Malaya at the last minute. The occasional sideswipes fuelled the perception of failure, which subsequently dogged the 8th Division, but they also strengthened its resolve, unifying the men and their commander.
Bennett always tried to attend important ceremonies marking anniversaries such as the fall of Singapore. At one such gathering at the Shrine of Remembrance in Melbourne in 1952, he was cheered by members of the 8th Division as he made his way to the microphone. He told the men they had been treated like criminals after their capture and the anguish they had suffered would never be forgotten.
‘Our men were guarded by sub-humans,’ he declared. ‘Before this holy shrine I proudly proclaim the heroism and the unconquerable spirit of our men against overwhelming odds. They were true in the finest traditions of our race.’2
The friendly reception that day dispelled any claim that Bennett was no longer respected. Here was an officer who commanded loyalty and affection from his men in equal parts.
As Brigadier Sir Frederick ‘Black Jack’ Galleghan was to comment in later years: ‘In the case of Gordon Bennett there is no doubt as to what his soldiers thought – I have never met one who disagreed with his action in escaping.’3
For the rest of his life Bennett continued to enjoy widespread popularity, not only among his troops but also among the public. The support galvanised him in his attempts to clear his name, for although he had felt partly exonerated by the Royal Commission’s findings, the fact remained that he had been found guilty, albeit on more of a legal technicality than the weight of evidence against him. He missed no opportunity to put the knife in, frequently lambasting politicians for their perceived inadequacies.
Just before one Anzac Day in the late 1940s he fired a broadside at parliamentarians for their hypocrisy:
On April 25 the cynical old men who govern us will take their pious platitudes out of mothballs, don their blue serge suits, and pay meaningless lip service to our gallant dead.
They will stand at the shrines and tell us how much they love the ex-servicemen; how deeply and truly they work for Australia. For one day they will move with gracious condescension among the men who fought to keep them free. Then back they will go to their petty bickering, their self-seeking and their completely cynical disregard for the welfare of ex-servicemen of Australia.4
Bennett might have been delivering a serious message but his words also sounded like they came from a sour and bitter old man. He knew he was past his use-by date and decided to turn his back on military life and buy a small orchard in the lower Blue Mountains. Any hope he had of settling down with his family and enjoying the countryside proved to be wishful thinking. Life on the land was gruelling, involving long hours and hard physical labour.
And being Bennett he could never quite forget the way he had been treated. Privately he was still spoiling for a fight and took every opportunity to have a dig at his critics. On the subject of British officers he claimed there were a minority who were ‘strongly prejudiced against Australian soldiers’. In the draft of his memoir he wrote, ‘The 1st AIF learned that in World War I and it was again so in World War II.’5
He proposed a full and public inquiry into the Malaya campaign, but the prime minister of the day, Ben Chifley dismissed the idea.
Bennett also tried to influence the official history of the war being compiled by Canberra, fearing that the content would show him in a bad light. On one occasion he wrote to his fellow officer and loyal friend Kent Hughes, who was by now in the Federal government, asking him to exert some influence in the matter.
‘Surely the Minister for the Army should direct that the Australian history should be submitted to me for vetting,’ he wrote.6
Kent Hughes was supportive and raised Bennett’s concern with Gavin Long, general editor of the official history, but he also realised he was treading on dangerous ground. ‘I have to be particularly careful that I do not give directions as to how the history should be written. At the same time, knowing the source of much of the material, I will feel much happier if people like yourself and two or three others are asked to comment on what is written before it reaches the final stage of publication,’ Kent Hughes replied to Bennett.7
The relationship between Bennett and those charged with writing the official history of the Malaya campaign – Long and the journalist Lionel Wigmore – did not run smoothly. There were several angry outbursts from Bennett and, despite Long’s diplomatic responses, the former commander of the 8th Division could not be assuaged.
‘I am truly sorry that we cannot agree on the story of the Battle of Singapore Island and regret wasting your time discussing it with such persistence,’ Bennett wrote on one occasion.
‘We seem to be beating the air. Unfortunately I will be forced to submit my commentary as Commander and to see that it gains as much publicity as the history,’ he warned.8
Bennett was sensitive to criticism and any potential threat to his reputation, so he would have been pleasantly surprised by the support he received from an unexpected quarter in 1948. The views of Queensland lawyer Tom Fry (mentioned in part in Chapter 18) were to provide much reassurance for the beleaguered general. Fry, himself an ex-military man who had served under Bennett in Western Australia, published a long and detailed analysis of the case in the University of Queensland Law Journal. Entitled ‘Legal Aspects of the Departure of Major-General Gordon Bennett from Singapore’, the study examined the circumstances of Bennett’s escape and the terms of the Royal Commissioner’s report ‘in the light of relevant rules of international and military law’.9
It was clear Fry did not support all the Royal Commission’s findings, asserting that they had ‘dangerous implications which might nullify certain of the safeguards embodied in the Prisoners of War Convention and the 1907 Hague Convention’.10
He added: ‘A soldier is taught to fight and, if captured or surrendered and therefore temporarily unable to fight any longer, to escape in order to be able to fight again some other day. If that honourable code is to lose its simplicity in a maze of legal subtlety, Australian soldiers will remember the alleged miscalculation made by General Bennett and hesitate in the early stages of capture or surrender, which, in the past, soldiers have always been advised is often the best time to escape.’11
Fry went on to insist that the material point was whether a conditional or unconditional surrender took place at 8.30 pm on February 15.
‘If so, General Percival and his forces at that hour became prisoners of war and as such were each individually entitled to attempt to escape and any stipulation to the contrary would be inconsistent with the Prisoners of War Convention and customary laws of war and, therefore, invalid.’12
The lawyer pointed out that Justice Ligertwood believed the surrender did not take place at 8.30 pm on 15 February and seemed to base his decision on the view that the Bukit Timah memorandum, signed at the Ford motor plant, should be interpreted to mean the surrender was not to occur unless and until General Percival’s forces were ‘behind the wires’ of prisoner-of-war camps.
‘The Bukit Timah memorandum does not expressly say this, and his opinion does not seem to be supported by international practice, convention or text writers,’ Fry pointed out.13
But what if the Royal Commissioner was correct in his interpretation of the time of surrender and Bennett was not a POW when he made his escape?
‘What at that moment was his status, rights and duties?’ Fry asked.
If Bennett was not a prisoner of war or a combatant, what was he?
‘The idea that by means of a capitulation the victor can, by a simple device of postponing the moment of surrender, deprive enemy soldiers of
their status as combatants without substituting for it that of prisoners of war, would seem to be without validity as a principle of international law, and capable of opening the flood gates to wholesale evasion of international safeguards,’ the lawyer argued.14
However sound the commissioner’s legal judgement and his findings, the fact remained that it was essential to remove any doubts for the future guidance of Australian soldiers, Fry wrote.
‘It is suggested this can only now be done by the issue of clear, unequivocal instructions as to the precise time at which, in each possible set of governing circumstances, they are as soldiers obliged by the law of their country to attempt to escape. These instructions should make clear the circumstances in which international law and the customs of nations will afford them protection,’ he concluded.15
For once the implications of the Royal Commission’s findings, so far as they affected officers and men, had been made clear. And the law needed to be amended accordingly if only to ensure that henceforth all Australian soldiers knew exactly where they stood.
As Fry himself emphasised at the beginning of his report: ‘The possibility of a courageous soldier being exposed to criticism and even punishment for making an alleged miscalculation of this kind points to the necessity of issuing clear instructions to all Australian soldiers in the future as to the governing circumstances and the precise time at which their duty to escape will arise.’
He went on: ‘There is something wrong with the system of allocation of praise or punishment to a soldier for escaping, often on a sudden opportunity, usually in circumstances of great stress and strain, [if it] continues to depend upon legal points of great subtlety, which he cannot be expected to comprehend and about which legal experts themselves may differ profoundly, rather than upon the soldier’s good faith and honest and faithful performance of what he conceives to be his duty to his country.’16
At last, it seemed, common sense had prevailed. So did the Royal Commission and the military inquiry get it wrong?
Hero or Deserter? Page 27
