Certainly the Japanese had no doubt about the situation. When Percival signed the surrender document at 5 pm on 15 February he came under General Yamashita’s command and thereby gave up his own authority. This is unequivocally the case, judging by the report that appeared in the Japan Times and Advertiser. ‘Finally at [5 pm Singapore time] on February 15, the enemy surrendered, although their military strength was several times that of our forces.’17
Even if one disputes the exact timing, there is a strong case to suggest that the surrender happened a few hours later, when the ceasefire came into force.
As the distinguished lawyer Mark Clisby explains in his own investigation of the case: ‘The use of the phrase “cessation of hostilities” in the Bukit Timah memorandum indicated that the signatories intended a surrender to come into effect the moment the hostilities ceased at 8.30 pm. Hostilities were to cease permanently, which is characteristic of a surrender. This is in contrast to an armistice, which admits a mere suspension of hostilities.’18
Interestingly the Hague Convention of 1907, which was agreed to by Britain and Japan, was not signed by Australia, so the extent to which Canberra was bound by the provisions of that understanding is debatable.
Justice Ligertwood was only concerned with international law during the course of his inquiry and although Australia might have abided by the terms of the Convention it didn’t have to, as Clisby makes clear.
‘It may not have had a legal obligation to do so because there existed no express Australian legislation which incorporated the provisions of the Hague Convention into Australian municipal or military law. Moreover, a compelling argument can be presented that Mr Justice Ligertwood should have looked at the issues in the Gordon Bennett case from the viewpoint of Australian domestic law and Australian military law, rather than the rules of international law.’19
Be that as it may, the legal parameters were in place and the Royal Commission was determined to investigate every minute detail and analyse every grain of evidence in pursuit of the truth. In so doing, much of the hearing got bogged down in legal technicalities such as the accepted definitions for surrender, capitulation, ceasefire and armistice.
Understandably the army brought in two of their big guns as expert witnesses to offer their considered opinions of Bennett’s status at the time of his escape. Major-General Charles Lloyd, who was Adjutant General of the Australian Army, and Major-General J.B. Wilson, the Judge Advocate General, left no doubt about their views on Bennett’s conduct.
‘A soldier becomes a prisoner-of-war when he is under the physical control of the enemy, when he is in the control of his captors,’ said Lloyd.
By that definition, at no time after 8.30 pm on 15 February until 20 February could Bennett be described as a POW.
Asked again to comment on Bennett’s view that he had become a prisoner of war at 8.30 pm, Lloyd replied, ‘Rubbish!’
It wasn’t the sort of expletive one would expect to hear in the rarified atmosphere of a Royal Commission, but it demonstrated the level of anti-Bennett sentiment among most of the witnesses. It was a perception that Brian Clancy, Bennett’s lawyer, was to raise when during cross-examination he asked Lloyd if his answer had been ‘tinged with spleen’.
Lloyd denied the claim but dug an even bigger hole for himself when he was asked to define the word ‘unconditional’. Lloyd said that he would like to refer to a dictionary before replying, which was a surprising request given that he had been called as an expert witness on the interpretation of such matters as ‘unconditional surrender’.
Wilson also took a hard line, insisting that the commander would not have become a prisoner of war until he physically handed himself over to the Japanese. In addition, the judge advocate general stated, Bennett was legally obliged to follow the Japanese surrender orders once Percival had signed the surrender document.
It would later emerge that the opinion of these two men, who did not waver in their certainty about the time Bennett became a POW, would have a significant influence on Justice Ligertwood’s summing up.
But the man who really put the knife in was William Dovey, the counsel assisting the commissioner. In years to come, he would become father-in-law to a prime minister; his daughter Margaret married Gough Whitlam. For now, however, it was his brilliant legal mind that was to the fore; his relentless questioning made him sound like the chief prosecutor in a criminal trial. Over two days he used his ruthless forensic skills to cross-examine Bennett on his thoughts and motives for escape. The general would often give as good as he got but there were times when he appeared hopelessly outmanoeuvred, as on the occasion when he was asked to provide the name of any senior officer who supported his actions.
‘You have been in the Army quite a long while, as you have told us?’ enquired Dovey.
‘Yes,’ Bennett replied.
‘And I suppose you know quite a number of or very many senior officers in the Australian Army?’ he suggested, before listing no fewer than 16 names, including General Sturdee.
Bennett replied ‘yes’ to all of them.
It was time for Dovey to go in for the kill.
‘Perhaps I have left out some … Could you name one General Officer in the Australian Military Forces that you think I might call, who would share your views as to the propriety of your actions on February 15?’20
All eyes were on Bennett. How would he get out of this one? He was like a bull led to slaughter. But he was about to get a reprieve.
It was Commissioner Ligertwood who unexpectedly broke the silence, telling Dovey that the question should not have been asked. ‘I mean, that is the very thing I am enquiring into, is it not?’ he said.
Bennett was off the hook, at least for the time being, but there were many other exchanges during which the commander must have felt under siege.
On one occasion Dovey asked Bennett why he had not told Percival about his escape plans.
Dovey:
Did it occur to you that it would at any rate be the courteous thing to have acquainted General Percival with your belief that you were the one man who should come back to Australia? Did it occur to you?
Bennett:
Yes or no is not the answer. I would like to qualify it.
Dovey:
Answer it first and then qualify it.
Bennett:
I will give the qualifications first. I had no intention of escaping before hostilities ceased. I was only under General Percival for operational purposes and when hostilities ceased at 8.30 p.m. there were no more operations we were handling under General Percival. From that moment on my duty was to Australia, to the Australian Government. Therefore I was not bound.
Under further questioning Bennett repeated his view that he was, by then, not legally or morally required to seek Percival’s permission to escape.
Bennett:
If I had done something it would have wrecked all chances I had of getting out.
Dovey:
By that you mean that if you had asked him he would have forbidden you to go?
Bennett:
I mean if after the Japs were at his headquarters, as I expected. If we had an enemy in the same way we would have taken charge of the signal office at once, and if I rang him up and they listened in, what chance would I have of going? None.
Dovey:
Is that the reason you put forward?
Bennett:
Partly. The main reason was I had no obligation or need to communicate with General Percival because from 8.30 p.m. on we were under the Japs for all purposes.21
For much of the 18-day hearing, the minutiae of military law and the recollections of those who were with Bennett during the dying days of the Malaya campaign were intricately examined, none more so than the man himself. Everyone had a view about Bennett’s status and the events leading up to his departure. Had he broken the rule that no soldier should escape until he became a prisoner of war? Had he deliberately kept Percival ignorant of his intentions because he
knew the GOC Malaya would forbid him from going? Had he ordered his officers and men to stay at their posts while he planned to escape? Or had he given a nod and a wink to his men that they should get the hell out of it, if they could?
There was no satisfactory answer to this final question, as many of the officers who gave evidence had only vague or contradictory recollections of Bennett’s final orders.
While there is no doubt that there was tremendous concern about the dangers created by a mass exodus of Allied troops, Bennett denied that he had explicitly given an order prohibiting his men to escape.
‘No, absolutely no. Never in my life have I issued an order that officers or men should not escape.’22
Both Major-General Callaghan and Kent Hughes made no mention of such an order being given but Brigadier McEachern, who had taken over as commander of the Australian artillery, was less certain, saying he might have heard of such an order but had never seen a copy of it.
Bennett admitted that he had made an order demanding that every man should stay at his post, but pointed out that after the 8.30 pm ceasefire, the order no longer applied.
Brigadier Duncan Maxwell recalled that Bennett had suggested an order be issued reminding the troops of their duty to escape and encouraging them to do so.23
But Maxwell had cautioned against escape, as he told Dovey during the Royal Commission:
‘In my opinion, considering the difficulties of getting away at that time, which was different from Dunkirk, Greece and Crete, and with the shipping and that sort of thing, any organised attempt by a large body of troops would involve a loss of life out of proportion to the individuals that would succeed in getting away, and I think that I urged Gen. Bennett that it would be undesirable.’
Dovey:
And eventually he agreed with your view and it was decided that you should not pass the word round to the men to escape, but it might be left to their own discretion.
Maxwell:
Yes, left to their own discretion?’
Later Bennett stressed that he believed all officers had a duty to escape after the ceasefire was declared at 8.30 pm, but that he omitted to include his earlier point that a full-scale evacuation would also be exceedingly dangerous.
‘If a thousand officers, a thousand men, or any number like that by escaping could get back to Australia and help to make sure that we could defeat the Japs that was their duty, their primary duty, even more important than staying behind and look after the men, although that is what every officer desired to do.’24
Such sentiments sat comfortably with his own view that it was legally acceptable to escape after the 8.30 pm deadline, when he believed everyone became prisoners of war.
To say that the evidence before the Royal Commission on this point was bewildering is an understatement. As A.B. Lodge in his definitive account of the Bennett case argued: ‘Although there was a great deal of confusion about the issue, it appears that Bennett did not issue a general order that there would be no attempt to escape, although he had made it clear to some officers that they were not to do so.’25
All this might have been easier to settle had Bennett been privy to a message from General Sir Archibald Wavell, now Supreme Commander of ABDA, the American, British, Dutch Australian area, that those who wished to escape from Singapore should be entitled to do so. The instruction had been sent to Percival but the GOC Malaya had failed to pass it on to Bennett. Whether or not it would have played a part in his decision to leave, we do not know, but had Bennett been aware of the message, it might have further validated his thinking.
There was also the question of Bennett’s professed motive for making good his escape and returning to Australia. Ostensibly this was based on his desire to brief the government and the army on Japanese tactics so that the military would be better equipped to deal with the enemy in future battles.
Given that he had already despatched Broadbent on a similar mission a few days before the surrender, did this rationale stand up to close examination? It seemed unlikely, and Dovey would milk this to his advantage as he cross-examined Bennett on the value of the information he had provided to the army and the extent to which his training notes had been adopted in the field.
Bennett had already claimed in his memoir that his suggestions had been put to use by Australian troops on the Kokoda track and that officers had freely stated they had used his information to good effect.
‘My methods, based on Malayan experiences, were taught to the AIF units on their return to Australia. My escape therefore, was worthwhile. I achieved the object I set out to achieve when I ran the gauntlet from Singapore to Australia,’ he had written.26
On the stand Dovey queried the accuracy of these claims, given there was also speculation that the 7th Division, who had fought the successful campaign on the Kokoda Track, had been trained on methods learned from the commander of the Argyll and Sutherland Highlanders, Lieutenant-Colonel Ian Stewart.
‘I never heard that and I would challenge it,’ Bennett replied.
‘But do you know one way or the other, do you?’ Dovey enquired.
‘I do. These Australian officers who took part in the fighting came along and said that they used my book, and naturally that is sufficient,’ Bennett said.27
Once again Bennett was digging himself a hole, and Dovey was relishing every moment.
‘Would you mind telling us what was the rank or the command of the officer who told you that your book was used through the campaign?’ Dovey asked.
Bennett:
I think he was a brigadier.
Dovey:
I just want to know the name of the officer concerned.
Bennett:
It was mentioned to me by several that they used the book and they were company officers upwards, who came sometimes indirectly.
Dovey:
Can you think of anybody’s name?
Bennett:
There is one document produced which gives a name.
Dovey:
Do you mean Col. Wolfenden?
Bennett
Yes.
Dovey:
You know he had nothing to do with the 7th or the 6th Division? … Will you tell us the name of them [these officers]?
Bennett:
No, I do not recollect them.
Dovey:
Will you please pay heed to my question, if you can?
Bennett:
I mentioned the name of Col. Wolfenden. He signed that document.
Dovey:
You cannot think of any other name?
Bennett:
No. I cannot.28
Under such a savage cross-examination, Bennett’s reputation was in danger of being mortally wounded. The lack of evidence to back up his earlier claims about the importance of his training pamphlets had left him scarred and vulnerable. Yet he was not a man to show it. Bennett’s absolute self-confidence did not allow for a glimmer of doubt during his two days in the witness box. Here was a man who was imbued with an inner strength and self-belief that would not countenance failure.
Indeed, in fairness to the former head of the 8th Division, no one doubted his bravery or his loyalty to his country. And his king’s counsel, Brian Clancy, in his final address, asked the commissioner to acknowledge this: ‘Not only was General Bennett justified in what he did but that his actions were those of a reasonable man, a most courageous and far-seeing man, purely motivated by a patriotic sense of his duty, and without any consideration of personal safety or personal interest, which never entered his mind.’29
While these were highly prized qualities in a man, the case against Gordon Bennett had to be based on law, not character, as William Dovey, counsel assisting the commissioner, was keen to emphasise in his own summing up:
I put to Your Honour the circumstances are that Gen. Bennett left Singapore with his companions on the night of February 15 at a time when he was under a duty as a soldier, and as officer commanding the AIF, to faithfully assist Gen. Perciva
l, his GOC, in carrying out the terms of the capitulation and that he left Singapore, knowing that this was his duty, in deliberate breach of his duty, he believing that he was acting from high patriotic motives in that he conceived himself to be the only one who could save his country, but I suggest that a belief in no wise justifies him doing what he did.30
This then was the essence of the case against Bennett: could his departure be justified for any reason?
As Dovey pointed out, justified meant justified in fact and not justified in Bennett’s own opinion or that of anybody else in the community.
‘Indeed there will be very many of them in the community who might believe that he had the right to do it, but justified in accordance with his obligations to his troops – his obligations to the man under whose operational command he was, and the consequential obligations to surrender himself to his enemy in terms of the agreement that had been entered into.’31
Hero or Deserter? Page 26