Marchant and Repatriation Commission (Veterans’ entitlements)
[2002] AATA 669
•9 August 2002
Marchant and Repatriation Commission (Veterans’ entitlements) [2015] AATA 837 (29 October 2015)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2014/5619
Re
Marjorie Marchant
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President Gary Humphries
Date 29 October 2015 Place Canberra The decision under review is affirmed.
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Deputy President Gary Humphries
Catchwords
VETERANS’ AFFAIRS – entitlements – whether applicant eligible for compensation under the Compensation (Japanese Internment) Act 2001 – whether veteran had been interned by Japanese military forces at any time during the designated war period – accuracy of service records – decision under review affirmed.
Legislation
Compensation (Japanese Interment) Act 2001 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Mason and Repatriation Commission [2002] AATA 669
REASONS FOR DECISION
Deputy President Gary Humphries
29 October 2015
Background
Walter Marchant was only 17 when he enlisted in the 2nd Australian Imperial Force to fight in the Second World War. Though British born, he was in Australia at the outbreak of the war and lied about his age to enlist. After the war, on the boat returning to England, he met his future wife, Marjorie, the applicant in this matter. They lived for the rest of their lives in towns and villages in bucolic Sussex, until Mr Marchant’s death in 1996.
The tranquil setting in which he lived out the last 50 years of his life stood in sharp contrast to the theatres in which he fought between 1940 and 1945. By all accounts, Lance Corporal Marchant’s military service was both long and arduous. He fought in the Middle East and, in the latter part of the war, against the Japanese in the jungles of Southeast Asia. He was frequently waylaid with diseases such as pleurisy, diphtheria and malaria, and he was injured, but always returned to active duty. The evidence before the Tribunal was that his war service left him with deep scars, particularly psychological ones, which he carried till the day he died.
From soon after his return to England, Mr Marchant began to talk about the circumstances of his being a prisoner of war of the Japanese. He spoke only to some family members and to his doctors about this. He told family members not to talk to others about his experience as a POW because, at the time of his capture, he had been on a “secret mission”, the confidentiality of which he had promised to maintain for the rest of his life. And so when Marjorie claimed a war widow’s pension from the Australian government after his death, she ticked the form’s box indicating that Walter had not been a prisoner of war, to keep faith with this promise, the Tribunal heard.
In 2001, the Australian Parliament enacted the Compensation (Japanese Interment) Act 2001 (the Act), which made former POWs or their surviving partners eligible for a compensation payment of $25,000. Mr Marchant’s widow made an application under the Act on 15 April 2014, but her claim was rejected by the Repatriation Commission (the Commission) on 2 October 2014. Later that month she applied to the Tribunal for review of that decision.
The issue before the Tribunal
Section 4 of the Act provides as follows:
Partner of deceased veteran
(1) A person is eligible for a compensation payment in respect of a deceased veteran if the following conditions are satisfied:
(a) the person was alive at the beginning of 1 January 2001;
(b) the veteran died before 1 January 2001;
(c) the person was a partner of the veteran immediately before the veteran's death;
(d) the veteran was interned by Japanese military forces at any time during the designated war period.
In relation to Mrs Marchant’s claim, the Commission conceded that she satisfied paragraphs (a), (b) and (c) of subsection (1), but contended that there was no documentary evidence to support the view that Mr Marchant had ever been interned by Japanese military forces at any time during the designated war period (7 December 1942 to 29 October 1945). The sole issue therefore before the Tribunal in this application for review was whether Mr Marchant had been so interned during the designated war period.
Conduct of the hearing
The applicant, her representatives and all the witnesses are Britain-based, and the hearing was conducted by telephone to the United Kingdom. Mrs Marchant is in her 90s, apparently very frail, deaf and blind, and did not participate in the hearing. She was represented at the hearing by her neighbour, Mrs Carol Walker, and Mrs Walker’s daughter, Ms Sharon Walker. Mr Marchant’s son Brian and grandson Chris gave evidence, as did a doctor who had treated Mr Marchant on occasions, Dr Euan Wallace. Extracts from Mr Marchant’s medical records were tendered, as were his war service records and other general information about the campaigns in which he fought.
Those war service records were silent as to any period Mr Marchant may have spent as a Japanese POW. Mrs Marchant’s representatives produced hearsay evidence in support of the contention that he had been a POW: evidence of conversations with his son and grandson, and medical records disclosing similar conversations with his various doctors.
The Tribunal considered that the taking of evidence in this form was appropriate, given that – with the passing of more than 7 decades since the end of the war – no witnesses who had direct experience of what happened to Mr Marchant were available to the Tribunal. It was accepted, pursuant to the test laid out in Mason and Repatriation Commission [2002] AATA 669, that the Tribunal must have reasonable satisfaction, on the balance of probabilities, that the applicant’s contention is made out in order to find for the applicant.
Evidence for Mrs Marchant
Mrs Marchant’s grandson, Chris Coombes, gave evidence of how his grandfather had told him about being a prisoner of the Japanese:
He was always in a lot of pain all over his body and I do remember that he had very bad issues with his thumbs and shoulders. You only had to touch his thumbs and he would be in so much pain. My grandfather told me that it was due to him being captured in the war by the Japanese and [being] suspended by his thumbs with his hands behind his back.
He also gave evidence that he had edited cassette tape recordings of his grandfather talking of his war experiences, transferring them onto a CD. He conceded that in these recordings his grandfather made no reference to being a prisoner of the Japanese.
Dr Euan Wallace gave evidence. Now retired, he had treated Mr Marchant from time to time during the 1970s and 1980s, though on a casual basis as other doctors were his usual doctors. He said that Mr Marchant and his wife told him that Mr Marchant had been tortured by the Japanese during the Second World War. He said that he thought it “reasonably likely” the conditions he treated him for were consistent with having been tortured. As far as Mr Marchant’s psychological injuries were concerned, however, he said that it was possible that his condition was due to the “stresses of war” rather than to him having been tortured.
When asked whether he believed what Mr Marchant had told him about being a prisoner of the Japanese, Dr Wallace described him as “a theatrical gentleman”, who displayed “a measure of fantasising” about his war experiences.
A number of medical reports related to Mr Marchant were tendered. Many of these made reference to Mr Marchant having been – or having reported to have been – a prisoner of the Japanese. Mrs Marchant’s representatives put it to the Tribunal that the matter-of-fact way in which the doctors reported this implied that they believed him. I cannot accept that submission. It is true that doctors have repeated Mr Marchant’s accounts in their reports but it is hardly to be supposed that the doctors believed Mr Marchant merely because they failed to say otherwise.
Mr Marchant’s son, Brian, gave evidence of the detailed accounts his father had given him of his treatment by the Japanese. He had had 20 to 30 such conversations with his father. He recounted how his father had spoken of being forced to dig the graves of fellow servicemen, of having his thumbs lashed behind his back and being suspended by them, of eating rats to survive in the camp and of seeing a mate, with whom he was jointly effecting an escape, trapped in barbed wire and shot by the Japanese. The latter incident remained “a source of distress for the rest of his days”. He said that his father had spoken of the camp where he was being held as an improvised one, “Not a proper camp”.
The Commission’s submissions
The Commission’s position, that Mrs Marchant is not entitled to a compensation payment, rested essentially on two contentions:
(a)that Mr Marchant’s service records did not disclose that he had ever been a prisoner of war, and that there is a high probability that the records are accurate in this respect; and
(b)that the circumstances of Mr Marchant’s service, set against the official Australian histories of how the Japanese dealt with captured soldiers, make it highly improbable that he had ever been a prisoner of war, particularly in a “camp”.
Two versions of Mr Marchant’s service records were before the Tribunal. Each was based on Army Form B. 103, with the heading “SERVICE AND CASUALTY FORM”. The two versions were broadly consistent, but varied with respect, in particular, to the sequence of events in his service. It was explained that during the war a serviceman’s unit would hold one version of this record (perhaps in a brigade or division headquarters) and the other would be maintained at a central record-keeping office in Melbourne. Variations in the records could be explained by the time it took information about the soldier’s service to reach the particular place where each record was kept.
The Tribunal was told that these records would generally record if a serviceman were sick or absent from his unit, though routine movements of a serviceman (e.g. involvement in a battle) would not usually be recorded. Absence from a unit on the basis that a serviceman may have been captured would generally have been recorded in the records. If a serviceman undertook “secret” or “covert” missions, the Tribunal was told that the prefix “Z” or “M” would customarily be added before his service number on the Army Form B. 103 and elsewhere. In the case of Mr Marchant, no unexplained absences appear on his record, nor do the prefixes “Z” or “M” before his service number.
The official war histories maintained by the Australian War Memorial carry details of battles and other operations involving Australian forces during the Second World War. The Tribunal was advised that a search of those official war histories had disclosed no mention of Mr Marchant’s involvement in any special or covert operations, and nor do they list him as a Japanese prisoner of war, though it was conceded that the histories do not always carry details at that personal level. This lack of mention of Mr Marchant is replicated in the relevant records of the National Archives, the Tribunal was informed.
Mrs Marchant’s advocates had suggested prior to the hearing that a study of the service records suggested that there were two periods in which Mr Marchant was more likely to have been captured: while serving in Papua New Guinea between August and December 1943, and while serving in Borneo between June and November 1945.
The Tribunal was given some history of Japanese practices concerning prisoners, as gleaned from the official war histories. The vast majority of prisoners of war of the Japanese were taken at the fall of Singapore. As Japanese territory expanded during the early part of the conflict, prisoners were transported to areas well inside these captured territories where they were imprisoned or put to work. However, evidence of the Japanese taking prisoners of war in Papua New Guinea is scant; by far the more common practice was for those captured to be executed, especially by 1943. The official war histories do not record any POW camps in Papua New Guinea, perhaps because the terrain was difficult and because an active frontline was close by. There are also very few recorded instances of POWs escaping the Japanese, in Papua New Guinea or anywhere else.
A further piece of evidence was the document entitled “Medical Examination Prior to Discharge” dated 20 September 1945, completed shortly before Mr Marchant’s departure from Borneo for Australia and demobilisation. The form includes a statement by the serviceman as to the injuries and illnesses he carried at that time, as well as the result of an examination by a medical officer. Neither part of the form appears to make reference to the injuries Mr Marchant later reported in England as deriving from his being tortured by the Japanese.
Consideration
As indicated above, the Tribunal’s decision must be made on the balance of probabilities. Unsurprisingly, given the passage of so much time, there is no conclusive evidence one way or the other about whether Mr Marchant was in fact a prisoner of war of the Japanese. The only available evidence tends to be circumstantial rather than direct. The Tribunal is satisfied that Mr Marchant encountered and fought the Japanese; that conclusion is strongly suggested by the realities of the theatres in which he is known to have served and by the account he gives on the tape recordings edited by his grandson, which the Tribunal heard. Determining whether those encounters with the Japanese escalated into capture is a matter of weighing the probability of each of the two alternative scenarios presented to the Tribunal.
Standing in favour of the scenario presented by the applicant are Mr Marchant’s own persistent assertions – well documented to the Tribunal – that he had been captured and tortured by the Japanese. The Tribunal could discern no internal inconsistencies in the version of events which Mr Marchant told his family and his doctors. The Tribunal considers it more likely than not that a serviceman in Mr Marchant’s position would make such claims sincerely; it takes judicial note of the fact that lying about one’s service in that post-war period had grave social and even legal consequences.
The available medical evidence also tends to buttress the claim of Japanese torture, although only slightly, given that Mr Marchant’s torture-caused injuries were not documented at his discharge from the Army and his injuries, on the evidence of Dr Wallace, could have been consistent with origins other than torture.
If this evidence – Mr Marchant’s assertions and his medical history – were the only evidence available to the Tribunal, it would record a finding in favour of the applicant. However, the evidence offered by the Commission, taken as a whole, suggests that it is highly improbable that Mr Marchant was ever a prisoner of the Japanese. The improbability of that proposition, based on the evidence, outweighs the applicant’s evidence that his own account of his war service should be believed.
It is not hard to imagine that an error could creep into a serviceman’s official service record. In the surreal and disrupted environment of a nation at war, no doubt there are many mistakes in official records of the time. But for the applicant’s case to be accepted, the Tribunal would need to find that not one, but several improbable events had occurred:
(a)that both sets of service records (B. 103) had failed to record that Mr Marchant was absent from his unit;
(b)that both sets of service records had failed to record that Mr Marchant was reunited with his unit on his escape from the Japanese;
(c)that both sets of service records had failed to record him being treated for apparently very serious injuries sustained at the hands of the Japanese immediately after his being reunited with his unit;
(d)that his medical discharge records – including examination by a doctor – did not document any of these very serious injuries;
(e)that – if his capture was in Papua New Guinea in 1943 – he was held as a prisoner of war rather than being executed, which was the near-universal fate of other captured soldiers at that time;
(f)that – if his capture was in Papua New Guinea in 1943 – he was held in a Japanese camp when none are recorded in the official war histories as having existed there at that time;
(g)that – if his capture was in Borneo in 1945 – he was captured at a time when the Japanese were only weeks away from surrender and surely conscious of the probability of retribution from victorious Allied forces for torture of its combatants;
(h)that his escape from a Japanese POW camp went unrecorded, in either his own service records or the official war histories, when the sheer rarity of such an event would generally have attracted celebratory attention in places such as the official war histories.
The applicant offered, as an explanation for some of the gaps in the records referred to above, that Mr Marchant’s records were suppressed because of the secret mission he had reportedly been engaged in when captured. By its very nature, documentation of “secret” operations may not be readily discoverable in official repositories, although that is much less likely to be the case after such a long period of time has elapsed. It was not explained, however, why the fact of Mr Marchant’s service in such an operation – as opposed to the details of the operation itself – was not captured in his service record. Put another way, the Tribunal, again, considers it improbable that an ordinary serviceman would be required to undertake a mission (and pay a heavy personal price for doing so) of such secrecy that all record of it would be suppressed afterwards, to the exclusion of any benefit to himself or his family that might generally be supposed to flow from such distinguished service.
The imperative to maintain the secrecy of the mission seems to have waxed and waned. It is hard to understand why revealing the secret was acceptable for the purposes of obtaining medical treatment but not for the purpose of obtaining a war widow’s pension.
The Tribunal accepts that mistakes can and do creep into official records, and that even official war histories may have omissions. Thus it must be considered possible that any one or two of the anomalies referred to in paragraph 27 might have occurred. But for the present claim before the Tribunal to be accepted, the Tribunal needs to find that all of these anomalies occurred cumulatively. To do so would be to heap implausibility upon implausibility.
It follows that, on the balance of probabilities, the more likely explanation of what occurred is that Mr Marchant embellished the already-commendable record of his war service. One could only speculate as to why he might do so. The Tribunal notes the evidence that he was prone to “violent outbursts” and hallucinations, and suffered from depression. He also made at least three attempts to commit suicide. It may be that he felt the need to explain his disturbed state of mind to his long-suffering family, and that past torture by the Japanese offered an explanation which was readily understandable by them and which sustained them in nurturing his troubled spirit.
This disturbed state of mind was almost certainly the product of his long and scarifying war service. However, the Tribunal is not satisfied that it was the product of being a prisoner of war of the Japanese, and accordingly the decision under review – to refuse Mrs Marchant this compensation payment – must be affirmed.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries .................................[sgd].......................................
Associate
Dated 29 October 2015
Date(s) of hearing 15 October 2015 Advocate for the Applicant Carol Walker Advocate for the Respondent Tim O'Reilly
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