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“CANOVERSEA, LONDON.” MAYFAIR 6040
HEADQUARTERS OF
OVERSEAS MILITARY FORCES OF CANADA
ARGYLL HOUSE
Please address all communications to–
“THE SECRETARY” 246 REGENT STREET,
and quote
LONDON, W.1.
FILE NO.
R E G I S T E R E D
A.G.2b
S-H-333(c). 3RD Sept., 1917
The Judge Advocate General,
Overseas Military Forces of Canada,
68 Victoria St., S.W.1.
I am directed to return herewith the proceedings of
General Court Martial which tried Lieut. Col. V.V. Harvey, D.S.O., 54th Canadian Inf. Bn., which you were good enough to forward to these Headquarters for perusal.
Captain.
Staff Captain.
for Brig.-General.
CHT. Adjutant-General, Canadians.
A Army Form A.9.
Form of Proceedings for General, District and
Regimental Courts-Martial.
Proceedings of a General court-Martial held at Headquarters 11th Canadian ………………………………………………………………France.
On the 8th day of July 1917 by order of Major General ……….CB. EMG Commanding 4th Canadian Division dated the 1st day of July 1917.
PRESIDENT
Brig-General C.H. MACLAREN, D.S.O., C.R.A. 4th Canadian Division.
MEMBERS
Lt-Colonel J.W. Warden, D.S.O. 102nd Canadian Inf. Battalion
Lt-Colonel J.V.P. O’Donahoe, D.S.O. 87TH Canadian Inf. Battalion.
Lt-Colonel C.M. Edwards, D.S.O. 38th Canadian Inf. Battalion.
Lt-Colonel M.J. Francis, D.S.O. 44th Canadian Inf. Battalion
Lt-Colonel L.F. Page, D.S.O 50TH Canadian Inf. Battalion.
Waiting Members
Lt-Colonel A.H. Borden, 55th Canadian Inf. Battalion
Lt-Colonel W.C.V. Chadwick, 124th Canadian Pioneer Battalion.
Lieut. C.F. Gifford, 42nd. Canadian Inf. Battalion, Judge Advocate
Trial of Lieu.Col Valentine Vivian Harvey, D.S.O. 54th Canadian Inf Btn
At 10 a.m. o’clock the Trial commences.
(1) The order convening the Court is read, and is marked A signed by the president and attached to the proceedings.
The charge-sheet and the summary of evidence are laid before the Court.
The Court satisfy themselves as provided by Rules of Procedure 22 & 23.
(2) Maj L.C. Outerbridge, 55th Canadian Infantry Battalion appears as prosecutor, and takes his place.
The above named, the accused, is brought before the Court. Major C. Carmichael, 47th Canadian Inf Btn appears as counsel for the accused.
The names of the president and members of the Court are read over in the hearing of the accused, and they severally answer to their names.
Question by the Do you object to be tried by me as president, or by any of the
President to officers whose names you have heard read over?
the accused
Answer by No.
Accused.
(N.B. – If objection is made it should be recorded together with the decision by the Court on a separate sheet.)
*Here insert No. Rank, full Name, Battalion and Regiment and Appointment if any
- Here insert name and …………………………….tion
B
The president, members, and judge-advocate and………………………………………………………… are duly sworn in.
An application of the accused
Vol 6317 Sergeant F. Jackson
54th Canadian Infantry Battalion
is duly sworn as shorthand writer.
Charge-Sheet
(3) The charge-sheet is signed by the president, marked B2 and annexed to the proceedings.
Instruction:
If the accused has elected to be tried under Army Ad, sec 46(8) the fact should be here recorded.
The accused is arraigned upon each charge in the
above-mentioned charge-sheet.
Are you guilty or not guilty of the {first} charge Question to
against you, which you have heard read? the accused
Not guilty. Answer
Are you guilty or not guilty of the second charge Question
against you, which you have heard read?
Answer
Are you guilty or not guilty of the third charge Question
against you, which you have heard read?
Answer
If the trial proceeds upon any charge to which there is a Instruction.
plea of “Not guilty” the Court will not proceed upon the
record of a plea of “Guilty” until after the finding on
those other charges, such findings being accorded on Sheet 15.
“B2”
C.H. MacLaren
Brig Gen
President
C H A R G E S H E E T
The Accused, LIEUTENANT-COLONEL VALENTINE VYVIAN HARVEY, 54TH CANADIAN INFANTRY BATTALION, an Officer of the Canadian Expeditionary Force, is charged with
A.A Sec. When the Active Service, Conduct to the prejudice of good
40.
order and military discipline, in that he,
Accompanied by his Acting Second in Command, and Adjutant, was absent from his battalion when in the field, from about 11.00 a.m. on 21st May 1917 until about 8.00 a.m. on 22 May 1917, thereby allowing the Battalion to be without the services of the Commanding Officer, the Acting Second in Command, and the Adjutant, during the whole of such absence.
Brigadier-General
Commanding 11th Canadian Infantry Bde.
TO BE TRIED BY GENERAL COURT MARTIAL:
Lieut.-Colonel
A.A. & Q.H.G.,
30/6/17 4TH Canadian Division.
C
Proceedings on Plea of Not Guilty
(5) The prosecutor makes his address
The accused applies to have his …………………………………
The prosecutor proceeds to call witness.
First witness for Major William Henry Collum, M.C.
Brigade Major, 11th Canadian Infantry Brigade,
Prosecution
Being duly sworn, is examined by the prosecutor.
“On the evening of May 20th 1917, I called on Lt.-Col.Harvey, D.S.O. at his Headquarters in the Vimy-Angres Line, S.10.d. On departing, Col. Harvey asked if there would be “anything on tomorrow.” I replied “Nothing, as far as I know!”. He the jokingly remarked that he did not wish to see any of the Brigade Staff tomorrow, “as we are going into Bethune and will not be back until late.”
Q.3 What reply did you make to Col. Harvey when he said “We are going into Bethune.”
A.3 No statement was made by me in reply.
Q.4 Were any other names mentioned by Col. Harvey, as to who were going with him to Bethune.
A.4 No names were mentioned as far as I can recollect.
Cross-examined by the accused:-
Q.5 Will you tell the Court who were present at that conversation with Col. Harvey.
A.5 Major Trotter, 11th Field Coy. C.E.
Q.6 Were any others present.
A.6 No one that I recollect.
Q.7 Where did this conversation take place.
A.7 I recollect the conversation as taking place at the road junction, adjoining Col. Harvey’s Headquarters.
Q.8 You say in your evidence that you saw him in the Vimy-Angres Line.
A.8 My recollection is that it took place outside Col. Harvey’s Headquarters.
Q.9 Was Capt. Taylor present.
A.9 Not that I know of.
Q.10 You cannot say that he was not.
A.10 His presence was not known to me at the time.
Q.11 If Capt. Taylor swears he was there, will you contradict him.
A.11 He might have been there, as my recollection is that he was sitting on a seat a few yards away.
Q.12 Was any other person present.
A.12 Not that I know of.
Q.13 Was anything said about a clean up day. Were those words used.
A.13 Yes. I should have added those words to my original statement.
Q.14 What did you infer from that clean up day, having regard to the general training of the Brigade.
A.14 My understanding of it was that Col Harvey’s Companies would be carrying on independently, devoting their time to cleaning up.
Q.15 Did you receive a copy of Col Harvey’s syllabus that would cover the 21st May.
A.15 We had received a syllabus showing training for the coming week, for the period we would be out in Divisional Reserve.
Q.16 Do you know whether Col Harvey’s Battalion held a bathing parade on the following day.
A.16 Quite probably so.
Q.17 Was the 54th Battalion carrying on a Bathing Parade on the 21st May.
A.17 As bathing arrangements are made with Staff Captains A. and Q., I cannot say definitely.
Q.18 Can you say whether Bathing Parade was laid down in the Syllabus.
A.18 I cannot recollect.
Q.19 Were the 54th Battalion bathing on that day.
A.19 In my capacity as Brigade Major, I do not know whether they were bathing, or whether they were having only the cleaning up.
Q.20 Who did you infer were going to Bethune when Col. Harvey said to you “We are going to Bethune and will not be back until late.
A.20 I made no inferences at the time.
Q.21 You made a mental note of this conversation.
A.21 Yes.
Q.22 Why did you made a mental note of it.
A.22 To take it up with the G.O.C.
Q.23 What were you going to take up with the G.O.C.
A.23 The suggestion that Col. Harvey and some of his Officers were going to Bethune.
Q.24 Why some of his Officers. Did you know who they were.
A.24 I did not.
Q.25 Who usually went with Col Harvey on these trips.
A.25 His Acting Second-in-Command, and his Adjutant, have been to Bethune with him on several occasions.
Q.26 Was this one of those occasions.
A.26 That I cannot answer. It might have been so.
Q.27 Did you tell Col. Harvey that he could not go to Bethune.
A.27 I did not.
Q.28 You made no further comment.
A.28 Not as far as I recollect.
Q.29 You know the whole history of the case, do you not. There is not detail in this case that you do not know anything about.
A.29 Not that I know of.
Q.30 As far as you were concerned, you had no objection to Col. Harvey going to Bethune.
A.30 Personally, no, but I thought it my duty to confer with the G.O.C.
Q.31 But you made no mention of your sense of duty, and raised no objections when Col. Harvey told you he was going to Bethune.
A.31 No.
Q.32 Have you the power to concur in a C.O. going on leave for a day, or must you apply to the G.O.C. Brigade.
A.32 Ordinarily I take it up with the G.O.C.
Q.33 If the G.O.C. were not there, would you have the power to concur in such leave.
A.33 I have not the power, but I would use my judgement.
Q.34 Previously, had you ever know of Col. Harvey going away and taking his acting Second–in-Command and Adjutant, as the charge suggests, to Bethune. Has he ever done so to your knowledge.
A.34 Yes. I judge so from conversations heard.
Q.35 Heard where.
A.35 Heard in Col. Harvey’s headquarters, between Col. Wright and Major Taylor, the Adjutant.
Q.36 Have you ever heard of Col Harvey having gone away and taking Col. Wright and Major Taylor with him.
A.36 Yes. It was not told to me directly, but I drew this inference from a conversation that I overheard between Col. Harvey, Col. Wright and Major Taylor.
Q.37 Did you report to Gen. Odlum that Col. Harvey had, on the 20th of May, stated his intention of going to Bethune.
A.37 Yes at or about 4 p.m. on the 21st May.
Q.38 What was your conversation.
A.38 Gen. Odlum remarked, after my report, that he had been to see Col. Harvey, but found that he was not there.
Q.39 When you came into the Brigade office that afternoon, did Gen. Odlum ask you the direct question “where is Col. Harvey, Col. Wright and Maj. Taylor.”
A.39 Not to my recollection.
Q.40 He did not mention the matter to you first.
A.40 No. I reported it to him.
Q.41 Did Genl. Odlum ask if they had obtained leave.
A.41 No Comments.
Q.42 Was Col. Harvey in the habit of informing you before he went on these visits to Bethune.
A.42 I recollect on one occasion he did so.
Q.43 Have you ever heard that Col. Harvey has gone away from his Unit without reporting his intended absence to Brigade Headquarters.
A.43 Not as far as I know.
Q.44 On the occasion that he did report that he was going to Bethune, you reported it to the G.O.C. and there was nothing further said about it.
A.44 No, as it was a statement of intent on the part of Col. Harvey, as on the 20th May.
Q.45 When Col. Harvey mentioned that he intended to go to Bethune, were you not in a position t say that he could not go, or relieve yourself of any further responsibility by referring him direct to the GOC.
A.45 Having but recently joined the Brigade, and this being our first tour in the line, I preferred to submit the matter to the G.O.C.
Q.46 Might it not have obviat4ed a considerable amount of trouble if you had told Col Harvey that you preferred t leave it with the G.O.C.
A.46 Yes.
The prosecutor objects t this question. The objection is over ruled by the Court.
Q.47 What was the rule of procedure for the first day out of the line, in the Brigade.
A.47 Cleaning up and baths.
Re-examined by the Prosecutor:-
Q.48 When you mentioned t the Brigadier that Col. Harvey had said “We are going to Bethune, was that before or after he had gone.
A.48 Apparently after.
Examined by the Court:-
Q.49 Where was Col. Harvey’s Battalion on the 21st May.
A.49 On the night of 20th/21st May, they moved from the Vimy-Angres Line into Divisional Reserve in St. Lawrence Camp, Chateau de la Haie grounds.
Q.50 Did you or did you not give Col. Harvey permission to go to Bethune.
A.51 I did not, as I took it as an application for leave.
His evidence is read to the witness.
Rule 83b has been complied with.
Witness withdraws.
Second Witness. Brig.-Genl. V.W. Odlum, C.M.G. D.S.O., Commanding 11th
Canadian Infantry Brigade, having been duly sworn, states:-
“On the night of the 20th May, the Brigade was relieved from the forward area, and the 54th Battalion, along with the others, moved back, going into huts in St. Lawrence Ca,. Beside the Chateau de la Haie. The move was completed during the night of the 20th/21st May. On the 21st, I took no steps to get in touch wit the Battalions until the afternoon, preferring to allow them to rest in the morning. In the afternoon I went out to visit the Battalions in turn. The last one I went to was the 54th Battalion. The time would be about 6 p.m. I found that the O.C., and Col. Wright and Major Taylor, were absent. About 19:30 the same night, and again went to St. Lawrence Camp, and again found the same three Officers absent. I left word with the Assistant Adjutant to have the O.C. call me up as soon as the returned, first waiting myself at his Headquarters until 11:45 p.m. hoping that he would return. I went back to my own Office and continued to do some work, which kept me until after one o’clock the next morning. Just before retiring, I telephoned and asked for the O.C. 54th Battalion, and failed to get him. I once more asked to be called up on his return. At five o’clock in the morning of the 22nd May, I found again, as I had had no message, and once more failed to get in touch with the O.C. 54th Battalion. At 8 a.m. I phoned for the third time, with the same result. Approximately five minutes after I had phoned on the last occasion, I was called up by Gol. Harvey, who informed me that he had just come back.
I had had no intimation that Col. Harvey proposed to leave Camp, or that he would take with him Col. Wright and Maj Taylor, nor had I given any consent for them to be absent.”
Cross-examined by the Accused:-
Q.51 Would you mind telling the Court whether you ever had any occasion to check Col. Harvey prior to this for similar conduct.
A.51 No, I never had.
Q.52 Can you tell the Court anything of Col. Harvey’s general efficiency, and the efficiency of the Unit under his Command.
A.52 Col. Harvey had always been a brave, energetic, and enterprising Officer. The Unit under his command had, from the time I first joined the Brigade, been very efficient.
Q.53 Was Co. Harvey a member of the 54th Battalion on the Battalion’s arrival in France.
A.53 Yes.
Q.54 What position did he occupy at that time.
A.54 He was a Company Commander.
Q.55 From that date, what further step did he rise to.
A.55 Major Davies, who was then Second in Command, was sent to command the 44th Battalion, and Major Harvey became second in command 54th Battalion. Later on the death of Col. Kimball, Major Harvey was promoted and given command of the 54th Battalion.
Q.56 Was that with your concurrence and recommendation.
A.56 It was on my recommendation.
Q.57 Is this present instance the only time you have had occasion to find fault with Col. Harvey.
A.57 It is.
Q.58 When you went to visit the 54th Battalion on the 21st May, did you see the then acting O.C., Major MacInnes.
A.58 I saw Major MacInnes when I went at about 11.30 p.m.
Q.59 Were you able to carry out the arrangement with him which took you there at that time.
A.59 No.
Q.60 Is it correct that there was a meeting of O’s.C. Battalions at the Brigade Office on the morning of the 22nd May.
A.60 It is.
Q.61 Was Col. Harvey present at that meeting.
A.61 He was not.
Q.62 Was he at the Brigade.
A62 He was.
Q.63 Can you tell the Court why he was not present at that meeting.
A.63 Yes. I had made up my mind that as a result of his absence, I would have to take action, and had decided not to have him present at the meeting.
Q.64 Who was the Officer who attended that meeting as O.C. 54th Battalion.
A.64 No Officer from the 54th Battalion was present.
Q.65 Prior to you first visit, had you any intimation that Col. Harvey was not present with his Unit.
A.65 No.
Q.66 Did you send Capt. Martin, of the Brigade Staff, to see Col. Harvey.
A.66 Yes.
Q.67 Did that Officer report back to you that Col. Harvey was not with his Unit.
A.67 Not until after I had myself been to St. Lawrence Camp and found that Col. Harvey was not there.
Q.68 Will you please fix the time when Capt. Martin reported that to you.
A.68 I am unable to fix it, except that by saying it would be about Mess time. That is, between 6.30 and 7 p.m.
Q.69 What was your object in visiting the Battalion, and telephoning so many times after you knew Col. Harvey was away.
A.69 I visited him the second time because I had reason to believe, from what I had heard when I was first there, that he would be back about that time, and when I found he was not there on my second visit, then I commenced to take the matter seriously.
Q.70 At what hour did you first begin to take the matter seriously.
A.70 At about 11.45 p.m.
Q.71 What steps did you ten take.
A.71 I took no steps other than those that I have already referred to, except that at 1 a.m. on 22n May, I reported to Division that Col. Harvey was absent.
Q.72 In what manner was that report submitted to Division.
A.72 By telephone.
Q.73 Was that conversation subsequently confirmed in writing.
A.73 It was confirmed by a telegram.
Q.74 Can you tell the Court what training was provided for in the syllabus for the 54th Battalion, on May 21st.
A.74 The 54th on that day were bathing.
Q.75 Was there any confusion or disorder as a result of Col. Harvey being away from his Unit, during the hours alleged in this charge.
A.75 None.
Q.76 Is it correct that Col. Wright was attached as a Supernumerary Officer to the 54th Battalion, and had Col. Harvey authority to use this Officer in any capacity he saw fit.
A.76 He was so attached, and Col. Harvey had that authority, except that he was restricted in making Col. Wright permanent Second in Command.
Q.77 What position did Major MacInnes occupy.
A.77 Major MacInnes officially was being transferred into the 54th Battalion, but had applied for transfer to the 72nd Battalion and the application had not been dealt with. Col. Harvey had reported to me that he could not utilize Major MacInnes.
Q.78 Are the relations between yourself and Col. Harvey of a friendly character.
A.78 They always have been.
Q.79 Was Col. Harvey in command of the 54th Battalion during the time it was engaged in the Vimy operations.
A.79 He was personally in command.
Q.80 Can you say anything as to his efficiency through these operations.
A.80 Col. Harvey always has been efficient, and he was efficient.
The accused hands witness copy letter No. 2566/99 dated 23/5/17 addressed to 4th Canadian Division, and signed V.W. Odlum, Brigadier-General, Commanding 11th Canadian Infantry Brigade.
Q,81 Is this copy letter produced a true copy of a letter written by you to the 4th Canadian Division in reference to Lt.-Col. V.V. Harvey.
A.81 Yes.
Copy letter is marked “1”, signed by the President, and attached to the proceedings.
By the Accused:-
“I desire to put this copy letter in as evidence on my own behalf.”
Q.82 Was a previous letter, along these same lines, forwarded to the 4th Canadian Division.
A.82 There was a previous draft of that letter written, which was amended and officially submitted in its present form.
The accused hands witness copy letter dated 23rd May 1917 purporting to be written by the accused, and addressed to “G.O.C. 11th Canadian Infantry Brigade.”
Q.83 Is this copy letter a true copy of a letter received by you from Lt.Col. V.V. Harvey.
A.83 Yes.
Copy letter is marked “U”, signed by the President, and attached to the proceedings.
By the Accused:-
“I desire t produce this copy letter as evidence on my own behalf.”
Q.84 The charge as laid is signed by you.
A.84 It is.
Q.85 How did you come to lay this charge.
A.85 I was directed by higher authority to lay this charge, and the charge was framed by higher authority.
Q.86 Can you tell the Court the state of the weather on the night of May 21st/22nd.
A.86 When I returned to Camp at about 11.45 p.m. 21st May, it was commencing to rain. In the morning at 5 o’clock, I found that it had been raining through the night.
His evidence is read to the witness.
Rule 83b has been complied with.
Witness withdraws.
Third Witness: Lieut.-Col. J.G. Wright, attached 54th Canadian Infantry Battalion, having been duly sworn, states:-
“On the day after the Battalion was relieved from the Vimy-Angres Line, which, as well as I remember, was the 20th May, we were at St. Lawrence Camp, Chateau de la Haie grounds. I asked permission from Col. Harvey to accompany Major Taylor, Adjutant of the 54th Battalion to Bethune. That permission was given, and Col. Harvey suggested accompanying us. I saw him go to the telephone and heard him ask for the Brigade Major. I heard Col. Harvey say “I am going to Bethune.” Col. Harvey accompanied Major Taylor and myself to Bethune that day. We left Chateau de la Haie about Noon, and arrived in Bethune about 2 p.m. We went on horse-back.”
Q.87 What was your position in the 54th Battalion.
A.87 I was an attached Officer.
Q.88 Were you supernumerary t the establishment.
A.88 I presume so.
Q.89 What duties did you have allotted to you.
A.89 I had a class of N.C.Os for instruction.
Q.90 What duties did you have when in the line.
A.90 Any duties which were detailed by Col. Harvey, I carried out.
Q.91 With whom were you quartered when in the line.
A.91 Battalion Headquarters.
Cross-examined by the Accused:-
Q.92 Were you ever detailed as acting Second in Command of the 54th Battalion.
A.92 No.
Q.93 Were you ever away with Col. Harvey, to Bethune, for a day.
A,93 Yes. On several occasions.
Q.94 On what days were such journeys usually made.
A.94 Usually the day after coming out of the line.
Q.95 Do you know why that day was chosen.
A.95 It was chosen because that was the day the men were cleaning up and had no special training to do.
Q.96 Have you ever discussed these trips with the Brigade Major.
A.96 I have told him of them.
Q.97 Have you ever heard Col. Harvey ask the Brigade Maj for leave on any of these occasions.
A.97 On each occasion, over the ‘phone.
Q.98 Have you ever heard Col. Harvey, in the presence of the Brigade Major, and in your presence, ask for such leave.
A.98 No.
Q.99 Was the subject of your going to Bethune, in company with Col. Harvey and the Adjutant, ever discussed in the presence of Gen. Odlum.
A.99 Yes.
Q.100 When and where.
A.100 The last time the Battalion was in the Support Line, in the Battalion Headquarters Vimy-Angres Line.
Q.101 Did Gen. Odlum pay you a visit there.
A.101 Yes.
Q.102 About what date.
A.102 I don’t remember the date.
Q.103 Was Col. Harvey in Command of the Battalion at the time.
A.103 Yes.
Q.104 What anything said at that discussion, in your presence, that would lead you to believe that you were doing wrong in taking these trips to Bethune without the express sanction of the General.
A.104 No.
Q.105 Were you present during the whole of that conversation.
A.105 Yes.
Q.106 As the result of your joint absence, did anything irregular occur in the Battalion, insofar as you know.
A.106 Not in my opinion.
Q.107 Have you been identified with the Battalion ever since.
A.107 Yes, until quite recently.
Q.108 Up to that time, had you any reason to believe anything had gone wrong.
A.108 No.
Q.109 What was the state of the 54th Battalion when you joined it.
A.109 When I joined it, on the 7th March, it had just come out of a stiff raid, which happened on the 1st Match, and the Battalion was apparently very much disorganized at that time.
Q.110 What was the state of efficiency on May 21st.
A.110 The efficiency of the Battalion, in my opinion, was very good.
Q.111 Why did you not return on the night of 21st May.
A.111 It was raining very hard when the time arrived to return, and the training had been arranged for the next day, and consequently there was no particular need to return to the Battalion that night.
Q.112 At what time were you prepared to start back.
A.112 About 11.30 p.m.
His evidence was read to the witness.
Rule 83b has been complied with.
Witness withdraws.
Fourth Witness: Capt T.B.L. Taylor, 54th Canadian Infantry Battalion, having been duly sworn, states:-
“On the 21st May, I was Adjutant of the 54th Battalion. On that day, Col. Harvey, Col. Wright, and I, rode to Bethune. I had permission from Col. Harvey to go. We started about noon. Col Harvey, before leaving, instructed me to detail Major MacInnes to be in charge of the Battalion, and Lieut. Cherrie to be in charge of the Orderly Room, during our absence. I carried out these instructions. We arrived in Bethune about 2 p.m., and left there soon after five the next morning.”
Cross-examined by the Accused:-
Q.113 Was the Brigade Major ever informed, in your presence, of any previous occasions about these three officers named in the charge going to Bethune.
A.113 I have heard Col. Harvey on at least two previous occasions use the telephone and ask for the Brigade Major, and state that he and I were going to Bethune.
Q.114 Were you present at Battalion Headquarters on the Night of the 20th May.
A.114 I was.
Q.115 Was the Brigade Major there that night.
A.115 Yes.
Q.116 Do you remember any conversation that took place then.
A.116 I do.
Q.117 Will you tell the Court what that conversation was so far as it relates to this charge.
A.117 Col. Harvey said to the Brigade Major, Maj. Collum, “We are going to Bethune tomorrow.”
Q.118 What reply did the Brigade Major make.
A.118 I cannot remember what reply was made.
Q.119 Did you hear him refuse permission.
A.119 No.
Q.120 Where did this conversation take place.
A.120 In the Battalion Headquarters in the Vimy-Angres Line at S.10.d.05.55. It was in a dug-out.
Q.121 During your term as Adjutant, did you ever publish in orders Col. Wright’s posting as Second-in-Command or Acting Second-in-Command of the Battalion.
A.121 No.
Q.122 Can you say of your own knowledge that he ever held either one of these appointments.
A.122 He did not.
Q.123 As a result of your trip to Bethune, do you know of anything irregular having occurred in the Battalion.
A.123 No, nothing irregular occurred.
Examined by the Court:-
Q.124 At the interview with the Brigade Major in the dug-out at Battalion Headquarters on 20th May, did you hear Maj. Collum grant permission to Col. Harvey to go to Bethune.
A.124 No.
His evidence is read to the witness.
Rule 83b has been complied with.
Witness withdraws.
Fifth Witness: Major M.A. MacInnes, 54th Battalion, having been duly sworn,
states:-
“On the 21st May last, I was attached to the 54th Battalion as a Supernumerary Officer. I was attached to Headquarters Staff, and performed any duties allotted to me by the Commanding Officer. On the morning of the 21st May, between the hours of 11 a.m. and 12 noon, Col. Harvey, Maj. Taylor, and the Adjutant, and Col. Wright left the camp. Col. Harvey told me that he was going to Bethune. He ordered me to take command of the Battalion during his absence.”
Q.125 Did Col. Harvey tell you when he would be back.
A.125 He stated in my presence that they would be back that day. He did not definitely say that to me. To the best of my knowledge that was said to the Adjutant, who, I understood, was going with him. It was in the nature of a general remark.
Accused declines to cross-examine this witness.
His evidence is read to the witness.
Rule 83b has been complied with.
Witness withdraws.
The prosecutor informs the Court that Lieut. R. Cherrie, whose evidence appears in the Summary of Evidence, cannot attend as a witness, having been evacuated to the Base through illness.
‘Defece’
The Counsel for the Accused states:-
“I submit that the Prosecution has not made out a case, and that the Accused be honourably acquitted.”
The President of the Court states:-
“The motion has been considered, and in the opinion of the court the case should be continued with, but, owing to the late hour now, it has been decided that the case will be postponed until 9.30 a.m. Tuesday, 10th July 1917.”
The Court re-assembles at 9.30 a.m. 10th July 1917.
The Accused makes the following application:-
“This case should be referred back to the Convening Authority to ascertain what the Accused is charged with, and I wish to submit certain authorities in support of that application.
The authorities upon which I rely are as follows:-
Para. 8 page 57, M.M.L.
Section 40, Army Act, and notes 2 and 3 to that Section.
Para.32, page 23, M.M.L.
R.P. 11, and last note to that rule on page 577, also
Note D. to R.P.11.
Rule 9 on page 576, M.M.L.
Rule 23, Note 2.
R.P. 12 and 13.
Para.61 on page 46, M.M.L.
Para 40 page 42, M.M.L.
Second part of Note 3 on page 579, M.M.L.
R.P. 32.
R.P.104, Notes 1 and 3 particularly.
Para.6 page 26, M.M.L.
R.P.103, Note F.
Paras.12 and 13, page 58, M.M.L.
K.R. & O. para. 591.
The President of the Court states:-
“The Court have considered the application, and refuse it.”
The prosecution is closed.
Defence.
Question Do you apply to give evidence yourself as witness: Yes.
to the
accused. Do you intend to call any other witness in your defence? Yes.
Is he a witness to character only: Answer. No.
(7) [If the accused gives evidence himself, but calls no other witness to the facts of the case, his evidence will now be taken on a separate sheet.]
(6&7)*[The prosecutor addresses the Court upon the evidence for the prosecution (and the evidence of the accused) as follows:- Page 0.16
Question 2133A (6, 7 & 8) Have you anything to say in your defence:
to the
accused. A133A The accused in his defence says:- page 8.27
“If the accused calls other witnesses to the facts of the case, whether he himself gives evidence or not, this paragraph will be struck out, and the course laid down in R.P. Appendix 11. (8) will be followed.
This question will always be asked, whether the accused has given evidence or not.
Major W.H. Collum, M.C. Brigade Major, 11th Canadian The Evidence of the
Infantry Brigade, having been recalled at the request witnesses for the
of the Accused, is examined through the Court:- defence including that of the accused, if he
is a witness, will be taken here in the order in which they give
Q.126 Did Col. Harvey ever tell you that Col evidence.
Wright was his acting second-in-command.
A.126 No.
Q.127 In your evidence, you state that you recollect on one occasion Col. Harvey informed you before he went to Bethune. On what occasion was that.
A.127 Some time between Apr8l 24th and May 10th, probably about May 1st, during the period in which the Brigade was in divisional Reserve at Chateau de la Haie.
Q.128 Do you remember an occasion at Cambligneul when you were expecting a car to go to the Divisional School, Ferfay, and which could not be procured.
A.128 Yes, prior to April 24th. Col. Harvey told me he expected a car to conduct him to Bethune.
Q.129 When the Brigade went into the line on May 12th, what Brigade did it relieve.
A.129 My recollection is that we relieved the 10th Brigade on the 10th, or 11 of May. It was a partial relief extending over two or three days.
Q.130 Previous to that was the 11th Brigade in Divisional Reserve.
A.130 Yes.
Q.131 Was this the first or second tour that you made with the 11th Brigade in the line.
A.131 The first, as I recollect it, before the tour commencing 10th, 11th or 12th May.
Q.132 Previous to May 12th, was the 54th Battalion in Divisional Reserve.
A.132 Yes.
Q.133 Therefore, was it not a fact that the 54th Battalion was in Divisional Reserve on May 21t for the second time.
A.133 Yes.
The Prosecutor declines to examine the witness as to his further evidence.
Examined by the Court:-
Q.134 Are applications for leave of absence for a day by Battalion Commanders made through you, as a rule.
A.134 Not regularly.
Q.135 Did you receive any telephone message on May 21st from Col. Harvey with reference to his going to Bethune.
A.135 No.
His evidence is read over to the witness.
Rule 83b has been complied with.
Witness withdraws.
First Witness: Lieut. R.H. Bradfield, 75th Canadian Infantry Battalion, having been duly sworn, is examined by the accused:-
Q.136 What Battalion did you belong to before you joined the 75th.
A.136 The 67th Battalion.
Q.137 Prior to that.
A.137 The 84th Battalion.
Q.138 Do you know if Col. Harvey was a member of that Unit.
A.138 He was.
Q.139 Can you give the Court any information as to the appointment Col. Harvey held.
A.139 He was first Adjutant, next Junior Major, and then Senior Major.
Q.140 Have you ever worked with Col. Harvey.
A.140 I was Adjutant for Col. Harvey for three or four months.
Q.141 Can you tell the Court anything as to his general attention to duty.
A.141 He was always very attentive to duty. He gave as many as three lectures a day to Officers, after parades during the day.
Q.142 Can you say anything as to his efficiency in that Battalion.
A.142 Col. Harvey, to my belief, was very efficient.
Q.143 Can you say what the feeling in the Battalion was towards him.
A.143 At first it was not very good, as he came to Oshawa to take the place of Major Wright, who had always been very popular, and when everyone regretted to lose. However, we out-grew that feeling and soon began to like Col. Harvey very much.
Q.141 Can you say if Col. Harvey, to your knowledge was ever neglectful of duty.
A.141 No, never.
The Prosecutor declines to cross-examine this witness.
His evidence is read to the Witness.
Rule 83b has been complied with.
Witness withdraws.
Second Witness. Lieut.-Col. R.D. Davies, Commanding 44th Canadian Infantry
Battalion, having been duly sworn, is examined by the Accused.
Q.142 Can you tell the Court the circumstances under which Col. Harvey joined the 54th Battalion.
A.142 In the early part of July 1916, Col. Harvey, then Major Harvey, came to the 54th Battalion.. The C.O., Col. Kemball, informed me that he had applied for Major Harvey, who joined the 54th at the time I have stated. He was given supervision of the interior economy and administration in the Battalion.
Q.143 Can you say how he carried out these duti4s.
A.143 Yes. That work was done by him t the entire satisfaction of the C.O. I may say his efficiency was recognized by everyone in the Battalion.
Q.144 Can you tell the Court the feeling of the Battalion towards him on joining.
A.144 Yes. The feeling in the Battalion was not good amongst the Officers, especially the Senior Officers. The trouble really began before Col. Harvey arrived; on the announcement of the introduction of another senior Officer.
Q.145 How would the fact of Major Harvey joining the Battalion affect these other Officers.
A.145 It would delay other Officers’ promotion. This was taken up by the senior Officers of the 54th, with Col. Kimball, who refused to allow their right to protest against Col. Harvey’s appointment. The feeling continued very strongly, after the Battalion arrived in France, but I would also say as second in command of the Unit, that Col. Harvey’s work was always done regardless of this, and that on no occasion, to my knowledge, did he do anything to merit such feeling.
Q.146 Can you say anything as to a change of feeling.
A.146 No, except amongst the men of the Battalion. I think, as long as I remain in the Battalion, that feeling existed amongst the Officers.
Q.147 Do you know if the matter was ever taken up with the Brigade Commander.
A.147 Yes. On instructions of the C.O. I made enquiry into this matter, for the information of the G.O.C., and I reported that the feeling still existed, but without apparent cause.
Q.148 What was the custom in the Battalion with regard to responsibility of Company Commanders.
A.148 The Second-in-Command, and Officers on the Battalion Staff, were not allowed to control the notion of Company Commander after orders had been given. Col. Kimball was most particular in this. He made it a point to leave company Commanders particularly free to carry on the work in the Companies, merely telling them what was intended to be done.
Q.149 Would it necessarily need the attendance of an Officer of the Staff to superintend a bathing parade.
A.149 By no means.
Q.150 If Company Commanders got orders to hold a bathing parade, that would be sufficient for them.
A.150 Quite.
Q.151 Can you recollect any incident when Col. Harvey went away unknown to this C.O., or neglected his duty.
A.151 Certainly not. Col. Harvey was particularly good on procedure, and very particular, all the time I was in the Battalion, to observe points of discipline of that nature.
Q.152 Can you say anything about him so far as being a disciplinarian is concerned.
A.152 I can say that his ability as a disciplinarian was of great value in the 54th Battalion, and was recognized as such by everybody.
The Prosecutor declines to cross-examine the witness.
Examined by the Court:-
Q.153 Did the O.C. CEASE IN HIS RESPONSIBILITY BY TURNING OVER SO MUCH AUTHORITY TO Company Commanders.
A.153 No in his responsibility. He wished to allot minor responsibilities t junior Officers. He did not consider that any minor irregularity, such as, say, an irregularity in the baths, would require his action to straighten it out.
His evidence is read over to the witness.
Rule 83b has been complied with.
Witness withdraws.
Third Witness: Capt. W.G. Foster, 54th Canadian Infantry Battalion, having
been duly sworn, is examined by the Accused:-
Q.154 What is you position in the 54th Battalion.
A.154 Quartermaster.
Q.155 How long have you held this position.
A.155 Since May 14th 1915.
Q.156 Can you tell the court anything about the interest Col Harvey showed in the men under has command so far as you can say from your Department.
A.156 Col. Harvey always took an interest in the men and their welfare, so far as the work in my department is concerned. Any difficulties arising out of ration indents, or anything of that nature, he always personally dealt with without delay. In reference to clothing and supplies generally, he was always careful that the men had sufficient consistent with the public interest. H4e most carefully checked the Company indents, and any time there was any difficulty, he took the matter up at once.
Q.157 Did he exhibit any special interest in your Dept.
A.157 Yes. He checked yup the Department periodically, and if there was any question, he personally checked it up.
Q.158 As an Officer of the 54th Battalion, have you ever had cause for grievance against Col. Harvey.
A.158 No.
The Prosecutor declines to examine the witness.
Examined by the Court at the request of the Accused:-
Q.159 Did Col. Harvey make any innovations in the 54th Battalion in the way of institutions when he was given command.
A.159 He established a Regimental Canteen, a Sergeants’ Mess, introduced Sports, and bought sporting goods for the men to carry on with.
His evidence is read over to the witness.
Rule 83b has been complied with.
Witness withdraws.
Fourth Witness: Lieut. H.C. Green, 54th Canadian Infantry Battalion, having been duly sworn, is examined by the Accused:
Q.160 How long have you been in the 54th Battalion.
A.160 Since May 20th 1917.
Q.161 Have you any grievance against Col. Harvey.
A.161 None at all.
Q.162 Do you know of any difficulty or feeling amongst the Officers of the Battalion against Col. Harvey.
A.162 When Col. Harvey joined the Battalion originally, there appeared to be a little feeling against him, but when we came to France, as far as I could tell, there was none at all. We all liked Col. Harvey in the trenches, and he treated everybody well.
The Prosecutor declines to cross-examine the witness.
Examined by the Court:-
Q.163 What position do you now hold in the 54th Battalion.
A.163 Company Commander.
Q.164 How do you get your orders for training.
A.164 Written orders, in the form of a syllabus.
Q.165 Are you left to carry out that syllabus.
A.165 I am.
His evidence is read over to the witness.
Rule 83b has been complied with.
Witness withdraws.
First Witness: Lieut. A.A. Kerry, 54th Canadian Infantry Battalion, having been duly sworn, is examined by the Accused.
Q.166 What Battalion did you come from to the 54th.
A.166 The 84th Battalion.
Q.167 How long have you known Col. Harvey.
A.167 Since January 1916.
Q.168 Can you say anything as to his efficiency.
A.168 I can say I always found him most efficient.
Q.169 Can you tell the Court whether or not he took any part in the training of the 84th Battalion.
A.169 Yes. He supervised all the training, made out the syllabus each week, and came from Oshawa to Brantford every week to see that the training at Brantford was going on.
Q.170 How was the 84th Battalion divided in formation.
A.170 The Headquarters, and “C” and “D” Companies were at Brantford – “A” and “B” Companies at Oshawa.
Q.171 Who was in command at Oshawa.
A.171 Major Harvey.
Q.172 Have you any grievance against Col. Harvey.
A.172 No.
Q.173 Do you know if the other Officers ever had.
A.173 No, I never heard of any.
The Prosecutor declines to cross-examine the witness.
His evidence is read over to the witness.
Rule 83b has been complied with.
Witness withdraws.
The Accused takes his stand at the place from which other witnesses give their evidence.
Sixth Witness:
The Accused is duly sworn.
The Accused gives his evidence as follows:-
“Ever since joining the 54th Battalion, in July 1916, I have been in complete accord with Col. Kimball and his manner of running his Battalion. I considered, with his twenty five odd years service in India, that he was an excellent model to follow. I believed, like him, in developing the responsibility of my junior Officers. Both prior to and after getting command of the 54th Battalion I was in the habit of taking one afternoon off when the Battalion came into rest. This time was generally chosen when we were allotted the baths, and since getting command, I was usually accompanied by Col. Wright and Capt. Taylor. Before going, my procedure was invariably the same. I would ring up , or speak personally to, the Brigade Major, telling him where we proposed going, and the probable hour of our return and ask him if it was alright. Furthermore, I had on more than one occasion mentioned to Genl. Odlum himself, that we had been t Bethune, and I have never bee told either by Genl. Odlum or his Brigade Major, past or present, that I was doing wrong in so going. During Major Collum’s association with this Brigade, I have been away on two previous occasions. The first time was when Brigade Headquarters were at Cambnligreal, and I telephoned to him on that occasion to say, first, that the car was not available, and then that the three of us were going to Bethune, riding. The second occasion was personally to Major Collum, in our Headquarters but at St. Lawrence Camp, about May 2nd. On the occasion in question, that is to say, May 21st, I carried out the usual procedure. I gave the Brigade Major good notice as I informed him in my Headquarters dug-our in the Vimy-Angres Line on May 26th, and on being informed that it was alright, I took no further steps. Before leaving Camp on May 21, I took all necessary and usual precautions. I left a senior Officer, Major MacInnes, the former second-in-command of the 96th Battalion, who was attached to my Staff, in charge of the Battalion, and the Assistant Adjutant was to carry on in the Orderly Room. He was informed where we were going, the probable hour of our return, and where we could be found in a case of urgency. My syllabus of training for the period that we were to be out had been prepared, issued to the Company Commanders, and discussed with them, prior to this. About the time we proposed to return, which would be between 11.30 p.m. and Midnight it was raining very heavily, and I had, as I considered, three steps to choose from. The first; to return at once, and thereby get thoroughly wet, being caught …………… unexpectedly. Secondly; to wait, rather indefinitely, until the rain stopped. Thirdly; to go to bed there, and arise early, thereby getting sleep, which was necessary for efficiently carrying out our duties with the Battalion. I decided on the latter and we started at 5.30 a.m. 22nd May, to return to Camp. This decision on my part may have been an error of judgement, but certainly not an offence, with the clear record that has been given me, and certainly not a case for Court Martial. Several witnesses have given evidence as to the feeling in the Battalion. Genl. Odlum, at the time he was considering giving me command of the Battalion, in March, made the statement that he was sorry I was an Eastern man in a Western Battalion, and that he might have cause to make a change in my case, if he considered it in the best interests of the Service. This he eventually did, but in taking the steps to have me removed I think he lost sight of the injustice he was doing me by advocating my return to England, when I had proved myself, to his satisfaction, efficient. This left me no alternative but to object. My letter of objection is attached to the Proceedings, and as a result this Court Martial was ordered. I did not join the Expeditionary Force to serve in England, and I have been led to believe that my services can still be used to good advantage in France.
Examined by the Accused’s Friend:-
Q.174 Was Col. Wright your second in command or acting second in command.
A.174 No he was not.
Cross-examined by the Prosecution:-
Q.175 Do you repeat that when you said to the Brigade Major “We are going to Bethune” that he answered “It will be alright.”
A.175 No. I said I asked the question “Would it be alright” and he answered “Yes.”
Examined by the Court:-
Q.176 Did you have any second in command or acting second in command at the time.
A.176 I had several attached Officers who preferred duties that I could not handle myself. I was in a difficult position. Several Officers had been suggested as second-in-command, but had not proved satisfactory, and I preferred to do as much work as I could myself, and the overflow was given to Col. Wright, Col. Lightfoot, and Major MacInnes.
Q.177 When you decided not to return that night, did you send any word to the Officer in charge of the Battalion.
A.177 No. I did not, but he, Major MacInnes, lived in our hut, and would know s soon as I came back.
Q.178 Did he have any knowledge of when you would return.
A.178 No.
Q.179 You did not make any effort to advise him you would not be back until the morning.
A.179 No, as there was nothing he would not be capable of carrying out in my absence.
Q.180 Did you phone, before leaving St. Lawrence Camp, to the Brigade Major on the 21st May.
A.180 No. I did not. I considered the matter closed after our conversation on 20th May.
Q.181 When you made these trips, on coming out of the line, to which you have referred, did you ask permission from the Brigade each time.
A.181 Invariably; through the Brigade Major.
Q.182 On the night that you were in Bethune, did you receive any message from your Unit.
A.182 No.
Q.183 Did you ever leave your Unit without asking permission through Brigade before leaving.
A.183 Never.
Q.184 Were you under the impression that when you spoke to the Brigade Major, that was sufficient.
A.184 Yes. I had done it frequently.
His evidence is read to the Accused.
Rule 83b has been complied with.
The Accused withdraws from the place from which he has given evidence.
Sixth Witness: Major Harold L. Trotter, 11th Field Coy. C.E., having been
duly sworn in, is examined by the Accused:
Q.185 Do you ever recollect hearing a conversation on the part of Col. Harvey and the Brigade Major on or about the 20th May.
A.185 Yes.
Q.186 Where did that take place.
A.186 In the Orderly Room of the 54th Battalion Headquarters dug-out in the Vimy-Angres Line.
Q.187 Do you remember if there was any discussion about Bethune.
A.187 Yes.
Q.188 What was that, and who was it by.
A.188 The discussion started on the question of living underground in a smelly hold like that, and Col. Harvey said he was hoping he would soon get out of it, and that he was going to Bethune and probably would not be seen the day after he got out.
Q.189 Who was that addressed to.
A.189 That was addressed to the Brigade Major. He and the Adjutant were standing together talking about it, and Col. Harvey said “We will probably not be seen at all the day after we get out of this dug-out.”
Q.190 Who were present at that conversation.
A.190 Col. Harvey, the Brigade Major, Major Taylor and myself.
Q.191 Did you hear the Brigade Major make any reply.
A.191 I don’t remember hearing any reply being made.
Examined by the Court:
Q.192 Do you remember hearing Col. Harvey say to the Brigade Major, with reference to going to Bethune, “Will it be alright.”
A.192 I do not remember. We were having tea at the time, and the conversation was more or less jocular.
Q.193 May I ask why you particularly remember this conversation.
A.193 Because Col. Harvey had spoken to me about going with them.
Q.194 Hot it is that if you remember a portion of the conversation, you do not remember whether the Brigade Major made any reply to Col. Harvey with reference to going to Bethune.
A.194 I do not know whether the Brigade Major made a reply, as the conversation was general, and I did not pay particular attention.
His evidence is read t the witness.
Rule 83b has been complied with.
Witness withdraws.
On application of the accused, the further hearing was this 10th day of July 1917 adjourned until 9.30 a.m. on Wednesday, 11 July 1917, to enable accused to prepare his address.
The Court re-assembles at 9.30 a.m. on the 11th day of July.
The Accused hands in a written address which is read, marked “V”, signed by the President, and attached to the Proceedings.
The Prosecutor addresses the Court upon the evidence for the Prosecution, and the evidence for the Accused, as follows:-
“The Prosecutor submits that the evidence has proved that Col. Harvey, Col. Wright, and Major Taylor, were absent from the 54th Battalion approximately between the hours mentioned in the charge, and that in view of the circumstances as brought out in the evidence, namely, firstly no permission was granted, and secondly, the Battalion being in Divisional Reserve, that the act charged is, in reality, conduct to the prejudice of good order and military discipline.”
The Accused in his Defence says:-
“As far as this charge goes, I wish to point out to the Court that the premumation in Law is that a man is innocent until he is proven guilty. Now the burden of proof as to an Accused’s guilt rests entirely on the Prosecution. In this case, the Court must feel satisfied that there is sufficient evidence upon which to enter a conviction. The Defence is absolutely an answer to the charge, but unless the Prosecution have established the guilt of the Accused on the charge they have laid, then, my contention is that at this junction the case is entitled to what I am going to apply for now; an honourable acquittal.
As far as the charge itself goes, I submit that it is very badly worded. It is the duty of the Prosecution to lay the charge sufficiently clear to indicate to the Accused as to what crime under the Army Act he is to meet. I submit that this charge does not contain that information, and will go into the details later.
Each Charge Sheet should state one offence only, and should contain, under division in two parts, a statement of the offence, and the particulars. There is no offence set up in this charge against Col. Harvey. If, instead of the word “accompanied” the word “allowed” had been substituted, it would certainly have taken the shape of an offence against Col. Harvey. However, the Court must deal with the charge as it is laid. On the evidence, we are charged with being absent, which I say is a mis-statement. The Prosecution’s own evidence shows that we had leave. A Staff Officer of the Brigade as notified, the Brigade Major, who admits himself that he took that as an application for leave. Assuming that he did, he did not act on it, and he did not indicate in any way to the Accused that he had not right, on the strength of that application, and I submit his silent concurrence with Col. Harvey in fact was a ‘grant of leave.’
If the Prosecution tries to set up that a “conduct” which is the word used in the charge, was committed from which harm or wrong resulted to create an offence as provided for in Note 3 to Section 40, which says_:
“A Court is not warranted in convicting unless of opinion that the conduct charged was to the prejudice both of good order and of military discipline, having reward to the conduct itself and to the circumstances in which it took place.”
I submit that there is not a tittle of evidence before this Court that would justify a finding under the very section that this charge is laid. If they try to saddle responsibility on the Accused, then I submit the Brigade Major is guilty of equally culpable conduct, because, if eh had not given Col. Harvey leave, or if he had noted in a manner that his Office requires him t do – there are obligations on the Brigade Major the same as anybody else – then the salient feature f this charge, or any crimes that the prosecution try to set up, would never have been committed. Col. Harvey would not have been “absent”; he would not have been “accompanied” by his Supernumerary Officer. There is no evidence to show that “Co. Wright was second in command, there if there is any evidence to set up on offence, Col. Wright can be eliminated from the charge altogether.
And what does this bring us down to? It brings us down to this. Colonel Harvey acted reasonably; intelligently. He notified his higher formation, as he had always done previously, that he would be absent. Nothing was said. And he ……….. say, is where I attach the importance to those documents which have been submitted to you today; that it is the result of those that this charge has been laid.
In addition, Col. Harvey would not have been absent in such a manner as to deprive the Battalion of the services of himself, and his Adjutant – eliminating Col. Wright, who does not show in this thing at all, from the evidence – unless the Brigade Major had given him leave.”
The Judge Advocate makes the following summing up:
The charge against the Accused is one of When on Active Service, Conduct to the prejudice of good order and military discipline, in that he, accompanied by his Acting Second in Command had Adjutant, was absent from his Battalion when in the field, from about 11 a.m. on 21st May 1917 until about 6 a.m. on 22 May 1917, thereby allowing the Battalion to be without the services of the Commanding Officer, the Acting Sec0nd in Command, and the Adjutant, during the whole of such absence.
It has been stated by the Prosecution, and it is not disputed by the Accused, that he was absent from his Battalion on the dates and for the period mentioned in the charge, and that Lt. Col. Wright and Major Taylor, his Adjutant, were also absent from the Battalion on the same dates and for the same, period, but it is not admitted, and is in fact denied by the Accused that Lt. Col. Wright was on the date in question, or at ay other time, Acting Second in Command of the Battalion.
The questions which the Court will have to consider are:
- Was Lt. Col. Wright on the date in question, Acting Second in Command of the 54th Battalion.
- Whether, having regard to the evidence, the conduct charged was conduct to the prejudice, firstly, of good order, and secondly, of military discipline.
The charge is laid under Section 40 of the Army Act, and the attention of the Court is directed to the provisions of that Section and to Note 3 thereto. Note 3 to this Section lays down that a Court is not warranted in convicting unless of opinion that the conduct charged was to the prejudice both of good order and of military discipline, having regard t the conduct itself and to the circumstances in which it took place.
In considering the first question, that is, the question as to whether Lt. Col. Wright was or was not the Acting Second in Command of the Battalion, it is pointed out that, should the Court decide that Lt. Col. Wright was not on the date in question Acting Second in Command, this will not preclude them from finding the Accused guilty of the charge if they are of the opinion that such variation from the facts as stated in the charge is, having regard to the evidence, immaterial. (See Notes 2 and 3 to R.P. 44, M.M.L.)
As regards the second question, which is the main question at issue, the Court will have to carefully weigh the evidence, bearing in mind the fundamental principle of English Law that a man must be deemed to be innocent until he is proved guilty, and that the Accused is entitled to the benefit of any doubt.
FINDING.
- The Court is closed for the consideration of the finding.
(10) & (11) The Court finds that the accused Lieutenant Colonel Valentine Vivian Harvey, D.S.O., 54TH Canadian Infantry Battalion is guilty of the charge.
Proceedings of Conviction before Sentence.
- The Court being re-opened, the accused is again brought before it.
Major L.C. Outerbrid…….., 55th Canadian Infantry Battalion, is duly sworn
Have you any evidence to produce as to the character and particulars of service of the accused?
Answer by the Witness:
Yes, I produced a statement showing the accused’s Record of Services.
The above statement is read, marked “W”, signed by the president, and annexed to the proceedings.
Is the accused the person named in the statement which you have heard read:
Answer by the Witness: Yes
The Accused declines to cross-examine this witness.
Do you which to address the Court?
Answer: No. …………….
The Court is closed for the consideration of the sentence.
To be omitted except in cases of a plea of Not Guilty having been proce………… with …………..
SENTENCE
The Court sentences the accused: Lieutenant Colonel Valentine Vivian Harvey, D.S.O. Reprimand 54th Canadian Infantry Battalion to be Reprimanded.
Signed at Headquarters 11th Canadian Infantry Brigade, Gerry Ser………………… this 11th day of July 1917.
C.A. MacLaren
Lieutenant Brigadier General
Judge Advocate President
Confirmation
16/7/1017 Lieutenant-General
Commanding Canadian ……
Promulgated and Extracts taken this 18th day of July 1917.
………………………………. Capt.
Staff Captain
For ……….11th Canadian Infantry Brigade
The evidence of Genl. Odlum as to character was applied for by the Accused, and it appearing that Genl. Odlum was away from his Brigade and not available for the day, and no application having been made by the accused to have Genl. Odlum present on this date, and the Court being satisfied, in view of Genl. Odlum’s previous evidence, that no injustice would be done to the Accused, by reason of Genl. Odlum’s evidence as to character not being on record before the Court, the application for adjournment to take this evidence was refused.
C.H. MacLaren. Brig. Gen.
President
ORDER BY MAJOR-GENERAL D. WATSON, C.B., C.M.G.,
Commanding 4th Canadian Division.
GENERAL COURT MARTIAL. File No. A.Q. 64.
July 1st, 1917.
The detail of Officers as mentioned below with assemble at the 11th Canadian Infantry Brigade Headquarters, GOUY SERVINS, AT 10 A.M. July 5th, 1917, for the purpose of trying by General Court Martial, the accused person named in the margin, and such other person or persons as may be brought before them.
Lieut-Colonel VALENTYNE VIVIAN HARVEY, D.S.O., C.R.A. 54th. Canadian Infantry Battalion.
PRESIDENT
Brig-General C.H. MACLAREN, D.S.O., C.R.A. 4th Canadian Division.
MEMBERS
Lt-Colonel J.W. Warden, D.S.O. 102nd Canadian Inf. Battalion
Lt-Colonel J.V.P. O’Donahoe, D.S.O. 87TH Canadian Inf. Battalion.
Lt-Colonel C.M. Edwards, D.S.O. 38th Canadian Inf. Battalion.
Lt-Colonel M.J. Francis, D.S.O. 44th Canadian Inf. Battalion
Lt-Colonel L.F. Page, D.S.O 50TH Canadian Inf. Battalion.
Waiting Members
Lt-Colonel A.H. Borden, 55th Canadian Inf. Attalion
Lt-Colonel W.C.V. Chadwick, 124th Canadian Pioneer Battalion.
Prosecutor
Major L.C. Outerbridge, 55th Canadian Inf. Battalion.
Judge Advocate
Lieute. C.F. Gifford, 42nd. Canadian Inf. Battalion, has been appointed JUDGE ADVOCATE.
The accused person will be warned, and all witnesses required to attend.
The proceedings will be forwarded to Headquarters, 4th Canadian Division.
Signed this First day of July, 1917.
Ede B. Parret
Lieut-Colonel,
A.A. & Q.M.G.
4TH Canadian Division
COPY No. 8566/00
CONFIDENTIAL Headquarters,
11th Cdn. Inf. Bde.
23.V.17.
Fourth Canadian Division.
Lt-Col. V.V. Harvey,
54th Cdn. Inf. Battn.
On the night of 20/21 May the 54th Battalion was relieved in the forward area and marched to ST. LAWRENCE CAMP, near CHATEAU DE LA HAIE.
At 2 p.m. on the 21st, I sent Captain E.O.C. martin, Staff-Captain, to see the Battalion and arrange with the CC.for me to visit him later in the day. Captain MARTIN found that Lt-Col. V.V. HARVEY, with Lt-Col. J.G. WRIGHT, who is acting second in command, and A/Major T.E.L. TAYLOR, the Adjutant, had gone to BETHUNE and were not at the Camp.
At 5:15 p.m., I myself went to ST. LAWRENCE CAMP to arrange about a programme of training for the tour in divisional Reserve. I found the O.C., the Second in Command, and the Adjutant away. The Assistant Adjutant, Lt. R. CHERRIE, told me that they had gone to BETHUNE, but were expected back at any time.
At 10:30 p.m., I again went to the Camp. All three senior Officers were still absent. Major M.A. McInnes, who is with the Battalion as supernumerary officer, told me that they should be back at any time. They had gone to BETHUNE for lunch, and had apparently stayed longer than they intended.
I remained at the Battalion Headquarters till 11:45 p.m. but as the three officers did not turn up, I returned to Brigade Headquarters, leaving instructions for Lt-Col. HARVEY to phone me as soon as he arrived.
At 1 a.m., on the 22nd, I again phoned and found that the party were not back. I once more left definite instructions to be called up on their return, and I notified Divisional Headquarters of their absence.
At 5 a.m., I phoned a second time, and at 8 a.m., a third time. They were still absent. I had called a conference of C.O.’s. for 8:45 a.m.
At 8:10 a.m., Lt-Col. HARVEY called me up and said that he had just got in. He remained at BETHUNE over night owing to rain.
I was myself out at 11:45 p.m. the night before. It was then only commencing to rain and the rain was very light. It was raining much more heavily on the morning of the 22nd.
I had given no permission to Lt-Col. HARVEY to be absent from Camp, nor had be applied for any. If he had applied, I would have refused permission as I wanted all Commanding Officers to be present to arrange for the programme of training.
In view of this incident I no longer have confidence in Lt-Col. HARVEY and I recommend that he be removed from the command of the 54th Battalion and returned to England where he may be otherwise employed. I would not again send the Battalion into action under his command.
I have placed Major A.B. CAREY, of the 102nd Battalion, in acting command of the 54th Battalion.
May this recommendation be treated as urgent, please.
(Sgd) V.W. ODLUM,
Brigadier-General
Comdg. 11th Canadian Inf. Brigade.
I have read the above and letter attached.
(Sgd) V.V. HARVEY,
Lieut-Colonel
ARGUMENT FOR DEFENCE.
This case must fail on the grounds that under A.A. Section 40, no specific Conduct to the prejudice of either good order or Military discipline has been proved in evidence. The whole of the prosecutions evidence deals directly with Absence which is not charged in this case. The accused is therefore entitled to an Honourable Acquittal.
Major
11/7/17 Counsel for Accused
Record of Services of Lieut-Colonel V.V. Harvey, D.S.O.
54th Canadian Infantry Battalion
Black Watch – 1904 to 1908
25th Country of London Regiment – 1908
109th Canadian Militia – 1914 to 1915
84th Battalion, C.E.F. – 1915 to 1916
54th Canadian Infantry Battalion – 1916 —
Honours & Rewards:
D.S.O. November 18th, 1916.
Mentioned in Despatches once.
From : LCOL VV Harvey,
OC 54th Canadians
To: The GOC
11th Cdn Inf Bde
France
May 23, 1917
Sir,
I have the honour to request that you will forward this letter with the amended statement you have sent me to sign and “read”, for the consideration of the Corps Commander.
In connection with the first paragraph of page 2 I had informed the brigade major that I intended going to Bethune on the 21st and I was not informed that my presence would be required.
I chose this day as my Bn was aloted the Baths and all my arrangements had been completed and copy sent to the brigade showing my system for _______ days.
The Assistant Adjudant knew where I was an if the matter was important “he could have found me.”
I was at the Conference of the CO’s called for 8:45 and was then told I was not required ___________. I am not prepared to be sent back to England on these grounds.