'No one does it for popularity': Justice Brereton follows in his father's footsteps

NSW Supreme Court Of Appeal Justice Paul Brereton has not agreed to be interviewed since the release of his stunning report that accuses more than two dozen special forces soldiers of involvement in murders of 39 Afghan prisoners and non-combatants.

But he is prepared to make one exception.

Judge Paul Brereton, whose father Russell Brereton also investigated war crimes.Credit: Edwina Pickles

This is because he wants to talk about his father Justice Russell Brereton, whose horse hair wig sits on a stand on the bookshelf next to his son's ceremonial wig. He too investigated war crimes - Japanese war crimes in the closing stages of World War Two.

Seventy-five years ago this month, December 1945, Captain Brereton was prosecutor in Labuan Island, Borneo (now Malaysia), for the tribunal of Japanese Sergeant Major Tsuruo Sugino who pleaded not guilty to two charges of massacre.

With the Allied fleet approaching, Sugino was instructed on June 10 to take 51 Allied prisoners of war inland "to dispose of them". The group was all that remained of 300 Australian and British POW sent to Labuan to contruct an airfield. The yellowing tribunal papers state the accused ordered the shooting of approximately 36 of them, before ordering the 15 strongest who had been carrying food to be killed by shooting and bayonetting.

"I submit the act was a deliberate, calculated, cold blooded murder," Captain Brereton said opening the case. Sugino was found guilty and was shot by firing squad.

Justice Brereton was a 17-year-old schoolboy at Knox when his father died aged 63 from hypertension caused by scrub typhus he contracted in New Guinea.

"From what I have read from his opening and in his correspondence, I would say he was reserved and scrupulously fair in his approach," Justice Brereton says.

"His commitment to fairness to the Japanese that he was prosecuting illustrates that he appreciated that it was a two-sided issue."

Testament to that fairness is a plaque high up on the bookshelves presented to his father by Lt General Masao Baba, Japanese Commander in Chief in Borneo. Justice Brereton says: "The translation on the back of it reads 'True Heart is the Core of Everything'. It was sent to him as war crimes officer of the 9th Division in appreciation of the fairness with which he did the investigations and the first trial.

Sgt Major Tsuruo Sugino (seated) eats lunch as two provost guards talk to Warrant Officer Warrant Sticpewich, one of six survivors of Sandakan, at Labuan, Malaysian Borneo.Credit: AWM

"My father refers in some of his correspondence to his concerns to make sure that the Japanese were well defended and had good defending officers, he took time to train them in the ways of common law. One of them invited him to Japan after it was all over, he didn't take up the invitation but I think that is reflective of his attitude.

"He also expressed doubt that prosecuting and executing Japanese soldiers would do much good, particularly from the perspective of future international relations. He wrote, somewhat cynically, that 'a few million worthless hearts will rejoice in their deaths, and except for sowing the seeds of future acrimony, no harm will be done'.

"I think it is fair to say he had doubts as to what it would achieve in the long term. You look at what happened in Europe and the Pacific after the Second World War and, if nothing else, that established the enforcability of the laws of armed conflict and that people would be held to account and that really hadn't been done to that scale before then."

Capt Russell Brereton (centre, light belt) in Labuan, 1945.Credit: AWM

Historian Lynette Silver has extensively researched and written about the Japanese war crimes in the Far East during the Second World War. She says: "It is amazing. We have got the son doing what the father did, reverse roles really. One is finding out about atrocities against Australians and the other one is finding out about atrocities committed by Australians."

There were further lessons of the reality of war from another relative. Justice Brereton's uncle, Tom (Russell's brother) trained in medicine and did post graduate training at Sydney Hospital. Serving at a casualty clearing station, he was a Japanese POW and was sent to Burma as part of the Japanese slave labour on the infamous Burma-Thailand railway. The diet meant that his health suffered badly in later years.

Has the modus operandi of a war crimes inquiry changed since his father's era?

"The major difference is that we have many more documentary and digital records that would not have been available then," he says.

"Probably oral testimony was almost the exclusive basis in 1945. It is still incredibly important now but there is other material of importance now too."

Are contemporary war crimes worse than those your father prosecuted? We are in danger of straying outside the agreed terms of the interview. "I don't think I will go there." But he does add of the inquiry: "This was always going to be difficult and no one who does it does it for popularity."

Justice Brereton admits that, in a sense, he sometimes feels his father is looking over his shoulder.

Will there be a time when he can speak publicly about the report? "My report speaks for itself just like a judge's judgement speaks for itself," he says.

"It may be that the time will come, I suspect not for many years, to talk in detail about it. It may be sooner that I can talk about it for training and educational purposes - the methodologies used, the approaches taken and the lessons learnt without delving into the facts, but for all sorts of reasons it is important that little be said now."

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