War crimes report: Immunity offer to pursue senior special forces scalps

Special forces troopers who ‘pulled the trigger’ could be given immunity from prosecution to convince them to testify against more senior soldiers.

NSW Supreme Court judge Paul Brereton led the war crimes inquiry.

Special forces troopers who “pulled the trigger” could be given immunity from prosecution to convince them to testify against more senior soldiers, under a proposal to secure war crimes prosecutions against the most ­serious alleged perpetrators.

Buried in his heavily redacted 465-page report, NSW Supreme Court judge Paul Brereton says eight lower-ranked soldiers should have charges waived if they gave evidence on those who ordered them to commit war crimes.

His report, which found newly deployed soldiers were ordered to kill Afghan prisoners and civilians in a ritual known as “blooding”, says prosecutions should follow a “hierarchy of criminal responsibility”.

Setting out a proposed ­approach for prosecutors and the government’s yet-to-be named war crimes special investigator, Justice Brereton says “those who bear the greatest criminal ­responsibility or culpability” should be pursued over those “whose culpability is less”.

“In order to secure their testimony in such prosecutions … it is recommended that the sub­ordinate be granted immunity from prosecution should he agree to give evidence for the Crown in any relevant prosecution,” he says. “The evidence of such ­individuals is likely to be crucial in the prosecution of their superiors which … should take priority, both because of the greater criminal responsibility of the superiors, and because of the greater national importance in holding the superiors to account, and showing that they are held to account.”

In his report for the Inspector-General of the Australian Defence Force, Justice Brereton recommends 19 soldiers face criminal investigations over the alleged murders of up to 39 civilians and prisoners in Afghanistan.

It’s unclear how many of the eight lower-ranked soldiers he recommends be offered immunity are among those facing potential prosecution for murders he found were “commenced, committed, continued and concealed” by sergeants and corporals.

The proposal is in part a ­response to high-level immunities granted to witnesses to IGADF ­inquiries, which have coercive powers to compel testimony.

Prosecutors are unable to use “any information, document or thing” to prosecute a person that has been “obtained as a direct or indirect consequence” of evidence that person provided. But prosecutors can use evidence against a person that is the result of testimony to the inquiry by another witness, such as a soldier who is granted immunity.

One legal source said: “You speak to the (person being prosecuted) at the end of the process so all the evidence being used is not derived from him. In order to make this work, you have to grant an immunity to the trooper who gives the evidence.”

Attorney-General Christian Porter, under law, will have to provide written consent authorising any war crimes prosecutions.

Mr Porter’s spokesman said the Attorney-General would consider “all material put before him” by the Commonwealth Director of Public Prosecutions.

The immunity issue emerged as Defence Minister Linda Reynolds, speaking in Perth, said allegations of “absolutely clear-cut murder and war crimes” in the Brereton report made her “physically ill”.

Serving and former soldiers facing prosecution will have legal costs paid for by the taxpayer in a commitment by the federal ­government that is likely to run to more than $1m per prosecution.

Those facing criminal allegations are being urged to secure legal representation with firms headed by criminal silks with murder trial experience.

Holding Redlich senior litigation partner Howard Rapke, who is representing at least one of the alleged war criminals, said the coming years would take their toll on the accused. “With all of the high profile reporting of the IGADF inquiry, it is easy to forget that these men are entitled to the presumption of innocence,” he said. “Many of these incidents will not go to trial for lack of evidence, and a number of those that do could lead to acquittals.”