Investigation of war crimes and the recommendations of the Inspector-General of the ADF

Investigation of war crimes and the recommendations of the Inspector-General of the ADF

The Inspector General of the ADF Afghanistan Inquiry Report was released following a lengthy investigation by Major General Brereton.

The Report made a number of recommendations for further investigation and in particular, the report recommended that 36 matters be referred to the Australian Federal Police for criminal investigation.

The inquiry had broad powers to investigate these matters. The inquiry is not a criminal trial and cannot find guilt in any individual case.  Any matters where the Inquiry Report recommends an investigation by the AFP must then be independently investigated by the federal police and a decision made as to whether or not to prosecute the matter.

It is important that in the context of any criminal investigation by the AFP, the individuals the subject of any investigation are reminded of their rights to remain silent and to obtain legal advice before answering any question put to them.

War crimes and the Commonwealth Criminal Code

Division 268 of the Commonwealth Criminal Code sets out a number of offences against humanity including genocide, crimes against humanity and war crimes.  Of importance in considering the recommendations made by the Major Brereton, is the war crime – murder which appears at section 268.70.  A person accused of the war crime of murder commits an offence if:

(a)  the accused causes the death of one or more persons; and

(b)  the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

(c)  the accused knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

(d)  the accused person’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.

 

In addition to the war crime of murder, the report made recommendations around investigation of cruel treatment and torture both of which are also offences under the Commonwealth Criminal Code.

 

A person accused of cruel treatment, pursuant to section 268.72, commits an offence if:

(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and

(b) the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict. Penalty: Imprisonment

 

Similarly in relation to the war crime of torture, pursuant to section 268.25, a person commits that offence if:

(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and

(b) the perpetrator inflicts the pain or suffering for the purpose of:

(i) obtaining information or a confession; or

(ii) a punishment, intimidation or coercion; or

(iii) a reason based on discrimination of any kind; and

(c) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and

(d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and

(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.

Beyond reasonable doubt 

In Australia the criminal standard of proof, beyond reasonable doubt, applies to war crimes prosecuted under the Commonwealth Criminal Code.  The nature of the evidence collected by the inquiry throws up a number of questions concerning the admissibility of some of that evidence ultimately in criminal proceedings.

There are a number of defences available to individuals charged with the war crime of murder. Specifically to section 268.70 of the Criminal Code, the person will not be guilty of the offence if it can be demonstrated that:

(a)  the death of the person or persons occurs in the course of, or as a result of, an attack on a military objective; and

(b)  at the time the attack was launched:

  • the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and
  • it was reasonable in all the circumstances that the perpetrator did not have such an expectation.

Many persons who are affected by the recommendations within this report would feel that the nature of the inquiry and their role within the ADF impacted greatly on their decisions and process.  The report noted the potential for accused persons to raise mental health defenses and disorders as relevant to culpability and abnormal mental functioning.  In each case of a recommendation for prosecution by the AFP, the mental health of the individual at the time of the alleged incident will be relevant not only to the exercise of the prosecutorial discretion but also ultimately to any potential defences or excuses which might be available to the accused person.

What to take away

There are a number of matters which should be taken away from this report:

  • Firstly, the inquiry is not a criminal trial and recommendations are not charges.
  • Secondly, the process for the individuals the subject of the report will be a long an arduous once and it is important that appropriate legal advice is obtained at the earliest opportunity.
  • Thirdly, the investigation to be conducted by the AFP will involve different rules and rights for individuals;
  • Fourthly, the process of proceeding to trial involves a number of strategic decisions best made by individuals with lawyers who understand the criminal process and are able to develop a strategy for their individual situation.

 

If you or a family member require any advice about matters arising from this report, please contact Dan Rogers, a specialist in international criminal law.

A redacted copy of the report can be found here. If you require support, The Defence all-hours Support Line is a confidential telephone and online service for ADF members and their families 1800 628 036.

 


Robertson O'Gorman Solicitors striving for Excellence - Emma Higgins recognised in the 2020 Queensland Criminal Law Rising Star Rankings

Last week, Robertson O’Gorman was again recognised as a ‘First Tier Criminal Defence Firm’. Congratulations to our newest edition to The Doyle’s Guide, solicitor Emma Higgins!  Emma has been recognised in the 2020 Queensland Criminal Law Rising Star rankings.  Doyle’s is curated by fellow criminal lawyers and barristers, recognising the expertise of our firm’s criminal defence lawyers and we are proud of our firm’s commitment to excellence and the continuing professional development and mentoring we provide throughout our lawyers' career.


Robertson O’Gorman Principal recognised in national Doyle’s List for White Collar and Corporate Crime Professionals and Criminal Defence Lawyers

Robertson O’Gorman Principal recognised in national Doyle’s List for White Collar and Corporate Crime Professionals and Criminal Defence  Lawyers

The Doyle’s Guide is an independent organisation that rates and recommends law firms and individuals based on interviews with clients, peers, and relevant industry bodies.  The Doyle’s 2020 rankings are in and we congratulate our Principal, Dan Rogers for being recognised nation-wide as a Leading Criminal Defence Lawyer, in addition to a national recognition in the White Collar Crime, Corporate Crime and Regulatory Investigations Category.  Congratulations also to Terry O’Gorman; another one of our team awarded nation-wide recognition as a Leading Criminal Defence Lawyer. All of the solicitors at Robertson O’Gorman strive for quality and superior customer service and we are very proud of their commitment to excellence.


DEFENCE PERSONNEL AND WEAPONS PROHIBITION ORDERS

DEFENCE PERSONNEL AND WEAPONS PROHIBITION ORDERS

Protection orders are official documents made by a court or police service for the protection of one person (the aggrieved) against another (the respondent). They include domestic violence orders – visit our Domestic Violence page for more information.  Other examples of protection orders include:

  • Apprehended Domestic Violence Orders
  • Apprehended Personnel Violence Orders
  • Intervention Orders
  • Family Violence Intervention Orders
  • Personnel Safety Intervention Orders
  • Violence Restraining Orders
  • Misconduct Restraining Orders
  • Personnel Protection Orders
  • Family Violence Orders
  • Police Family Violence Orders

Protection orders can be for a temporary period pending a court hearing. They may also involve voluntary undertakings given by the person that has a similar restraining effect as a formally-imposed protection order. For information regarding the kinds of conditions that may be imposed in a protection order, visit our Domestic Violence page.

Weapons prohibition orders (WPOs) are protection orders that limit or restrain access, possession or use of a weapon, often in relation to a protection order.

Weapons licences will be affected by protection orders. Temporary protection orders suspend weapon licences and final protection orders cancel weapons licences.[1]  Within one day of the court making an order, the respondent must surrender their weapons and licences to a police officer. The respondent will also be prevented from applying for a weapons licence for five years from the date of the final protection order.

DEFENCE MEMBERS AS THE AGGRIEVED

Where a Defence member becomes the aggrieved person in a protection order, they should notify their commanding officer where the circumstances are likely to influence their performance, duty or daily work routine. They should also notify their commanding officer where the respondent to the protection order is another Defence member or employee or where the order is likely to affect Defence business or reputation. Commanding officers are then to take all reasonable steps to support and assist the aggrieved person.

DEFENCE MEMBERS AS RESPONDENTS

Where a Defence member becomes the respondent to a protection order, they must immediately report it to their commanding officer, who is to manage the Defence member as appropriate to the situation.

Notification must be in writing and provided within 24 hours of becoming aware of the protection order. For Reserve members not on duty, it must be provided within first period of duty after becoming aware of the protection order. Along with a copy of the protection order, the written advice must contain:

  • Details regarding the circumstances of the issue of the protection order;
  • Duration and conditions of the protection order; and
  • Any impact it may have on the effectiveness of the member in carrying out their assigned duties.

Where a WPO is issued, the member must also include whether information regarding any services weapons in their possession and any personal firearms and/or ammunition stored in any ADF armoury.

If the Defence member’s ability to perform their duties is restricted by the WPO, the commanding officer must consult with the member’s career management agency to consider if the member can continue serving in the ADF. The Military Personnel Policy Manual also outlines that any privately-owned weapons stored in an ADF armoury must not be released to the Defence member. If the WPO requires the weapons be surrendered, this must be carried out by the officer-in-charge of the armoury direct to the police, in the presence of the Defence member.

Where the Defence member is permitted to continue serving in the ADF, they are not permitted to gain unsupervised access to armoury or magazines.

ADF Recruitment are responsible for seeking declarations regarding any WPOs to which applicants are subject at the time of their application and any time after before their enlistment/appointment. Depending on the circumstances, WPOs may be sufficient for an applicant to be declined or deferred entry into the ADF. Failure to advise of a WPO prior to enlistment/appointment may result in termination at a later date.

[1] Weapons Act 1990 (Qld) ss 27A, 28A.


Legal Wise Seminar - Criminal Law: Hot Topics

Our Principal and Legal Director, Dan Rogers presented today at the Legal Wise Seminar - Criminal Law: Hot Topics.  He spoke about Criminal law and the Human Rights Act 2019 (Qld) with a particular focus on statutory interpretation and the right to a fair hearing; along with reviewing Sections 32 to 35 of the Act which set out certain specific rights that relate to those accused of a criminal offence.  Case Studies were examined to provide context to these important areas.  It is vital for anyone facing a criminal charge to get considered advice about how the Human Rights Act 2019 (Qld) may affect the best conduct of their case. Our solicitors are available to discuss your case.

 


Doyle's Guide 2020 Results - Robertson O'Gorman recognised again as a First Tier Queensland Criminal Defence Firm

We are pleased to announce for the sixth straight year, Robertson O’Gorman Solicitors has been recognised as a First Tier Queensland Criminal Defence Firm in the 2020 Doyle’s Guide..  The Doyle’s Guide is curated by fellow criminal lawyers and barristers, recognising the expertise of our firm’s criminal defence lawyers. The list can be accessed here.  Terry O’Gorman and Dan Rogers have also been named as Preeminent Queensland Criminal Defence Lawyers. As a result, together, Terry and Dan make up two of only six places on the highest individual category. Leigh Rollason was also among the list of Recommended Queensland Criminal Defence Lawyers.

Congratulations to Dan, Terry, Leigh and all ROG solicitors who continue to strive for excellence!