It’s plainly obvious that he hasn’t read the report.
However, the use of the word murder surprised me, particularly phrases like the “credible information of murder” you quote. For that pre-supposes mens rea. Was the inquiry competent to judge the mental health of the soldiers concerned?
I would have thought “credible information of unlawful killing” would have been more appropriate phraseology?
See my previous post. IMHO the report authors could be over-stretching their competence regarding responsibility.
Once again, consider Blackman. There was credible evidence of unlawful killing but his responsibility was diminished. Brereton has not cross-examined psychiatric expert witnesses.
At the risk of tearing the proverbial out of this discussion, there is a difference between (A) manslaughter/culpable homicide where a death has been caused unintentionally by gross negligence: in English legal parlance "gross negligence manslaughter" -
and (B) manslaughter/culpable homicide
with the intention to kill where a partial defence applies, such as loss of control or diminished responsibility (as in the eventual outcome of the Blackman case), but short of actual insanity which would be a complete defence in law: "voluntary act manslaughter".
Mens rea, which you rightly mentioned, is therefore an element both of murder and (to a lesser extent) of voluntary act manslaughter. By referring to "credible information of murder by..." and "a realistic prospect of a criminal investigation obtaining sufficient evidence to charge [redacted] with the war crime of murder", Brereton is clearly satisfied that the
alleged acts appear to have been voluntary* and therefore would amount to murder
if proven in court and absent any successful partial defence of diminished responsibility.
If Brereton's inquiry had been informed of any manifest signs of diminished responsibility involved in the offence, that could have been taken into account, but it was not for that inquiry to second-guess any conceivable future defence, nor did it have the power to require persons of interest to undergo psychiatric examination.
Finally, having looked at the Inquiry's terms of reference I don't consider that it exceeded its remit. Concerns expressed in this thread about the report's public contents would apply to the redaction regime, not to its actual contents.
* PS - "Critically, the report apparently finds none of these killings occurred in heat of battle, none occurred “in circumstances in which the intent of the perpetrator was unclear, confused or mistaken”, and all persons involved understood the relevant law of armed conflict and the rules of engagement."
Australian war crimes in Afghanistan: The Brereton Report