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Alleged SAS War Crimes Report

Caecilius

LE
Kit Reviewer
Book Reviewer
The report does not directly accuse anyone of murder.

Actually it does. Multiple times. It uses the phrase 'credible information of murder by...' and redacts the name of the accused individual.

It also states, in reference to multiple individuals, that "there is a realistic prospect of a criminal investigation obtaining sufficient evidence to charge [redacted] with the war crime of murder".

Please read the report.
 
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Actually it does. Multiple times. It uses the phrase 'credible information of murder by...' and redacts the name of the accused individual.

Please read the report.
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.
 
Actually it does. Multiple times. It uses the phrase 'credible information of murder by...' and redacts the name of the accused individual.

Please read the report.

Once again

Note the wording '' Unlawfully killed - Anybody talking about murder charges at this stage is a f***ing clown and that includes the CDF.

The Brereton inquiry is not a criminal investigation, neither is it the PPS, who decide on charges.

The choice of language is abysmal.
 

Caecilius

LE
Kit Reviewer
Book Reviewer
The choice of language is abysmal.

Anybody talking about murder charges at this stage is a f***ing clown and that includes the CDF.

Says the non-lawyer taking about the work of multiple lawyers, but fine. Let's work with your logic.

So what? Sure, there's a linguistic difference between the word 'murder' and the phrase 'willful and unlawful killing', but what practical difference does that make to the ADF response?
 
Says the non-lawyer taking about the work of multiple lawyers, but fine. Let's work with your logic.

So what? Sure, there's a linguistic difference between the word 'murder' and the phrase 'willful and unlawful killing', but what practical difference does that make to the ADF response?

I'll try and make this easy for you.

I'll wait until......
  • Criminal investigations are complete
  • PPS have laid charges
  • Trials have taken place
  • People have been convicted
......before I get on my soapbox.

I suggest that you do the same, rather than shouting about murder.
 

Caecilius

LE
Kit Reviewer
Book Reviewer
Once again, consider Blackman. There was credible evidence of unlawful killing but his responsibility was diminished. Brereton has not cross-examined psychiatric expert witnesses.

The phrasing wouldn't be inconsistent with that. The eventual defence to murder may well be one of diminished responsibility, but that doesn't mean that there isn't "a realistic prospect of a criminal investigation obtaining sufficient evidence to charge [redacted] with the war crime of murder".

It's probably also worth noting at this point that, unlike England, Australia distinguishes between first and second degree murder. From what I've read*, diminished responsibility leads to a reduction to Second Degree murder, not manslaughter as in England.




*Very happy to be corrected if anyone who actually understands the Aussie legal system is on here.
 
Says the non-lawyer taking about the work of multiple lawyers, but fine. Let's work with your logic.

So what? Sure, there's a linguistic difference between the word 'murder' and the phrase 'willful and unlawful killing', but what practical difference does that make to the ADF response?
I don’t think it’s the ADF response that is important. It’s more the case that a defence may build a case that the report has prejudiced justice. Of course, that might be deliberate.
 

Caecilius

LE
Kit Reviewer
Book Reviewer
I'll try and make this easy for you.

I'll wait until......
  • Criminal investigations are complete
  • PPS have laid charges
  • Trials have taken place
  • People have been convicted
......before I get on my soapbox.

I suggest that you do the same, rather than shouting about murder.

That doesn't answer anything I said in my post.

I'll ask again: what practical difference does it make to the ADF response (nb: not the individual criminal trials) whether they're referred to as murders or willful and unlawful killings?
 
It's probably also worth noting at this point that, unlike England, Australia distinguishes between first and second degree murder. From what I've read*, diminished responsibility leads to a reduction to Second Degree murder, not manslaughter as in England.

Manslaughter​

When following a court case, you may hear of a defendant pleading guilty to manslaughter, rather than murder. This is because the manslaughter charge suggests that the crime was not committed intentionally, but was the result of a reckless or careless act, or diminished responsibility. As a result, the usual sentenced handed out to those found guilty of manslaughter is less severe.

 
I'll ask again: what practical difference does it make to the ADF response (nb: not the individual criminal trials) whether they're referred to as murders or willful and unlawful killings?

Bob has already answered it and it has been answered previously.

Pre judging by talking about murder could prejudice any future cases.
 
I don’t think it’s the ADF response that is important. It’s more the case that a defence may build a case that the report has prejudiced justice. Of course, that might be deliberate.
However, the names of the individuals are not in the Public Domain and won't be known to the Jury until the commencement of the trial, so it would be difficult to argue that the outcome of any trial is prejudiced.

Speaking with friends and family in Australia, there seems to be the general feeling that the troopers 'are hard done by' and that given the locals don't abide by the rules, why should our 'eros? And anyway, 'it's the fault of the Pollies.'

I cringe at the number of times I read on social media 'and to walk a mile in their shoes' as it it justifies multiple unlawful killings.
 
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Caecilius

LE
Kit Reviewer
Book Reviewer
Bob has already answered it and it has been answered previously.

Pre judging by talking about murder could prejudice any future cases.

Still not an answer to my question. Aside from the language used by CDF, what difference does it make to the ADF response? Presumably the answer is none.

I acknowledge your point that you, as a British non-lawyer, think that a senior Austrian lawyer is on legally questionable ground to have used the word murder. You may or may not be right. That isn't, however, what I'm asking about.
 
The phrasing wouldn't be inconsistent with that. The eventual defence to murder may well be one of diminished responsibility, but that doesn't mean that there isn't "a realistic prospect of a criminal investigation obtaining sufficient evidence to charge [redacted] with the war crime of murder".

It's probably also worth noting at this point that, unlike England, Australia distinguishes between first and second degree murder. From what I've read*, diminished responsibility leads to a reduction to Second Degree murder, not manslaughter as in England.




*Very happy to be corrected if anyone who actually understands the Aussie legal system is on here.
Balls. Australia does not distinguish between first and second degree murder. Both Murder and Manslaughter are common law offences described in state criminal legislation. Each state is different, but NSW, Victoria, Queensland and the ACT all define both. Can’t be asked to loom at the others; that’s 85% of the population covered.

Also, I refer you to yesterday’s debate about which state had jurisdiction (a debate that is beyond no means closed). If we assume that any alleged offences are dealt with under the DFDA, then they would be Territory Offences and ACT law would apply.

Here’s a summary of ACT law
 
what difference does it make to the ADF response?

What ADF response are you talking about ?

In a wider context

Aside from the language used by CDF, what difference does it make to the ADF response?

This is headline news, possibly around the world.

If the Brereton report was an ADF internal inquiry, not for public consumption I couldn't care less what language was used.

If you cannot see that for yourself, there isn't much hope for you.
 

Caecilius

LE
Kit Reviewer
Book Reviewer
Balls. Australia does not distinguish between first and second degree murder. Both Murder and Manslaughter are common law offences described in state criminal legislation. Each state is different, but NSW, Victoria, Queensland and the ACT all define both. Can’t be asked to loom at the others; that’s 85% of the population covered.

Also, I refer you to yesterday’s debate about which state had jurisdiction (a debate that is beyond no means closed). If we assume that any alleged offences are dealt with under the DFDA, then they would be Territory Offences and ACT law would apply.

Here’s a summary of ACT law

Fair enough. Clearly I misread. My first point in that post still stands though.
 
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Caecilius

LE
Kit Reviewer
Book Reviewer
What ADF response are you talking about

All the steps being taken aside from the passing of individual files to the AFP. Including, but not limited to, disbandment of a squadron, rescinding of awards, and dismissal of individuals.
 
All the steps being taken aside from the passing of individual files to the AFP. Including, but not limited to, disbandment of a squadron, rescinding of awards, and dismissal of individuals.

The ADF is free to do what it wants to do as long as it does not impinge on any upcoming investigations.

I would expect nothing less than individual files to be passed to the relevant authorities for further investigation.
 
Why did you bring the Nazis into the thread anyway? It's toatally irrelevant to the thread. It was a classic case of Godwin's law and virtue signalling.
I didn't - I was responding to @mrdude 's claim that "Yep, and there were plenty axis war crimes - as was the norm back in that time." (link) so I pointed out that it wasn't the norm, and that the Nazis were arguably the first to make war crimes a matter of policy (granted, the Japanese also tried very hard)

If anything, it's you doing the virtue-signalling by jumping in at that point to have your whataboutery moment on the Soviets and GULAG (link).

I'll ask again: why are you so quick to defend the Nazis? Do you feel that history has been unkind to them, in reviling them as scumbag war-criminals? Is it their natty uniforms, active racism, and murderous attitudes to "lesser" peoples?
 
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
 
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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
Agree completely; generally diminished responsibility is a matter for the defence to prove in a case of murder; it certainly is here in NSW. Not sure if that is the case in all states.

Each state has its own criminal laws. The NSW law is simple and very similar to the English law on which it is obviously based. Generally, there are three distinct intents that define murder; there are four separate intents that qualify as murder; the intent to commit GBH, the intent to kill, the reckless endangerment and the intent to commit a serious offence (usually one with >25 tariff) that leads to a death. Queensland has added more; I think there are 7.

WA defines three homicide offences: Wilful Murder, Murder and Manslaughter. Wilful Murder covers only for intent to kill. Diminished responsibility would apply as a defence to Wilful murder, reducing the offence to Murder. It might also reduce an offence of Murder to Manslaughter.
 
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