The path to court for SAS murder suspects won’t be smooth, quick, certain or inevitable. Justice Brereton had a power federal police investigators will not have: he could compel soldiers to give answers, promising them that nothing they said could be used in cases against them. [Though they could be required to give evidence against others.]
Investigating murders is not the AFP’s long suit. While its detectives in the ACT office handle the odd murder case – usually three to six a year – most are straightforward. Those that aren’t are rarely solved. Murder is generally a matter for state or territory jurisdictions.
National AFP detectives have become skilled in drug and terrorism matters and can turn their hand to complex frauds, mostly after preliminary briefs have been handed over by investigators in tax, or social security.
But the skills required to investigate alleged murders committed thousands of miles away, with many critical witnesses unable to speak English, are a world apart from what the AFP usually does or has experience in. While a few officers will have ACT experience, or experience in state forces before they transferred sideways to the AFP, none is of a seniority or experience that they could naturally head a substantial homicide squad. A few senior officers at executive level think their general detective experience makes them the equal of any in the land. But this is not the professional assessment of their peers in state forces. NSW and Victoria, despite their obvious limitations, are far better trained and equipped to do the job.
If they are ever charged, the accused soldiers will have no reason to cooperate with any investigation, and their legal advisers will be urging them not to do so. Only when they are at serious risk of conviction will there be any advantage in a confession, or cooperation in convicting others, in exchange for easier treatment. Those who must testify against mates will mostly do so sullenly, and try to widen any cracks in the case.
The AFP, and many other forces, have become lazy in recent years because of ready access to bugging devices and telephone and computer taps. They also have various means of coercing co-operation, or concealing the processes of justice, through bogus national security claims.
Although many of these investigative short cuts have been imported, often without proper public consultation, they may be of little advantage in a murder case. And neither the Government nor the ADF is keen to disclose details of its secret communications systems. Brereton and his team assembled the evidence to near brief stages without resorting to such information.
The arts of interrogation have been neglected because of forensic shortcuts. And anyone who wants to see a real balls-up should review AFP interviews with Mohammed Haneef, or AFP interviews of Australians in rendition camps.
At times investigative strategy can trick admissions from Islamic terrorists not known for subtlety. But SAS troopers are trained in resisting hostile interrogation, in the art of avoiding semantic traps, and in their rights to keep their mouths shut.
The special coordinator of the investigation will have a very difficult task, and not only in the gathering of admissible evidence. He will have no help from the Director of Public Prosecutions, because the DPP is not tasked with or equipped to supervise investigations and is generally bad at it when the office tries to take charge. A DPP’s job is to receive evidence and determine whether it is enough for a successful prosecution to be likely. If necessary they can return the brief to police with a report on its legal deficiencies. If the brief is solid enough – and the Commonwealth DPP sets the threshold high – the job is to prosecute. Despite that threshold, the DPP loses many more cases than one might expect – a testament either to the vagaries of juries or the fact that they are not as good as they think.
Police investigators, and executives, reviewing the Brereton report might be struck by similarities between ADF culture and practice and their own. And by the way that systems routinely fail. Brereton’s report shows chapter and verse how internal investigations can be frustrated by experienced officers, how officers overlook bad behaviour out of “loyalty” to their men, or run interference against internal and external inquiries that might upset the troops
There were clear signs of things being awry within the SAS. Coalition partners gossiped about it. The media was on to it. Talk came to officers’ notice. There were local conflicts, including with Australian Secret Intelligence Service officers passing on intelligence, that ought to have sounded alarms. Officers at various levels occasionally asked questions. But the system reported up, not down, and many officers, safe inside the wire, thought they should not second-guess the boys taking the risks. Nor incur their ire by asking too many questions.
Some officers helped edit battlefield reports so they appeared bland and uninteresting, unlikely to cause alarm upstairs. When there were complaints, the boys, with the assistance of officers, lawyered up, lost their temper with people who were not real soldiers questioning judgments, and blandly denied everything. Commanders, up to the very top, dismissed Afghan complaints as coming from people repeating enemy propaganda or on the make for compensation. It was a major dereliction of duty at all levels.
Could anything similar occur in the AFP – perhaps the most politicised force in the nation?
Paraphrase Paul Brereton slightly and it describes how police internal affairs units, coroners’ officers, and even integrity units investigate other police, and, overwhelmingly, find that complaints have not been made out. The culture of which Brereton complains in special forces – of flat refusal to account – has long been a feature of Australian police forces, especially those, such as the AFP, which have never been the subject of independent external review.
The ADF, like the AFP, is learning from and copying the culture of modern politics, as our formal watchdogs, such as auditors general, are defanged and starved of funds, and as our leaders, from the prime minister down, display their contempt for law, propriety and transparency.