Lisa Jones
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Aussie wrote on Jun 14 th, 2023 at 8:03am: There is some report in the SMH today about the AFP investigation breaking down over an evidence issue and a new joint task force being set up to continue investigating. The SMH is paywalled. Anyone got the text of that which they can post? It’s probably this : https://www.theguardian.com/australia-news/2023/jun/14/australian-federal-police...As you read this article ... just remember what I told you last week Aussie : Ben Roberts Smith is a survivor. Think of him as being a cockroach...he’d survive a nuclear holocaust. Australian federal police abandon two alleged murder investigations into Ben Roberts-Smith
The long-running investigations into murder allegations in Afghanistan will be replaced by new inquiries because of concerns about evidence
Ben Doherty - Wed 14 Jun 2023 08.26 AEST
Two key criminal investigations into alleged murders involving Ben Roberts-Smith have been abandoned by the Australian federal police because of concerns over potentially inadmissible evidence.
The long-running investigations – into murder allegations at a compound codenamed Whiskey 108 and in the southern Afghan village of Darwan – will be replaced by new inquiries undertaken by a new joint taskforce, staffed by officials from the Office of the Special Investigator and federal police investigators not previously connected to the cases.
“The joint OSI/AFP investigation – Operation Emerald – is the appropriate framework to investigate these matters,” the AFP told Guardian Australia in a statement.
“Operation Emerald is now investigating these two separate matters. The AFP is confident the Operation Emerald investigations will be undertaken as expeditiously as possible.”
The two allegations concern three killings, in which Roberts-Smith, a recipient of the Victoria Cross and Australia’s most decorated living soldier, was allegedly complicit.
The first involves the deaths of two men in the southern Afghan village of Kakarak, when a pair of unarmed men were found hiding in a secret tunnel in a bombed out compound known as Whiskey 108. One, an elderly man was allegedly executed by a junior trooper on the orders of Roberts-Smith in a so-called “blooding” incident: the other, a disabled man, was allegedly shot dead by Roberts-Smith himself after being dragged out of the compound and thrown to the ground.
The second investigation concerns an SAS mission to Darwan in 2012, where Roberts-Smith allegedly stood a handcuffed prisoner at the edge of a 10-metre cliff, before kicking him off into a dry creekbed below. The man survived the fall, but was badly injured: Roberts-Smith is alleged to have ordered a subordinate soldier to shoot him dead.
In the federal court earlier this month, Justice Anthony Besanko ruled in a defamation case that these allegations against Roberts-Smith were proven to the civil standard of the balance of probabilities, and that Roberts-Smith, giving evidence about those missions, was “not an honest and reliable witness”.
Roberts-Smith has never been criminally charged, and maintains his innocence.
At issue is the legal principle of “use immunity”.
The five-year AFP investigation into the two incidents – involving three alleged unlawful killings – has been discontinued, as first reported by Nine newspapers, because of concerns over the use of evidence that had been gathered under the coercive powers of the Brereton inquiry, the investigation by the inspector general of the Australian defence force into allegations of Australian war crimes committed in Afghanistan.
Some of the information obtained in the Brereton inquiry was obtained through the use of powers which compel individuals to attend hearings – coercive powers – or to provide information or documents – coercive material.
Derivative and direct “use immunity” prevents coercive material being used directly or indirectly against those individuals who provided the information, but not against others who may be under investigation.
During the Brereton inquiry – which ran from 2016 to 2020 – the chief of the defence force referred the two allegations to the AFP for criminal investigation.
“When these matters were referred to the AFP for investigation, the AFP sought legal and other expert advice given the complexity of the allegations, the location and the dates the alleged offences occurred,” a spokesperson for the AFP said.
“The AFP relied on this advice to manage the legal risks known at the time, including how to use the information referred from the inquiry for a criminal investigation, noting some of the information was obtained through the use of powers which compel individuals to attend hearings (coercive powers) and/or provide information or documents (coercive material).”
The AFP submitted briefs of evidence in the two matters to the commonwealth director of public prosecutions (CDPP) in 2020 and 2022.
In March this year, the CDPP informed the AFP it had decided not to prosecute the two war crimes offences on the evidence provided.
Preparing a new brief of evidence will now be the responsibility of Operation Emerald, a joint taskforce of the Office of the Special Investigator and the AFP.
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