Soldiers facing war crime claims find former comrades to front them in court
An ex-soldier turned lawyer to NRL stars representing Aussie soldiers facing possible war crimes charges says the process hasn’t been right from the start.
Speaking with the extended families of some of the Special Forces soldiers now standing accused of war crimes, lawyer Dave Garratt struggles to explain the legalities of what the men face.
It is not because he doesn’t grasp the legal complexities or the nuances of battlefield rules of engagement; as a military veteran turned experienced criminal lawyer to many of the stars of the NRL, he’s got both those aspects firmly in hand.
And it’s not that the “facts” outlined by the Brereton Inquiry into alleged ADF war crimes in Afghanistan hadn’t been widely read as they made international headlines for much of the end of last year.
It’s more a case of how do you justify that their loved ones stand accused of the most heinous of crimes – killing of innocents, tantamount to murder – that see them publicly vilified and demonised and their careers and personal lives derailed but have yet to face a single charge.
There is yet to be a police investigation brief of evidence or no way to yet challenge the largely secret coded claims in a court.
Then A Few Good Men comes to mind, the 1992 Academy Award nominated courtroom drama where two marines stand accused of a murder and their commanding officer actor Jack Nicholson famously spits “you can’t handle the truth”.
“That (movie) was their age group, and you always try and talk to the level of people you deal with and put it into language they are going to understand, so I talked a bit about that and even if it got to a jury stage, what it would be our counsel were looking for in picking a jury,” Garratt, who confirmed he was representing some of the accused, said on Friday.
He’s been doing zooms with the families, sometimes up to 16 members at a time and across multiple states, to help them understand why their sons and grandsons are being called war criminals.
“It goes a lot further beyond the actual soldiers. It goes to their families … they need to be able to ask questions to talk. I didn’t care how ridiculous the question was or they had only just seen the movie A Few Good Men it’s just talking them through.
“I really hope it doesn’t get to that, to be able to prove this in a courtroom here will be a big hurdle for a prosecution I would imagine.”
He is right in thinking this as it is understood a preliminary review by the Australian Federal Police of material gathered by the military investigators — about 36 incidents — has found one key witnesses giving evidence against the Australian soldiers was killed in battle as an enemy combatant.
Ironically his name was on a senior Taliban and al-Qaida high-value target kill or capture list, known as a Jpel or joint prioritised effects list used by the Coalition forces and Afghan Special Forces.
Some weight was given to his testimony, supposedly as an innocent farmer, despite him later identified as an active militant.
The credibility of at least three former Australian soldiers who had also given evidence to Brereton investigators against their comrades have also been questioned with new claims about their unethical battlefield operations and involvement in acts contrary to the Geneva Convention around Humanitarian Law of Armed.
There are also question marks about the extent the commanding officers of the 25 implicated Special Forces soldiers turned a blind eye against some behavioural issues that now see some of the subordinates handed censure “show cause notices”.
Some witnesses since sacked by the ADF, could also be deemed hostile, as they are asked to give evidence for the ADF. And other claims have now been deemed hearsay and inadmissable, in one case handed along a chain of three people, none of whom actually witnessed anything.
There is a level of disquiet within the AFP about the “shit sandwich” they had been handed and the challenges, not least of which with their witnesses, then being against an enemy Taliban which is now the Afghanistan Government.
It goes some way to explaining why it was the AFP struggled with expressions of interest to join the investigation.
But he confirmed all of those he now represented he had served with in an earlier incarnation as a soldier with 6 RAR before he turned to law and they moved on to join the SAS.
Like them though he said he knows what it is like to stare down a gun-toting suicide bomber and have to make a split decisions on the battlefield.
He did two tours of East Timor and in 2005 was on duty in Iraq when the Australian embassy in Baghdad was blown up with his unit sustaining injuries.
A few days later the recon sniper was again on duty and as team leader had to make the decision to shoot a suspected suicide bomber who would not adhere to their commands to stop.
It was another shooting incident some months later that he was not involved in but saw colleagues hung out to dry by the chain of command that prompted him to pursue a legal career.
Then like now he says there is a presumption of guilt until proven innocent.
“The process is not right and hasn’t been from the start,” he said.
His clients had either discharged prior to the allegations or were drummed out of the military as medically unfit but now face some of the more serious of the allegations relating to some of the deaths of 39 alleged prisoners and civilians identified by Brereton.
Garratt, 41, has engaged well known Melbourne barrister David Brustman QC to represent them should a case against his clients proceed.
“For us it is a waiting game which is hard on the clients, hard on their families, that’s the nature of any criminal investigation after an incident or allegations, it’s the waiting process until they get a knock on the door,” Garratt, who had represented many from the NRL recently including Bronco Anthony Milford this week and previously some of his colleagues including victim of revenge porn Kotoni Staggs, Payne Haas and Brisbane coach Anthony Seibold, the victim of an ugly smear campaign.
“My guys have suffered, continue to suffer from this and there just really isn’t any clarity. It’s questionable whether it will get to court but in the meantime we wait and talk to them and their families.”