Page:R v McBride (No 4).pdf/17

 blade from the door and the second by trying to wrestle control of the member's slung weapon while his handcuffs were removed. In both cases, the suspected insurgent was shot and killed. In neither case was there a motive for the member to shoot the insurgent in cold blood. In both cases, their commanders were said not to have doubted the soldiers' version of events.

70․ Section G was a brief section relating to the incident on 3 October 2010. It referred to a brief from the CJOPS to the Chief of the Defence Force which recorded his satisfaction that the Special Forces soldier acted in accordance with his ROE and that the lethal force was applied in a lawful exercise of self-defence. Notwithstanding that, the head of ADFIS directed an investigation. The investigators were said to have interviewed 97 members and two commanding officers over 14 months and produced a five-page report that came to the same conclusion as the CJOPS.

71․ Section H dealt with the investigation of the incident on 23 September 2013. It is another long section and arose out of events with which Mr McBride was personally involved. It related to the shooting of an Afghan detainee who was shot while apparently trying to wrestle the control of a weapon from a Special Forces member who was removing the detainee's handcuffs from behind his back with the intention of reapplying them in front to prepare the detainee for a helicopter flight. The submission criticised the decision of the ADFIS to investigate the incident on the basis of a suspicion that a murder had occurred. It criticised the murder investigation as being of an "ill-conceived 'political' nature" despite all the known facts supporting the soldier's story. It then criticised in detail the conduct of the ADFIS investigators in attempting to secure the weapon involved in the incident, notwithstanding that it had been subsequently used and cleaned and, the submission contended, would be of no forensic value. It criticised the process adopted by the investigators and the legal basis for the warrants for the weapon and equipment. It then referred to abusive and threatening telephone calls that were made to Mr McBride in relation to his questioning of the validity of the warrants. It suggested that the threats may constitute an "offence against s 122B of the Defence Act". (Section 122B provides: "A legal officer acting in that capacity is entitled to exercise his or her professional rights, and discharge his or her professional duties and obligations, in accordance with the generally accepted rights, duties and obligations applying to legal practitioners.")

72․ The Conclusion of the IGADF Submission provided:

Ever since the 'Jedi Council' investigations begun, all Army units have been under extreme scrutiny. Unpalatable as those allegations were, they involved a hand-full [sic] of people, and any similar sized organisation would have had similar in recent years. Our existing systems are quite capable of dealing with such incidents.