# Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA)/Part 3/Section 6

​Section 6 — Syahchow 18–20 October 2012
1539 The Particulars of Truth with respect to the mission to Syahchow on 18–20 October 2012 are as follows:
   (122A) In or about 18-20 October 2012 the Applicant and the troop of which he was a member conducted an operation to catch or kill a target in an area called Syahchow.
   (122B) Person 66 went out on the mission as part of the Applicant's patrol. Person 66 had not killed anyone prior to this mission. Person 67 was also on the mission.
   ​(122C) During the mission the Applicant directed Person 66 to come with him into a compound. Inside the compound were a number of PUCs including two Afghan Males (Afghan Males 7 and 8).
   (122D) Afghan Males 7 and 8 were removed from the compound by the Applicant and Person 66 and taken to a nearby field. The Applicant stood behind Person 66 and ordered him to shoot one of Afghan Males 7 or 8. Person 66 did so.
   (122E) After the incident the Applicant said in substance, that he had blooded Person 66 (referring to him by his nickname).
   (122EA) In accordance with the practice particularised at (66C) above, the Applicant or a member of his patrol placed a number of throw downs, being a chest rig, an AK 47 magazine and a pistol, on the Afghan Male's body for the purpose of SSE photos in an attempt to make the killing look legitimate within the ROE and the Geneva Conventions.
   (122F) In the circumstances, by his conduct with respect to Afghan Male 7 or 8, the Applicant breached Common Article 3 in that he was complicit in and responsible for murder.
   (122G) In the circumstances, by his conduct with respect to Afghan Male 7 or 8 the Applicant was complicit in and responsible for murder.
   (122H) A couple of days after the mission the Applicant was sitting at a table in the mess hall at Camp Russell with other soldiers including Person 67. The Applicant said to Person 67 in substance "Oh, yeah, you know, officers shouldn't be on the ground, you guys should be sitting on a hill away from it all. You know, we've got to do certain things, so, you know, you shouldn't be around".
1540 The respondents accept that they cannot succeed with respect to these allegations. They accept that that follows from a ruling I gave with respect to the evidence, or proposed evidence, of Person 66.
1541 The background to the matter is that the respondents adduced evidence from Mr Andrew Hastie who, at the time he gave evidence, was a member of the Australian Parliament and the Assistant Minister for Defence in the Australian government. He was a straightforward witness. Mr Hastie served in the SASR from January 2010 to 22 August 2015. He was deployed to Afghanistan briefly in October 2012 and then again in February 2013 and between October 2014 and February 2015. He held the rank of captain for the entirety of his service in the SASR. He came to know Person 1 and gave some evidence relevant to the alleged bullying of Person 1 and his attributes as a soldier. He came to know the applicant and Person 66. He was part of the mission to Syahchow in October 2012. He made certain observations on the mission. He is referred to in the Particulars of Truth as Person 67. His observations included the following: (1) he saw Person 66 in the ready room and he appeared nervous or anxious; (2) Person 66 was attached or co-located to the applicant's patrol; (3) he saw the applicant's ​patrol in the objective compound with 10 to 15 PUCs and they were carrying out tactical questioning. He saw Person 66 who did not appear his usual self; (4) he then left the objective compound to observe other matters; (5) he heard over the radio a call announcing shots fired, although he did not hear the shots himself; (6) he moved to the perimeter where he was tasked to do security and the applicant, and possibly Person 4, walked past and the applicant said, "Just a couple more dead cunts"; and (7) at the Patrol Debrief, the applicant spoke of one of the insurgents firing and another reaching for a grenade.
1542 After Mr Hastie had given evidence, Person 66 was called to give evidence by the respondents. Person 66 was asked about how many missions he went on in 2012 where the applicant was his patrol commander. Person 66 objected to giving an answer to that question on the ground that it may tend to prove that he had committed the offence of the war crime of murder under s 268.70 of the Criminal Code. I decided that he had reasonable grounds for his objection and I gave Person 66 the information referred to in s 128(3) of the Evidence Act. Person 66 indicated that he was unwilling to give the evidence. The question which then arose was whether the Court should require Person 66 to give the evidence. Person 66 submitted that he should not be required to do so. The respondents submitted that he should be required to do so. I ruled that I would not require Person 66 to give the evidence. I had made a similar ruling in relation to Person 4 and the events at W108 and was to give a subsequent ruling of a similar nature in the case of Person 56 and events at Fasil on 5 November 2012. I have delivered one set of reasons for my ruling (Roberts-Smith v Fairfax Media Publications Pty Limited (No 40) [2022] FCA 1614).
1543 In the circumstances, the respondents accept that they cannot succeed with respect to their allegations of events that occurred during the mission to Syahchow between 18 and 20 October 2012.