# Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA)/Part 3/Section 5

​Section 5 — Chinartu
Introduction
1371 The Particulars of Truth with respect to the mission to Chinartu on 12 October 2012 are as follows:
   (118) On or about 12 October 2012 the Applicant and the troop of which he was a member conducted a mission in Khaz Oruzgan.
   (119) Towards the end of the mission the Applicant, together with his patrol, the interpreter Person 13 and a number of members of the Afghan Partner Force including Person 12 were questioning an Afghan male in a compound (Afghan Male 6) as they were waiting for the helicopters to extract them from the mission. Afghan Male 6 was not exhibiting any signs of being a threat or violent. Whilst the Applicant was questioning Afghan Male 6, Person 14, a member of the Applicant's patrol noticed an area in the wall of the compound which looked like a wall cache (being a false wall with a cavity behind it where items can be hidden). Person 14 kicked the wall cache and a number of weapons including rocket propelled grenades and warheads fell out. The Applicant saw the weapons fall out. He then said to Person 13, in substance "tell him [referring to Person 12] to shoot him or get his men to or I'll do it". Following instructions from Person 12, a member of the Afghan Partner Force then shot Afghan Male 6 four to six times.
   (120) It may be inferred that the Applicant was able to detain Afghan Male 6 in circumstances where:
       (a) Afghan Male 6 was not exhibiting any signs of being an imminent threat or violent;
       (b) Afghan Male 6 was seriously outnumbered; and
       (c) the Applicant had enough time to issue the direction referred to in the preceding paragraph.
   (121) In the circumstances, by his conduct with respect to Afghan Male 6, the Applicant breached Common Article 3 in that he was complicit in and responsible for murder.
       (a) [deleted]
       (b) [deleted]
   (122) In the circumstances, by his conduct with respect to Afghan Male 6 the ​Applicant was complicit in and responsible for murder.
1372 The mission to the District of Chinartu in the Province of Uruzgan on 12 October 2012 involved a kill/capture mission with respect to a high value target known as Objective Stolen Idea. The alleged murder of Afghan Male 6 is alleged to have taken place as the Task Force were waiting for the helicopters to extract the soldiers from the mission.
1373 The Task Force involved 2 Squadron and 2 Squadron comprised G Troop and E Troop. G Troop consisted of four patrols, the troop sergeant was Person 26, and the patrol commanders were Person 7, the applicant and Persons 55 and 57. The applicant's patrol consisted of the applicant and Persons 4 (2IC) 11, 14 and 27. Person 56, who was ordinarily a member of the applicant's patrol, had an ankle injury and did not take part in the mission. Persons 14 and 27, who were ordinarily members of another patrol, were brought into the applicant's patrol to bring it up to full strength. Initially, there was some uncertainty on the applicant's side as to whether Person 27 was on the mission. He had no recollection of being on the mission, but he accepted that, having regard to certain documents he was shown, he must have been. I find that he was on the mission.
1374 E Troop comprised three patrols and the patrol commanders were Persons 6, 31 and 35. Each of the patrols in E Troop also had a number of Afghan Partner Force or NDS-Wakunish soldiers as part of the patrol. The troop commander of E Troop was Person 6 and the troop was the NDS Mentoring Team. Person 35's patrol consisted of Person 32 as 2IC and a number of NDS-Wakunish members.
1375 Department of Defence documents indicate that there were two EKIA reported during the mission. There is no dispute between the parties that there were two Afghan males killed during the mission. The respondents' case is that one of those reported EKIA was a PUC under interrogation who was shot by a member of the NDS-Wakunish following an instruction by the applicant to Person 12 and then by Person 12 to the NDS-Wakunish member. The respondents' case is that shortly before the PUC was shot, a significant cache of weapons was discovered in the PUC's compound by Person 14 who then witnessed the execution. The respondents' case is that it was the discovery of the cache which appears to have provoked the murder.
1376 The respondents' case is that the murder happened only minutes before the extraction of the Task Force from Chinartu. That circumstance, the respondents submit, gave rise to a difficulty in explaining how an engagement resulting in an EKIA occurred in circumstances in which all the compounds and the surrounding areas had long since been secured. The respondents' case ​is that the solution to this difficulty was to insert a false account into the OPSUM for the mission in which, among other things, the time of the engagement was brought forward by approximately one and-a-half hours. The clearance of compounds at Chinartu commenced at 1329DE and the account of the engagement in the OPSUM, which the respondents claim is false, states that it took place at approximately 1405DE.
1377 On the respondents' case, the Commander of the NDS-Wakunish on 12 October 2012 was Person 12 and he was the man to whom the applicant issued the instruction to shoot the PUC. An issue between the parties with respect to this mission which occupied a considerable amount of time at the trial is whether, in fact, Person 12 could have been on the mission to Chinartu on 12 October 2012 and even if he could have been present, whether he was, in fact, present. The distinction between these two circumstances is as follows. At one point in time, the applicant's case seemed to be that Person 12 could not have been present on 12 October 2012 because he had been stood down or removed from his position as Commander of the NDS-Wakunish because of a shooting incident in which Person 12 was involved on or about 31 July 2012. The alternative proposition is that whether there was a shooting incident involving Person 12 or not, he was simply not present on the mission. The respondents' case is that Person 12 was not stood down or removed from his position on or about 31 July 2012 and he was present on the mission to Chinartu. The respondents submit that the evidence reveals a coordinated and deliberate lie on the part of the applicant and four of the witnesses he called, Persons 35, 32, 39 and 27, concerning whether Person 12 could have been present on the mission on 12 October 2012. This lie has, the respondents submit, irretrievably destroyed the credit of the applicant and was the result of collusion between the applicant and those persons. The respondents also ask the Court to find that the lie and the collusion demonstrates a consciousness of guilt on the part of the applicant.
1378 The respondents' key witness in relation to the mission to Chinartu is Person 14. It will be clear from what I have written about the mission to W108 that he is also an important witness in relation to that mission. There is also some supporting evidence from Person 31.
1379 The applicant's key witness is the applicant. There is supporting evidence from Persons 11 and 32, although as will become clear, neither of them had a strong recollection of the details of the mission. The applicant, Persons 35, 32, 27 and 39 all gave evidence relevant to what the respondents characterise as the Person 12 lie.
​1380 I will proceed by describing the key events in chronological order by reference to certain documents and the evidence of Person 14. Where appropriate, I will identify matters that are not in dispute. I will also identify the matters that are in dispute.
1381 I remind myself of the principles and other matters set out in Section 1 of this Part that the whole of a witness' evidence must be considered and that findings are made having regard to (where relevant) the whole sequence of events of which they form a part.
Events during the Mission
1382 Two of the key ADF documents for the purposes of identifying the events during the mission to Chinartu are the Sametime chat record and the OPSUM. The latter document is said by the respondents to be false in a key respect.
1383 The Sametime chat record (exhibit R36; sensitive version A10 Tab 51) for the mission which is a live or real time record of events during a mission, indicates by way of update at 1114DE that Force Element Alpha (FE-A) had been tracking Objective Stolen Idea in the vicinity of Chinartu since approximately 0750DE. Objective Stolen Idea had moved several times and had been correlated to activity observed by intelligence, surveillance and reconnaissance (ISR) "(funeral/gathering etc)". The Sametime chat record states that FE-A was waiting on the Objective to present in a more targetable location before committing to launch. At 1159DE, the FE was committed and preparing to launch against Objective Stolen Idea based on "last VRI" (very reliable intelligence). It is the respondents' case that "VRI" was often used as a metonyn for the Objective to which it related, that is, either an individual or a compound.
1384 The Sametime chat record states that the FE on the mission was comprised of 28 Coalition Force members and 16 Afghan Partner Force members, including three interpreters. The names of the 16 Afghan Partner Force members are set out in the helicopter load plan or manifest.
1385 It is common ground that the primary role of the applicant's patrol on the mission was as part of a cordon team. That was the evidence of both the applicant and Person 14. It seems that the applicant's patrol also had a role as a reserve assault force.
1386 Person 14 described the role of a cordon as a blocking force. Typically, there is an outer and an inner cordon and the outer cordon stops movement coming into the mission area and the inner cordon stops movement coming out of the high value target area. Person 14 said that on this mission, the FE did not have the luxury of both an inner or an outer cordon and operated ​as both an inner and an outer cordon "based off resource limitations". The role of the applicant's patrol as the primary assault took place was to be a blocking force to stop anyone coming in or going out. The patrol can support the assault if required and, therefore, it is also a reserve assault patrol.
1387 The applicant's patrol and Persons 31 and 35 were on the helicopters which were part of Turn 1 and were wheels up from Tarin Kowt at 1317DE and wheels down at Chinartu at 1329DE.
1388 Person 14 said that on the helicopter, he was sitting next to Person 27 and the applicant was in front of both of them. Persons 4 and 11 were in front of the applicant and closest to the door.
1389 Person 14's recollection is that as the helicopter approached the target area for landing, the applicant turned around and faced everybody and said the following:
   Fuck the cordon. We will head for the VRI.
1390 Person 14 said that that was what the applicant said sounded like to him. Person 14 turned to Person 27 and asked Person 27 whether that was what the applicant had said. By what Person 14 described as Person 27's "non-verbal shrug of the shoulders and a nod of the head", Person 27 indicated to Person 14 that he did not know. The applicant's evidence was that he said something about moving the cordon in a particular direction which was closer to the compound of interest and that followed from him being informed of a squirter.
1391 The respondents submit that the difference between the accounts of what was said on the helicopter may not be significant. On both accounts, the applicant was issuing a last minute order changing the location to which his patrol was to move. The respondents submit that the differences between the accounts may be the result of the noise in the helicopter or varying recollections of detail after a decade. As it happened, neither party sought to make anything of the difference.
1392 The applicant submits that Person 14's evidence is doubtful because, among other reasons, he maintains that there was no such a thing as a VRI compound and, in fact, "VRI" referred to a piece of equipment.
1393 It was put to Person 14 in cross-examination in open Court, that there was no such thing as a VRI compound. Person 14 said in response that it was more troop talk, that is, the reference to a VRI compound. It was put to Person 14 that there was no such thing as a VRI compound designated on a wrist map and he accepted that that was correct. It was put to Person 14 that ​he had made up his evidence when he told the Court about the VRI compound. He denied that. He denied that he was, to adopt the terms of the question put to him by the cross-examiner, "trying to use a bit of military speak to confuse us".
1394 The applicant agreed in cross-examination that the VRI might be used in association with the last known location of the Objective. Person 35 agreed that VRI stands for "very reliable intelligence", that he is familiar with the term and that it is a term frequently used by the SASR when targeting objectives. Although related to a different mission, that is, the mission to Fasil on 5 November 2012, it is relevant to note that exhibit R105, which is a photograph showing a dead male with an evidence bag, has a handwritten note of the applicant on the bag referring to the location as "VRI compound".
1395 I firmly reject this criticism of Person 14's evidence because it has no proper basis. In addition, I refer to the closed Court reasons (at [202]–[204]).
1396 As I have said, the helicopters on Turn 1 for the mission landed at Chinartu at 1329DE. There is an aerial photograph of Chinartu which provided some indication of what the area looked like on the day of the mission (exhibit R102). It is a closed Court exhibit. Person 14 marked various locations on it, starting with the area where the helicopter landed (marked "A").
1397 Person 14 said that after disembarking, the applicant's patrol ran in a single file towards the compound of interest. Person 14 was last in the file and Person 27 was in front of him. As the patrol was passing quite a large compound to their left, Person 14 thought that the patrol was going to clear that compound, but the patrol kept running. Person 14 said that the patrol did not even look at the compound. Person 14 looked into the compound and he could see three to four males of fighting age deep in a room where the door was open. Person 14 called out to Person 27 and asked him to come and support him. Person 14 trained his weapon on the men who he had seen. They did not appear to him to be a threat. He could not determine whether they were armed or not. The men were compliant and he gave them a quick pat down search. He started going through the PUC procedure which involved checking for threats and putting the pocket litter into a PUC bag. The men were not scared or anxious and he did not place handcuffs on them. Person 14 marked the compound on the aerial photograph (marked "B"). Person 14 and Person 27 lined up the three or four PUCs and placed them in what is known as a "PUC train", that is, in single file following one after the other. They were to be taken to a pre-designated tactical questioning room (TQ room). As Person 14 and Person 27 proceeded towards the TQ room, they came across an Australian soldier and Person 13. Person 13 was ​an Afghan interpreter. Person 14 asked the Australian soldier to take the PUCs to the TQ room, which he did. Person 14 could not recall whether Person 27 went with the PUCs or moved into a position where Person 14 could not see him. Person 14 said that he started to chat with Person 13. Person 14 marked the location on the aerial photograph (marked "C").
1398 Person 14 said that the next thing which happened was that there was a request over the troop radio for Person 14 to go to the TQ room. He did so and when he arrived he noticed a number of PUCs and the applicant. The applicant appeared to Person 14 to be leading the tactical questioning of the PUCs. The applicant asked Person 14 whether he knew a particular PUC. Person 14 said that he did and the applicant asked Person 14 where he had found him. Person 14 said that he had found him back where "we were supposed to be". That was the end of the conversation. Person 14 marked the TQ room on the aerial photograph (marked "D"). Person 14 walked back down the hill by himself to the area where he had been chatting with Person 13. Person 13 was no longer there.
1399 Person 11, who did not have a detailed recollection of the mission, described an incident which occurred as the applicant's patrol made their way to the "target area", that is, the compounds of interest. There was an individual identified who was trying to flee the scene and Person 11 went with one of the dog handlers to try and apprehend the person. The dog was released to assist, but in the course of "rounding up" the person, the dog was seriously injured. Person 11 said that he and the dog handler were somewhat dislocated from the rest of the patrols. The dog was assessed as needing immediate treatment. The individual was secured and detained and then Person 11started to provide treatment to the dog. Person 11 and the dog handler made a decision to request a CASEVAC helicopter for the dog. Person 11 and the dog handler met with the CASEVAC helicopter. The dog was loaded onto the helicopter and taken back to Tarin Kowt. At that point, Person 11 rejoined his patrol. The OPSUM for the mission states that these events occurred at about 1353DE and the Sametime chat record states that the CASEVAC helicopter left Chinartu at 1419DE.
1400 As I have said, Person 35 was the patrol commander of one of the three patrols comprising E Troop and Person 32 was the 2IC of the patrol. Person 35 agreed in cross-examination that neither he nor any member of his team had an engagement that day. He had no recollection of any engagements by the three NDS Partner Force members attached to his patrol during the clearance of compounds. Person 32 agreed that to the best of his knowledge, no NDS Partner ​Force member attached to his patrol had any engagements during the clearance of compounds. This is an important matter to which I will return.
1401 The Sametime chat record states that at 1408DE, the Ground Force Commander advised that the Objective compound had been secured and that the SSE process was taking place. The OPSUM for the mission is to similar effect adding that a wider area clearance was ongoing and that a number of persons of interest were being screened.
1402 There is then the entry in the OPSUM which the respondents contend is false. It is of an engagement of an insurgent by an Afghan Partner Force member. It reads as follows:
   APPROX 12 1405DE OCT 12. FE APPROACHED A COMPOUND OF INTEREST IVO MGRS 42S TB 3763 1521 IOT CONDUCT A CLEARANCE. NDS-W CONDUCTED A CALL-OUT OF THE COMPOUND WITH NO RESPONSE. AN NDS-W TEAM THEN MADE ENTRY TO THE COMPOUND. THE LEAD NDS-W MEMBER IMMEDIATELY PID 1 X INS ARMED WITH AN AK47. DUE TO THE IMMEDIATE THREAT TO FORCE, THE NDS-W MEMBER ENGAGED THE INS WITH SAF RESULTING IN 1 X EKIA. BDA OF THE COMPOUND RECOVERED 1 X AK47, 1 X BINOCULARS, 3 X RPG-7 ROCKETS AND 4 X RPG-7 ROCKET MOTORS. ALL ITEMS WERE RECOVERED TO MNB-TK FOR TECHNICAL EXPLOITATION.
1403 The following features of this entry should be noted at this point: (1) the entry refers to an engagement of an insurgent by an Afghan Partner Force member; (2) the engagement occurred in a compound of interest which had been entered for the purpose of a clearance; (3) the insurgent was armed with an AK47 rifle; and (4) the items recovered from the compound were an AK47 rifle, a pair of binoculars, three RPG-7 rockets and four RPG-7 rocket motors which were returned to Tarin Kowt for technical exploitation.
1404 The OPSUM records a second engagement at approximately 1410DE. It is described in the OPSUM in the following way:
   APPROX 12 1410DE OCT 12. FE MOVING TO CONDUCT A COMPOUND SEARCH IVO MGRS 42S TB 3765 1512 PID 1 X INS ARMED WITH AN AK47. THE FE ASSESSED THAT THEY WOULD BE UNABLE TO SAFELY DETAIN THE INS AND, DUE TO THE IMMEDIATE THREAT TO FORCE, ENGAGED THE INS WITH SAF. THE INS CONTINUED TO MANOEUVRE TO AND THEN TAKE COVER IN A NEARBY COMPOUND. THE FE CONDUCTED A CALL-OUT OF THE COMPOUND WITH NO RESPONSE. FE ASSESSED THAT THE INS HAD LIKELY MOVED INTO THE COMPOUND IOT GAIN TACTICAL ADVANTAGE AGAINST THE PURSUING FE AND WAS LIKELY TO ENGAGE THE FE AS THEY MADE ENTRY. DUE TO THE SIZE OF THE COMPOUND, ACTY OBSERVED IN THE VICINITY AND NIL RESPONSE TO FE CALL-OUT, THE FE ASSESSED THAT THE INS WAS THE ONLY OCCUPANT OF THE STRUCTURE AND EMPLOYED A FRAGMENTATION GRENADE IOT NEUTRALISE THE THREAT. FE THEN MADE ENTRY AND PID 1 X EKIA. ​BDA RECOVERED 1 X AK47 WHICH WAS RETURNED TO MNB-TK FOR TECHNICAL EXPLOITATION. THE GRENADE DETONATION ALSO STARTED A SMALL STRAW FIRE IVO THE COMPOUND. NEITHER THE SMALL FIRE NOR THE GRENADE DETONATION CAUSED SIGNIFICANT DAMAGE TO THE COMPOUND.
1405 As I have said, there were two reported EKIA for the mission. The OPSUM reports them as occurring at approximately 1405DE and approximately 1410DE.
1406 The Sametime chat record also identifies two EKIA for the mission. The first is recorded as follows:
   1414DE: FE advise 1 x EKIA (NFI ATT)
1407 The applicant gave evidence that as the patrols were preparing to leave, he went past a compound where an insurgent had been engaged with a hand grenade. He believed that Person 57's patrol was involved. He had a discussion with Person 57 who explained to him that they had had an engagement. This engagement seems to be the engagement which is recorded in the OPSUM for the mission as having occurred at approximately 1410DE. The applicant gave the following evidence:
   Did you go to any other compounds in this mission apart from the target compound?---Yes.
   Which ones, do you remember?---I went directly past the compound that an insurgent had been engaged with a hand grenade, which I believe was Person 57's team. He explained to me that they had had an engagement, and this was on the way to extraction. So that was my – the only engagement that we heard about at that point was Person 57's team, because we walked past it.
1408 It is clear that following the clearance of the compounds, there was a lengthy period of over an hour between approximately 1410DE and approximately 1530DE during which the SSE process and tactical questioning were carried out. There is no record of any engagements during this period. At 1512DE, the Force Element requested extraction. The following entry appears in the Sametime chat record:
   1512DE: FE requested extraction, earliest W/U. Aircrew briefed and having to acft, planned W/U MNB-TK NB 1545DE
1409 I return to the description of the relevant events by reference to Person 14's evidence. As I have said, after his visit to the tactical questioning area or TQ room, Person 14 went back to where he had been chatting to Person 13. He said that the next thing that happened was that he heard a radio call to the effect that the helicopters on Turn 1 had left Tarin Kowt and that it was necessary to prepare for extraction. Person 14 said that he knew there would be at least ​20 to 30 minutes before extraction. At that point, the FE starts collapsing in from their positions and moving to the helicopter landing zone and extraction points.
1410 The Sametime chat record indicates that the helicopters on Turn 1 left Tarin Kowt bound for Chinartu at 1534DE.
1411 Person 14 sought to rejoin the applicant's patrol and so he went to the TQ room. The applicant was not there and Person 14 was advised that he had gone up the hill. Person 14 said that the hill was quite steep and he moved to a compound about 80 to 100 metres away. Person 14 marked the compound on the aerial photograph (marked "E").
1412 The Sametime chat record and the OPSUM each contain a relevant entry for 1530DE. The Sametime chat record contains the following:
   1530DE: WNGO – there will be POI coming off tgt. Numbers still TBC, planning on 3-4 ATT.
"POI" means persons of interest, "TBC" means to be confirmed and "ATT" means at this time.
1413 The OPSUM contains the following:
   APPROX 12 1530DE OCT 12. CLEARANCE, SSE AND KLE COMPLETE. RUMMAGE SEARCH OF A COMPOUND IVO MGRS 42S TB 3767 1523 RESULTED IN MINOR DAMAGE TO LN PROPERTY. A KLE WITH THE COMPOUND OWNER WAS CONDUCTED AND A TPS PAYMENT OF US$60 WAS MADE AS COMPENSATION. 2 X POI WERE DETAINED BY FE-A BASED ON BEHAVIOUR, ASSOCIATION WITH THE COMPOUNDS OF INTEREST AND PREVAILING CIRCUMSTANCES AT THE TIME OF CAPTURE. FE MOVED TO EXTRACTION LOCATIONS AND ADOPTED PZ POSTURE.
"KLE" means key leadership engagement and involves the Coalition Forces liaising with village leaders about issues such as compensation for damage done during a raid.
1414 Person 14 arrived at the compound on the hill. He walked into a compound alcove which he described as an outdoor area within the perimeter wall. He was not inside the compound. He saw Person 32 leaning up against a cut-out window. They were to the left of the door and could look inside the compound. He was to the left of Person 32. He could see the applicant, Persons 11, 12, 13 and multiple Afghan Partner Force members (about four). In the outside courtyard area, there was himself, Person 32, Person 34 and another combat engineer.
1415 Person 14 could see an Afghan male in the room. He described the Afghan male as slender, middle-aged and with a beard. He was in a white robe, a traditional robe, or an Afghan robe, ​and he was holding his grey waist jacket in his right hand. The Afghan male's right hand was closest to Person 14 and he was "kind of facing towards" Person 14. The applicant was behind the Afghan male. Person 13 was directly in front of Person 14 at the window with his back to Person 14 looking at the Afghan male and the applicant. Person 11 was in the corner and the Afghan Partner Force, including Person 12, were to Person 14's right. After he had arrived, Person 14 asked Person 32 what was going on and Person 32 responded by saying that they were "questioning this bloke".
1416 The next thing that happened was that Person 14 turned around and leaned back anticipating that the questioning would conclude and the helicopters would arrive and the Australian soldiers would leave when, on leaning back, he looked at the perimeter wall of the compound. The internal side of the wall had a "massive discolouration in the wall like it had been recently plastered with mud". Person 14 considered that it was a cache and he walked up and gave it two kicks. The area was at about shin height (half a metre) and about a metre wide. On kicking it, Person 14 discovered a cache. In the cache, there were white and pink rice bags of bullets, binoculars, RPG warheads with boosters and some rifles. Person 14 starting pulling the items out, but the combat engineers came in and he stepped back. He let them perform their task and he went back to the window. He immediately noticed that the mood in the room had changed. He said that the applicant said to Person 13 while pointing at Person 12 the following:
   Tell him to shoot him or I will.
1417 Person 13 looked at the applicant as if to say "What?". The applicant again said to Person 13 the following:
   Tell him to shoot him or I will.
1418 Person 13, in an Afghan dialect which was not Pashtun, said something to Person 12. Person 14 said that at that stage he could understand basic Pashtun. Person 12 then asked something of Person 13, "a very short word". Person 13 spoke to Person 12 in a similar sentence to the previous one. Person 12 turned to his soldiers and said something. There was a "small" discussion between them. One of the soldiers who had a balaclava or a recon wrap around his face stepped out of the group of soldiers and trained his suppressed M4 on the Afghan man. He fired five to eight rounds in the centre mass of the Afghan man and the man dropped to the ground. The Afghan soldier then fired at least another two rounds into the man up near the head area.
​1419 Person 14 said that the next thing that happened is that they moved out of the compound. The engineers had finished what they needed to do. They moved back down to the VRI compound area. It was "still in the dash". Person 14 saw Person 26 who was the troop sergeant. Person 26 was not happy. He said "What happened – what happened to the fucking PUC?". No-one responded. Person 26 then said something like the following:
   The PUC count has already gone in and the helos are–helos are coming in.
1420 The estimate had been of three to four PUCs; in fact, two PUCs or detainees were taken back to Tarin Kowt.
1421 The Sametime chat record contains an entry for a second EKIA as follows:
   1539DE: FE reports 1 x (additional) EKIA. Total now 2 for the msn.
1422 Person 14 identified the deceased male shown on the first page of exhibit R101 as the man he saw shot in the compound. He said that he first saw the photograph in 2012 immediately after the mission. Other than the photograph, no SSE material has been produced in relation to this engagement.
1423 Both the Sametime chat record and the OPSUM record that helicopters on Turn 1 left Tarin Kowt for Chinartu at 1534DE. The helicopters on Turn 1 left Chinartu for Tarin Kowt with "POIs" or "2 x POI" at 1551DE.
1424 Person 14's account of the events in the compound shortly before extraction from Chinartu is denied by the applicant, Person 11 and Person 32. Neither Person 35 nor Person 27 is said to have been present at the point in time when the alleged execution took place. Person 27 said that he did not recall the mission to Chinartu in October 2012. He was tested on this in cross-examination. He said that he had no recollection of the mission at all. He does not deny that he was present because there is no entry for his gym for that day. However, he does not remember the mission.
1425 Two events involving Person 14 in 2018 are said to be relevant. It is appropriate to mention them at this point.
1426 First, there was a meeting between the applicant and Person 14 on 19 October 2018. The circumstances in which this meeting was arranged is dealt with in Section 12 of this Part. For present purposes, the following should be noted. The applicant made notes of the meeting. The applicant showed Person 14 para (119) of the Particulars of Truth. Person 14 said that he ​was not comfortable in signing a statutory declaration and that what was set out in para (119) was how he remembered the situation. Person 14 said that he was going to tell the truth. The applicant's notes then contain the following with respect to para (119):
1427 It may be noted that, according to his notes, the applicant did not at that time suggest to Person 14 that Person 12 was not on the mission to Chinartu.
1428 Secondly, Person 14 met with Mr Masters on 27 February 2018. Person 14 and Mr Masters discussed the mission to Chinartu, among other matters. Mr Masters recorded that part of the conversation as follows.
   By 2012 more integrated with the WAKAs. Remembers R-S on approach to a job suddenly changing everything and shouting 'fuck we are going straight for the VRI'. (Very reliable info — [REDACTED]). This meant plans went out the window. R-S hops out and runs straight for the VRI. He was surprised when compounds where locals were spotted were bypassed. Seeing this he and Person 27 went off as a pair and cleared a compound where they found six guys.
   Caught up 20 mins later. R-S TQing. Suspicious about one bloke and wanted to blow him away. P14 told him he was one he had PUCed 'in the compound you bypassed' so had an alibi.
   Then spotted discolouration on a wall, chipped it open and a large cache of RPGs etc fell out. Turned on the guy in the compound. WAKA troop commander was a guy almost as tall as R-S. A terp was also there, 'a young guy with a mullet who loved mouthing Americanisms'. Person 32 also. Heard R-S say to the WAKA, 'get your men to shoot him'. And then, 'if you don't I will'. The WAKA shot him with his M4.
   Did you see this? 'Yes'. (Seen through porthole?) There was a problem with recording the man as a PUC and/or EKIA as the count had already gone in over radio.
   Thinks it was the last job in 2012 out east of TK, probably October.
​1429 I will need to come back to these notes because the applicant points to what he contends are inconsistencies between Person 14's evidence in these proceedings and what is recorded by Mr Masters.
Does the OPSUM falsely record the timing and circumstances of the second EKIA of the Mission to Chinartu?
1430 The first point to note is that the applicant submits that there are a number of other ADF records which support an engagement in terms of the entry in the OPSUM for approximately 1405DE. These records are identified in the closed Court reasons (at [149]–[164]). The respondents submit that the OPSUM is either deliberately dishonest or wrong as opposed to deliberately dishonest. To establish either is sufficient for their purposes.
1431 An OPSUM for a mission is prepared after the mission and it contains a summary of "timings and events" and other information relevant to the mission. The applicant himself said that they are operational summaries prepared by "ops staff" at headquarters after missions and they are generally based on after action reports. The latter were prepared after a post-mission meeting of the troop commander, troop sergeant and patrol commanders and the patrol commanders "would each provide a debrief on what our team did on that particular mission, which would be captioned by the operations staff".
1432 The OPSUM for Chinartu referred to two engagements each resulting in an EKIA, one at approximately 1405DE and the other at approximately 1410DE. Photographs of the two deceased Afghan males killed during the mission to Chinartu were tendered in evidence. The respondents submit that the Court should infer from the injuries shown in the photographs that the second male shown on the second page of the photographs (exhibit R101) was the male killed during the incident involving the use of the fragmentation grenade. I accept that having regard to the injuries to the man's face. According to the OPSUM for the mission, the male killed in that incident was identified by a local national as a name match for Objective Stolen Idea.
1433 The other Afghan national killed during the mission is the deceased man shown on p 1 of exhibit R101. That is the man Person 14 saw shot in the compound. The applicant pointed out a number of problems with Person 14's identification evidence, including the limited opportunity to see the man, the passage of time and then being shown photographs shortly before trial. Although identification from a photograph many years after the event (although Person 14 had seen the photograph in 2012) is to be approached with considerable caution, as ​I will explain, I accept Person 14's evidence. Even if that be wrong, that is not fatal to the respondents' case because I accept that the other photograph relates to the EKIA killed in the grenade attack.
1434 There is no suggestion by either party that the engagement by Person 57's patrol, that is, the engagement involving the use of a fragmentation grenade, did not occur in the circumstances summarised in the OPSUM for the mission. The circumstances of that engagement set out in the OPSUM for the mission are consistent with the applicant's evidence as to what Person 57 told him.
1435 I find that the engagement involving Person 57's patrol resulting in an EKIA is the incident in which a fragmentation grenade was used and it is reported in the OPSUM for the mission as occurring at approximately 1410DE during a compound search and it is the incident involving the EKIA reported in the Sametime chat record at 1414DE (see [1404]–[1405] above).
1436 It must follow from that finding that the other engagement by the NDS-Wakunish soldier said in the OPSUM to have occurred at approximately 1405DE during a compound clearance was not reported until 1539DE (see [1402] and [1421] above). The engagement remained unreported for approximately one and-a-half hours after it occurred and for almost the same period of time after advice from the Ground Force Commander that the Objective compound had been declared secure and that the SSE process was ongoing. Furthermore, it must follow that it remained unreported for just under half an hour after the Force Element had requested extraction (1512DE) and just under 10 minutes after an estimate of three or four persons of interest to be taken to Tarin Kowt by helicopter was given (1530DE). These times are taken from the record produced as events occurred (i.e., the Sametime chat record).
1437 The respondents submit that this is a most unlikely course of events. The document most likely to be correct is the document produced in real time and the document most likely to be incorrect is the OPSUM for the mission.
1438 I find that there was no engagement at 1405DE as stated in the OPSUM.
1439 First, there is simply no reason to explain why the engagement recorded in the OPSUM for the mission as having happened at approximately 1405DE was not reported until 1539DE. Further, as I have said, the engagement was not reported until almost half an hour after extraction had been requested and nearly 10 minutes after the number of PUCs to be taken off target was being considered. The applicant said by reference to his general knowledge that there could be a ​number of circumstances which might explain why an engagement is not reported promptly. He referred to the possibility of the person who had the engagement still being involved in clearing compounds or difficulties with the terrain. The applicant agreed that one piece of information which would be regularly provided to troop commanders is the reporting of an EKIA. He said that if there is no threat and one is able to report an EKIA, then that will be done. If there is a task to complete or a threat, then the report of an EKIA will have to wait.
1440 In this case, there does not appear to be any reason on the ground preventing the report of an EKIA. Both the Sametime chat record and the OPSUM for the mission state that the Objective Compound was declared secure at 1408DE and the SSE process was ongoing. There did not appear to be any emergencies for quite sometime.
1441 There is a further important point. I accept, based on all of the evidence, that ordinarily before there is a call for extraction, the Ground Force Commander will have spoken to each of the patrol commanders to ensure that they are not in contact and are ready to be extracted and to ascertain how many PUCs are to be taken off target. The fact that there had been a call for extraction (at 1512DE) and estimates of PUCs had been given (at 1530DE), strongly implies that the Ground Force Commander had been in contact with all patrol commanders and that any EKIAs to that point in time would have been reported.
1442 Secondly, the evidence of the patrol commander and 2IC of the patrol which included the NDS-Wakunish soldier who shot an Afghan male on 12 October 2012 was that there were no engagements by them or their patrol during the clearance of compounds. The NDS-Wakunish soldier is identified in the closed Court reasons (at [168]). He was a member of Person 35's patrol and both Person 35 and his 2IC, Person 32, said that they had no engagements during the clearance of compounds.
1443 Thirdly, there is the evidence of Person 14 that the incident he witnessed in the compound happened shortly before, or at the time the Task Force was preparing for extraction and "the helicopters were close". Person 14's statements to Mr Masters are to the effect that the incident occurred late in the mission as Mr Masters records that Person 14 spoke about "a problem with recording the man as a PUC and/or EKIA as the count had already gone in over the radio". There is no suggestion that Person 14 had seen any ADF documents – produced much later pursuant to a Subpoena to produce documents – at that time.
​1444 There were some other matters identified by the respondents which perhaps add to the conclusion, although are not necessary for it.
1445 First, the killing of a person of interest between 1530DE and 1551DE would explain the difference between the estimate of three to four persons of interest to be taken off target at 1530DE and the fact that two persons of interest were actually taken off target at 1551DE, a matter which caused the troop sergeant to become very angry.
1446 Secondly, the entry in the OPSUM states that the insurgent shot at 1405DE was armed with an AK47. A photograph was taken of the dead insurgent (exhibit R101) and despite a practice at the time of photographing an insurgent with any weapon found in the vicinity, the photograph of the dead insurgent does not show any weapon or the pair of binoculars. By contrast, the SSE Report which is addressed in more detail in the closed Court reasons, contains photographs of the rifle and binoculars with the contents of the cache. The other curious aspect of the SSE Report is that it refers to limitations of time, whereas if the engagement happened at 1405DE as recorded in the OPSUM, then it is difficult to see how there would be any limitations in terms of time. The respondents submit that the most probable explanation is that a cache was found with all the items photographed and then in one way or another, in the OPSUM the AK47 rifle and the binoculars have been attributed to the EKIA. That does seem to me to be the most probable explanation.
1447 Thirdly, there is a possible motive for a false entry in the OPSUM as to the time of the killing and that is to put it at a time when an engagement might be expected, that is, during the clearance of compounds and to put it outside the period where it might be linked to the reduction in the anticipated number of PUCs to be returned to Tarin Kowt.
Was Person 12 present on the Mission to Chinartu?
1448 Person 14 remembered Person 12 being on the mission. Person 14 said that he socialised with the NDS-Wakunish soldiers and he knew Person 12. Person 12 was the only Commander of the NDS-Wakunish who Person 14 met in 2012. Person 14 correctly identified Person 12 in the photograph, which is exhibit R41.
1449 The presence of Person 12 at Chinartu on 12 October 2012 is critical to the success of the respondents' case. If he was not present, then the respondents' case with respect to Chinartu fails.
​1450 For reasons which will become clear, it is convenient at this point to set out a short chronology of events which occurred between the commencement of these proceedings and a point in time shortly before the commencement of the trial:
| Date | Event |
| 17 August 2018 | These three proceedings were commenced. |
| 9 October 2018 | A Defence was filed in each proceeding. Person 12 was alleged to be involved in murder of Ali Jan 11 September 2012 in Darwan and the execution of Afghan male on 12 October 2012 in Chinartu. |
| 31 May 2019 | Respondents filed and served outlines of evidence, including outline of Person 14 with respect to pleas of justification and contextual truth |
| 11 July and 12 July 2019 | Applicant filed and served Outlines of Evidence in Reply. Those outlines included outlines of the applicant and Persons 35, 32, 27 and 39: Person 12 stood down or removed from involvement with SASR for his role in an incident on 31 July 2012 |
| 23 October 2019 | Applicant answers interrogatories, including interrogatories about his knowledge of the circumstances of Person 12's removal. |
| 18 May 2020 | Application by the respondents to, inter alia, amend the Defence adding new allegations and amending existing allegations. The application included an application to amend the Particulars of Truth in relation of the alleged murder of Ali Jan at Darwan on 11 September 2012 to delete reference to the presence of Person 12 and Person 13. The circumstances which led to the application are set out in my reasons in Roberts-Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067 (Roberts-Smith (No 5)) at [30]–[48]. Ultimately, the respondents were given leave to amend their Particulars to delete reference to Person 12 and Person 13 in relation to the alleged murder of Ali Jan. |
| 8 September 2020 | Respondents file an Amended Defence. Reference to Person 12 and Person 13 in connection with alleged murder of Ali Jan deleted. |
| The first half of 2021 | Documents produced by the Department of Defence in response to a subpoena relating to the performance of the NDS-Wakunish Partner Force and an incident in which Person 57 sustained an injury to his leg. |
1451 Immediately prior to the commencement of the trial on 7 June 2021, it seemed from the applicant's outlines of evidence that he would contend that the respondents’ case of an alleged murder at Chinartu was false because (among other reasons) Person 12 was not on the mission. Person 12 was not on the mission because he had been stood down permanently or removed on or about 31 July 2012 for shooting at a wild dog in circumstances in which the bullet then ricocheted into the leg of an Australian soldier. At the risk of stating the obvious, had this been ​established, it would have been a complete answer to the respondents' allegations in relation to Chinartu and have had a significant effect on Person 14's credit. It might also be seen as having a significantly adverse effect on the respondents' case with respect to the mission to Darwan had the respondents persisted with the allegation that Person 12 was present on that mission.
1452 It is appropriate to proceed on the basis that in the first half of 2021, the applicant obtained copies of the documents produced by the Department of Defence in relation to the NDS-Wakunish Partner Force involved in Rotation 18.
1453 In his opening on 7 June 2021, and in addressing the allegations concerning the alleged murder of Ali Jan, the applicant's counsel said:
   … Person 13, as I have said, is an out-and-out liar and a fabulist. Person 12 wasn't there on the day in question, a matter that my client pointed out, although the reason why he wasn't there expressed in my client's outline and some of the other outlines needs modification.
(Emphasis added.)
1454 In the applicant's evidence-in-chief dealing with the respondents' allegations in relation to the mission to Chinartu, he said:
   … --- When I was made aware that I had allegedly made – given an order to Person 12, your Honour, I had no idea who that individual was to begin with, so the first thing that I did was try to ascertain who he was. So I talked to people who worked with the partner force; I talked to the individual that had been wounded to try and get an understanding of who – who the bloke was, because I didn't know what they were talking about. So it became – well, I was told that the individual that had fired the round that had wounded Person 57 was, in fact, Person 12. That's how I come to understand it was him. Someone was stood down, but unfortunately, as it has turned out through the reporting, it was not Person 12. But when you get an article printed about you about someone that you don't know saying that you've told that person that they've got to go and execute a prisoner, I – I was actually trying to work out what they were talking about. And it made sense to me because I had been in a meeting with people who had told us someone had been stood down.
In cross-examination, the applicant conceded that his account of Person 12 being stood down was incorrect. He knew that it was not Person 12 who was stood down. He reached that view, he said, after seeing the documents produced by the Department of Defence shortly before the commencement of the trial.
1455 Despite that apparent concession by the applicant, the position was not maintained by him and at least one of his witnesses throughout the case. As I understood the applicant's position on whether Person 12 was stood down permanently or removed on or about 31 July 2012, it was ​that the position was unclear, but that the Court did not need to decide the point because, for another reason (the absence of a reference to Person 12 on the helicopter load plan or manifest for the mission to Chinartu), the Court should find that Person 12 was not on the mission to Chinartu.
1456 It is not in dispute that Person 12 was a Commander of the NDS-Wakunish soldiers and that during a different period, Person 123 was the Commander of the NDS-Wakunish soldiers. Each was the commander for a different period and there is no suggestion that they alternated as commanders for different missions. Nor is there any suggestion of a third NDS-Wakunish Commander during the relevant period. Finally, having regard to the undoubted presence of NDS-Wakunish soldiers as part of E Troop on the mission to Chinartu on 12 October 2012, there is no suggestion that a NDS-Wakunish Commander (either Person 12 or Person 123) would not have been part of the mission to Chinartu on 12 October 2012.
1457 The applicant submits that the respondents, who carry the onus, have failed to prove that Person 12 was part of the mission to Chinartu. He advances two reasons in support of that submission.
1458 First, he points to the absence of a reference to Person 12 in the helicopter load plan or manifest for the mission to Chinartu as evidence that Person 12 was not part of the mission.
1459 Secondly, he contends, as I understand it, that the evidence is unclear as to whether Person 12 had been stood down permanently or removed as the Commander of the NDS-Wakunish soldiers on or about 31 July 2012 as a result of a shooting incident. Person 12 shot at a dog and the bullet ricocheted into the leg of an Australian soldier (Person 57) thereby injuring him. This was a serious incident and resulted in Person 12 being stood down permanently or removed. I put the matter in this way because at some points he seems to concede that it was not Person 12 and at others that the documents the respondents rely on to establish that it was not Person 12 are doubtful or, to use the applicant's word, "problematic".
1460 The applicant submits that in light of his first point, it is not strictly necessary for the Court to determine the second point. In my opinion, it is necessary to consider the second point. It has not been expressly conceded and, in any event, is relevant to the credit of witnesses and the respondents' consciousness of guilt submissions.
​1461 A considerable body of evidence was adduced at the trial directed to these issues. That evidence included a number of documents which may only be referred to in the closed Court reasons.
1462 The conclusions I have reached are as follows. Person 12 was part of the mission to Chinartu on 12 October 2012, and to the extent the helicopter load plan or manifest suggests otherwise, it is wrong. Person 12 did not shoot the dog and he was not stood down or removed on 31 July 2012. The NDS-Wakunish soldier who did shoot the dog is identified in the closed Court reasons (at [167]). Person 12 became the NDS-Wakunish Commander on and from 21 September 2012. I refer generally to the closed Court reasons (at [165]–[198]). The witnesses who said that he did shoot the dog and was stood down or moved as a result, have either lied or put forward the account without any proper basis. I will identify particular witnesses and my findings as to their state of mind in the reasons which follow.
1463 The respondents' contention is that the story of Person 12 being stood down permanently or removed on or about 31 July 2012 is a material lie on the part of the applicant and each of Persons 35, 32, 27 and 39. They seek to deploy that conclusion in various ways. First, the respondents submit that the conclusion is "devastating" to the credibility of the applicant and each of Persons 35, 32, 27 and 39 "such that their evidence cannot be accepted on any matter in contest". The fact that it is relevant to the credit of a witness that he or she has told a lie on a material matter is obvious and indisputable. Secondly, the respondents submit that a deliberate lie may be evidence of a consciousness of guilt and characterised legally as an admission by conduct or circumstantial evidence from which an inference may be drawn. The respondents submit that a lie may be accepted as an admission of guilt if that is the more probable inference to be drawn. The respondents made it clear in their oral submissions that they put the submission as to consciousness of guilt in two ways. First, a conclusion of a consciousness of guilt may be inferred from the applicant's individual conduct. Secondly, a conclusion of a consciousness of guilt may be drawn from a number of circumstances considered in combination. I will come back to identify what those circumstances are later in these reasons.
1464 I refer to my discussion of relevant principles governing the circumstances in which lies may be used as evidence of a consciousness of guilt in Section 1 of this Part.
1465 I turn to the evidence.
​1466 The respondents adduced evidence from Person 31. He said that, in relation to the NDS-Wakunish soldiers he was responsible for mentoring, there was an A team and they were selected to be on base and living with the Coalition Forces. The remainder of the NDS-Wakunish soldiers were located at a compound that was a few kilometres away. The Coalition Forces naturally selected the NDS-Wakunish soldiers who were the most capable and they had approximately 10 to 14 at any one time located on the base. There was one officer of the NDS-Wakunish located on the base at Tarin Kowt. During the course of his deployment in 2012, two officers rotated through the position, one was Person 123 and the other was Person 12. Person 31's recollection was that Person 12 took over from Person 123. Person 31 identified Person 12 in a number of photographs. He identified Person 12 on the video of the helicopter journey on 12 October 2012. Person 31 was a straightforward witness and I accept that evidence.
1467 The applicant's outline of evidence filed on 12 July 2019 contained the following paragraph dealing with the mission to Darwan:
   161. Person 12, a commander of the NDS, was not with us during that mission. I did not observe Person 12 in Darwan at all. I had previously been informed on or about 31 July 2012 at a command group meeting that Person 12 had been stood down and replaced as Commander of the NDS soldiers after he shot a mongrel dog and shrapnel wounded an Australian Patrol Commander.
There is a similar statement in relation to the mission to Chinartu (para 168). The applicant agreed that he read the outline carefully before it was finalised and, to the best of his ability, he satisfied himself that it was correct. He gave instructions to his solicitor to serve the document and he understood that its purpose was to outline the evidence he would give at the trial. He understood that it was important that the outline be completely truthful.
1468 The applicant gave the following answers to interrogatories administered by the respondents concerning his statement as to the standing down and removal of Person 12:
   16A. Please look at paragraph 161 of your Outline of Evidence dated 12 July 2019 and answer the following questions:
       (a) Who informed you that Person 12 had been stood down and replaced as Commander of the NDS soldiers?
       (b) What in substance was said in this regard?
       (c) Where was the command group meeting held?
       (d) Who attended the command group meeting?
       (e) State the name of the person who replace Person 12 as Commander of the NDS soldiers.
   ​16B.
       (a) To the best of the Applicant's recollection it was Person 31.
       (b) The Applicant does not recall the specific details of what was said to the command group. However, to the best of the Applicant's recollection, Person 31 informed the command group, in substance, that there had been an incident on a mission involving Person 12 attempting to shoot a stray dog and, in the process, wounding Person 57. Person 31 noted that Person 12 had been stood down as Commander of the NDS as a result of the incident.
       (c) In the Officer Commanding Force Element Alpha's office, Camp Russell, Tarin Kowt.
       (d) Person 58, Person 54, Person 26, Person 7, Person 55, Person 31, Person 35 and the Applicant.
       (e) To the best of the Applicant's recollection, the soldier who replaced Person 12 was Commander Person 59.
1469 The applicant made it clear in his answers in cross-examination that his recollection was that there was a meeting and he was told a partner force member had been stood down. However, he had never heard of Person 12 before in his life and "didn't know him from a bar of soap". The applicant indicated that he had no recollection one way or the other whether the person who had been stood down was Person 12 and that at the time he composed his outline of evidence, his evidence was based on what he had been told by Person 35 and Person 68. He contacted the soldier who had been accidentally shot, Person 57, perhaps prior to finalising his outline of evidence and asked him whether it was Person 12 who had shot him. Person 57 said no that he did not think that it was Person 12. He contacted Persons 35 and 68 by telephone before filing his outline of evidence and, in the case of Person 35, his question was whether Person 35 knew which one of the "Wakas" engaged Person 57 and, in the case of Person 68, he asked Person 68 whether he knew who got stood down for shooting Person 57. He would have said to them that it was "for the defo" or something like that.
1470 The applicant said that in response to his question, Person 35 used Person 12 as a reference point, "as in the commander, being Person 12". He said that when he spoke to Person 68, he said the same thing "without prompting" which made the applicant think, "well, it just corroborated the story, so that's the guy that they were talking about in the meeting". The applicant said the following in his evidence when asked about his conversation with Person 35:
   And what did you ask – well, let's start with person 35: what did you say to him?---I said, "Do you remember the incident where Person" - - -
   ​Isn't it 57?--- - - - "57 was engaged?" And he responded, "Yes." I said "it was one of the Wakas", in substance, and he said, "Yes." I said, "Do you know which one it was?" And then he explained it to me and used Person 12 as the reference point – as in the commander, being Person 12. When I spoke to the other person, which was Person 68, I said to him, "Do you know who got stood down for shooting Person 57?" And again, without prompting, he said the same thing, which made me think – well, it just corroborated that story, so that's the guy that they were talking about in the meeting.
1471 The respondents submit that if the inquiry by the applicant had been triggered by allegations in the defence and the outlines of evidence filed by the respondents, then the more logical question to ask would have been who was Person 12. There is nothing in the allegations made by the respondents to connect Person 12 with the incident involving the shooting of the dog and no rational reason why the applicant's inquiry would be so directed. The respondents submit that those circumstances indicate that the applicant's evidence as to the conversation is revealing of the dishonest purpose of the inquiry to begin with.
1472 The applicant submits that, at most, he had made an honest mistake and that there is no evidence that he knew that it was not Person 12 who had shot the dog and injured the Australian soldier and yet falsely asserted that it was. All the applicant has done is to conflate what Person 31 said about the incident on or about 31 July 2012 with what he was told by Person 35 and Person 68 about the identity of the shooter. Furthermore, it was not unreasonable (the applicant submits) for him to prefer the account of Person 35 and Person 68 over the account of the person who was shot.
1473 The applicant admitted that he had spoken to Person 57 and he had said that he did not think that it was Person 12 who had been stood down for shooting at the dog. He said that he first realised the account concerning Person 12 was wrong when the Department of Defence documents were provided under subpoena.
1474 I did not find the applicant's evidence concerning his answers to interrogatories to be satisfactory. The applicant said:
   How was it an honest answer to say that you had a – you had a recollection that it was Person 31 who told you that, when you had admitted that you did not have a recollection of Person 31 telling you that it was Person 12?---Because I had a recollection of Person 31 telling me that one of the Wakunish soldiers had been stood down. By that time, I had been informed by the rest of his team – Person 31's team that it was Person 12. They were there. To me, it – that's what my recollection was about. It's not at all about trying to be dishonest. We had that meeting. Person 31 was there. One of the Wakunish soldiers had done something that injured one of the Australians. Person 31 was the person that talked about it. It made sense to me that it was him – Person 12, because the people, there, said that. No intention of being dishonest about it, because that would not serve me any good anyway, because if he ​How was it an honest answer to say that you had a – you had a recollection that it was Person 31 who told you that, when you had admitted that you did not have a recollection of Person 31 telling you that it was Person 12?---Because I had a recollection of Person 31 telling me that one of the Wakunish soldiers had been stood down. By that time, I had been informed by the rest of his team – Person 31's team that it was Person 12. They were there. To me, it – that's what my recollection was about. It's not at all about trying to be dishonest. We had that meeting. Person 31 was there. One of the Wakunish soldiers had done something that injured one of the Australians. Person 31 was the person that talked about it. It made sense to me that it was him – Person 12, because the people, there, said that. No intention of being dishonest about it, because that would not serve me any good anyway, because if he was there, it was always going to come out in the .....
   HIS HONOUR: Sorry, what was the last word you used? In the - - -?---I said, your Honour, if he was there, it would come out on all of the military documents anyway.
   MR OWENS: You understood, didn't you, that the fact of which you had a recollection was a meeting at which an unspecified member of the partner force had been stood down, correct?---Yes.
   You had no - - -?---No, sorry. It wasn't that I had a recollection it was an unspecified member. It was that I didn't – at that point, I wasn't recalling exactly who it was.
   All right. You had no recollection whatsoever of which partner force member had been identified in that meeting, did you?---I agree with that.
   Doesn't it then follow that it was false to say, in these answers, that to the best of your recollection, Person 31 told you it was Person 12?---Not on the basis that I was trying to remember it. So I know there was a meeting. I know Person 31 spoke. Everyone in his team said it was Person 12. I don't see that as being dishonest; I see that as being what the answer is to the question.
   Well, I put it to you that it was dishonest, Mr Roberts-Smith. What do you say to that?---I say it was not my intent to be dishonest, and in any event, Person 12 wasn't there on either of the missions you're referring to.
1475 I am prepared to accept that the applicant attended a command group meeting on or about 31 July 2012 and the incident involving the shooting of the dog and the injury to Person 57 was discussed. I do not accept that Person 12 or a "Commander" was identified as being responsible for the act and being stood down as a result. Such a statement would have been completely contrary to the facts and known to be contrary to the facts as the closed Court reasons make clear. The applicant's answers to interrogatories are inaccurate in that respect and further, even on the applicant's case, they are inaccurate in not disclosing the applicant's reliance on his conversations with Person 35 and Person 68.
1476 The next question is whether the applicant colluded with Person 35 to advance a false account that Person 12 had been stood down or removed on or about 31 July 2012 by reason of shooting a dog and injuring Person 57. That question can only be addressed after considering the evidence of Person 35 and the other witnesses on this issue. As I will explain, I find that the applicant did collude with Person 35.
1477 Person 35 said the following in the outline of evidence which was filed by the applicant on 12 July 2019 and which was approved by Person 35:
   49. On or about 31 July 2012, we were on a mission in the Chora Valley where we had secured a compound. There were a number of Afghan dogs chained up. I was about 4-5 metres away from Person 12 when I saw that he was preparing to shoot one of the dogs. Before I could stop him, he shot the dog. The bullets went through the dog, into the door behind the dog, and shrapnel hit another ​Australian Patrol Commander's leg, who had just entered the compound. While I did not believe Person 12's conduct to have been deliberate, at first glance it could have been considered a 'green on blue' incident, particularly given the prevalence of 'green on blue' attacks at that time. It was looked upon seriously.
   50. The incident showed a significant lack of situational awareness and extremely poor judgment on the part of Person 12.
   51. We continued the mission until extraction and then returned to base. As a result of the incident, myself and other members of the team that were responsible for training the NDS soldiers determined it would be best that Person 12 not come out on any subsequent missions. I recall that Person 12 was escorted off our base and I never saw him on the base again. He was replaced in our troop by a younger troop commander from the NDS. Person 12 did not accompany us on any other missions after that time.
   Khaz Uruzgan mission on 12 October 2012
   67. I am informed that the Respondents allege during a mission in Khaz Uruzgan, the Applicant, through the interpreter Person 13, directed Person 12 to execute an Afghan detainee. I have no recollection of that mission. Had there been a discovery of a large cache of weapons, I believe I would recall it. For the reasons indicated above, Person 12 could not have taken part in the mission in Khaz Uruzgan on 12 October 2012 because he had been removed from our troop on or about 31 July 2012.
1478 As I have said, in 2012 Person 35 was part of E Troop. Initially, he was the 2IC in Person 31's patrol. Once they partnered with the NDS-Wakunish soldiers, they were split into two teams and Person 35 took command of one team with Person 32 as his 2IC. In the case of the other team, Person 31 was in command and he had Person 122 with him. Person 35 had a mentoring role and one involving training and operations. Person 35 said that at any one point in time, there was only ever one officer of the NDS-Wakunish and at any one point in time, he knew who that officer was. He agreed that he would never have confused Person 12 and Person 123. Person 12 seemed to him to be good. Person 35 said he knew who the officers were and he would never have become confused about who was an officer and who was an ordinary NDS-Wakunish soldier.
1479 Person 35 repeated in his evidence-in-chief the account he had given in his outline of evidence. He identified the officer who replaced Person 12 as Person 123.
1480 Person 35 denied that the photograph of the person with the relevant badge number on p 2 of exhibit R34 was Person 12. Person 35 could not identify Person 12 in exhibits R41 and R42. In the case of exhibit R41, he said he could not tell from this end, from that photograph. He ​was asked about a series of exhibits and whether they showed Person 12. He said in relation to exhibits R168, R169, R170, R171 and R212 that they did not.
1481 Person 35 recognised Person 12 as the person depicted in exhibit R231 and the respondents submit that the person shown in that exhibit is clearly the same person in the photographs which are exhibits R34 (at pp 2 and 3), R35, R41, R42, R168, R169, R170, R171, R172, R212 and R221. That certainly appears to be the case.
1482 Secondly, Person 35 did not accept the accuracy of documents produced by the Department of Defence on subpoena, namely exhibit A10 Tab 66. As to this matter, the respondents submit that Person 35 was unable to clearly explain his conspiracy theory in relation to the authenticity of the documents, or when, how or why they had been altered. As I will explain, Person 35's conspiracy theory concerning Person 6 is completely fanciful. Person 35 was shown two closed Court documents being Task Force Weekly NDS Engagement Reports, one for the period from 6 November to 13 November 2012 and the other for the period from 4 December to 11 December 2012 (exhibits R222 and R223), and he accepted on seeing these documents that he was wrong about Person 12 having shot the dog. He agreed that the only available explanations were that he was either misremembering or lying. He denied that he was lying.
1483 The respondents submit that misrecollection cannot be the explanation because it would involve the following false memories:
    (1) a false memory that Person 12 (a commander) was present on 31 July 2012 and shot at a dog, thereby injuring Person 57;
    (2) a false memory that it was not Person 124 (who was a soldier, and not a commander) who shot the dog;
    (3) a false memory that it was a commander who was removed on 31 July 2012 and not a soldier;
    (4) a false memory that Person 12 was replaced by Person 123 as a result of the dog shooting incident;
    (5) false memories of Person 12 being the NDS-Wakunish Commander before 31 July 2012; and
    (6) false memories of Person 123 being the NDS-Wakunish Commander after 21 September 2012.
​1484 The respondents submit that it is inconceivable that Person 35, with his role of close and daily contact with the NDS-Wakunish soldiers, could have honestly misremembered so many details and that the only explanation for Person 35's false evidence is that it was a deliberate lie designed to assist the applicant. Person 35 and the applicant agree that they spoke about this issue at about the time they prepared their outlines of evidence. The respondents submit that the overwhelming conclusion is that in that conversation, they colluded with each other to include this false account in their evidence on this topic.
1485 The applicant submits that Person 35's evidence about the identity of the first NDS-Wakunish Commander was not dishonest. Even if mistaken (and the applicant submits that it is strictly unnecessary for the Court to decide this), that does not amount to dishonesty or proof of collusion. Person 35's reservations about the authenticity of exhibit A10 Tab 66 and exhibit R34 were understandable in light of his view as to the identity of the author of those documents.
1486 I have made findings as to Person 35's honesty and reliability in connection with the mission to W108 (in particular, as to whether there were men in the tunnel) and Darwan (in particular, as to whether the interpreter stayed with his patrol throughout the mission).
1487 Person 35 was an eyewitness to the incident on 31 July 2012 when a dog was shot and an Australian soldier injured and is likely to have been the author of the report of the incident Person 35 claims to have a clear recollection which is plainly wrong and without a basis in circumstances in which he worked sufficiently closely with the NDS-Wakunish soldier that he could not have a recollection that Person 12 shot the dog and injured an Australian soldier. He maintained his story in the face of strong evidence that he was wrong on a basis which lacked any substance, that is, that Person 6 had been involved in the preparation of the documents. I am comfortably satisfied that he made up the story about Person 12 shooting the dog and being stood down permanently or removed in consultation with the applicant.
1488 Person 32 said that he was a member of E Troop in 2 Squadron in 2012. Initially, there was one patrol and that patrol consisted of Person 31 as patrol commander, Person 35 as 2IC, Person 32 and Person 122. The patrol was then split into two elements with Person 31 and Person 122 working as a pair with the partner force and Person 35 and Person 32 working as a pair with the other elements of the partner force. Person 32 said that in 2012, the work of his patrol was, in essence, devoted to training and accompanying the NDS-Wakunish Partner Force on operations. The soldiers worked closely with the partner force, almost every day.
​1489 Person 32 said that there were two Wakunish officers attached to the patrol during the 2012 deployment, but that they were attached to the patrol at different times. Person 12 was the first Wakunish officer attached to the patrol. Person 32 said that he could distinguish between the two officers and that he had a clear recollection of what they looked like. He said that they looked different and that there was "[q]uite a lot of difference". Person 32 said that his recollection was that the first Wakunish officer was Person 12 and the second Wakunish officer was Person 123. He said that it was not something he could be mistaken about. Person 32 approved an outline of evidence which contained the following:
   Person 12
   18. Person 12 was the Commander of the all the NDS soldiers assigned to our Squadron when we first arrived in Afghanistan.
   19. While I am not sure of the exact date, I recall that early on in our deployment, I believe around the end of July 2012, Person 12 was stood down as Commander of the NDS soldiers following an incident during a mission in which an Australian Patrol Commander was hit by shrapnel from a bullet fired by Person 12. There had been an increasing number of 'green on blue' attacks around this time (being when a member of the local partner force would attack coalition soldiers) so the incident was dealt with quickly.
Person 32 gave evidence to this effect in his evidence-in-chief. He did not witness the incident. He could not recall who told him, but he said that he heard about it "pretty much when we got back I imagine".
1490 The respondents submit that having regard to the facts, Person 32's evidence involves a significant number of false memories as follows:
    (1) a false memory of first meeting Person 123 midway through the rotation in 2012;
    (2) false memories of Person 12 being on missions before the incident involving the dog, participating in training exercises with the patrol before the incident and socialising with Person 12 before the incident;
    (3) a particular false memory of being involved in officer training with Person 6 and Person 12 before the incident;
    (4) a false memory of being informed upon return from the mission on 31 July 2012 that the boss of the Wakunish, i.e., Person 12, fired his weapon and hit an Australian Defence Force member;
    (5) a false memory of the Wakunish officers changing on about 31 July 2012;
    (6) a false memory of Person 12 being replaced by Person 123; and
    (7) mixing up the order in which Person 12 and Person 123 were the Wakunish officers during the rotation.
1491 Person 32 described the photograph on the second page of exhibit R34 as a photograph of a person who looks like Person 12. Person 32 also said that the Afghan male shown in exhibits R41, R42, R168, R169, R170 and R171 looked similar to Person 12. He described him as having certain features. He was not able to think of any other partner force member who looked more like the person in the photograph than Person 12. Person 32 said the man in the photograph, which is exhibit R225, looked similar to Person 123 and he recognised Person 123 in the photographs which are exhibits R217 and R219.
1492 Each of the photographs of Person 123 were taken prior to 31 July 2012 and each of the photographs of Person 12 were taken after that date. For Person 32's recollection to be correct, it would be necessary for the objective data in the metadata of the photographs to be wrong. Person 32 agreed under cross-examination that for his recollection to be correct, a number of entries in exhibits R34 and R35 would have to be wrong. Person 32 was also taken to exhibits R222 and R224, but he refused to concede that his recollection was wrong. Person 12 was the "first boss" and he was replaced by Person 123. Person 32 said:
   I can't change my memory; that's – that's it, sir. Yeah.
1493 The respondents submit that the only realistic options for Person 32 were to admit he had lied or to maintain his lie. They submit that he maintained his lie. They ask the Court to conclude that Person 32 has shown himself to be a dishonest witness whose evidence cannot be accepted on any issue, save and except to the extent that that evidence is adverse to the interest of the applicant.
1494 The applicant made similar submissions with respect to Person 32 as he had with respect to Person 35 (see [1485] above).
1495 Person 32 worked closely with the NDS-Wakunish soldiers. Person 32 said on more than one occasion that he could not be mistaken about the identity of the first of the NDS-Wakunish officers in Rotation 18. He maintained his "recollection" in face of overwhelming evidence. I have reached the conclusion that, like Person 35, he was deliberately dishonest about the identity of the first of the NDS-Wakunish officers in Rotation 18.
1496 Person 39 was deployed to Afghanistan in 2012 and his role during that deployment was as the squadron chief of operations running the operations room. Person 39 approved an outline of ​evidence in which he set out his recollection concerning the removal of Person 12. He said that Person 12 was removed from the command of the NDS-Wakunish soldiers on 31 July 2012 because of an incident on a mission when he acted dangerously with the result that a patrol commander was left with shrapnel in his leg. The incident was taken very seriously. Person 39 said that every evening the squadron commander conducted a commanders' synchronisation meeting known as a "sync brief". Person 39 attended those meetings as did Person 6 and Person 31 (sometimes both were present and at other times, at least one would be present) and others. Person 39 said that on or about 31 July 2012, Person 6 or Person 31 reported to the sync brief as follows:
   An incident occurred during the mission today. Person 12 has been removed from command and won't be working with us until further notice. They are going to find a replacement for him.
1497 Person 39 said that there was a short period during which a replacement for Person 12 had not been identified and that during that period they were unable to undertake any operations because there was no Afghan Commander for the NDS-Wakunish soldiers. Person 39 said that after a week or so, Person 12 was replaced by a much younger and less experienced NDS-Wakunish soldier. Person 39 said that Person 12's name did not subsequently appear in any of the operational manifests following his removal. He said that, to the best of his knowledge, Person 12 never returned to Tarin Kowt or accompanied the SASR on missions after that time.
1498 Person 39 was asked in cross-examination whether anything had been said about the nature of the incident. He said that in the discussion at that time:
   Person 6 wouldn't have been able to tell or he didn't tell us whether it was Person 12 that shot that or whether it was Person 12 that ordered that to happen, but this became more relevant in a further interview.
1499 This was the first time it was suggested that it might have been one of the partner force soldiers who shot the dog. The respondents also point to the fact that Person 39 purported to have a clear recollection that it was Person 6 who informed him of the issue at the sync brief despite previously not being clear whether it was Person 6 or Person 31. The respondents also point to the fact that Person 39 said for the first time that Person 12 had been replaced by "one of the junior guys that was already in there".
1500 The respondents submit that these changes to Person 39's evidence represent a blatant attempt to incorporate into the lie features that retain the element that Person 12 was stood down (and hence was not with the FE on 12 October 2012), but were not as obviously inconsistent with at ​least some of the objective material. This change to the lie is significant because it reflects a recognition that it would be untenable to suggest (as each of the applicant's previous witnesses had) that Person 12 was the person who shot the dog, and that Person 123 was not operating with the FE prior to 31 July 2012.
1501 The respondents submit that the difficulty with Person 39's evidence remains, however, that on the contemporaneous evidence it is clear that Person 12 was not the NDS-Wakunish Commander on 31 July 2012, was not stood down on 31 July 2012 and he did not rotate in as NDS-Wakunish Commander until 21 September 2012. Each of Person 35 and Person 32, who operated closely with the partner force, accept that there was only ever one commander at the time. Person 39's evidence that Person 123 was already operating with the FE is untenable. Moreover, his evidence that there was a period in which the FE was unable to operate is inconsistent with Person 35's evidence that he does not recall a pause as "that's probably not something you would pause for" and the weekly report for the period. The respondents submit that Person 39's evidence was a desperate attempt to salvage the lie and amounts to a dishonest reconstruction which should be rejected.
1502 Person 39's evidence that he was told by Person 6 in July 2012 that Person 12 was removed cannot be correct. It is inconsistent with Person 31's recollection, the objective evidence of contemporaneous documents maintained by Person 6 and the objective evidence of Person 12's involvement in the FE after 21 September 2012, including photographs. I reject Person 39's evidence.
1503 Person 27 provided an outline of evidence which was filed on 12 July 2019 and which contained the following statement:
   30. I recall that early in our deployment, in about late July/early August 2012, the Commander of the NDS, Person 12, was removed from participating in missions with the SASR after he shoot at a dog and the bullet ricocheted hitting another Patrol Commander in the leg.
That paragraph was put to him in his evidence-in-chief and he corrected it to the extent of saying that the identity of the Wakunish soldier who shot the dog was not known to him.
1504 In his cross-examination, Person 27 confirmed that he was not present at the incident when the dog was shot and had never met Person 12. He had no direct knowledge of the NDS-Wakunish Partner Force member who shot the dog and injured Person 57. He received his draft outline of evidence which included para 30, or something similar in it, and he wanted to confirm that. He had just heard a rumour. He said that in 2019 before he gave his outline of evidence, he ​said he would confirm the identity of the person who had shot with dog with Person 57. Person 27 contacted Person 57 after his outline of evidence had been filed and asked him to identify the NDS-Wakunish member who had shot the dog in circumstances where the bullet ricocheted and hit him. Person 57 said that it was not the bloke everybody thinks it is. He subsequently spoke to the applicant after he gave his outline of evidence, which was in around July 2019. He relayed to the applicant that it was not the person and that he should speak to Person 57 if he wanted to discuss the matter. Why he contacted the applicant rather than the applicant's solicitors after speaking to Person 57 is not clear. What he told the applicant after speaking to Person 57 is not clear. At one point he said that he conveyed the message to the applicant that Person 57 was happy to speak to him and that he did not convey what Person 57 had said ("it had no relevance to me").
1505 It seems that no steps were taken by Person 27 or the applicant to correct Person 27's outline of evidence. In cross-examination, Person 27 agreed that even if Person 57 had confirmed that it was Person 12 who had shot the dog, it would still have been false for him to say that he recalled that it was Person 12. It was put to Person 27 that the reason he wanted to confirm the matter with Person 57 was because he wanted to ascertain whether the thing he was saying he remembered was, in fact, true, Person 27 said the following:
   I just want to ascertain the name of the person to help out Ben. Get his – get my witness statement correct in his defence.
1506 The respondents submit that the Court should conclude that the fact Person 27 was prepared to give this false evidence to assist his good friend, "tends very strongly against Person 27 being a witness who can be accepted" unless his evidence is against his interests or those of the applicant.
1507 The applicant submits that the criticisms of Person 27 were unfounded for two reasons. First, he submits that no documents were available at the time the outline of evidence was prepared that contradicted Person 12 being the shooter. This does not assist Person 27's evidence. The issue is not the reasonableness or otherwise of the view of the applicant's solicitors. The issue is the truth or otherwise of the statement about a person's recollection. Secondly, the applicant submits that the failure to correct the reference to Person 12 in his outline of evidence, based on what he was told by Person 57, was neither dishonest nor a matter that warranted criticism. It is in Person 27's favour that he sought to clarify the issue with Person 57, but the statement should not have been made in the first place and it should have been corrected. It shows that Person 27 was prepared to sacrifice accuracy to a point to assist his friend, the applicant.
​1508 In my view, the evidence is overwhelming that Person 12 was the Commander of the NDS-Wakunish soldiers from 21 September 2012 to the end of the rotation. He was the Commander of the NDS-Wakunish soldiers on 12 October 2012.
1509 The applicant and Person 35 colluded to put forward a false story that Person 12 had been removed or stood down following a shooting incident on 31 July 2012. They did that following discussions between themselves with a view to the applicant defeating the respondents' case with respect to the mission to Chinartu and, at that point in time, the mission to Darwan. An outline of evidence containing the story about Person 12 being removed or stood down on 31 July 2012 was prepared on Person 27's behalf. It did not reflect his recollection. He tried to verify it, but following his inquiries, the outline was not corrected. Person 32's evidence about Person 12 being stood down on 31 July 2012 was false. Person 39 had no proper basis for his evidence that Person 12 was stood down or removed on 31 July 2012 and I do not accept his evidence.
1510 These findings clearly have an adverse impact on the credit of the applicant and Persons 35, 27, 32 and 39. The respondents submit that the Person 12 lie (i.e., that Person 12 shot the dog on 31 July 2012 and was stood down permanently or removed) was deliberate, material and told out of a consciousness of guilt. There is considerable force in that, subject to one matter. The lie was advanced initially not only in relation to the mission to Chinartu, but also in relation to the mission to Darwan. Initially, the respondents' case was that Person 12 was present in the last compound in Darwan. That particular case was abandoned by the respondents (see Roberts-Smith (No 5)). In other words, the difficulty with the respondents' submission is that the lie might have been created as a response to the respondents' initial case in relation to Darwan.
1511 The applicant relied on a closed Court document, being a helicopter manifest or loading plan in support of his contention that irrespective of whether Person 12 was stood down or removed on 31 July 2012, he, Person 12, was not on the mission to Chinartu on 12 October 2012. As I have said, Person 12 was the Commander of the NDS-Wakunish soldiers on 12 October 2012 and I address the helicopter manifest or loading plan in the closed Court reasons (at [193]–[198]). I find that Person 12 was part of the mission to Chinartu on 12 October 2012.
Was the Afghan Male executed as described by Person 14?
1512 Person 14's description of the execution of the Afghan male shortly before extraction is set out above.
​1513 The applicant denied the respondents' account as set out in the Particulars of Truth. He said that he was unsure whether they detained any person in the course of the mission. His recollection is that Person 12 was not on the mission. He said that the OPSUM for the mission was prepared after the mission in the usual way, that is, at or following a meeting of patrol commanders and troop hierarchy and squadron hierarchy.
1514 Person 11 was present on the mission to Chinartu and is said by Person 14 to have been present in the compound when the applicant ordered the execution of an Afghan male.
1515 As I have said, Person 11 did not have a detailed recollection of the mission. He remembered the injury to the military working dog and the dog's evacuation from the area. He had no engagements during the mission and he did not see any members of his patrol have any engagements. He said that he never heard any rumours of there having been an unlawful killing during the mission.
1516 Person 11 denied the respondents' case of an unlawful killing during the mission when it was put to him in cross-examination.
1517 Person 32 was on the mission and Person 14 placed him next to him at the cut-out "window" looking into the compound. On Person 14's account, Person 32 would have witnessed the execution or, at least, was in a position to do so. Person 32 did not recall the mission. He denied any wrongdoing and he denied the respondents' case of an unlawful killing when it was put to him in cross-examination.
1518 Person 35 was on the mission to Chinartu, but he is not said to have been in the area at the time of the alleged execution and he did not have a detailed recollection of events on the day. Person 27 was also on the mission to Chinartu, but he did not recall the mission.
1519 The applicant submits that Person 14 has lied about an unlawful killing at Chinartu and that his account of the events of the mission should be rejected. He submits that on rejection of Person 14's evidence, the respondents' case with respect to the mission to Chinartu collapses.
1520 Each party relied on their respective written submissions with respect to Person 14's evidence concerning the mission to W108. I refer to my discussion of Person 14's evidence in that context.
1521 The applicant submits that there are a number of additional reasons for rejecting Person 14's evidence which emerge from his evidence in relation to the mission to Chinartu.
​1522 First, the applicant submits that Person 14's account of the discovery by him of a cache which was very similar to the cache which was documented is improbable. The applicant points out that the discovery of the cache is an important element in Person 14's account of the execution of the Afghan male. That is correct as it is the event that the respondents advance as the reason for the change of mood in the compound/room and the order from the applicant to shoot the Afghan male. The discovery of the cache is undocumented, that is to say, there is no SSE Report or photographs in relation to the discovery of the cache and its contents.
1523 The following should be noted at this point: (1) the OPSUM for the mission states that in relation to the engagement at 1405DE, a search of the compound in which the engagement occurred led to the recovery of 1 AK47 assault rifle, 1 pair of binoculars, 3 RPG-7 rockets and 4 RPG-7 rocket motors. No other weapons or other items recovered are mentioned in the OPSUM for the mission; (2) a bundle of six photographs, two of which were of the cache and four of which were of the contents of the cache being weapons, binoculars and other items, were produced by the Department of Defence; (3) the photographs became exhibit R38 (sensitive) and exhibit R100 (non-sensitive). These photographs are the same as photographs in the SSE Report and the metadata for the photographs indicates that they were taken at between 3.24 pm and 3.26 pm (1524DE–1526DE); (4) it was put to the applicant by the respondents that the cache shown in the photographs was the cache found by Person 14 shortly prior to extraction. The applicant denied this; (5) Person 14 was shown the six photographs comprising exhibit R100 in his examination-in-chief and he said that while similar to the cache he found, it was not the cache he found; (6) in cross-examination, Person 14 said that he found an AK variant and two bags, bullets, RPG warheads, boosters which were separate and a pair of binoculars. The engineers were working on the cache. Person 14 also described the contents of the cache as 2 AK variants, 2 bags of bullets, 1 set of binoculars and "RPG with boosters, two". Person 14 has never seen photographs of the cache which he discovered. He agreed in cross-examination that he could not comment on the SSE Report apparently prepared by the engineers.
1524 The effect of the matters I have summarised is that on the respondents' case, two caches were discovered during the mission to Chinartu, one by the engineers and the other by Person 14 (although, on his account, immediately attended to by the engineers) and one documented and the other not documented in any way.
​1525 As a separate point, the applicant submits that it is difficult to know what the authors of the SSE Report knew about the engagement which they addressed in the report. I refer to the closed Court reasons.
1526 Secondly, the applicant submits that Person 14's failure to report the execution he saw at Chinartu means that his account is highly improbable. He did not report the incident to the troop commander, troop sergeant, Sergeant Major or to Person 6. The first time he mentioned what he saw was in March 2018. This issue of a failure to report when under an obligation to do so was raised with Person 14 in cross-examination in the redacted closed Court transcript.
1527 Thirdly, the applicant submits that Person 14's account of the events at Chinartu differed from the account he gave to Mr Masters on 27 February 2018 as revealed in the notes of Mr Masters of a meeting between the two. I have already referred to Person 14's discussion with Mr Masters and I have set out the relevant part of Mr Masters' notes (at [1428]).
1528 The applicant points to the sequence of events suggested by Mr Masters' notes compared with the sequence of events in Person 14's evidence in this Court. There is no mention of Person 14's second visit to the TQ room or of his journey up the hill to the compound where the alleged execution took place and, in fact, the notes might be taken to suggest that the execution took place in the TQ room on Person 14's first visit there.
1529 On the other hand, there are a number of consistencies, including that the applicant was questioning a PUC, the discovery of the cache, the presence of the Commander of the NDS-Wakunish soldiers, Person 13 and Person 32, the circumstances of the alleged execution and the fact that the PUC count had already gone in.
1530 I do not consider that the alleged inconsistencies are of any significance in those circumstances. Person 14 was talking to a journalist who was not taking a transcript, but, I infer, recording the key points of a discussion.
1531 Fourthly, the applicant submits that it is improbable that events occurred as they were recounted by Person 14 because the timing becomes very tight, if not, impossible. Person 14 said that he left the area where he was waiting when the call came through that the first turn had left Tarin Kowt and to prepare for extraction. The Sametime chat document records that Turn 1 wheels-up from Tarin Kowt was 1534DE. The EKIA is reported at 1539DE and so, on Person 14's account, he has moved from the waiting area to the TQ compound or room and then 80 to 100 metres up an incline to the compound where he looks into a room, discovers a cache and then ​witnesses the execution of an Afghan male. The applicant's submission is that it is most unlikely that all those events could have occurred in such a short period of time. It is true that, on Person 14's account, the events happened within a short period of time, but it is not impossible that they would have happened within that time.
1532 Finally, the applicant submits that there are significant gaps in Person 14's memory about events on the mission. For example, Person 14 was unclear as to the following: (1) the number of local nationals he and Person 27 detained in the first compound (marked "B"); (2) the identity of the Australian soldier he handed the detainees to for movement to the TQ room; (3) where Person 27 went at that point; (4) the identity of the person who contacted him by radio and asked him to go to the TQ room and the word or words he used to acknowledge the message; and (5) he could not remember the identity of the soldier who told him that the applicant was up the hill. The applicant also submits that Person 14 has added to his account details not in his account when he first gave it, such as Person 11 being present in the compound in which the man was allegedly shot, whether he kicked the discoloured wall once or twice and whether one or two engineers were present when he discovered the cache.
1533 It is unsurprising that after nine years, Person 14 is unable to remember a number of details of events on the mission and has an imperfect memory as to others. These are matters I take into account as well as the fact that there are matters more likely to be remembered than others, and the execution of a PUC is likely to fall into the former category. I also take into account that, in his cross-examination on these matters, I did not detect any attempt by Person 14 to evade questions or fabricate answers.
1534 The applicant submits that an inference should be drawn from the fact that Person 12 was not called by the respondents that his evidence would not have assisted their case. He submits that the respondents might reasonably be expected to call Person 12 and it is to be inferred from their failure to do so that they feared doing so. There are two answers to this submission. First, I do not think that it can be said that the respondents might reasonably be expected to have called Person 12. The basis which the applicant advances for this submission, that is, contact with Persons 14 and 31, is not sufficient. I refer to the closed Court reasons (at [199]–[201]). Secondly, and perhaps relatedly, the issue is whether the respondents' case is proved based on the evidence of Person 14. If it is, the absence of evidence from Person 12 does not detract from that proof. If it is not proved based on the evidence of Person 14, then the absence of Person 12 adds nothing.
​1535 I do not accept the evidence of the applicant or Person 11 for reasons already given. I do not accept either of them as an honest and reliable witness. I refer to the findings in Section 12 of this Part and, indeed, the other adverse credit findings in relation to the applicant and Person 11 in other Sections of this Part. I do not accept the evidence of Person 32. He is a close friend of the applicant and he persisted with his account of Person 12 being stood down towards the end of July 2012 in the face of overwhelming evidence to the contrary.
Conclusions
1536 I have considered the whole of Person 14's evidence and I accept his evidence with respect to Chinartu. It is true that it is an unexplained feature of his evidence that the cache he said that he discovered is not documented or referred to in the ADF documents. It is true that Person 14 did not report what he saw which was a clear breach of the rules of engagement. I must and I do take those matters into account. Nevertheless, I am satisfied of an important conclusion. I am satisfied that there was no engagement at 1405DE and that the OPSUM is wrong. The second engagement on the day occurred shortly prior to extraction at around about 1539DE. At about 1530DE, the estimate of persons of interest being taken back to Tarin Kowt was three to four persons. The number taken back was two. I accept Person 14's evidence that this last minute change annoyed the troop sergeant. This provides clear and strong support for the account by Person 14.
1537 I find that in a compound in Chinartu on 12 October 2012, the applicant, through an interpreter (Person 13) ordered Person 12 to shoot an Afghan male who was under detention. That occurred shortly after a cache was found by Person 14. Person 12 then gave instructions to an NDS-Wakunish soldier who then shot the Afghan male in circumstances amounting to murder. The applicant was complicit in and responsible for murder.
1538 These findings mean that Imputations 2 and 3 are substantially true.