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

​Section 3 — Incidents involving the Applicant during Pre-Deployment Training in 2012
884 The applicant was deployed to Afghanistan on Rotation 18 from about June to November 2012. He was a patrol commander on that deployment and in the pre-deployment period, his patrol consisted of Persons 4, 11, 19 and 10. Person 4 was the 2IC of the patrol. It transpired that Person 19 did not deploy to Afghanistan on Rotation 18.
885 Prior to the deployment on Rotation 18, the applicant's patrol and other patrols were involved in pre-deployment training in Australia at the Lancelin Training Facility (Lancelin) and at the Bindoon Training Facility (Bindoon).
​886 The respondents' case is that the applicant did and said certain things during the training exercises at Lancelin and Bindoon respectively which are probative in the sense of making it more probable that the alleged murders at Darwan, Chinartu and Fasil in 2012 occurred (s 55(1) of the Evidence Act). The respondents' case is that the applicant's conduct constituted preparatory conduct for the later murders in that the conduct involved him in specifically training and preparing members of his patrol to carry out and then cover up extra-judicial killings. Although the alleged incident at Lancelin is referred to in the Group 3 articles, the applicant has not sued on any imputation in relation to that alleged incident. The respondents accept that the alleged incidents at Lancelin and at Bindoon are not directly relevant to any imputation in issue. However, they submit that the alleged incidents are relevant to the substantial truth of at least Imputations 1, 2, 3, 11 and 14. These imputations are set out above.
887 The applicant denies that the alleged incidents took place. He submits that even if the Court finds that the incidents, or some of them, did in fact occur, they cannot be relied on by the respondents for the purpose the respondents advance because, properly analysed, the respondents are seeking to rely on the evidence as tendency evidence and the evidence is not admissible on that basis (s 97 of the Evidence Act). The respondents in their closing oral submissions made it crystal clear that they do not rely on the evidence as tendency evidence. In other words, as I understand it, if the only possible use of the evidence is as tendency evidence, that is not a use to which the respondents seek to put the evidence.
888 I will make my findings of fact and then address the question of whether the respondents can rely on those facts for the purpose they advance.
889 The Particulars of Truth in relation to the incident at Lancelin are as follows:
   (65) In or about May 2012 the Applicant and the troop of which he was a member engaged in a training exercise at the Lancelin Defence Training Area, Perth. At about the conclusion of that training exercise the exercise involved a scenario that a compound had been cleared and a detainee had been taken. The detainee, being played by Person 9, was squatted in a corner of the compound with handcuffs on. The Applicant then walked to the other end of the room, grabbed Person 10, who was preparing for his first deployment, and brought him back to where the detainee was squatting. The Applicant said to Person 10, in substance, "kill him". Person 10 looked taken aback, however he complied with the order and jokingly simulated killing the detainee by gesturing and saying "bang" to indicate he had shot the detainee. The Applicant then grabbed Person 10 by the shoulder and said in substance "You good with that? Because that's how it's gonna be when we get over there."
   (66) In the circumstances, in the event that this scenario was real, the Applicant's conduct would constitute a breach of Common Article 3 in that it would ​constitute murder.
890 As with the incidents at Bindoon, Person 19 is an important witness for the respondents in relation to the incident at Lancelin, although the respondents also rely on other witnesses.
891 There was an event before the incident at Lancelin which is said by the respondents to be relevant.
892 Person 19 said that one morning in 2012, he, the applicant and Person 4 went to breakfast at a café near the Swanbourne Barracks. During breakfast, the applicant said that Person 10, who was new to the SASR, needed to be blooded and needed to prove himself. Person 19 did not need to prove himself because he had been with the Commandos and had previously deployed to Afghanistan. The applicant denied that such a conversation took place. Person 4 did not recall such a conversation, although he admitted it was possible there was such a conversation.
893 The respondents submit that the applicant then rehearsed his plan to blood Person 10 in May 2012 during a live fire training exercise at Lancelin. Person 4 was not present on that occasion as he had deployed to Afghanistan over that period.
894 Person 7 said that the troop conducted training at Lancelin at the very end of pre-deployment training in 2012. He said the final exercise in the week involved simulating the detention of a PUC in order to give the incoming troop commander and troop sergeant an understanding of the process. The troop commander and troop sergeant were doing their first deployment in these positions. I interrupt the narrative at this point to make two points.
895 First, the applicant made a very substantial attack on the honesty and reliability of Person 7. This attack was dealt with by the parties and will be dealt with by me in the context of the alleged assaults on PUCs. As I will make clear in that context, I find that Person 7 was an honest and reliable witness with respect to the principal matters upon which he gave evidence.
896 Secondly, the applicant's submissions about the incident at Lancelin focus on whether the applicant said the words attributed to him and referred to below. The circumstances surrounding the training exercise were not dealt with by the applicant in his submissions. The applicant's evidence concerning those circumstances was that there could well have been such an exercise at Lancelin where a member or members of the troop were playing the role of PUCs.
​897 I accept Person 7's evidence as to the circumstances of the exercise as set out above. I also accept his evidence (and that of Persons 19 and 10) that the exercise involved a live fire exercise, a dog serial and a mock assault and the clearance of a makeshift Afghan compound under live fire conditions. I accept the evidence of Person 7 (and Person 31) that there was a Conex or shipping container at the training base with partitions on the eastern side of it to give the effect of a compound, and there were steel-head targets within the training area used for the live fire part of the exercise.
898 The various patrols were assigned different tasks as part of the exercise. The applicant's patrol was the assault team charged with the clearance of the compound. Person 31's patrol formed a cordon outside the compound. Person 7's patrol was the roof team.
899 Person 9 was playing the role of a non-combatant and wearing a bite suit as he was to be the subject of a dog attack. The live fire part of the exercise was completed and Person 9 was subdued by the dog and detained by the applicant's patrol. He was brought inside the partitions and the PUC process began.
900 Person 7 had placed himself on top of the Conex or shipping container, but kept his patrol out to the west as there was no need for them to be on the Conex or shipping container because it was a quick exercise. Person 31 was also on top of the Conex or shipping container.
901 The applicant and Persons 10, 11 and 19 were present in the compound.
902 Person 10 gave evidence in these proceedings not only in relation to this incident at Lancelin, but also in relation to the events on a mission to the Chora Village on 15 July 2012. There was a substantial challenge to Person 10's honesty and reliability in that context (see Section 10). For reasons I will give in that context, I reject any challenge to his honesty. I consider that he was reliable as to events during the training exercise at Lancelin.
903 Person 10 said that he was given the job of security once the compound had been secured during the training exercise at Lancelin. He was standing inside the doorway and facing out. The applicant walked up to him and called him to come with him. He was taken into an area where the rest of the patrol was located. Person 9 was there and he was playing the role of a PUC. He was bound and kneeling facing the corner or wall. The patrol was standing in a semi-circle and the applicant was discussing the next stage of the assault. The applicant said to Person 10 words to the effect of "shoot him" and Person 10 said words to the effect of "But its [Person 9]". The applicant again said words to the effect of "shoot him" and Person 10 ​responded by saying "Bang, bang". The applicant then said words to the effect of "that's how it is going to be on the day".
904 Person 19 said that the applicant said to Person 10 "I want you to shoot the PUC" and Person 7 said that the applicant said to Person 10 "kill him" and "are you good with that? Because that's how it's going to be when we get over there".
905 Person 19 described the look on Person 9's face during these events. He said that Person 9 looked quite surprised. Person 7 witnessed the incident from the top of the Conex or shipping container. Person 31 gave evidence that Person 7 spoke to him about the incident on top of the Conex or shipping container or in the car and Person 7 said:
   Person 7: "For fucks sake, Mr Roberts-Smith has had Person 10 do a scenario of executing a PUC."
906 Person 7 said that he had a conversation with Person 31 as follows:
   Person 31: "What was that all about?"
   Person 7: "Geez. He's a fucking idiot."
907 After these events, Person 9 or Person 7 said to Person 10 words to the effect of "Don't get involved in that shit. It's not good" and in the car later, Person 19 said to Person 10 words to the effect of "Can you believe that bullshit?". I accept Person 7's evidence as to what he saw and the conversation.
908 Person 7 spoke to the applicant after the training exercise. He approached the applicant and said words to the effect of "RS, you got a second?". The applicant turned around and appeared to Person 7 to be annoyed. He went over to Person 7. Person 7 said to the applicant words to the effect of "What was that shit all about?". The applicant responded by asking, "What shit?". Person 7 said words to the effect of "You know what shit I'm talking about", "Pull your head in. Grow up, and wake up to yourself". The applicant turned around and walked away. He was mumbling something of which Person 7 said he understood to include, "Fucking war". I accept Person 7's evidence.
909 Person 31 also spoke to the applicant about the incident. That night or the next afternoon, he stopped as he was walking past the applicant and said words to the effect of, "Fuck. You need to pull — you know, pull your head in. You know. You can't be doing that shit". Person 31 said that the applicant looked down, grunted, nodded and walked off. As I say later in these reasons, Person 31 was a straightforward witness and I accept his evidence.
​910 The applicant submits that I should not accept the evidence that he said to Person 10 during a training exercise at Lancelin words to the effect of "shoot him" and "that's how it is going to be on the day". The applicant denied saying those words, but I reject that denial in light of the evidence of the other witnesses which I accept and the other findings I have made about the applicant's lack of honesty and reliability. I reach the same conclusion about Person 11's evidence that he never heard the applicant encourage a member of his patrol to simulate the execution of PUCs and that the applicant never directed him to execute a PUC. I reject that evidence for the same reasons I reject the applicant's evidence.
911 The applicant submits that it is improbable that a patrol commander would instruct one of his patrol to engage in a mock execution. On the face of it, that is true, but I take into account the whole of the evidence in this case, including the findings I have made in relation to W108 and the clear evidence in this case that it occurred. Similarly, although the senior patrol commanders did not immediately remonstrate with the applicant, they did remonstrate with him shortly afterwards.
912 It is true, as the applicant submits, that Person 19 did not give evidence that the applicant said words to the effect of "that's how it is going to be on the day", but that in itself is not a reason to reject his evidence or the other powerful evidence to which I have referred. It is possible Person 19 did not hear the comment or has forgotten about it.
913 Before leaving the findings of fact, it is necessary to refer briefly to Person 9 who was on the applicant's witness list, but who was not called as a witness at the trial. Person 9 is still a member of the SASR and he is on a long-term military posting to the United Kingdom and presently in the United Kingdom. He is on short notice to move and cannot be released to travel to Australia because of his role. The applicant made an application that Person 9 be permitted to give evidence by audio-visual link. I refused that application for the reasons set out in Roberts-Smith v Fairfax Media Publications Pty Limited (No 37) [2022] FCA 580. The applicant submits that Person 9 could not be subpoenaed and, in those circumstances, a Jones v Dunkel inference should not be drawn against the applicant. The respondents made it clear in their closing oral submissions that they do not seek a Jones v Dunkel inference based on the fact that Person 9 did not give evidence.
914 There is a further point related to the fact that Person 9 did not give evidence and it is as follows. Person 4 gave evidence that he had a conversation with Person 9 during which the latter said that the applicant pointed or spoke to another individual to shoot Person 9 and that Person 9 ​found that odd. That evidence from Person 4 was objected to on the basis that it was hearsay. It was admitted on the basis that Person 9 "is to be called to give evidence" within the terms of's 64(3) of the Evidence Act. The applicant submits that Person 4's evidence on this topic should be excluded because Person 9 was not called as a witness in the circumstances set out above. I do not need to consider this point because in their closing oral submissions, the respondents made it clear that they do not rely on Person 4's evidence in this respect and I exclude it from my consideration.
915 I find that at Lancelin during pre-deployment training in about May 2012, the applicant ordered Person 10 to carry out a mock execution of Person 9 who was playing the role of a PUC and said to Person 10 words to the effect that that was how it was going to be in Afghanistan.
916 The Particulars of Truth in relation to the alleged incidents at Bindoon are as follows:
   (66A) In or about June 2012 in a short period of time between mock attacks in a training exercise there was an informal discussion between the Applicant's patrol and a patrol under the command of Person 31, in one of the fake 'Afghan compounds'. The discussion involved general conversation about the process involved in conducting such attacks. Part of that discussion involved discussion of the process for gathering evidence where a "bad guy" had been killed. The Applicant did most of the talking in this part of the discussion. During the discussion the Applicant said words in substance:
      "If we catch someone who is guilty we will shoot them. We will place weapons on them and take photos. Officers should be kept away from the compounds until we have set up the crime scene and the photos have been taken. Then once everyone is happy, that's when the officers will be brought in and told what happened."
   (66B) The ROE would not allow someone who had been "caught" to be shot in the sense that that person was not playing an active part in hostilities. In the circumstances, in the event that this scenario was real, the Applicant's conduct would constitute a breach of Common Article 3 in that it would constitute murder.
   (66C) The weapon of the kind referred to in the statement in (66A) is sometimes referred to as a "throw-down". A "throw-down" is an item of military equipment including a weapon, radio or chest webbing carried by a friendly force or found on site and placed with the body of a deceased during SSE to use as evidence that the deceased was armed or otherwise an active participant in hostilities. This practice was used in an attempt to make a killing look legitimate within the ROE and the Geneva Conventions.
917 Person 19 was the key witness for the respondents in relation to the incidents. He described the incidents in the following way.
918 In May or June 2012, troop training exercises were being carried out at Bindoon. On one occasion, an exercise was being carried out by the applicant's patrol and a patrol commanded ​by Person 31. The exercise involved an assault on a mud brick compound in an Afghan village and the assault involved an initial assault or "fight through". The patrols paused at that point to discuss what would be done by way of SSE and reorganisation. The soldiers present were the applicant and Persons 4, 11, 19 and 10, and Person 31 and two members of his patrol, Persons 35 and 56. The applicant and Person 31 were standing and the other soldiers were sitting in a semi-circle on the ground in a courtyard of the mud brick compound.
919 During the discussion, the applicant said words to the effect that "any unmanned aerial vehicles would be pushed off station so they weren't observing the target area" and "you will shoot the bad cunts". The applicant also said that officers would be kept outside the compound until they were ready to receive them and "that's when any people that we suspect of being enemy combatants, we take them into a room and shoot the cunts".
920 During the discussion, either the applicant or Person 35 also said words to the effect that "if someone has been shot you can put a weapon that you carried into target down and photograph them so that they would be deemed an enemy combatant".
921 The applicant submits that this evidence of Person 19 should not be accepted for the following reasons.
922 First, he submits that neither of the other two witnesses called by the respondents who were said by Person 19 to be present, that is, Persons 31 and 56, corroborated Person 19's evidence. Person 31 said that he had no recollection of anything the applicant said. The point goes no further than that. In the case of Person 56, he was not asked by the respondents to provide his recollection of the event and the applicant submits that I should conclude from this that his evidence would not have assisted the respondents. The respondents submit that the fact Person 56 was not asked about the conversation is explained by his objection on the basis of self-incrimination to a question about whether he or any other member of the applicant's patrol carried throwdowns in 2012. I upheld Person 56's objection and I decided not to require him to give the evidence under's 128(4) of the Evidence Act. I refuse to draw an adverse inference against the respondents in those circumstances.
923 Secondly, the applicant submits that the Court must bear in mind the observations of McLelland CJ in Eq in Watson v Foxman at 319 which is set out above concerning the fallibility of human memory. I accept that and do bear in mind those observations. At the same time, I note that one aspect (and only one aspect) contributing to the fallibility — perceptions of self-​interest as well as conscious consideration of what should have been said or could have been said—is not present in this case. I say that because in the case of Person 19, I do not think that there were any considerations of self-interest. I accept Person 19's evidence that he and Person 10 discussed how and whether they could avoid giving evidence in this case and, to the extent it was suggested in cross-examination that Person 19 had some sort of grudge against the applicant, I reject that suggestion. As the respondents pointed out, there is support for Person 19's evidence about directions as to throwdowns in the evidence of Person 4 who said that at the beginning of the deployment in Afghanistan in 2012, the applicant said that they needed to carry items on their equipment to validate engagements.
924 Thirdly, the applicant points to the fact that the evidence of the applicant, Person 11 and Person 35 is that the alleged discussion did not take place. As I make clear elsewhere in these reasons, I do not accept the evidence of those witnesses. The applicant made a separate point about that part of the discussion which related to the placing of weapons on deceased persons. In addition to the fact that Person 19 could not remember whether the relevant words were said by the applicant or Person 35, the applicant pointed out, as was the case, that Person 19 said that his recollection "is not great of this part". I have considered that, but have reached the conclusion that Person 19 has a genuine recollection that either the applicant or Person 35 said words to the effect that "if someone has been shot, you can put a weapon that you carried into target down and photograph them so that they would be deemed an enemy combatant". However, on any view, Person 19's evidence does not support a finding that those words were said by the applicant and not by Person 35. The Particulars of Truth are to the effect that these words were said by the applicant.
925 I find that at pre-deployment training exercise at Bindoon in May or June 2012, the applicant said in the course of a discussion involving Persons 4, 10, 11, 19, 31, 35 and 56 words to the effect of "any unmanned aerial vehicles would be pushed off station so they weren't observing the target area" and "you will shoot the bad cunts" and that officers would be kept outside the compound until they were ready to receive them and "that's when any people that we suspect of being enemy combatants, we take them into a room and shoot the cunts".
926 I add the following. There were two topics put to Person 19 in cross-examination which were said to raise issues about Person 19's credibility and, in the case of the first matter, a possible motive for Person 19 wishing to give evidence adverse to the applicant. The first matter involved disciplinary action against Person 19 for removing ammunition and other service ​equipment from the base. The second matter involved Person 19's dismissal from the ADF following his conviction on a charge of recklessly gaining a financial advantage. That conviction related to the signing of a false statutory declaration concerning his girlfriend's place of residence in connection with an accommodation allowance. In his closing submissions, the applicant did not rely on either of those matters in support of his attack on Person 19's credibility or reliability. Nevertheless, for completeness and out of an abundance of caution, I have considered the evidence and neither of these matters dissuade me from accepting the evidence of Person 19 to the extent I have indicated.
927 The next question is what, if any, use can be made by the respondents of these findings?
928 The applicant did not object to the evidence about his conduct during the training exercises at Lancelin and at Bindoon at the time it was adduced on the basis that it was tendency evidence or irrelevant. Nevertheless, he contends, as I understand it, that the respondents are seeking to use the evidence as tendency evidence and that it cannot be used for this purpose for the following reasons. First, he contends that by reason of ss 97 and 99 of the Evidence Act, the evidence cannot be used as tendency evidence in the absence of a notice from the respondents that they intend to adduce such evidence. The respondents have not applied to have the notice requirement waived. Secondly, even had a notice been given by the respondents, the evidence cannot be relied on as tendency evidence unless it has significant probative value and the evidence here does not have significant probative value. Finally, the applicant contends that the respondents' reliance on the evidence as tendency evidence is fatally flawed because the respondents have not identified the particular tendency. For example, they have not identified whether the tendency was to shoot any person who was PUC'd or only those PUCs who are considered to be members of the Taliban.
929 As I have said, the respondents do not contend that the evidence is tendency evidence or has been adduced for that purpose. As I have said, they say the evidence is properly seen as evidence of the preparatory conduct for the later murders that were carried out during Rotation 18 (at Darwan, at Chinartu and at Fasil) in that the applicant specifically trained and prepared members of his patrol to carry out and cover up extra-judicial killings.
930 The precise way in which the respondents seek to use this evidence, which is not a tendency use, is not clear to me. The issue of whether a party adducing evidence is seeking to use it for the purpose of establishing a tendency or otherwise can itself be a contentious one (see ​Heydon JD, Cross on Evidence (13th ed, Lexis Nexis, Australia, 2021) at [21252]; Odgers S, Uniform Evidence Law (17th ed, Lawbook Co, 2022) at p 745).
931 As far as the alleged murder at Darwan is concerned involving, as the respondents allege, the participation of Person 11 and the placing of a radio on the body, it is possible to see the evidence as preparatory conduct. It is more difficult to see the conduct in that light in the case of Chinartu where the alleged murder was committed by a NDS-Wakunish soldier on the alleged order of the applicant and Fasil where the alleged murder was committed by the applicant himself.
932 I propose to take a cautious approach to this evidence to avoid an unintended tendency use of the evidence. As I will explain, I find that the murders at Darwan and Chinartu took place irrespective of the findings in this Section and the alleged murder at Fasil not made out, even if I was to take the findings in this Section into account. If this be an overcautious approach, then the findings in this Section provide additional support for conclusions already reached in relation to the murders at Darwan and Chinartu respectively.