# Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA)/Part 3/Section 7

​Section 7 — Fasil 5 November 2012
Introduction
1544 The Particulars of Truth with respect to the mission to Fasil on 5 November 2012 are as follows:
   Execution of an unarmed Afghan male on about 5 November 2012
   (123) In or about late October or early November 2012 the Applicant said to the members of his patrol, in substance "Hey fellas, we're on 18, we need two more to get to 20". In saying this the Applicant was referring to the kill board.
   (124) In or about late October or early November 2012 the Commanding Officer of ​the troop, Person 15 expressed concern to the troops that the number of persons killed in action during rotation 18 was too high.
   (125) On or about 5 November 2012, during the last mission conducted by the Applicant and the troop of which he was a member, a Toyota Hilux was intercepted by a number of members of the troop, including Person 16. The Hilux contained four Afghan males, including a male of approximately 15 to 18 years old (Afghan Adolescent). The Afghan Adolescent was searched and detained by Person 16 and then handed over to the Applicant's patrol for questioning, together with the other occupants of the Hilux. At the time the Afghan Adolescent was visibly extremely nervous.
   (125A) After the Afghan Adolescent had been PUC'd, but before he was photographed, the Applicant shot the Afghan Adolescent in the head.
   (126) Shortly after the occupants of the Hilux were handed over to the Applicant's patrol the Applicant sent a radio communication, in substance, "two EKIAs".
   (126A) In accordance with the practice particularised at (66C) above, the Applicant or a member of his patrol placed a throw down, being an AK-47, on the Afghan Adolescent's body for the purpose of SSE photos in an attempt to make the killing look legitimate within the ROE and the Geneva Conventions.
   (127) One or two days after the mission Person 16 said to the Applicant, in substance, "What happened to the young bloke who was shaking like a leaf?" The Applicant responded, in substance, "I shot that c*** in the head. [Person 15] told me not to kill any c*** on that job so I pulled out my 9mm and shot him in the head. It was the most beautiful thing I've ever seen."
   (128) In the circumstances, by his conduct with respect to the Afghan Adolescent, the Applicant breached Common Article 3 in that his conduct constituted murder.
       (a) [deleted]
       (b) [deleted]
   (129) In the circumstances, the Applicant's conduct with respect to the Afghan Adolescent constituted murder.
1545 2 Squadron, comprising G Troop and E Troop and NDS-Wakunish soldiers, conducted a mission to Fasil in the Province of Uruzgan on 5 November 2012. The mission involved a target known as Objective Sole Inheritance. G Troop comprised Troop Headquarters (sometimes called Tactical Headquarters) consisting of a troop commander (Person 58 later replaced by Person 86), troop sergeant (Person 26), troop medic (Person 16), and an engineer (Person 34) and four patrols lead by Persons 7, the applicant, Person 55 and Person 57 respectively. The applicant was the patrol commander of "Gothic 2" and his patrol consisted of Person 4 as 2IC and Persons 56, 11 and 79. E Troop consisted of Person 6 as troop commander and it operated as three patrols with Person 6, Person 35 and Person 31 respectively as patrol commanders.
​1546 The OPSUM for the mission states that the personnel for the mission involved 32 International Security Assistance Force members and 18 Afghanistan National Special Forces or NDS-Wakunish soldiers. The insertion was rotary wing and there were two turns. The first turn was wheels-down at Fasil at 0913DE and the second turn was wheels-down at Fasil at 0933DE.
1547 The respondents did not call an eyewitness to the alleged murder. Their principal witness with respect to the mission to Fasil was the troop medic, Person 16. It is convenient to begin by setting out his account of what occurred.
Person 16's Evidence
1548 Person 16 joined the SASR at the beginning of 2011. His posting to the SASR finished in August 2013. Person 16 served as a medic and he was deployed to Afghanistan on Rotation 18 in 2012.
1549 Person 16 described his primary role as providing medical assistance during a mission. He said that unless and until such time as someone needs medical assistance, his role is to help out where directed. Usually that means within tactical headquarters, but it can extend to within other patrols as well where that is required.
1550 Person 16 was on the mission to Darwan on 11 September 2012. He recalls seeing the applicant during the mission. Person 16 was clearing compounds and was approximately two-thirds of the way through the compounds with a PUC train when he saw the applicant. A PUC train is multiple persons under constraint organised in a single file. Person 16 recalls that the applicant was drenched from the waist down.
1551 Person 16 recalls the mission to Fasil on 5 November 2012. It was the last mission on that rotation. The Taskforce was inserted by helicopter. Person 16 recalls Persons 26 and 34 being on the helicopter. Person 16 said that there would have been other people on the helicopter, but he is not able to remember the identities of those other persons.
1552 The soldiers on Person 16's helicopter disembarked and Person 16 recalls being on one side of a road and Person 34 being on the other side of the road. A Toyota HiLux motor vehicle (Toyota HiLux) was approaching and Persons 16 and 34 stopped it with hand signals. There were four male occupants in the motor vehicle. They got out of the motor vehicle and were required to lift up their robes so that Persons 16 and 34 could determine whether they had any IEDs on their bodies (e.g., suicide vests).
​1553 The next thing Person 16 did was that he patted down two of the occupants of the motor vehicle to make sure that they were not carrying any weapons and he then placed handcuffs on them with their hands behind their back. Person 16 does not recall what happened in relation to the other two male occupants of the motor vehicle.
1554 Person 16 described one of the occupants of the motor vehicle who he dealt with as a middle aged Afghan male wearing traditional robes, thickset, full beard and as appearing very staunch. The second occupant was a younger Afghan male. Person 16 considered that the younger Afghan male was in his late teens. He was a "bit taller" than Person 16 with "not a full beard, a little bit chubby, and shaking with — in terror". He appeared to be "extremely nervous" and "trembling uncontrollably". Person 16 said that the main thing that stood out to him was the age of the young male and how terrified he appeared to be.
1555 Person 16 recalls that Person 34 conducted a search of the Toyota HiLux and told others that he found IED componentry in the vehicle. Person 16 cannot remember the precise words that Person 34 used. He cannot recall where the other two people who had come out of the motor vehicle were at that point.
1556 Person 16 said that a short time later, the applicant's patrol came over and collected the two males whom he had placed under constraint. More precisely, Person 16 can remember the applicant and Person 11 coming over. He said that he did not remember one way or the other as to whether there were others with the applicant and Person 11. He did not remember what was said or what happened at the handover. He recalls that the two PUCs he handed over were walked over to another compound where he assumed they would be tactically questioned.
1557 Person 16 said that shortly thereafter he went to another compound where the bulk of the tactical questioning of PUCs was occurring with the majority of the patrol. Person 16 said that he can remember Persons 86 and 57 being there. He did not see the two PUCs he had taken from the Toyota HiLux. Person 16 observed that tactical questioning was underway and so he "found some shade and rested up".
1558 Person 16 said that about 15 to 20 minutes after he had handed over the two PUCs to the applicant and Person 11, he heard a call over the radio by the applicant saying "two EKIA".
1559 Person 16 said that from memory it was only five or ten minutes between when he disembarked from the helicopter and when he and Person 34 intercepted the Toyota HiLux.
​1560 Person 16 was shown nine photographs which together became exhibit R104. The photographs may be divided into three groups. The first three photographs comprise a photograph of a tag or piece of tape with identifying information placed on a PUC and two photographs of the man upon whom the tag or piece of tape was placed. Each of the other two groups consist of the same type of photographs, but with respect to a different man. In short, there are photographs of three PUCs said to have been detained from a vehicle by Bravo Troop and they were given the designation GB–1, GB–3 and GB–4 respectively.
1561 Person 16 was also shown three photographs of a dead Afghan male with an AK-47 variant weapon and, in the case of one photograph, an evidence bag which together comprise exhibit R105. Person 16 said, as to the dead Afghan male shown in those photographs:
   The person in these photographs looks like the young Afghan male I detained from the Toyota HiLux.
At the time he detained the young Afghan male, the male did not have an AK-47 variant weapon.
1562 Person 16 was asked whether he ever spoke to the applicant about the mission to Fasil. He made a claim not to be required to answer the question on the grounds of self-incrimination. I upheld his objection and after giving him the information required by s 128(3) of the Evidence Act, he indicated that he was willing to give the evidence and I granted him a certificate.
1563 Person 16 said that he spoke to the applicant within a day or so of the mission. He said that they crossed paths in the hallway of the accommodation at Camp Russell Barracks. Person 16 said to the applicant:
   What happened to that young fellow that was shaking like a leaf?
The applicant said in response:
   I shot that cunt in the head. Person 15 told me not to kill anyone on the last job, so pulled out my nine-mill, shot the cunt in the side of the head, blew his — blew his brains out, and it was the most beautiful thing I've ever seen.
1564 Person 16 said that he was shocked by what the applicant said. He said that he did not report the conversation to the relevant authorities because there was a code of silence within the regiment "as to these things occurring". Person 16 said that he feared retribution and that to have reported the matter would have been a "career-ending move". He considered that he would have been ostracised and that his personal safety would have been in danger by making ​such allegations against someone so influential. He thought it best to keep quiet and move on with life.
1565 Person 16 said that the applicant had a formidable reputation within the SASR as a no-nonsense individual, "pretty straight, hard-hitting individual who didn't suffer fools".
1566 Person 16 said that there were two camps in the SASR in terms of the applicant's reputation. There was a "for camp" and an "against camp". The "against camp" saw the applicant as belligerent and a bully who would trash and tarnish other people's reputations.
1567 Person 16 said that he personally was never bullied by the applicant and although Person 10 had told him that he was bullied by the applicant, Person 16 did not witness any physical bullying.
1568 I turn to identify briefly the matters raised with Person 16 in cross-examination because they form the basis of a submission by the applicant that Person 16 was an unreliable witness.
1569 Person 16 identified Persons 6 and 7 as members of the "against camp" in relation to the applicant and he added that Person 10 had told him that he had been bullied by the applicant. He identified Persons 5, 11, 35, 39 and 56 as members of the "for camp".
1570 Person 16 was a medic. He attended to injuries suffered by members of the ADF and by Afghans. He said it was difficult to observe dead Afghans. He said that there were times when he feared for his own life. He has suffered nightmares. He had a psychological debriefing when he returned to Australia in November 2012. He has received psychological support. He was not on any medication at the time he gave evidence, although he has been prescribed medication previously. He stopped taking that medication because it did not agree with him. He was taking that medication for nightmares. Some of those nightmares related to his time in Afghanistan. He said that considers that he is functioning well.
1571 Person 16 participated in excess of 90 missions during Rotation 18 in 2012 in Afghanistan.
1572 Person 16 denied that he had previously said that the mission he gave evidence about had occurred on 21 October 2012. He had always maintained that the mission was the last mission.
1573 Person 16 agreed that he could not recall who was on the helicopter with him on insertion other than Persons 26 and 34 or where the helicopter landed or who disembarked from the helicopter before him.
​1574 Person 16 said that the Toyota HiLux was on a road coming towards Person 34 and himself. It was not on an open road and it was not coming from a compound. He was unable to recall the order in which the four men disembarked from the motor vehicle. He estimated their distance from him when they disembarked from the vehicle to have been approximately 10 to 15 metres.
1575 Person 16 could not recall who was covering him when he was searching the two Afghan males. Someone would have been covering him as that was standard operating procedure. Person 16 said that the Toyota HiLux was coming towards the compounds.
1576 Person 16 agreed that the first time he described the younger Afghan male as having a baby face was in his evidence in cross-examination. He estimated the person to be in his late teens. He said that he was a "sort of older adolescent male". Person 16 could not remember the colour of the robes the younger Afghan male was wearing.
1577 Person 16 does not know what happened to the two Afghan males that Person 34 dealt with.
1578 Person 16 said that the main compound that he went to where there were PUCs probably had up to 10 or so PUCs in it "taking a stab". He could only remember Persons 57 and 86 being there. He said he also had a recollection of Person 53 being there. He wrote down other names on a post-it note. In the end, he clarified that he could recall the names of six persons who were in that compound. He did not participate in the tactical questioning and he sat in the shade for possibly "up to an hour or even longer". He could not remember the turn he was on leaving Fasil.
1579 Person 16 remembered a call over the radio advising that a wall was going to be blown up.
1580 When tested about his recollection of the applicant's call on the radio advising of two EKIAs, Person 16 indicated that he could not remember whether the applicant used his call sign.
1581 Person 16 said that it had always been his recollection that he heard the call over the radio of "two EKIAs" about 15 to 20 minutes after he had handed the two PUCs over to the applicant and Person 11. He does not have a recollection of saying that it was approximately 30 to 60 minutes.
1582 Person 16 said that it would not have been standard operating procedure for an assault team to handle PUCs whilst it was performing its function as an assault team.
1583 Person 16 was unable to say whether the three PUCs shown in exhibit R104 were the three men from the Toyota HiLux.
​1584 Person 16 said that he had seen the photographs of the dead Afghan male with the AK-47 variant weapon which comprise exhibit R105 in late 2018, in December 2021/January 2022 and then on an occasion within the week before he gave evidence. He reiterated that the male shown in the photographs looked very much like the young man he detained. When pressed by the cross-examiner, he said that he stuck by his statement that he is highly confident that this was the young man he detained. He said that he had a high degree of confidence that this was the person. He said that the more time he had to reflect and ruminate on detaining the young man, the more confident he was that this was the person who was in the Toyota HiLux. He accepted that there was always a slight possibility that it was not.
1585 Exhibit R33 consists of seven photographs. The first three photographs are of the young Afghan male shown in exhibit R105. The other four photographs are of an older Afghan male. Person 16 could not identify the person in the photographs who I have described as an older Afghan male. Person 16 agreed in cross-examination that he had been shown a number of photographs of young Afghan males in preparing to give his evidence in order to ascertain who was the Afghan male that he said he passed over to the applicant's patrol.
1586 An outline of evidence of Person 16 had been filed by the respondents and it became exhibit A65. The outline of evidence refers to the last mission of Rotation 18 as occurring on 21 October 2012 and the events involving the interdiction of the Toyota HiLux as having occurred on that date. That outline was amended and the amended outline of evidence became exhibit A67. The only amendment to the outline was with respect to the date of the mission which was changed from 21 October 2012 to 5 November 2012. Person 16 agreed that the fact that he detained an Afghan male in addition to the Afghan adolescent or young Afghan male is not referred to in his outline of evidence. He agreed that he estimated the period of time between when he handed over the adolescent and when he heard the applicant say over the radio "two EKIAs" in his outline at 30 to 60 minutes. In cross-examination, Person 16 agreed that he had an "index" of suspicion that the young Afghan male had been killed when he heard the call concerning two EKIAs. It was put to Person 16 that the conversation he had with the applicant was "something that you've imagined". He denied that. He said this conversation "100 per cent happened and his reply shocked me to the core and that's why I remember it".
1587 With respect to the details of his conversation with the applicant, Person 16 was cross-examined about the difference between his evidence-in-chief when he referred to "young fellow" and the reference in his outline of evidence to "young bloke". He said that from ​memory it was "young bloke". He was cross-examined about the difference between his evidence-in-chief in which he referred to the applicant speaking about shooting the young Afghan male "in the side of his head" and the statement in his outline of evidence that the applicant had said he had shot him "in the head". He said that he had always maintained that the words used were "in the side of the head". He was also cross-examined on the difference in what the applicant said he had been told by Person 15 and the difference between his evidence-in-chief "not to kill anyone on the last job" and the outline of evidence "not to kill any c***s on that job".
1588 Person 16 was asked about the change of date in the amended outline of evidence. He agreed that he was told that the last mission was on 5 November 2012. However, he said that he had always remembered the events he described as having occurred on the last mission. Person 16 agreed that the first time he related to anyone the conversation that he had with the applicant within a day or two of the mission to Fasil was in 2018.
1589 Person 16 was asked whether he had spoken to journalists about his conversation with the applicant within a day or two of the mission to Fasil. He objected to answering the question on the basis of self-incrimination. I upheld the objection and provided him with the information referred to in s 128(3) of the Evidence Act. He indicated that he was willing to give the evidence and I granted him a certificate.
1590 Person 16 spoke to the Mr McKenzie sometime in late 2018. Mr McKenzie contacted him. They met in Queensland in October or November 2018 for approximately an hour. Mr McKenzie said that he had heard about "the HiLux job". When pressed in cross-examination, Person 16 said that Mr McKenzie had said the mission in Fasil.
1591 Person 16 said that he did not have a strong recollection of his meeting with Mr McKenzie. He can recall that he was asking about a couple of suspicious deaths in relation to that mission. He said that Mr McKenzie knew that the applicant had made a statement describing one of those deaths as "a beautiful thing". Person 16 understood that he had an obligation not to speak to the media, but he did not disclose anything to Mr McKenzie other than what Mr McKenzie already knew.
1592 Person 16 and Mr McKenzie had a mutual friend who is a former member of the SASR and who is having some health difficulties.
​1593 Person 16 said that the last time he spoke to Mr McKenzie was approximately three weeks before he, Person 16, gave evidence on 11 February 2022. At this point, I refer to the closed Court reasons (at [210]).
1594 The applicant put to Person 16 that the evidence he gave to the Court in respect to the mission to Fasil was false and Person 16 denied that that was the case.
1595 Person 16 agreed that in 2018 he had been reading newspaper articles about various missions. He denied that he was influenced by those articles. He said that he was astonished at their degree of accuracy.
1596 Person 16 clarified his evidence about bullying. He had never seen the applicant bully any person, but he had seen and he had heard of the applicant ostracising Persons 8, 1 and 10. The applicant put to Person 16 that he was making up his evidence about seeing the applicant ostracise Person 8 and he denied that.
Other Evidence which the Respondents contend is Relevant
1597 Person 7 referred to the death of Sergeant Blaine Diddams in an engagement with enemy forces on the last mission of the previous squadron's deployment in or about July 2012. A number of days later, Person 7 was in the ready room preparing his equipment. He had a conversation with the applicant during which the applicant said that he was going to talk the talk and he wanted Person 7 to make sure that he (the applicant) walked the walk. The applicant walked up to Person 7 and was standing alongside him. Person 7 asked the applicant what was the matter. The applicant said words to the following effect:
   Before this trip is over, I'm going to choke a man to death with my bare hands. I'm going to look him in the eye, and I'm going to watch the life drain out of his eyes.
The applicant used hand motions as he said this. Person 7 in response said to the applicant:
   Come on, RS. We've got to switch on here. …
Person 7 has given evidence about a number of matters which are referred to elsewhere in these reasons. I have considered the whole of his evidence. I accept him as an honest and reliable witness.
1598 Person 2 remembers being on picket duty with the applicant shortly after the Chora Pass mission in 2006. The applicant said to Person 2 during the course of picket duty, the following:
   I just want to kill cunts. I don't give a fuck. I just want to kill cunts.
​I accept that evidence of Person 2.
1599 With respect to "throw downs", Person 19 said that during pre-deployment training at the Bindoon training area in preparation for Rotation 18, Person 35 and the applicant discussed if the requirement arose that you could put down a throw down weapon on a body and photograph them and it could be submitted as evidence that they were killed in the conduct of the assault. Person 19 was unable to remember the words used. He referred to other things that the applicant said concerning drones. The applicant said that any unmanned aerial vehicles would be pushed off station so that they were not observing the target area and "you will shoot the bad cunts".
1600 I refer to the findings I have made earlier in connection with pre-deployment training in 2012 (Section 3 of this Part).
1601 Person 4 said that during pre-deployment at the Bindoon training area in 2012, he recalls the applicant saying that the soldiers need to carry items on our equipment to validate engagements. I accept that evidence.
1602 Person 56, who was called by the respondents, was asked by counsel for the respondents whether he participated in a mission to Fasil on or about 5 November 2012. Person 56 objected to answering the question on the ground that the evidence may tend to prove that he had committed murder or a breach of s 268.70 of the Criminal Code. I held that there were reasonable grounds for the objection. I gave the information required by s 128(3) of the Evidence Act and Person 56 indicated that he was unwilling to give the evidence even with the benefit of a certificate. I ruled that I would not require Person 56 to answer the question under s 128(4) of the Evidence Act.
The Records Produced by the Department of Defence
1603 The OPSUM for the mission states that there were 2 EKIAs during the mission. There is no dispute that the two killings on the mission were as a result of actions of the applicant or members of his patrol in or around a compound.
1604 The OPSUM for the mission states that the interdiction of the Toyota HiLux by the SASR occurred at approximately 0920DE. The OPSUM states that there were three adult males and one adolescent male in the vehicle. The vehicle was searched and found to contain two RPG warheads (deconstructed) and they were assessed as prepared for use as an IED. The OPSUM states that the three adult males were subsequently detained by FE-Alpha and the adolescent ​male was released. The vehicle was destroyed in order to prevent its use by insurgents in the future.
1605 The three adult males are the men shown in the photographs which comprise exhibit R104. They were taken back to Tarin Kowt and photographed.
1606 The OPSUM for the mission states that the engagements by the applicant's patrol occurred at approximately 0945DE. The applicant's patrol was approaching a compound of interest. Two insurgents were observed moving rapidly into cover within the compound. One insurgent was wearing a chest rig and the other had an AK-47. The OPSUM states that due to the threat to the FE posed by a direct entry through the compound gateway, the FE elected to conduct an explosive entry to breach the compound's outer wall. This occurred and the FE made entry to conduct the clearance. The insurgents were engaged resulting in two dead insurgents. The following items were recovered: 1 x AK-47; 3 x AK-47 magazines (full); 1 x grenade, 1 x chest rig; and 3 x PCD all with batteries and SIM cards removed. The subsequent SSE of the compound revealed two Pakistani passports. The compound owner was identified during KLEs and paid compensation of $US600 for extensive structural damage to the compound and damage incurred to belongings during a rummage search by the FE. The entry in the OPSUM is as follows:
   APPROX 05 0945DE NOV 12. FE APPROACHING A COI IVO MGRS 42S TB 2558 0339 PID 2 X INS MOVING RAPIDLY INTO COVER WITHIN THE COMPOUND. 1 X INS WAS WEARING A CHEST RIG, THE OTHER WAS PID WITH AN AK47. DUE TO THE THREAT TO FE POSED BY A DIRECT ENTRY THROUGH THE COMPOUND GATEWAY, THE FE ELECTED TO CONDUCT AN EXPLOSIVE ENTRY TO BREACH THE COMPOUND'S OUTER WALL. EXPLOSIVE BREACH WAS CONDUCTED AND THE FE MADE ENTRY TO CONDUCT THE CLEARANCE. THE INS WERE PID AND ENGAGED UTILISING SAF RESULING IN 2 X EKIA. BDA RECOVERED 1 X AK47, 3 X AK47 MAGAZINES (FULL), 1 X GRENADE, 1 X CHEST RIG AND 3 X PCD (ALL WITH BATTERIES AND SIM CARDS REMOVED). THE GRENADE WAS BIP. ALL OTHER ITEMS WERE RECOVERED TO MNB-TK FOR TECHNICAL EXPLOITATION. SUBSEQUENT SSE OF THE COMPOUND ALSO LOCATED 2 X PAKISTANI PASSPORTS THAT WERE ALSO RECOVERED TO MNB-TK FOR EXPLOITATION. THE COMPOUND OWNER WAS IDENTIFIED DURING KLE AND PAID A TPS OF US$600 FOR EXTENSIVE STRUCTURAL DAMAGE TO THE COMPOUND AND DAMAGE INCURRED TO BELONGINGS DURING RUMMAGE SEARCH BY THE FE.
1607 As far as reports of EKIAs during the mission are concerned, there are three relevant reports in the Sametime chat record and they are of one EKIA at 1000DE, a report of two EKIA at 1029DE and a correction of a total of two EKIA for the mission at 1458DE.
​1608 A further report for the mission refers to the engagements at approximately 0945DE and it is in similar terms to the description of the explosive entry and the engagements in the OPSUM for the mission. There is a statement in para 8 to the effect that detailed intelligence development of this target area justified the clearance.
1609 In addition to the photographs which comprise exhibits R104 and R105, the following photographs are relevant. First, I have already mentioned the seven photographs comprising exhibit R33 and they include three photographs of the dead Afghan adolescent or young Afghan male shown in exhibit R105 and four of a second dead Afghan male. These are the photographs of the two insurgents said to have been killed on 5 November 2012. Secondly, there are a large number of photographs of PUCs taken at Fasil and produced by the Secretary, Department of Defence in response to Item 11(d) of the subpoena to the Secretary, Department of Defence dated 26 March 2021 (exhibit R184). Item 11(d) of the subpoena is as follows:
   11 The following documents relating to the mission involving the Applicant near Fasil on or around 5 November 2012:
       (d) SSE images, including those of the two EKIA;
1610 It is entirely reasonable to infer that the younger Afghan male would have been designated "GB–2". None of the photographs comprising exhibit R184 show a male designated as GB-2. They do show the males designated as GB–1, GB–3 and GB–4 respectively. It appears that the younger Afghan male was not photographed like the other PUCs. I so find. It was standard practice for every PUC or fighting age male who was not being taken back to Tarin Kowt to be photographed on target.
1611 The closed Court reasons refer to sensitive records produced by the Department of Defence (at [205]–[209]).
The Applicant's Evidence
1612 In addition to the records produced by the Department of Defence, the applicant relied on his own evidence and, so far as it went, the evidence of Person 11.
1613 The applicant denied that he was responsible for murdering an Afghan adolescent found in a Toyota HiLux on 5 November 2012. The applicant's patrol was a reserve assault team and the patrol used an explosive charge on that day. The applicant had nothing to do with interdicting a Toyota HiLux and he did not take custody of PUCs who had been in that vehicle. His patrol ​did not have any PUCs given to it on that day. The applicant said that he did not recall whether his patrol took PUCs while they were part of the assault of the compounds, but that his patrol certainly did not have any PUCs passed onto it. The applicant denied having the conversation with Person 16 attributed to him by Person 16.
1614 The applicant said that Person 15 was the officer in command of 2 Squadron and he never said to the applicant that he was not to kill any insurgents. The applicant agreed that he had a pistol, but he said that he never had an engagement in Afghanistan with his pistol. He described his pistol as a backup weapon to be used if his primary weapon failed.
1615 The applicant was in Shahir Usaz in the northern part of Uruzgan on 21 October 2012 and that mission is mentioned in Mr Masters' book. He described how he felt in those circumstances about the allegation of committing a murder at a difference place on that day.
1616 As I have said, the applicant's patrol on 5 November 2012 consisted of Persons 4, 11, 56 and another soldier (Person 79). The role of his patrol was to provide aerial fire support while the other teams landed and to act as a reserve assault team. His patrol, in fact, actually participated in the assault on the compounds. His patrol was the last to land and they inserted onto a road. He did not think it was a long period of time that they stayed in the air covering the other patrols on the ground before they landed. His helicopter got down to the compound set reasonably quickly and from that point, they inserted onto the road. His patrol went to join the assault force as the reserve assault force. The applicant said that the vehicle had been intercepted at that point. He said that the Toyota HiLux had been intercepted by a team and that Troop Headquarters, who were in his helicopter, got off and started to move towards the motor vehicle. He said that they pushed up towards the vehicle. His patrol as a reserve assault team went into the buildings and the village itself, into the compounds. The Toyota HiLux was no closer than 100 metres away. Once the applicant's patrol got into the buildings, they started to assault and secure the first compound on the side on which they approached and that compound would later become the PUC holding area. They cleared another (perhaps) three compounds before they came to the compound where they used the explosive charge. They identified two fighting age males inside the compound. They did a callout. Instead of coming out, the males ran back into the building and the applicant at that point decided that they would do an explosive breach because his concern was now that they had done that, they would ambush or attack his patrol. His patrol laid the explosive charges. Once the charge had exploded, the applicant's patrol entered the building. He described it as a large courtyard. The men that his ​patrol had seen were nowhere to be seen. His patrol had the engagements when they entered the first or second room. He did not recall whether both of the insurgents were engaged in the same room. He was not sure who had had the engagement. He said that he had possibly killed one of the two. He said that he did not want to say that he had done that and then find out he had not. He could not remember the identity of any member of his patrol that had an engagement on that day. His recollection is that they found military equipment after they had the engagements. He would probably have advised others by radio of the engagements.
1617 The applicant did not have any recollection of the SSE process that was performed on the bodies. The bodies may have been moved to undertake the SSE process. The applicant had no recollection of whether that had occurred or not.
1618 The applicant was quite clear in his evidence that a patrol had operated as a vehicle checkpoint and had stopped the Toyota HiLux and that Troop Headquarters had moved up the road to assist them.
1619 The applicant said that the men who had been in the Toyota HiLux were brought into the PUC holding area. He said that there were 10 to 20 PUCs, but no-one ever pointed out to him which ones had come from the Toyota HiLux.
1620 The applicant gave evidence in closed Court which the Commonwealth subsequently indicated could be disclosed publicly. It is as follows.
1621 The OPSUM for the mission was prepared at 8.30 pm local time on 5 November 2012. The applicant said that it was prepared in the same way as the other OPSUMs about which he gave evidence. The applicant said that on this particular mission, there were additional elements from the squadron that were rotating in as this was one of the last missions, if not the last mission. Those elements were the troop hierarchy and some patrol commanders from Squadron 1 or Squadron 3. They were there to get an understanding of the atmospherics and they were taken through the procedure "or the way we conducted procedures at the time". The target for the mission was Objective Sole Inheritance. Wheels-down for Tum 1 was 0913DE. The reserve group would have landed minutes after that.
1622 The applicant's patrol had nothing to do with the interdiction of the Toyota HiLux motor vehicle. His patrol was not given an adolescent boy and he said that he did not see an adolescent boy the whole time he was in Fasil. He did not kill an adolescent boy.
​1623 The applicant recalled seeing the Toyota HiLux because when the applicant's patrol got off the helicopter, Troop Bravo and the troop headquarters moved to support the team that were clearing it, whereas the applicant and his patrol went into the assault to start clearing buildings. As I have said, he estimated that the closest he was to the Toyota HiLux was 100 metres. He had nothing to do with the Toyota HiLux or the occupants of the Toyota HiLux.
1624 The applicant agreed in cross-examination that he was on the same helicopter to Fasil as Persons 26, 16 and 34. The applicant said that as a reserve assault team, his helicopter would orbit the target while people were landing. They would provide aerial fire support and would circle until all call signs had made it to the buildings. His helicopter would have landed a couple of minutes, five minutes maximum, after the other helicopters landed.
1625 Wheels-down for Turn 1 at Fasil was 0913DE. The OPSUM for the mission indicates that the Toyota HiLux was interdicted at 0920DE. The applicant agreed that the Toyota HiLux would have been interdicted very close to the point in time at which he landed. The applicant was not aware of who PUC'd the occupants of the vehicle. From the documents, he has an understanding that all four occupants of the vehicle were PUC'd. The three adult occupants of the vehicle were taken back to base (see closed Court reasons at [213]).
1626 The applicant agreed that it would make sense that the second PUC would have been the fourth occupant of the vehicle. He said that one would assume that if the fourth occupant of the vehicle had been PUC'd, but was not going to be taken back to base, it would be standard procedure for a photograph to be taken of that person. If they had been PUC'd, it would make no difference that the person was an adolescent male to whether or not a photograph was taken of him. The applicant agreed that typically, the fact that a PUC is released is ordinarily a matter of "utter indifference" for the purposes of post-mission reporting. All PUCs are released if they are not taken back to base.
1627 The applicant was taken to exhibit R33 which are seven photographs of the two EKIA referred to in the OPSUM for the mission. The evidence bag referring to G23–1 refers to the third member of the applicant's patrol (Person 56) and signifies that that person undertook the SSE process. That person is not necessarily the person who engaged the dead male. The bag includes the notation "VRI COI NW CORN RM2". The evidence bag for the younger Afghan male says "21–2" and that indicates the applicant and that means that that is his second bag. His evidence bag refers to "VRI compound". The evidence bag refers to "[something] corner ​2". The applicant agreed that the notations on the two bags are consistent with the engagements happening in the same room.
1628 At 1000DE on the day of the mission, a radio call advising of one EKIA had been made.
1629 The only EKIAs on the mission were those involving the applicant's patrol and it is likely, in those circumstances, that a member of his patrol advised the Ground Force Commander that there had been one EKIA. There was then an explosive entry and a radio call reporting an additional two EKIA. That report is 29 minutes after the report of one EKIA. I refer in this context to the closed Court reasons (at [211]).
1630 The radio calls were clarified later in the day at 1458DE indicating a double handling of the EKIA count and that the total for the mission was two EKIA. It was suggested to the applicant in cross-examination that his patrol had advised of the first EKIA at about 10 o'clock and then about half an hour later had advised of an additional two EKIAs. He denied that was necessarily the case. The circumstances did suggest to him that someone had made a mistake. He did agree that it was very unlikely that anyone would have advised of an EKIA that did not happen. The applicant did not know what happened. He agreed that if the EKIAs happened in the same room, it is unlikely that someone would have taken the initiative and just advised of the EKIA for which they were responsible.
1631 The applicant could not remember whether the Afghan younger male shown in exhibit R33 was carrying the AK-47 rifle. He agreed that it could have been placed on him if it was found in the area around the body. He denied that that the two bodies had been staged to make it look like an engagement. I refer to the closed Court reasons (at [212]).
1632 The applicant believed that the entry at 1000DE in the Sametime chat record referring to a single EKIA was an error. He believed that his patrol would have reported the two EKIA after the engagements. He points to the fact that the Troop Alpha is responsible for the transmissions in the Sametime chat record and the applicant did not know how he passed the earlier message on and why a subsequent correction was required. The message was, in any case, changed a half an hour or so later to two additional EKIA before a final total of two was communicated at 1458DE.
1633 The applicant identified the respondents' case to be that the applicant's patrol made an explosive entry before 10.00 am and that one person had died and this was the EKIA reported ​at 10.00 am and that a second separate killing occurred in the same compound between 10.00 am and 10.29 am and that this was reported at 10.29 am.
Person 11
1634 Person 11 did not recall the mission to Fasil on 5 November 2012. Person 11 was on Turn 1. He did not recall seeing the OPSUM for the mission prior to it being shown to him in the course of evidence and he had no role in the preparation of the document.
1635 Person 11 was cross-examined about his recollection of the mission to Fasil. He agreed with the proposition that he had almost no recollection of the mission. He was asked a series of questions about the mission and up to a certain point, he indicated on each occasion that he had no recollection of the matter put to him occurring.
1636 It was put to Person 11 that the person shown in the photographs comprising exhibit R105 was the person the applicant shot in the head in the compound in respect of which the applicant's patrol had made an explosive entry. Person 11 said he was not aware of any engagement that the applicant had. Person 11 rejected the suggestion that after the Afghan male shown in the photographs was shot, an AK-47 was placed on his body and photographed to give the false impression that he was armed at the time of his death.
The Applicant's Challenges to Person 16's Evidence
1637 The applicant challenged two important aspects of Person 16's evidence.
1638 First, the applicant challenged Person 16's identification evidence, that is to say, his evidence that the young Afghan male shown in the photographs comprising exhibit R105 and produced by the Department of Defence as one of the two "EKIA" on the mission, is the young Afghan male who he PUC'd and handed over to the applicant. Secondly, the applicant challenged Person 16's account of his conversation with the applicant within a day or two of the mission.
1639 In addition, the applicant challenged Person 16's reliability as a witness having regard to a number of matters.
1640 As will become clear, the identification evidence of Person 16 is critical. At the risk of some repetition, that evidence was as follows.
1641 Person 16 did not recognise any one of the three adult Afghan males taken from the motor vehicle and shown in exhibit R104. He identified the call sign on the tags or pieces of tape shown in those photographs as that of Person 26, the Troop Bravo. Person 16 said initially that ​the Afghan adolescent or young Afghan male shown in the three photographs which are exhibit R105 looked like the young Afghan male he detained from the Toyota HiLux.
1642 Person 16 was asked about when he had seen the photographs of the three adult Afghan males which is exhibit R104. As I understood his evidence it was that he saw those photographs in December 2021 or January 2022 and then approximately three days before he gave evidence. He was asked when he saw the three photographs of the dead Afghan adolescent or the young Afghan male which are exhibit R105. As I have said, his evidence was that he first saw those photographs in 2018 and then again in December 2021 or January 2022 and again, approximately three days before he gave evidence.
1643 Person 16 was pressed on whether he was, in fact, able to identify the young Afghan male in exhibit R105 as the young Afghan male he detained on 5 November 2012. When it was put to him that he was unable to discount the possibility that the man shown in the photographs was not the man he detained, he said that he would stick by his statement saying that he was highly confident that the person shown in the photographs was the young male he detained. He said that the more he thought about it, the more confident he is that that was the person in the Toyota HiLux. He accepted there was always a slight possibility that it is not.
1644 It seems that Person 16 saw the photographs of the PUCs which comprise exhibit R184. In closed Court, he agreed that he had been shown a number of photographs of Afghan males by the respondents in order to ascertain the identity of the Afghan male he handed over to the applicant's patrol.
1645 To summarise, the applicant's submission is that Person 16's identification evidence is unreliable for the following reasons. First, Person 16 gave evidence that he could not recall how many dead Afghan males he observed during the deployment in 2012. He said that he accompanied SASR patrols on in excess of 90 missions in 2012. The applicant submits that it is improbable, in those circumstances, that 10 years after the event Person 16 could recall the face of a man he searched and handcuffed. Secondly, the applicant submits that the young Afghan male shown in exhibit R105 is "most probably" older than 15 to 18 years old. Furthermore, Person 16 agreed that the relatively detailed description of the young Afghan male he gave in evidence was the first time he had given that description. The applicant submits that it is likely that Person 16's viewing of the photographs has substantially compromised his identification evidence.
​1646 The applicant submits that Person 16's evidence about the alleged confession by the applicant is unreliable for the following reasons. First, he points to the fact that Person 16 did not report the conversation. Person 16 said that the first time he told any person about the alleged conversation was in 2018. He was not permitted to provide any further information about the circumstances to this Court. Mr McKenzie raised the subject matter of the conversation with Person 16 in 2018, but it is unclear whether the conversation between Mr McKenzie and Person 16 wherein Mr McKenzie told Person 16 that he knew about his alleged conversation with the applicant, occurred before or after Person 16's interview with the IGADF Inquiry. The applicant submits that it is unlikely Person 16 would not have reported the conversation if he had genuinely believed that he had been the recipient of a genuine confession of murder by the applicant. Secondly, the applicant submits that it is unlikely that he would have made a confession in the terms suggested by Person 16's evidence. The submission was "that sort of lyrical remark is inconsistent with his demeanour in this Court and even with the sort of remarks attributed to him by his staunchest detractors". The applicant submits that the lapse of time is so considerable that it is entirely possible that Person 16 has confused different conversations with different people and context. Thirdly, the subject matter of the conversation is uncorroborated in that there is no evidence that Person 15 ever expressed any concern about the number of killings to the applicant. Furthermore, even if Person 15 had made such a remark, there is no explanation as to why the applicant would immediately disobey an order by Person 15.
1647 The applicant again calls in aid the observations of McLelland CJ in Eq in Watson v Foxman at 319:
   … Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
1648 In addition to these submissions, the applicant made a more general, albeit overlapping, submission that Person 16's recollection of events in November 2012 was "patchy, inconsistent and generally unreliable". He put forward 20 matters in support of that submission. Of the 20 matters, 14 seem to me to be put forward as gaps in Person 16's recollection and an indication that his recollection was, as the applicant submits, "patchy". Eleven of the 14 matters can be ​stated in the terms put forward by the applicant in the sense Person 16 indeed did not have a recollection about the matter.
1649 The 11 matters Person 16 could not recall are as follows:
    (1) The number or identity of persons on the helicopter at insertion (other than Persons 26 and 34);
    (2) Where the helicopter landed and who disembarked first;
    (3) Who covered him whilst he conducted his search of the two individuals from the vehicle, the provision of cover being part of standard operating procedure;
    (4) What happened to the other two individuals from the Toyota HiLux. Person 34 may have searched them and may have handed them over, but Person 16 was not sure;
    (5) In which vehicle the applicant's patrol arrived. Person 16 assumed they had inserted with him, but did not recall;
    (6) Which members of the applicant's patrol were present when he handed over the PUCs other than the applicant and Person 11. Person 16 believed there were most likely other persons present, but had no recollection;
    (7) The names of the Australians present at the compound to which he went after interdicting the vehicle. He initially thought maybe five or six, but could only identify Person 57 and Person 86. Later he identified three other named soldiers plus the incoming Alpha whose name he could not recall. At this point he said he definitely recollected those six persons being present, but that there were more;
    (8) How long he spent waiting in the shade at the compound with multiple prisoners and other Australian soldiers. He stated that it could have been longer than an hour;
    (9) Whether the applicant used his name or call sign during the radio call;
    (10) Whether he found out about the explosive breach before or after the radio call from the applicant; and
    (11) Which helicopter he left on and who accompanied him and the number of helicopters.
1650 There were three further matters (making up the 14) where Person 16 did not have a recollection or a complete recollection, but not quite in the terms put forward by the applicant. Those matters are as follows:
    (12) The applicant submits that Person 16 could not recall from which direction the Toyota HiLux had come. Person 16's evidence when he was asked about the direction the Toyota HiLux was travelling from, was that he would have to look at a map and see the directions. He then said that the Toyota HiLux was coming towards him and Person 34 and that he did not remember the actual direction that he was facing;
    (13) The applicant submits that Person 16 could not recall where the persons in the Toyota HiLux were sitting, nor the order in which they disembarked. Person 16 could not recall the order in which the occupants of the vehicle disembarked. He said from memory there were two in the back and two in the front; and
    (14) The applicant submits that Person 16 could not recollect the number of PUCs in the compound and said that he "would be taking a stab, but there — there was a few. I — I would say you know, maybe up to 10 or so". Person 16 also said that he could not recall the exact number and that:
   There was — there was more than a handful, definitely, yes.
1651 The remaining six matters were matters where the applicant's submission is to the effect that Person 16's evidence was inconsistent or was improbable, having regard to other evidence. I address each of those matters.
1652 The first matter is the error as to the date of the mission which was reflected in the respondents' initial pleadings and in Person 16's first outline of evidence. The Particulars of Truth with respect to this incident in their original form alleged that the mission to Fasil took place on 21 October 2012. The respondents applied to amend their Particulars of Truth to allege that the incident took place on 5 November 2012. The circumstances in which that application was made are set out in Roberts-Smith (No 5) at [128]–[141]. I allowed the amendment on condition that either a supplementary outline of evidence from Person 16 was obtained or the respondents' solicitor provided a statement that he had spoken to Person 16 and been told by him that he is, or maybe, wrong about the dates. The amendment was subsequently made. I was told by the respondents' counsel in closing submissions, and I accept, that an affidavit of the respondents' solicitor was sworn and that the deponent deposes to the fact that Person 16 was not the source of the date in the pleadings or outline, that Person 16 did not remember the date and only remembered that it was the last mission and that Person 16 was not responsible for the date of 21 October 2012. The applicant referred to various explanations proffered by Person 16 in the course of his evidence about the date. This matter has no bearing on my view ​as to Person 16's honesty or his ability to recall events. I accept his evidence that he has always recalled that the events he outlined occurred on the last mission.
1653 The second matter is said to be an inconsistency between Person 16's oral evidence and his outline of evidence concerning the period of time which elapsed between the point at which he handed over the two PUCs he had taken to the applicant's patrol and the point at which he heard the applicant provide a report over the radio of two EKIAs. In his oral evidence, he said that the period of time was about 15 to 20 minutes. The outline of evidence of Person 16 said that the period of time was approximately 30 to 60 minutes later. This difference was put to Person 16 in cross-examination and he said that approximately 30 to 60 minutes later was not his recollection. He agreed that potentially his recollection might have been different at an earlier point in time, but his recollection at the time of giving evidence was 15 to 20 minutes. This difference is a matter I must take into account in assessing the accuracy and reliability of Person 16's recollection.
1654 The third matter is that Person 16 said that when he heard the radio call from the applicant of two EKIAs, he had a "strong index of suspicion" that the young Afghan male had been killed. The applicant submits that this is improbable if at roughly the same time, Person 16 agrees he heard a radio call about an explosive entry, that is to say, he knew an engagement had occurred. Person 16's recollection of the chronology is unclear. As I will explain, it is more likely he handed the PUCs to the applicant and Person 11 after the explosive breach.
1655 The fourth matter is that there was a variation in Person 16's evidence concerning the conversation he had with the applicant between what is in his oral evidence and what is set out in the outline of evidence. The two particular differences were the difference between "in the head" and "in the side of the head" and an expletive attributed to Person 15. Person 16's evidence was that he had always maintained that the applicant had said "in the side of the head". Again, these are matters that must be taken into account in assessing the accuracy and reliability of Person 16's recollection.
1656 The fifth matter is that there were other differences between Person 16's oral evidence and the outline of evidence. First, the outline of evidence simply states that after Person 16 had searched the Afghan adolescent, or young Afghan male, he handed the adolescent over to the applicant's patrol for questioning. There is no mention of Person 11 as there was in his oral evidence. There is no reference in the outline of evidence to Person 16 handcuffing the two PUCs and, in fact, there is no reference to a second person being handed over to the applicant's ​patrol as there was in his oral evidence. I do not consider that in the context of an outline of evidence and the general way in which the outline is framed, any of these differences or omissions are significant.
1657 The final matter is that Person 16 said that when he spoke to Mr McKenzie, Mr McKenzie already knew about the applicant describing a death as a "beautiful thing". If the only parties to the conversation were Person 16 and the applicant as Person 16 contends, and if Person 16 had not told anybody about the conversation, it is difficult to see how Mr McKenzie could have said such a thing. The evidence is not clear whether Mr McKenzie spoke to Person 16 before or after his interview with the IGADF Inquiry. The evidence does not provide an explanation.
1658 The applicant submits that there is a possible explanation for the difficulties Person 16 encountered in recalling events accurately. Person 16 has suffered emotional trauma and he gave evidence of feeling upset at the loss of human life in Afghanistan and his belief that senseless deaths were occurring. Person 16 said he found it difficult to observe the bodies of those killed in combat. He had experienced flashbacks and nightmares concerning his time in Afghanistan for which he had at times been prescribed medication.
1659 I will return to these criticisms by the applicant when I come to address the appropriate findings of fact.
1660 There are four key aspects to Person 16's account of events at Fasil and they are as follows: (1) the PUCing of a young Afghan male who had come from the Toyota HiLux; (2) Person 16 handing that young Afghan male over to the applicant; (3) the conversation between Person 16 and the applicant one or two days after the mission; and (4) Person 16's identification of the dead young Afghan male shown in exhibit R105 as the young Afghan male who had come from the Toyota HiLux.
1661 The applicant submits that a proper appreciation of the chronology of events or timing of events means that events could not have occurred as they were described by Person 16 and that, in turn, means that his evidence should be rejected.
1662 Assuming for present purposes that the OPSUM for the mission is accurate, the interdiction of the Toyota HiLux occurred at approximately 0920DE. If it is assumed the PUCing procedure undertaken by Person 16 took a few minutes and no more than 5 or 10 minutes at most, then the Afghan adolescent has been handed over at say 0930DE and the applicant and Person 11 have the Afghan adolescent in their custody (somewhere) during the explosive entry to the ​compound. The applicant submits that that seems unlikely, particularly if the older PUC is treated one way and the young Afghan male is treated differently, that is, the former is part of the PUC group and is later taken back to Tarin Kowt. The applicant submits that there is a further difficulty with Person 16's account. He says that it was between 15 to 20 minutes after handing over the PUCs that he heard the radio call of the applicant reporting two EKIAs. If that is correct, it is difficult to account for FE-A's report of "2 EKIA" at 1029DE. On Person 16's account, FE-A's report should have been well and truly before that time.
1663 It is necessary to note at this point potential ambiguities in the evidence about when the radio call that a wall was to be blown up came through. Was it before or after Person 16 handed over the PUCs to the applicant's patrol? Was it before or after hearing the applicant report on the radio that there were two EKIAs? As to the latter, it is not plausible that the radio call reporting "2 EKIA" would have gone out before the call advising that a wall was going to be blown up? That is neither party's case. The respondents' case is that the two PUCs were handed over after the explosive entry at approximately 0945DE and one killing occurred before 1000DE and another killing occurred before 1029DE. The applicant's case as revealed by the applicant's evidence is that there were two engagements and they were reported. The error lies in the report at 1000DE. Therefore, assume the call about explosive entry was before the PUCs were handed over. That leaves the Court with the evidence that Person 16 could have handed over the PUCs before or after the call about explosive entry; Person 16 does not remember.
1664 If it is assumed that the two PUCs were handed over to the applicant's patrol after the explosive entry, a question then arises about what Person 16 was doing between the interdiction of the Toyota HiLux at approximately 0920DE and a short time after 0945DE. It is possible the detention of PUCs and concurrent discovery of IED componentry might have taken some minutes, but a period of in excess of 25 minutes seems a long period, particularly when Person 16 said in his evidence the applicant came over a short time later after IED componentry had been found in the Toyota HiLux.
1665 As I have said, the respondents' case is that one of the deceased Afghan males in exhibit R33 was shot before 1000DE and the other was shot before 1029DE. Person 16 gave evidence that he heard the applicant report "2 EKIAs" and unless there is an error by FE-A (and that is possible), the most probable inference is that the applicant's report heard by Person 16 was at 1029DE. The applicant may nevertheless have also made the earlier report at 1000DE. The older EKIA is not one of the PUCs who was photographed and nor is he one of the three adult ​males taken from the Toyota HiLux. How he came to be part of events on 5 November 2012 is unknown to the respondents and, in a sense, illustrates that not all of the relevant information is available. Assume the other male in exhibit R33 is an insurgent and he was killed where his body is photographed, then the respondents' case is that the young Afghan male was taken into the room and shot and, therefore, unlawfully killed. The second possibility is that the older male's body was moved into the room which means there is a possibility the young Afghan male was killed first. If the call at 1000DE was not a mistake, in other words, the mistake was made at 1029DE in reporting two rather than one additional EKIA, then the likelihood is that the older male was an insurgent and was killed first. If the 1000DE report is not a mistake by FE-A or a deliberate ploy by the applicant, then the likelihood is that the older Afghan male was killed in an engagement and later the young Afghan male was killed. Otherwise, if they were both engagements, or both executions made to look like engagements, they would have been reported at the same time in the normal course. There is a further point suggesting the older male was killed in a legitimate engagement and that is that the applicant chose to make an explosive entry into the compound. That is unlikely to be fabricated and, indeed, Person 16 heard the radio call announcing that an explosive entry was to take place. That suggests a risk of danger was apprehended by the applicant.
1666 If the respondents' case is correct, then the official records have been falsified. It is necessary to consider the extent to which the official records would have needed to have been falsified in order to assess the probabilities of that occurring.
1667 The OPSUM for the mission may be taken as an example.
1668 The report of the engagements in the compound to which explosive entry was made contained in the OPSUM would have emanated, it is reasonable to infer, from the applicant's patrol. The applicant could have falsified that report. The report of the interdiction of the Toyota HiLux in the OPSUM stands differently. The applicant's patrol was not in charge of the interdiction of the Toyota HiLux or in securing and detaining the PUCs taken from the vehicle or, more generally. It is reasonable to infer that Troop Headquarters through Troop Bravo was in charge of the interdiction of the Toyota HiLux and the PUCs taken from the vehicle. That was the call sign on the tag or pieces of tape. The applicant submits that the appropriate inference is that someone connected with Troop Bravo would have prepared the report about the interdiction of the vehicle and would have made the statement that the adolescent taken from the vehicle was released. There is a further issue as to whether one infers that the person who provided the ​statement had direct knowledge of the fact, or it may be the person inferred the conclusion from circumstances, including perhaps an inability to find the adolescent male.
The Respondents' Submissions
1669 The respondents submit that the four key elements of its case are established: (1) Person 16 detained a young Afghan male after the interdiction of a Toyota HiLux; (2) the young Afghan male who was detained by Person 16 was handed over by him to the applicant; (3) the applicant and Person 16 had a conversation one to two days after the mission to the effect outlined by Person 16 in his evidence; and (4) the male detained by Person 16 is the dead Afghan male shown in the photographs comprising exhibit R105. The respondents' case involves an allegation of a very callous murder, having regard to the dead male's age and the fact that the older male also detained by Person 16 and handed over by him to the applicant was apparently dealt with in accordance with procedure and later taken back to Tarin Kowt whereas the younger male was separated and murdered. A possible explanation is that his age meant that he presented the only opportunity to kill, but otherwise disguise it, in other words, it was likely that the young Afghan male was otherwise going to be released.
1670 The respondents put forward eight reasons in support of the case they advance.
1671 First, Person 16 identified the photographs of the younger Afghan male as the male he had detained from the Toyota Hilux and subsequently handed over to the applicant. There were two Afghan males killed during the mission to Fasil on 5 November 2012. Photographs of their deceased bodies were produced by the Department of Defence and they became exhibit R33 (both bodies) and exhibit R105 (the same photographs, but only those of the younger Afghan male).
1672 The elements of Person 16's identification evidence are as follows:
    (1) in his evidence-in-chief, Person 16 said that the young Afghan male in the photographs (exhibit R105) "looks very much like the young … man that I detained";
    (2) in his evidence-in-chief, Person 16 was shown the photographs of the three other individuals in the Toyota HiLux who were PUC'd (exhibit R32) and he was unable to identify them, or any one of them, as males who were in the Toyota HiLux. He explained that what stood out to him about the young Afghan male was "how terrified he appeared" to be;
    (3) in cross-examination, Person 16 said he was "highly confident" the male in the photograph was the young Afghan male and he was able to match his memory of the features of the male with features shown in the photographs, namely, a beard not well formed, same size and stature, a little bit of weight on his belly and a youngish looking face; and
    (4) in cross-examination when it was put to Person 16 that his memory was affected by seeing the photographs, he said that the more he thought about it, the more confident he was that the photographs showed the young Afghan male who was in the Toyota HiLux, although he accepted that there was always a slight possibility it was not the male.
This identification evidence of Person 16 is very important and I will return to it.
1673 Second, the respondents submit that the only plausible explanation on the evidence for the absence of any photograph of the young Afghan male who was taken from the Toyota HiLux is that he was unlawfully murdered. There are a number of matters which are said to form the basis of this submission.
1674 The evidence of Person 16 established that a young Afghan male was removed from the Toyota HiLux and PUC'd by Person 16. It is to be inferred that he was given the designation "GB-2" and as having been taken from the vehicle on the road. It is to be inferred from the fact that no photograph of the young Afghan male has been produced by the Department of Defence that no photograph of the young Afghan male was taken. It seems to me that the respondents overstate the position in contending that the only plausible explanation for the absence of a photograph of the young Afghan male is that he was murdered.
1675 Third, it is part of standard operating procedure that all PUCs taken are photographed on target except if they are to be taken back to Tarin Kowt in which case they are photographed at Tarin Kowt. The overall or final inference to be drawn from the circumstances is that the young Afghan male was PUC'd by Person 16 and marked by Person 26 "GB-2" and then not passed on to or, at least, not processed by the PUC-handling team in the usual way. That seems to me to be the inference that should be drawn, having regard to the circumstances.
1676 Fourth, the respondents submit that the EKIA reported by the Ground Force Commander at 1000DE followed a radio call by the applicant or a member of his patrol. The applicant agreed that this was likely. This circumstance goes some way toward establishing that the deaths of ​the two Afghan males shown in exhibit R33 could not have occurred at the same time and, therefore, in the manner described by the applicant in his evidence and in the manner described in the OPSUM for the mission. The alternatives are that the first call (assuming that the Ground Force Commander based his call on a call from one of the assault teams) was not made by the applicant or a member of his patrol (it seems to me that this is so unlikely it should be excluded) or it did come from the applicant or a member of his patrol and it was in error in describing any EKIA (this seems very unlikely) or in describing one EKIA and not two EKIA (this seems unlikely). Another possibility is that the Ground Force Commander reported on the Sametime chat 1 EKIA at 1000DE when he should have reported 2 EKIA. These are possibilities, but the point of substance is that if the report of 1 EKIA at 1000DE is accurate, then the accounts in the OPSUM and incident reports respectively cannot be correct.
1677 Fifth, the respondents submit that if the Court accepts Person 16's evidence that he handed over two PUCs to the applicant, including the young Afghan male, then the applicant's denial that that occurred is a deliberate lie and the lie can only be explained as evidence of a consciousness of guilt. It cannot, the respondents submit, be explained on any other basis.
1678 Sixth, the respondents submit that the specific reference in the OPSUM for the mission to the adolescent male being released is in itself suggestive of guilt. The applicant gave evidence that PUCs who are not taken back to Tarin Kowt are left on site and "released" (i.e., the handcuffs are removed) by the women and children after the FE has left. In a sense, all PUCs not taken back to Tarin Kowt are released and this unremarkable circumstance is not the subject to specific post-mission reporting. The respondents submit that the reference in the OPSUM for the mission to the adolescent male being released is an attempt by the applicant to provide "an innocent cover-story for his murder". However, it seems to me that there are other explanations for the reference to the adolescent male being released. The adolescent male may have been "untied" during the mission and let go, rather than left to be freed after the FE had left the site. Alternatively, the author may have felt it necessary to provide a complete description of the fate of the occupants of the vehicle and the vehicle itself, particularly as the vehicle contained IED componentry.
1679 Seventh, the respondents ask the Court to infer that there were no legitimate engagements in the compound to which the applicant's patrol made an explosive entry from the fact that the OPSUM recorded a payment of compensation to the compound owner for damage to the compound and its contents. The submission is that compensation would not have been paid to ​a compound owner who was harbouring insurgents in his compound. I am not prepared to draw any inference about the legitimacy of engagements in a compound from whether or not compensation is paid to the compound owner in circumstances where I do not have precise details of the arrangements whereby, in the ordinary case, compensation is paid, or is withheld.
1680 Finally, the respondents ask the Court to accept Person 16's evidence about the conversation he had with the applicant a day or two after the mission. The respondents pointed to the photographs of the dead young Afghan male and submit that the details in the photographs are consistent with what the applicant said to Person 16. In a general sense, that appears to be so, although I am reluctant to draw too many conclusions from the photographs.
Findings and Conclusions
1681 Subject to my conclusions concerning Person 16's identification of the deceased Afghan male shown in exhibit R105 as being the male he detained from the Toyota HiLux, Person 16 was an honest and reliable witness. In my opinion, he was entirely straightforward and he had no motive to lie. It was not suggested that he had a motive to lie and, in any event, he did not have a motive to lie. He was not part of the "against camp" even assuming, for present purposes, that that would constitute a sufficient or plausible motive to lie. I reject the suggestion that the trauma of his experiences in Afghanistan had affected his memory. There was no indication of that in the evidence he gave. That is not to say that the passage of time has not affected his memory, but that is a different matter.
1682 The documentary evidence, including the photographs, establish that the Toyota HiLux was stopped and three adults and an adolescent or young Afghan male were removed from the vehicle. The adolescent was processed at least to the point of being assigned the description of "GB–2 and Veh Rd". That is the logical inference from the number sequence of the other occupants of the vehicle.
1683 I accept Person 16's evidence that he handed the two PUCs he detained to the applicant and Person 11. I have no reason to doubt Person 16's evidence on that point. It is consistent with the conversation he had with the applicant in the days following the mission. Person 16 asked the applicant the question he did because he considered that the applicant would be able to provide the answer. The applicant's response was an extraordinary one and an answer that I have no difficulty in accepting that Person 16 would remember. I accept Person 16's explanation for not reporting the conversation, being that there was a code of silence and that he saw disclosure as a "career ending" move. It is true that there were a number of matters ​with respect to which Person 16 had no recollection and they were identified by the applicant, but none of those matters cause me to doubt that Person 16 detained two PUCs from the Toyota HiLux, including an adolescent or young Afghan male, that he passed those PUCs onto the applicant and Person 11 and that Person 16 had the conversation with the applicant that he related in his evidence in the days following the mission.
1684 I do not accept the evidence of the applicant or, to the extent to which it is relevant, the evidence of Person 11. I have made a number of adverse credit findings about those witnesses in these reasons. The applicant gave clear evidence that no PUCs were passed onto him during the mission. That is false. The respondents submit that that is not only relevant to the applicant's credit, but is also evidence of a consciousness of guilt. The respondents also submit that the applicant's response to Person 16's question is an admission, particularly in circumstances where he falsely denied that the conversation had taken place and did not suggest that his response to Person 16 was made in jest or made to elicit some form of reaction from Person 16. I have given careful consideration to these two matters, but as I will explain, I consider that, in all the circumstances of this particular matter, including the seriousness of the allegations and the evidence, the identification evidence of Person 16 is a critical ingredient in the respondents' case.
1685 If the young Afghan male was released as the OPSUM states, that was done in unusual circumstances. He was partly processed as a PUC in the sense that he was detained, handcuffed and had a tag or piece of tape applied to him. However, contrary to the usual practice, he was not photographed. He was detained early in the mission and so a rushed departure would not be a reason he was not photographed and, as exhibit R184 shows, a large number of fighting age males were photographed. This is an unusual feature as is the reporting of one EKIA at 1000DE and two EKIA at 1029DE and the later correction of two EKIA for the mission at 1458DE.
1686 Having regard to all the evidence, including the absence of an eyewitness to the alleged execution, and the nature of the allegations, I do not think the respondents' case can succeed unless the Court is clearly satisfied that the deceased Afghan male shown in exhibit R105 is the young Afghan male detained by Person 16.
1687 In his evidence-in-chief, Person 16 said that the deceased Afghan male in the photographs comprising exhibit R105 looked like the young Afghan male he detained from the Toyota HiLux. Person 16 had seen the photographs on three occasions prior to giving evidence in ​Court as follows: (1) in approximately September or October 2018; (2) in December 2021 or January 2022; and (3) on 8 February 2022 which was three days before he gave evidence. The first time he saw the photographs, therefore, was approximately six years after the relevant events. He said in cross-examination that it "looked very much like the young Afghan male I detained" and "I stick by my statement saying that I'm highly confident this is the young man that I detained" and "I would have a high degree of confidence that that is the person". He also said that the more time he had to reflect on the matter, the more confident he was that the Afghan male in the photographs was the young Afghan male he detained. There was a "slight possibility" that it was not.
1688 I do not doubt the honesty of Person 16's identification evidence. Nevertheless, the dangers of identification evidence from photographs are well known. Although a criminal case, the High Court described the dangers of identification evidence where photographs are used in Pitkin v R [1995] HCA 30; (1995) 130 ALR 35; (1995) 80 A Crim R 302; (1995) 69 ALJR 612 (Pitkin) (at 614–615) as follows:
   The use of photographs of suspects by law enforcement agencies for the purpose of identifying an offender is a necessary and justifiable step in the course of efficient criminal investigation. Nonetheless, it is attended by some danger of consequential and unfair prejudice to an accused. One such danger is that identification through a photograph is likely to be less reliable than direct personal identification since differences in appearance between the offender and a suspect may be less noticeable when a photograph of the suspect is used. In that regard, once there has been purported identification through a photograph, any subsequent direct identification may be less reliable by reason of the subconscious effect of the photograph upon the witness's recollection of the actual appearance of the offender. Another such danger is that a witness who is shown photographs by investigating police will ordinarily be desirous of assisting the police and will be likely to assume that the photographs shown to her by the police are photographs of likely offenders. In that context, and in an environment where the ultimate accused will necessarily be absent and unrepresented, there may be subconscious pressure upon the witness to pick out any photograph of a "suspect" who "looks like" the offender notwithstanding that the witness cannot, and does not purport to, positively identify the subject of the photograph as the offender. Yet another danger from the point of view of an accused is that a witness's evidence that she identified a photograph of the accused which was in the possession of the police may suggest to the jury that the accused either has a criminal record involving the relevant kind of crime or is otherwise unfavourably known to the police as a person likely to commit that kind of crime. That danger of prejudice is likely to be increased in a case, such as the present, where the police have produced a number of different photographs of the accused taken at different times.
1689 Not all of the dangers are present in a civil case tried by a judge, but the risks of misidentification by the witness remain.
​1690 The Court in Pitkin also made the following observations about an identification from photographs that the person in the photograph "looks like" the person they saw (at 615–616):
   In the present case, the words used by Ms Vella in selecting the three photographs did not, as a matter of literal meaning, amount to positive identification. They were plainly consistent with an intention by Ms Vella to indicate nothing more than that the person depicted in the three photographs looked like the offender whom she had seen. It may well be, as Levine J speculated, that Ms Vella did intend to convey, by the words that she used, that the person depicted in the photographs actually was the offender. It may also well be, as Hunt CJ at Common Law suggested in his judgment, that the phrase "that looks like" was used in a colloquial sense by Ms Vella and was "certainly capable in [the] circumstances of asserting an identification of the appellant". Nonetheless, the plain fact remains that the words used by Ms Vella were consistent with an absence of positive identification. That being so, the evidence of her selection of three photographs was, of itself, incapable of sustaining a finding by a reasonable jury that the appellant was, in fact, the person who stole Ms Clarke's handbag and was driven off in the stolen vehicle. In the absence of any evidence by way of explanation or elucidation of Ms Vella's words and of any other evidence implicating the appellant, the convictions were necessarily unsafe and unsatisfactory.
1691 Of course, this is not a criminal case and there is more than a "looks like" identification in the evidence given by Person 16 in cross-examination. On the other hand, Person 16 was only shown the photographs six years after the relevant events and he was only shown photographs of one person. He was also shown the photographs of the three adult males in the Toyota HiLux (none of whom he recognised) in December 2021 or January 2022 and again on 8 February 2022, but none of them could be described as a young Afghan male.
1692 I do not consider that Person 16's identification evidence is sufficiently clear and cogent to support a finding that the deceased Afghan male shown in exhibit R105 is the adolescent or young Afghan male he detained. In the circumstances, the respondents have not established a necessary element of their case in relation to the mission to Fasil on 5 November 2012. The allegations in the Particulars of Truth are not made out.