# Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA)/Part 3/Section 8

​Section 8 — The Bullying of Person 1
1693 The applicant's case is that the Group 3 articles conveyed, among other defamatory imputations, the following imputation:
   The Applicant engaged in a campaign of bullying against a small and quiet soldier called Trooper M which included threats of violence. (Imputation 12)
Trooper M is a reference to Person 1.
1694 The respondents' Particulars of Truth in support of their case that this imputation is substantially true are as follows:
   (17) At all material times prior to the deployment of rotation 3, the Applicant was acrimonious towards Person 1, who was a small and quiet soldier, as the Applicant did not consider Person 1 to be capable of performing as a water operator within the SASR.
   (18) On about 31 May 2006 the Applicant and the patrol of which he was a member were conducting a mission overwatching the Chora Pass for a larger American mission.
   (19) The purpose of an overwatch mission is to remain in place undetected in order to observe and provide intelligence.
   (20) During the mission, on about 2 June 2006, Person 1 and Person 2 were stationed at the observation post (OP). The Applicant and the remainder of the patrol were in the laying up position (that is an area behind the OP where the patrol members eat, perform administration etc).
   (21) Whilst Person 1 and Person 2 were stationed at the OP they noticed an unarmed teenage boy of about 13 or 14 walking along a goat track about 70 metres below the OP. Person 2 whispered into his radio, in substance "all call signs, single individual, moving from right to left in front of the OP". The boy then picked up a sack and moved back in front of the observation post. Person 2 sent another whispered message on the radio, in substance "all call signs, same male, now moving from left to right in front of the OP". Person 1 and Person 2 considered that the boy had not seen them and that the observation post had not been compromised.
   (22) At or about this time the Applicant and the late Matt Locke ran towards the OP and said to Person 1 and Person 2 in substance "why the f*** didn't you shoot him? Which way did he go?" The Applicant and Matt Locke then ran after the boy and shot him.
   (23) The shots caught the attention of Taliban fighters and shortly after Taliban fighters started patrolling out of the valley below to get up the hill. A fierce gun battle between the Applicant's patrol and a number of Taliban fighters followed.
   (24) During the battle Person 1 engaged an enemy insurgent. The first two times Person 1 attempted to fire his gun the belt had not been seated in the feed plate properly and it did not fire. After re-cocking the gun it fired on the third attempt.
   (25) The fact that the OP was compromised as a result of the Applicant's involvement in chasing and shooting the teenage boy reflected poorly on the Applicant.
   (26) The Applicant has subsequently falsely alleged, in substance, that the reason he was required to engage so fiercely was because Person 1 was unprepared for battle. The Applicant made these allegations to detract attention for his own conduct on the mission.
   (27) Shortly after the Chora Pass battle the Applicant said to members of his patrol, in substance "[Person 1] better be careful because there may be a mistake out there [on a mission in the battlefield] and he gets a bullet in the back of his head".
   (27A) After the Chora Pass battle the Applicant said to Person 1, in substance "next time we go out on patrol, if your performance doesn't improve I will shoot you ​in the back of the head".
   (28) From at least the time of the Chora Pass battle the Applicant has treated Person 1 with a high degree of contempt including by ostracising him, being openly rude and dismissive towards him and saying negative things about him to others including, in substance:
       (a) "He's a coward".
       (b) "He's not up to the standards of being an SAS soldier"
       (c) "He's undeserving of his position as a water operator".
   (29) Further to the particulars in the preceding paragraph, from at least the time of the Chora Pass battle the Applicant consistently made insulting and threatening remarks to Person 1, including in substance:
       (a) "We're going to f*** you off out of the unit".
       (b) "You're not going to be a water operator anymore".
       (c) "You better watch your back".
       (d) "Get over here you f***head".
   (30) Further to the particulars in the preceding two paragraphs, from at least the time of the Chora Pass battle the Applicant, on more than one occasion, approached Person 1 in an aggressive manner and made a gun gesture toward Person 1 by putting two fingers into the side of Person 1's head.
   (30A) During the time Person 1 was in the Applicant's patrol the Applicant would reach from the back seat of the vehicle and hit Person 1 in the head whilst he was driving.
   (30B) During the time Person 1 was in the Applicant's patrol Person 1 was excluded from the group and often had meals by himself, was not invited to contribute to discussions and was not included in the team culture.
   (31) [deleted]
   (32) [deleted]
   (33) During rotation 12 in 2010, Person 1 was standing outside the ready room (an area where soldiers keep their armour, gear and weapons on base) when the Applicant exited the ready room and aggressively pushed Person 1 in the chest with his gear and said to Person 1 in substance "'get out of my way you c*** or I'll f***ing kill ya".
   (33A) On or around the beginning of 2012 the Applicant said to Person 7 in substance "I heard f***ing Person 1 is starring again. He is always f***ing up and never meets the standards."
   (34) The Applicant's conduct in respect of Person 1 constituted bullying.
   (35) The Applicant's bullying of Person 1 continued up until about 2013. In about 2013 Person 1 filed a complaint with ADF authorities in relation to the Applicant's conduct towards him, which resulted in a mediation being arranged between and attended by Person 1 and the Applicant.
   (36) It may be inferred that the Applicant's conduct in respect of Person 1 was, in ​part, to detract attention from the Applicant's own responsibility for directing the Taliban's attention towards the observation post by shooting the teenager.
1695 In their Defence, the respondents also allege that these Particulars support the substantial truth of Imputation 3 which the applicant contends is conveyed in the Group 1 articles and is as follows:
   The Applicant disgraced his country Australia and the Australian army by his conduct as a member of the SASR in Afghanistan.
1696 In their closing submissions, the respondents did not advance the Particulars in paras (17)–(36) in support of the substantial truth of Imputation 3. The Particulars in paras (17)–(36) inclusive are advanced, and only advanced, in support of the substantial truth of Imputation 12.
1697 There is an issue as to the meaning in the imputation of the phrase "a campaign of bullying". The respondents contend that the expression is to be given the meaning which accords with the ordinary meaning of the words used. The Macquarie Dictionary refers to "campaign" as including a meaning of "any course of aggressive activities for some special purpose: a sales campaign". "Bullying" is defined to mean "to act the bully towards" and "to be loudly arrogant and overbearing", and "bully" is defined as "a blustering, quarrelsome, overbearing person who browbeats smaller or weaker people". The applicant referred to the introduction after the events in question of the Fair Work Amendment Bill 2013 (Cth) which introduced Part 6.4B into the Fair Work Act 2009 (Cth). That part includes's 789FD which contains a definition of "bullying" which is in the following terms:
   (1) A worker is bullied at work if:
       (a) while the worker is at work in a constitutionally-covered business:
          (i) an individual; or
          (ii) a group of individuals;
          repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
       (b) that behaviour creates a risk to health and safety.
   (2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
1698 The respondents' case is that the bullying occurred over a number of years. Their case is that the bullying escalated after a mission to the Chora Pass between 31 May 2006 and 2 June 2006.
​1699 Although the mission to the Chora Pass remains relevant and I will need to deal with it in some detail, the way in which the evidence has come out and the effect of the closing submissions of the parties means that the mission has receded somewhat in relevance.
1700 The alleged acts of bullying in this case may be broadly described as hitting Person 1 in the back of the head, making death threats to him, spitting near him, repeatedly slamming doors in his face and continuing to express negative opinions about his abilities as a soldier based on outdated information. The issues are whether those acts occurred and if they did, whether they constituted a campaign of bullying.
1701 The relevance of the mission to the Chora Pass is two-fold. First, Person 1 made a significant mistake on the mission. He forgot to bring the oil for the machine-gun he was carrying and it failed to fire due to a lack of lubrication. He admitted that mistake. Secondly, in the course of the mission, an Afghan male who was referred to as a spotter was shot by the applicant and the late Sergeant Locke (Sergeant Locke). The respondents do not suggest that the engagement of the Afghan male was not legitimate. Their point, as I understand it, relates to the tactical wisdom of the engagement. The patrol was part of an observation post and non-detection was critical to its role. An engagement may alert the enemy to the presence of the observation post and, in fact, the respondents contend that the presence of an observation post was disclosed as a result of the engagement. The nature and extent of the threat will, in those circumstances, bear on the tactical wisdom of the engagement. The respondents allege that Person 1 knew the true circumstances of the engagement and the applicant bullied him to stop him speaking out about those circumstances. Those circumstances are whether there were two insurgents or one and whether those insurgents or that insurgent were or was armed.
1702 The respondents made it clear that even if they did not establish the motive for the bullying or the escalation of the bullying they allege as having arisen by reason of events at the Chora Pass, the evidence establishes that the applicant bullied Person 1 and that the bullying escalated after the mission.
1703 Person 1 joined the ADF as an army reservist in September 2000. He undertook basic training and then full-time service with the Regular Army. He was deployed to East Timor for approximately six months in late 2002 and 2003.
1704 In March 2004, Person 1 undertook selection for the SASR. He was posted to I-Troop in 3 Squadron. He was deployed to Afghanistan in 2006. That was his first deployment overseas ​with the SASR and his rank was trooper. He has undertaken seven deployments to Afghanistan in total and his current rank is sergeant. His current position is as a parachute instructor at the ADF Parachuting School. His patrol commander in 2006 was Person 33 and the other members of the patrol were the 2IC, Sergeant Locke, Persons 36, 2 and the applicant. The deployment was part of Rotation 3 which was for the period from about May to September 2006.
Pre-deployment Training for Rotation 3
1705 Person 1 described the pre-deployment training for Rotation 3. He said it involved training for approximately one month and it was broken into two phases. The patrol did foot mounted exercises at Bindoon and worked with vehicles at Lancelin.
1706 Person 1 described the terrain at Lancelin as open and sparse and he said that the patrol was involved in vehicle-mounted training. They operated out of long range patrol vehicles and utilised heavy weapons. Person 1 was the driver for the vehicle and he said that on at least two to three occasions, if he drove over the rocky off-road terrain and hit something, such as a large bump, the applicant would reach down and slap him across the back of the head. Person 1's account is included in the statement he made in 2013 to which I will refer in more detail later in these reasons. Person 1 said that towards the end of pre-deployment training, Sergeant Locke and the applicant pulled him aside and the applicant said to him that he did not think that Person 1 had the required skills or ability to deploy to Afghanistan with the Task Force. The applicant said that he was going to do everything he could within his power to have Person 1 removed from the team and to get one of his colleagues to replace Person 1. He identified Person 74 as a desired replacement. The applicant denied making these statements to Person 1 and he contends that Person 1 changed his evidence in cross-examination about who said these things to him and said that it was Sergeant Locke who made the statements. I do not consider Person 1 was changing his evidence. He was saying that both of them said these things.
1707 A number of reports and performance reviews of Person 1's performance as an SASR soldier were tendered. The Exercise/Training/Activity Reports contain a ranking of certain attributes and skills of the person whose performance is being reviewed. An "A" ranking indicates disappointing progress, a "B" ranking indicates steady or satisfactory progress, a "C" ranking indicates impressive progress and a "D" ranking indicates that the subject has maintained very high standards. The report completed by Person 33 for the first half of April was positive with Person 1 being given four B's, three C's and four D's. Person 33 also said the following:
   P1 performed well during this activity. His experience is limited, not his fault, but his ​enthusiasm makes up for this. I was happy to see that during this activity that any points brought to his attention were quickly grasped. Person 1 is on a steep learning curve at this time with OP Slipper II around the corner.
1708 Person 1 said that the SASR troop deployed to Afghanistan in May 2006.
The Mission to the Chora Pass
1709 Person 33's patrol undertook a mission to the Chora Pass at the end of May and early in June 2006. They were taken to the base of the Koran Ghar Mountain by vehicle-mounted type patrols. Their mission was to provide an observation post onto Chora and the Chora Pass. The mission was to last for either one or two weeks. Person 1 could not remember how long. The idea behind the mission was to remain clandestine and gain intelligence as to the normal patterns of life of the inhabitants.
1710 Person 1 carried a Para Minimi on the mission which is a belt-fed 5.56 machine-gun.
1711 Person 1 said that the members of the patrol who were on the mission in addition to himself, were Person 33, Sergeant Locke (2IC), Person 2, the applicant and Person 23.
1712 The patrol marched up the side of Koran Ghar. It took them in the order of 10 to 12 hours. They were each carrying food, water, ammunition and sleeping equipment weighing in the vicinity of 75 kgs. The mountain was extremely steep. There was a flat area on the top of the mountain. From the top, the patrol could see the Chora Pass. The location for the observation post was selected and back from that position up the hill was the layup position. Person 1 said that you could not see the observation post from the layup position.
1713 On the morning of the second day of the mission, Person 1 and Person 2 were in the observation post. They were looking down towards Chora and the Chora Pass observing anything of note. The other members of the patrol were in the layup position. Person 1 heard a sound and he saw an individual put their head around a set of rocks in front of the observation post. Persons 1 and 2 had laser range finding binoculars and the individual they saw was a distance of 76 or 78 metres from them. The person was looking up towards their location. Person 1's view was that the individual had not seen the observation post. Person 1 said that the individual was a male with facial hair and wearing traditional Afghan dress. In cross-examination, Person 1 agreed that the individual had a beard. Person 1 did not observe any weapons or webbing. He estimated the age of the individual at between 15 and 20 years. The individual walked from right to left as observed from the observation post and disappeared behind some rocks further to the left. The individual then moved back across in front of the observation post from left to ​right. Person 1 noted the individual had a satchel bag strung across his body as he moved back from left to right. He did not observe it the first time that he saw the individual. On each movement of the individual, Person 2 sent a message by radio advising those in the layup position of the individual's movements.
1714 The next thing that Person 1 recalled was Sergeant Locke coming down and asking Persons 1 and 2 what had happened. They said that they saw an individual step out from the rocks "there" indicating he walked across from the right to the left, and then moved back from the left to the right. Sergeant Locke asked Persons 1 and 2 why they did not engage the individual. Person 1 responded by saying that they were in an observation post meaning, according to Person 1, that the idea is not to compromise yourself.
1715 The applicant who observed the male closely when he later engaged him gave evidence that he was at least 20 years old.
1716 Person 1 said that not long afterwards, he had a conversation with Sergeant Locke in the layup position and the latter said that the individual had some sort of device on him when they engaged him and that device let off some sort of signal. Sergeant Locke was not sure whether it was a flare or whether it was smoke.
1717 The OP log is a record of the activity and patterns of life in the area being observed by those in the observation post. It is prepared by the persons manning the observation post. The OP log records activity on 2 June 2006 at 0441Z as follows:
   1 ACM spotted from OP moving NE along ridge (see Incident RPT)
The time is Greenwich meantime. ACM means anti-coalition militia and OP means observation post. In this context, I refer to the closed Court reasons (at [219]).
1718 Person 1 said he would have made the entry in the OP log if he was on the OP log at the time. He has no knowledge as to who wrote the words "(see Incident RPT)".
1719 The applicant agreed that the absence of any reference in the OP log to the individual carrying ammunition or armaments is consistent with no weaponry or ammunition being observed on the person.
1720 Person 1 was shown a document which was referred to as a SITREP which means a situation report. He said it would have been compiled by Person 33 or Sergeant Locke. The report contains the following statement:
   AT 020441Z OP SPOTTED 1 ARMED ACM WITH AK VARIENT WEAPON 140 METERS NORTH EAST OF OP. ACM MEMBER APPEARED TO BE AGGRESSIVELY PATROLING, BOTH HANDS ON WEAPON, READY TO FIRE. LOST SIGHT OF ACM MEMBER IN DEAD GROUND.
   K22 & K25 DISPATCHED AND NEUTRALISED ACM MEMBER.
   020455Z K22 & K25 RETURNED TO OP AND REPORTED THAT THE ACM EITHER THREW SMOKE OR SMOKE CANISTER WAS HIT BY SMALL ARMS FIRE.
1721 As will become clear, this report is wrong insofar as it states the "1 ACM" was armed and patrolling aggressively with both hands on his weapon and ready to fire. The respondents submit that it should be inferred that the report was written in this way in order to justify an engagement which compromised the observation post.
1722 Person 2 said that Sergeant Locke and the applicant moved to the observation post and that there was a conversation and in that conversation, Sergeant Locke asked Persons 1 and 2 why they did not shoot the individual and in which direction the individual had gone. Person 2 pointed to the right of the observation post, being the direction of where they had lost sight of the individual and said "that way".
1723 Person 1 said that after the conversation, he saw Sergeant Locke move back towards the layup position and then he saw Sergeant Locke and the applicant move off to engage the individual.
1724 The applicant's account is different. He said that Persons 1 and 2 were in the observation post. Those in the layup position had a radio transmission to the effect that a male was approaching and the applicant recalls moving slightly to get a better position to see the observation post. He was there with Sergeant Locke and Person 33. He cannot recall where Person 23 was at that time. He had his rifle up and he remembers seeing an individual approaching the observation post who was approximately 50 to 60 metres away. The individual was wearing chest webbing. The applicant believes that he did not have a weapon. At that point, the individual stopped and broke off to his left. The applicant said that the individual was walking directly towards where he was and he stopped and turned on a hard left turn and started to traverse the side of the mountain away from the patrol to their right side. That means that the individual was moving north. When that happened, the applicant recalled another radio transmission from the members of the troop in the observation post saying that the male had moved, that is to say, he had changed direction. It was "pretty obvious" to those in the layup position that the individual had seen them and had made a decision to try and walk off. At that point, Person 33 said to Sergeant Locke and the applicant to "go" and the applicant took that as an order to go after the ​spotter. Sergeant Locke left first and the applicant followed. The applicant denied going to the observation post at all before encountering the individual.
1725 The respondents submit that whether the applicant and Sergeant Locke saw the individual from the layup position or whether the applicant and Sergeant Locke went to the observation post before the engagement is not a matter of great significance. Nevertheless, the respondents submit that there are three reasons why the evidence of Persons 1 and 2 should be preferred.
1726 First, the applicant had given a prior account of the mission where he said he did not see the individual from the layup position. That account was given to Dr Peter Pederson on 22 February 2011. The applicant said that "a couple of blokes just walked up" and then said the following:
   Literally ah probably about two hours before dark walked straight up to the front of the OP, got about 30 metres to our front ah and the guys that were on OP duty, 'cause I was at the back at this point with ah Matt Locke, saw them and relayed it over the ear piece is that there was you know enemy approaching and obviously our job was not to start a fight um and they turned off sharply and started walking into another re-entrant and at that point the decision was made that they had seen us, we thought and they were playing coy and that they were just doing a you know, let's get out of here go and get some other lads so Matt and myself left the OP and ah hunted them down and ah got rid of them. …
(Emphasis added.)
1727 When the applicant was cross-examined about the account he gave to Dr Pederson, he said he had conflated the incident with a later incident when two insurgents approached from the rear.
1728 Secondly, the applicant's evidence was that he could see the individual from the layup position through the scope of his rifle. The respondents submit that had this occurred, the applicant could have engaged the individual from the layup position and there would have been no need to leave the layup position at all.
1729 Thirdly, there are three documents referred to as After Action Reports, two prepared by Person 33 and Sergeant Locke or one of them (i.e., a longer version (exhibit R48) and a shorter version which is said to be authored by Person 33 (exhibit R49)) and the other prepared by Person 23.
1730 The longer version of the After Action Report contains a statement that it was assessed that the ACM had not compromised the observation post. The applicant agreed that his view was that the individual had taken a hard left hand turn and, therefore, had seen the patrol and that the statement in the report is inconsistent with this. He believed that it was Person 33 who wrote ​the After Action Report. The respondents ask the Court to conclude that the applicant has invented the story about looking at the individual through his rifle to give credence to his assertion that the layup position and observation post had been compromised by the individual.
1731 Person 1 recalled Sergeant Locke approaching the observation post, whereas Person 2 recalled both Sergeant Locke and the applicant approaching the observation post. I do not consider that the difference between the two has a substantial effect on the reliability of either. The probabilities are that both Sergeant Locke and the applicant approached the observation post and questioned Persons 1 and 2 about why they had not engaged the individual. I prefer the evidence of Persons 1 and 2 to that of the applicant.
1732 Sergeant Locke and the applicant engaged the individual and then went back to the layup position. The longer version of the After Action Report refers to the ignition of an explosive or signalling device as follows:
   … the ACM was Neutralized as he dropped to the ground a smoke grenade was deployed it is unconfirmed whether he released this or whether it was hit by small arms shortly after hitting the ground he burst into flames, the burn was very similar to a red Phosphorous.
1733 The respondents submit that the engagement compromised the observation post and ask the Court to so find. The applicant told Dr Pederson the following:
   … Ah and he [Person 33] said look I'm happy to stay in location, didn't think we'd been compromised too badly. I mean obviously it was a soft compromise, well it was hard because we'd gone loud but we all had suppressors on and apart from the flare going up in the re-entrant it wasn't as obvious as you might have thought.
1734 The shorter version of the After Action Report contains a statement that the killing of the insurgent and the deployment of the smoke grenade "triggered MG fire from the ground below to the area of the deployed smoke". The respondents submit that this is consistent with Person 1's evidence who said that the observation post had been compromised because another person had been engaged. Apparently, Person 33 took the view that there was a "soft" compromise. A "hard" compromise means that you have had an engagement with the enemy and they definitely know that you are there and you have been compromised. A "soft" compromise is used to describe a situation where you may have been seen by somebody.
1735 I do not consider that the reference in the shorter version of the After Action Report to machine-gun fire is a sufficient basis to make a finding that the observation post had been compromised. At best, there was a soft compromise. I will consider later whether the major battle involving ​those at the observation post approximately eight hours later indicates that the observation post was compromised by the engagement.
1736 Returning then to the SITREP, as I have said it is not correct that one armed ACM with an AK variant weapon was spotted or that such a person was "aggressively patroling, both hands on weapon, ready to fire". The applicant agreed that this reporting was not correct, and he said that he did not send the message or play any part in creating it.
1737 The respondents contend that the false statements in the SITREP have never been retracted. Instead, the lie that the individual was armed was picked up and repeated in further reports which are Sensitive Documents and which I deal with in the closed Court reasons (at [214]–[218]).
1738 The respondents' case is that the lie was repeated by the applicant on subsequent occasions.
1739 Person 1 thought that it sounded about right that the major battle at Koran Ghar started about eight or nine hours after the initial engagement with the spotter. Person 1 said that he and Person 2 were on the reverse side of the layup position and he heard some yelling to the east. A major engagement followed and Person 1's machine-gun had a number of stoppages because it was not properly lubricated. Person 1 did not take the oil with him on the mission and he needed to keep oiling it. As I have said, he accepted that he should have taken oil with him on the mission and that his failure to do so was a mistake. Later that night, the patrol left the observation post/layup position and went down the mountain along the same route it had taken to climb the mountain.
1740 Person 1 gave evidence that before leaving the layup position, he woke up from his sleep with his hand out in front of him saying "friendly, friendly". He recalled the applicant yelling at him and Person 33 yelling at the applicant to stand down as Person 1 was sleep talking. Person 1 said that he was not holding his weapon at the time he woke up. He cannot recall whether the applicant was holding his weapon when he was yelling at Person 1. The applicant said that Person 1 screamed "I am a friendly" five or six times. He said that when he turned around he saw that Person 1 was pointing his Minimi straight at the applicant saying "I am a friendly". The applicant said that Person 33 stepped in between himself and Person 1 and he eventually got Person 1 to wake up and he calmed him down. The applicant is said by the respondents to have accepted that he was holding his weapon at the time. This emerges, so it is said, from the following question and answer:
   Is this the same machine gun that you said had seized up and couldn't work anymore?----Yes, and that's exactly why I didn't fire at him.
1741 I do not consider that the precise details of this incident affects any issue that I need to resolve.
1742 The applicant was awarded the Medal of Gallantry for his actions in relation to the major engagements at Koran Ghar as was the late Sergeant Locke.
Events after the Mission at the Base
1743 Person 69 joined the ADF in June 1998 and his current rank is lieutenant colonel. He graduated as a junior officer in 2000 and had a number of deployments all at the rank of captain. He was deployed to Afghanistan from April to September 2006.
1744 Person 69 recalled the SOTG Rotation 3 and, in particular, the mission to Koran Ghar. He remembered the mission because the insertion was exceptionally difficult.
1745 Person 69 had a conversation involving Person 1 in a hut in which he and electronic warfare (EW) operators were located. He believed that he was the only member inside the compound who was not posted to the SASR. There were three people present during the conversation, an EW operator, Person 69, and Person 1. There was an objection by the applicant to Person 69 giving evidence of the conversation. The respondents submitted that the evidence was relevant because there had been a challenge to Person 1's evidence as to what had happened on Koran Ghar and, "in particular the presence of webbing, the presence of ICOMs and the fact that the person was not — the fact that the person had not observed the presence of the observation post". The respondents contended that it was said by the applicant that Person 1 had made up all of those elements and the fact that the person was unarmed. He had done so for the purpose of deflecting attention from his own poor conduct.
1746 The respondents sought to rely on the evidence as a contemporaneous prior consistent statement "which will be relied upon in support of a submission that your Honour should accept Person 1's evidence about what happened on Koran Ghar".
1747 The applicant relied on the fact that Person 1 had not given any evidence of the conversation. That was accepted by the respondents who pointed out that Person 1 said that he did not recall it. The respondents submitted that the evidence fell within the terms of s 64(3) of the Evidence Act or was admissible with leave under s 108.
​1748 Section 64 of the Evidence Act is in Part 3.2 of the Evidence Act which deals with the hearsay rule. The section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact. Subsection (3) provides:
   If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
   (a) that person; or
   (b) a person who saw, heard or otherwise perceived the representation being made.
1749 Person 69 was a person who heard the representation being made. I allowed the evidence subject to proof of the identity of the trooper. I am satisfied on the evidence that the trooper was Person 1.
1750 Person 69 said that he entered the room and the trooper and the EW operator were seated on the EW operator's bed which was about three metres across from Person 69's bed. They were already talking. The trooper was upset and emotional. Person 69 could tell from his facial expressions and his tone of voice which was wavering a little bit, that he was upset and emotional. Person 1 was saying that he was in an observation post with another trooper. Person 69 did not remember the name that was used. They saw an Afghan male walk across their position at a reasonable distance and Person 1 radioed it in. The Afghan male was carrying no ICOM, no radio, no weapon and no webbing. A short time later the male walked back across their position and then he disappeared. Shortly after that, the applicant and Sergeant Locke arrived and the applicant started yelling at Person 1 and abusing him for not engaging the male. The applicant and Sergeant Locke then moved forward out of sight. They returned a short time later and said to Person 1 that they had killed him. They did not bring him back. The applicant yelled at Person 1 again and Person 1 did not know what to do. Person 69 interrupted Person 1 and said that he should probably tell someone about that. Person 1 responded that there was no point. Person 1 then went on to describe the contact and said that he had a weapons stoppage. The applicant again abused him and on their return from the operation, the patrol ostracised him.
1751 Person 69 visited the Fat Lady's Arms on the same evening as this conversation. He went with two warrant officers. He sat near the door and the applicant was over his left shoulder about one metre away. Shortly after his arrival, he overheard a conversation in which the applicant was talking to some other troopers and he said words to the effect, "I was watching the expression on the guy's face as the bullets crept closer". Prior to that statement by the ​applicant, the conversation was about the engagement at Koran Ghar. Person 69 can recall words to the effect that "The enemy were all around us. There was an individual at long range".
1752 Person 69 turned and looked over his shoulder towards the applicant. The applicant turned to him and said the following:
   What the fuck are you doing here? I should smash your face in.
Person 69 was shocked. He said he had never been spoken to in that way by a subordinate. One of the warrant officers spoke to the applicant.
1753 Person 69 was an honest and straightforward witness and I accept his evidence.
1754 Person 1 said that he can recall going to the hut after the mission, but he did not recall having a conversation about the mission. He thinks he would have talked about it because it was a contemporary issue, but he cannot recall having a conversation.
Reports of the Engagement
1755 The longer version of the After Action Report prepared after the mission referred to "1 ACM" and "the spotter". It says nothing either way about whether the individual was armed.
1756 The shorter version of the After Action Report:
    (1) contains a reference to "1 ACM", but no statement either way as to whether or not the individual was armed;
    (2) states that the individual deployed a smoke grenade, whereas the longer version said he either deployed a smoke grenade or the smoke grenade was ignited by the small arms fire; and
    (3) omitted any reference to the weapons failures of Person 1 and Person 2 respectively.
1757 A third After Action Report prepared by Person 23 said nothing about whether or not the ACM was armed and referred to the fact that the individual had "popped smoked to signal to the others he had been killed as a signalling device".
1758 It is convenient at this point to identify two later accounts of the engagement given by the applicant. I have already referred to an interview between the applicant and Dr Pederson in February 2011. That interview was carried out for the Australian War Memorial. In that interview, the applicant said that there were two men "all armed and wearing chest rigs" and that they had "dragged the bodies". The applicant corrected that statement on 11 July 2017 ​when he wrote to the Director of the Australian War Memorial and said that there was one insurgent not two and they had not cleared the body of the insurgent. In April 2011, the applicant was interviewed by Mr Brendan Nicholson of The Australian newspaper and during that interview, he said that there was one Afghan male and he was armed and wearing webbing.
1759 In his evidence in these proceedings, the applicant indicated that his recollection was that the man was wearing webbing, but was not armed.
Person 1's Performance after the Mission and his Contact with the Applicant
1760 The Exercise/Training/Activity Report for Person 1 for the period from 28 May to 4 June 2006 was completed by Person 33 with comments from the troop commander, Person 37. Person 1 scored an A (disappointing progress) for 7 of the 11 attributes identified and a B (steady/satisfactory progress) for 4 of the attributes identified. In addition, Person 33 made the following comments:
   C/S [redaction] conducted an OP looking over a target. The insertion was difficult and the going hard. The OP was compromised by spotters and a fire fight ensued. P1 was tasked with rear protection with [redaction]. On seeing an ACM spotter who was already injured by fire, but still posed a threat P1 failed to engage, asking me to do so first, the indecision could have been fatal one for the patrol. He was tasked to suppress the enemy, however the weapon failed to fire due to a lack of lubrication, he did not have any oil in his kit, essential for a LMG. Shortly afterwards the patrol remained on 50% stand to before commencing an extraction. He woke to the noise of another patrol member moving shouting "friendly, friendly", he had woken from a state of deep sleep, but his state of mind was not on the task in hand. He had to be calmed down and controlled until he gathered his senses again.
1761 Person 1 agreed with the observations set out above, save and except for the criticism that he failed to engage the threat asking Person 33 to do so first. As to that matter, Person 1 felt that he had to get permission to engage because he was carrying the Minimi machine-gun. Person 1 accepted that other appraisals of his performance in which he was criticised were justified.
1762 Sergeant Locke prepared a performance appraisal of Person 1 in June 2006 in which he said that Person 1 had failed to meet the required standard of a soldier at numerous times during the conduct of patrol preparation and he went on to say of Person 1 that "he does not complete assigned tasks without constant supervision. He does not have a proactive approach and will not seek out guidance if unsure of his requirements."
1763 Person 1 said that he did not feel confident in seeking guidance from members within his own team. Person 1 was asked about an occasion in which he was asked to prepare a rocket launcher and he said that the way in which the question or order was conveyed left him in doubt as to ​whether he was actually being asked to prepare the weapon and, therefore, he equivocated. He said that the question or order was "vague, casual, cursory comments, rather than an actual fire control order".
1764 The applicant referred to this incident in his evidence as an example of Person 1's failings. In fact, he said that Person 1 did not want to carry out the order because it would require him to get out of the vehicle and load the Carl Gustav and Person 1 considered that they were too exposed. Eventually, Person 1 carried out the order.
1765 The respondents submit that, properly understood, this is an example of the lack of confidence Person 1 was experiencing at the time.
1766 This lack of confidence was made worse by the applicant's conduct. On or about 2 July 2006, Person 1 was placed under an OC's warning for failing to meet the required standard on the deployment and moved to another patrol. Person 1 was moved to Person 21's patrol. Person 21 was a vehicle-mounted patrol commander.
1767 Person 1 said that after the mission and in the one month period between the mission to Koran Ghar and his transfer to Person 21's patrol, his relationship with the applicant got worse and they could not really be in the same room together. The applicant verbally attacked Person 1 in an aggressive manner. On one occasion, the applicant said to Person 1 the following:
   If your performance doesn't improve on our next patrol, you're going to get a bullet in the back of the head.
1768 Person 1 interpreted this comment to mean that the applicant would shoot him in the back of the head on the next patrol if his performance did not improve. Person 1 said that he did not consider the comment by the applicant to be legitimate professional criticism or feedback. It made Person 1 fearful of his own personal safety and made him lose confidence. This meant that his performance became worse. Person 1 spoke to Persons 21 and 89 and they recommended that he report the applicant to troop headquarters. Person 1 told the troop commander and Troop Bravo, Persons 37 and 61, about the comment. Person 1 understood that Person 61 subsequently approached the applicant.
1769 After this, and on an occasion when Person 1 was standing in the lunch line waiting to go into the mess, the applicant approached him standing very close to him and looked down on him and said the following:
   If you're going to make accusations, cunt, you better have some fucking proof.
​1770 Person 1 said that the applicant would try and intimidate him. The base was a small base and they would see each other relatively often. Person 1 said that if they were walking past each other, the applicant would try and make eye contact with him and when they got close, he would spit on the ground in front of him. If they were walking into a building, the applicant would hold the door for Person 1 and then let it slam in his face.
1771 Person 21 gave evidence and he said that Person 1 had said to him words to the effect of:
   Ben Roberts-Smith told me he was going to fuck me off out of the unit. "You're never going to be a war operator again" and "He threatened to kill me".
1772 Person 21 was not challenged on his evidence about this conversation. It is a contemporaneous consistent statement by Person 1 and corroborates the death threat. The death threat is also referred to in the statement Person 1 made in 2013.
1773 The applicant agreed in cross-examination that he would speak to other SASR patrols and describe Person 1 as useless and incompetent.
1774 I will come back to the one month period between the mission to the Chora Pass and Person 1's transfer to Person 21's patrol because the applicant contends that Person 1's performance as a soldier during this period was very poor. He contends that his comments about Person 1 were matters of legitimate professional criticism.
Person 1 is moved to Person 21's Patrol in early July 2006 and Events thereafter
1775 On joining Person 21's patrol, Person 1 became Person 21's driver. Person 21 wanted to observe Person 1 closely and to take responsibility for him. Person 21 said that Person 1's performance was satisfactory. He was nervous and asked a lot of questions. Over time, he came out of his shell and became more confident and appeared to be relieved and happier. The performance report completed by Person 21 with comments from the troop commander as at 7 July 2006 indicates a B (steady/satisfactory progress) for 8 attributes and a C (impressive progress) for 3 attributes. Person 21 records in his comments that Person 1 had fitted in well with the patrol "considering the personality clashes he has had with other members of the Tp to date".
1776 In a Soldier Performance Appraisal Report prepared by Person 37 and dated 4 September 2006, he states that it had been assessed that Person 1 had met the required standard of an ECN 353 operator during the past two months. He had displayed a positive attitude towards his remedial training and has strived to meet the performance criteria outlined by THQ and OC 637. ​Person 1 was removed from his OC's warning. Person 1's performance appraisals have continued to be positive.
1777 Person 7 as patrol commander of Person 1 made the following observations of Person 1's performance from February to March 2008:
   Person 1 performance as a member of OSE during OPERATION SLIPPER II has been good. He consistently displays good initiative and common sense. He demonstrated sound decisions making skills and good judgement in a high threat environment. Person 1 could be relied upon to organise and complete tasks with minimal supervision and maintained a very good level of productivity throughout the deployment.
   Person 1 is deemed suitable for employment in further unconventional operations
   Person 1 attitude whilst working with the Team has been positive and he is a confident individual. His teamwork has been effective and he is an active individual in the effort that he puts into tasks. An example of this being the effort that he placed into ensuring that the det operational IT equipment was always workable. His skills in this area have been used on numerous occasions when mission essential gear has malfunctioned.
There were further positive reports of Person 1's performance over the following years.
1778 The respondents' case is that the applicant continued to tell other people that Person 1 was incompetent and a coward.
1779 During a handover patrol in 2006, the applicant spoke to Person 24 about Person 1 in derogatory terms.
1780 Person 31 was deployed to Afghanistan in 2009. He was a patrol commander and Person 1 was in his team. He said that he had some concerns about Person 1's ability as he had heard from other operators that Person 1 "wasn't up to speed". In cross-examination, Person 31 said that he believed it was Person 5 who told him that. In view of the close friendship between the applicant and Person 5 and the applicant agreeing that he would speak to other SASR patrols and describe Person 1 as useless and incompetent, I infer that Person 5's source was the applicant.
1781 Person 1 gave evidence of an incident involving the applicant in 2010. Person 1 had been in the ready room and he was outside waiting for the rest of his team to come out. The applicant was walking back into the ready room and Person 1 was standing in his way. The applicant pushed Person 1 squarely in the middle of his chest plate and said the following:
   Get out of my way, cunt, or I will kill you.
1782 Person 7 said that he had a conversation with the applicant in the gym in early 2012 during which the applicant described Person 1 as an incompetent soldier and a coward (exhibit R143).
1783 In early 2013 (or possibly late 2012), the applicant attended a "manning meeting". The meeting concerned the staffing of patrols. The respondents' case is that at the meeting, the applicant made disparaging remarks about Person 1 and indicated that he did not deserve to be made the 2IC of a patrol.
1784 Person 1 was not at the manning meeting. However, he was informed by Persons 43 and 44 that the applicant had made disparaging remarks about him at the meeting and comments to the effect that he did not deserve the position of 2IC.
1785 Person 7 was not at the manning meeting, but he said that he heard from Person 26 subsequently that the applicant was giving it to Person 1 again, saying that he was a coward and that he was not up to the standard and that he would be a very bad choice to take away as a 2IC.
1786 The respondents also rely on a contention that the applicant's bullying of Person 1 was notorious within the regiment. Mr Andrew Hastie gave evidence of an incident at Bindoon in late 2012. He said:
   … we sat down to breakfast prior to starting the day's training. Sunrise was playing on the big screen as we sat there eating our breakfast. Mr Roberts-Smith appeared on The Morning Show in his service dress, full medals, and he was talking about mental health charities that he was supporting. Person 68 stopped for a second and said loudly so that everyone could hear, "RS gave Person 1 depression. Now, he's going to help him fight it", and everyone laughed.
1787 Mr Hastie was an honest and straightforward witness. I accept that this incident occurred. However, I do not think that it adds a great deal. The case is one of specific acts of bullying and the questions are whether those acts occurred and whether they constitute a "campaign of bullying".
1788 After Person 1 had learned of the applicant's intervention at the manning meeting, he made a complaint to the RSM, Person 100, that he had been unfairly treated by the applicant. Person 100 told Person 1 to obtain statements from people who were willing to write statements on what they have observed over the years. Person 100 said that if he was provided with statements, he would take action.
​1789 Person 1 prepared a statement and it is in evidence. However, he did not provide it to Person 100. He said that persons were not prepared to make a statement against the applicant or the behaviour of the applicant that they had observed over the years. In the circumstances, Person 1 did not have enough by way of statements to formalise the complaint.
1790 On 2 August 2013, after the applicant himself had requested action, Person 138, who held the rank of captain, was appointed to make a quick assessment:
   INTO THE ALLEGED ACTIVITIES OF CPL B. ROBERT-SMITH IN RELATION TO THREATING LANGUAGE AGAINST CPL PERSON 1.
1791 Person 138 interviewed both Person 1 and the applicant. The assessment of the occurrence by Person 123 was as follows:
   16. Initial assessment of the occurrence involving CPL Robert-Smith and CPL [redaction] has found that;
       a. From the information supplied by both parties during the conduct of the QA there is sufficient evidence to suggest that CPL Robert Smith may have verbally insulted CPL Person 1 in Afghanistan on SOTG III in 2006;
       b. That an act of unacceptable behaviour may have been carried out by CPL Robert Smith during that deployment in Afghanistan in 2006; and
       c. Anecdotal evidence that post the deployment, CPL Person 1 believes his character has been placed in disrepute by further slander.
1792 On 22 November 2013, there was a form of mediation between the applicant and Person 1. Person 1 indicated that he wanted to understand why he had been slandered by the applicant and he wanted it to stop. The applicant indicated that he wanted to explain why he has raised the issue and wanted to demonstrate that it was business. The respondents contend that the applicant did not deny the allegations made by Person 1, but rather he contested the characterisation of the conduct as bullying. He said that they were matters of professional opinion made as a result of Person 1's conduct in 2006. The following appears in the notes of the mediation:
   Person 1: I have been badly affected by your harassment of me (states two examples including death threat that was made during a deployment).
   [REDACTED]: Do you have other examples or want to talk about any points?
   RS: (Explains why he asked questions and took certain actions).
   [REDACTED]: The event in 2006 was the start of your dispute. Do you want to continue to be a key driver of tour [sic] dispute?
   RS: I see the error in 2006 as being very serious. I did not think that you learnt from ​that error. I told other members of the patrol and the patrol commander what I thought was a professional opinion.
   Person 1: I have statements that your comments were personal. I have been told by WOI [redacted] that you called me a coward.
   RS: I had a strong opinion of the event in 2006. I have made comments for work reasons. I want to know about the allegations regarding bullying.
   Person 1: I have examples of character assassination and they are listed by name.
   RS: That explains what/why you spoke to SGT Person 7, SGT Person 44 and SGT [redacted]. I raised issues regarding Pers 1's performance on a sniper course. I raised issues regarding Pers 1 in 05/06. I believed that Pers 1 had placed the lives of the other patrol members at risk.
   [REDACTED]: I will give the right of reply to Person 1
   Person 1: I did make an error by not taking oil while on patrol and my gun did not function correctly and I have not denied that. You have slandered me about other events that have no basis. I was a new soldier and you were senior to me in the patrol. I would not have spoken to or treated a new soldier in the way you did to me.
   RS: We were the same rank and I wasn't even the most senior soldier in the patrol.
   [REDACTED]: Even though you were both the same rank?
   RS: I made specific comments to the other members such as SGT Person 7 for professional reasons. I have made those comments but I retain my opinion as stated.
1793 The mediation concluded with the applicant saying that he now understood what effect this "has had on Person 1" and "as it is no longer my business I will say nothing further about my opinion of Person 1".
1794 On 6 July 2017, Mr Masters provided the applicant with a copy of parts of the manuscript of his book. Those parts dealt with, among other things, the mission to the Chora Pass. The manuscript contains the following:
   On the afternoon of 2 June the patrol was compromised. Accounts of what occurred vary markedly. Person 2 and Trooper M, manning the OP, saw a young male approaching from the right. He wore traditional Afghan garb with no chest rig or weapons. They had a good view of his face and head, the range finder placing him at 76 metres distance. The troopers saw him look past the OP, then walk on across their front from right to left. The movement and the teenager's subsequent disappearance was reported.
   Then, soon after, he was sighted again walking back the way he had come, at the same pace, this time with a bag slung over his shoulder. Sergeant Locke and Lance Corporal Roberts-Smith arrived to question the troopers about why they did not engage. The first and most obvious answer was as a clandestine, observation only patrol a prime objective was to maintain the concealment.
   The conundrum highlights competing moral responsibilities common to the Afghanistan conflict. One view was you do not gain selection in the regiment, "to shoot an unarmed teenager in the back". But equally confronting was an ethical ​challenge. The battlefield was unforgiving. Rules of engagement allowed use of lethal force if hostile intent was demonstrated and the survival of patrol members was under threat. Given his proximity to massing Taliban below the male, whether armed or unarmed was likely a spotter and if he had sighted the patrol, relaying that information would put Kilo 2 at serious risk.
1795 Mr Masters' manuscript then goes on to refer to the disparity between this account and the applicant's account to Dr Pederson for the Australian War Memorial and his account to Mr Nicholson of The Australian newspapers.
1796 On 18 July 2017, Mark O'Brien Legal, on behalf of the applicant, wrote to Person 1 in the following terms, relevantly:
   My client has received extracts from Chris Masters of a draft manuscript of his proposed book about Australia's involvement in the war in Afghanistan.
   It is apparent from the extracts, that you have made allegations to Mr Masters of bullying conduct by my client, during a tour of duty in Afghanistan in 2006. Furthermore, you have given an account of the battle of Koran Ghar in 2006, significantly different from the official After Action Report.
   It is evidence of your malice towards my client to repeat these false allegations to Mr Masters for inclusion in his book. The book is scheduled for publication in October 2017, and I urge you to immediately contact Mr Masters to withdraw any allegations against my client of abusive, threatening, or bullying behaviour and to confirm that you do not dispute the sequence of battle in June 2006 as set out in the After Action Report.
1797 The respondents sought to characterise this letter as a brazen attempt by the applicant to intimidate Person 1 into not revealing the truth that the Afghan male below the observation post was unarmed, contrary to the false SITREP and the false account that the applicant had promulgated to both The Australian newspaper and to the Australian War Memorial. The respondents submit that despite threatening to sue Person 1 for defamation in 2017, the applicant now concedes that Person 1 is correct and the Afghan male was not armed.
1798 At the time this letter was written, the applicant had given his account to Dr Pederson and to Mr Nicholson six years previously and approximately one week prior to the letter he had written to the Director of the Australian War Memorial correcting his earlier account to Dr Pederson to the extent of saying that there was one insurgent not two and they had not cleared the insurgent bodies. He did not say that the one insurgent was not armed. The applicant now accepts that the insurgent was not armed. Insofar as it was put by the applicant that it is easy to confuse events (see, for example, closed Court reasons at [218]), that ​proposition may be accepted to a point. The difficulty in giving that any weight in these circumstances is that what the applicant was doing was correcting an original account.
1799 The solicitor's letter refers to allegations of bullying conduct and the applicant denies such conduct. That is the issue before me. As I will indicate, I find that there was bullying conduct by the applicant.
1800 The substantive point made by the respondents relates to whether the ACM was armed. The solicitor's letter is not precise as to what aspect of "the sequence of battle in June 2006 as set out in the After Action Report" was being falsely and maliciously contradicted by Person 1. The applicant was cross-examined about what aspects of the "sequence of battle" Person 1 was falsely and maliciously contradicting and he identified the age of the insurgent as a young boy and the reasons both Person 1 and Person 2 had stoppages.
1801 The manuscript refers to the insurgent as a "young male" and an "unarmed teenager". The manuscript refers to the "clear discrepancies" as "in the number of enemy, whether they were armed or unarmed and whether bodies were dragged or a single body exploited". The fact is that about five days after Mr Masters' email to the applicant and a week before the solicitor's letter, the applicant advised the Australian War Memorial that there was one insurgent and not two and that the insurgent's body had not been cleared. As to whether the insurgent was armed, the applicant said in his evidence-in-chief in these proceedings that he did not know and in cross-examination he said that it was his recollection that the insurgent was not armed.
1802 The clear disparities identified by Mr Masters were resolved in favour of Person 1's account, that is, there was one insurgent, he was not armed and the body was not cleared or exploited. In my opinion, by the solicitor's letter, the applicant was seeking to control the narrative without being particular as to which aspects of Person 1's account of the mission to the Chora Pass he alleged were falsely and maliciously made.
1803 I refer to my findings in Section 12 of this Part about the threatening letters sent by the applicant to Person 18. The applicant drafted letters to be sent to Person 1, but they were not sent. Although the content of the draft letters to Person 1 are not known, I accept the respondents' submission that the fact that the applicant drafted the letters at all indicates his ongoing obsession with Person 1.
1804 Person 1 gave evidence as to the effect of the applicant's conduct on him between 2006 and 2013. He said that not only did he have to worry about the Taliban, but he also had to look ​over his back at his people in his squadron. He said that it resulted in years of lost sleep and worrying about his position, his future, his employment and his chosen career. He believed that it had "hamstrung" his career for many years and "slowed his career progression" from his peers. I accept Person 1's evidence as to the effect on him of the applicant's conduct, save and except that there is insufficient evidence for me to make a finding as to the effect on his career progression.
Person 1's Performance from April to June 2006
1805 Before leaving the description of the evidence, it is convenient to address a number of incidents in the period from April to June 2006 which the applicant contends reflect poorly on Person 1's capabilities as a soldier. The applicant submits that these incidents are relevant because they assist in putting the relationship between Person 1 and his fellow patrol members at this time in proper context and they are also, in some cases, relevant to credit.
1806 First, there was an occasion when Person 1 was slow to act. Person 1 had been preparing his lunch and whilst rockets were in air, the patrol commander assessed that there was a requirement for the vehicles to be moved. Person 1 had to be ordered three times before discarding his lunch and taking his position in the driver's seat apparently because he was reluctant to drop his noodles. It was put to the applicant that the incident did not occur. He disagreed.
1807 Secondly, during the same patrol later that night, the patrol was ordered to move into a position of overwatch on high ground to the front. A cross country move was required for the patrol to move into the allocated location. Person 1 moved at a speed that would indicate a level of perceived anxiety in a situation that remained benign at that stage. Person 1 was asked about this incident and said that he was not sure what it meant.
1808 Thirdly, Person 1 failed to use the appropriate optical equipment during a 45 minute piquet at night and his attention was focussed on a group of rocks at his feet. Person 1 believed he did not need his goggles at the time, but he accepted that it was legitimate for a patrol commander to give instructions to a trooper such as himself as to when and in what circumstances they should use night vision goggles.
1809 Fourthly, Person 1 was employed as a vehicle driver in the second vehicle of a patrol tasked to provide flank and rear security. He was told to move his vehicle to the flank to support the lead vehicle of the patrol moving to suppress a spotter. He stated that he felt vulnerable in this ​position and decided to move the vehicle leaving the forward vehicle exposed to the flank and rear. Person 1 instead moved his vehicle to the right of the lead vehicle which placed two cars of the patrol to the front directly into the line of fire. The MK 19 gunner had to order him to hold in the position as directed or the other patrol vehicle would have been unsupported. Person 1 said that he did not recall the incident.
1810 Fifthly, Person 36 described an incident as follows:
   As the Tp arrived at the SBF location, Person 1 was advised to prepare the 84mm MRAAW as the edge of the treeline was within 200m and an ACM engagement seemed imminent. Person 1 was observed to cock the 84mm [i.e., Carl Gustav] and apply safe without moving from his seat. Shortly after the vehicles to our left began to receive RPG and SAF, the MAG58 and 50 cal were both immediately utilised as fire support to the target area, these weapons were having limited effect and 84mm air burst was being utilized by the Tp vehicles under fire. [Redaction] had a good attack angle to assist the engagement and I observed Person 1 still sitting in the driver seat. I then moved around the car to find that 84mm rounds had not been prepared for engagement. I proceeded to remove the 84mm and load a round when I became aware that the dust covers had not been removed from the ends of the weapon. I was able to engage the target area and prepare for reload before Person 1 showed any sign of attempting to suppress the enemy.
1811 Sergeant Locke's description of this incident included the following:
   … At this point the 2IC ordered to set range and go to the action condition on his 84mm. Person 1 was hesitant and initially did not go to action; he was subsequently ordered to do this three times before he finally carried out this task. Person 1 was counselled about his performance after the first patrol. Although at some stages he appeared to be improving and becoming more comfortable with the environment, he still did not have an understanding of the bigger picture in relation to the security provided whilst operating in a Troop environment.
1812 I have already referred to this incident and Person 1's evidence that he did not recall being given a fire control order and he recalled being given "vague, casual, cursory comments, rather than an actual fire control order". Person 1 did not accept that the criticism was legitimate. He said that Person 36, who was the 2IC, did not give him a target indication. Person 1 denied that he had failed to prepare the weapon, failed to get out of the car and failed to fire on the commander's order. The applicant submits that, in the face of evidence from the applicant and Person 36 as well as the contemporaneous records, the Court should not accept the uncorroborated evidence of Person 1, nor the submission from the respondents that the incident is simply a lack of confidence felt by Person 1. Person 1 had failed to load the Carl Gustav rocket launcher. A Carl Gustav is a shoulder fired rocket launcher that can be reloaded and reused. It fires an 84mm rocket which can travel up to and over a kilometre. The applicant said that Person 1 did not want to get out of the vehicle and load the Carl Gustav even after ​Person 36 had told him to do so because Person 1's view was that they were too exposed. Person 36 gave evidence. He did selection for the SASR in 2001. He was discharged in 2019. Person 36's first deployment to Afghanistan was in 2002. He was deployed to Afghanistan in 2006. Person 36 gave evidence of the incidents and that Person 1's performance as a soldier was questionable and below the standard required. Person 36 was in the witness box for a relatively short time and his evidence of poor performance by Person 1 is not in dispute at a general level. He was perhaps over critical at times, but as I will explain, it is not necessary to make precise findings about the incidents, even if that was otherwise possible.
1813 Sixthly, Person 1, contrary to orders it seems, positioned one of the vehicles so that only one of the weapons was useful and exposed the flank of the vehicle and had to be redirected to manoeuvre the vehicle back into the correct location. Shortly after that, another one of the call signs was pinned down and asking for support. The capability of the Carl Gustav was such that it had the potential to use long range rockets to support that call sign. Person 1 was unwilling to do that and again, his weapon was used by another member of the patrol.
1814 It is fair to say the applicant submits that a range of incidents occurred during training. Although Person 33 had a positive view of Person 1 during pre-deployment training, by as early as mid-May it was clear that Person 33 had a more equivocal view. After the mission to the Chora Pass, he had a decidedly negative view.
1815 The applicant submits that by the end of June 2006, the conclusions drawn by Sergeant Locke, Persons 36, 33 and 37 were seriously adverse for Person 1. This culminated in a meeting on 2 July 2006 attended by Persons 1, 37 and 61. Person 1 was put on an OC's warning.
1816 I do not consider that precise findings need to be made about these incidents, assuming that was otherwise possible. I say "assuming that was otherwise possible" because a number of the incidents were not examined in detail and there is undoubtedly a value judgment in assessing performance. Having said that, it is clear by his own admission that Person 1's performance, particularly during June 2006, was poor. It is impossible to tell to what extent his lack of confidence contributed to his poor performance. What is clear is that his performance improved almost as soon as he had changed patrols and that he has maintained a satisfactory standard over a number of years. Poor performance does not justify a death threat or the other acts or the criticisms and disparaging comments made many years later.
​The Significance of Persons 23, 33 and 37 not being called as Witnesses by the Applicant
1817 The respondents relied on the fact that Persons 23, 33 and 37 were on the applicant's witness list and outlines of evidence of these witnesses had been filed, but they were not called. The submission is that it should be inferred that their evidence would not have assisted the applicant's case.
1818 I do have some evidence from these soldiers in the form of documents as follows:
    (1) Person 23: After Action Report (exhibit R52);
    (2) Person 33: Exercise/Training/Activity Reports (exhibit R121 Tabs 1, 2, 3); Performance Appraisal (exhibit R121 Tab 6) and the shorter version of the After Action Report (exhibit R49) and probably the longer version of the After Activity Report (exhibit R48); and
    (3) Person 37: Performance Appraisal, Record of conversation, Operational Report, Performance Appraisal (exhibit R121 Tabs 7, 8, 9, 10).
1819 The applicant made a particular submission in relation to the fact that he did not call Person 33. He submits that there is no basis for drawing an inference against him by reason of Person 33's refusal to attend Court. Exhibit A292 is an affidavit sworn by one of the applicant's solicitors, Mr Paul Victor Svilans. Mr Svilans deposes to the fact that the applicant's legal representatives have conferred with Person 33 on a number of occasions in relation to his proposed evidence in the proceedings. The last conference was on 11 May 2022 and involved Person 33, Mr Richardson SC and Mr Svilans. On 19 May 2022, Mr Svilans received a telephone call from Person 33 who said to him words to the following effect:
   I am having a meeting with the military lawyers later today. They do not want me to give evidence in the matter, but I have every intention to do so. I will send you an email after I have the meeting to let you know what happened.
1820 On 20 May 2022, Person 33 sent an email to Mr Svilans. The substance of the email was as follows:
   In your recent emails you included a word document in which the naming of the document identified me as person 33. Please can you confirm whether that word document was sent to the Court, the Respondents and any other party?
   Furthermore I must inform you that I will not be able to give evidence in this case going forward.
​1821 Mr Svilans wrote to Person 33 on 23 May 2022. The substance of his email was as follows:
   In the event any military or other lawyer has been involved in relation to your advice to us that you will not be able to give evidence in the case, could you either ask the lawyer to contact me to discuss the matter, or alternatively would you be able to provide the name and contact details of the lawyer to me so that we can then contact the lawyer to discuss.
   We look forward to hearing from you.
1822 Mr Svilans said that as at the time he swore his affidavit on 24 May 2022 he had not received any response from Person 33.
1823 It seems to me that the short answer to the respondents' submission about the absence of the soldiers referred to, that is, Persons 23, 33 and 37, is as follows. The only matter in dispute on the evidence as it emerged where the evidence of Person 33 and possibly Person 23 may have assisted is in providing an explanation as to how it was that an incorrect SITREP was sent. The respondents submit that that matter is unknown and that it is unnecessary for the Court to resolve it.
1824 In any event, there is no evidence to support a finding that the SITREP, and indeed the sensitive ADF records referred to in closed Court, were prepared, in whole or part, by the applicant.
The Particulars of Truth Revisited
1825 It is convenient to clarify the issues that must be resolved by reference to a number of the Particulars of Truth.
1826 As I have said, the respondents' counsel made it clear that the respondents are not alleging that the engagement of the unarmed Afghan male at the Chora Pass was other than a legitimate engagement.
1827 In para (21) of the Particulars of Truth, it is alleged that Persons 1 and 2 noticed, among other things, an unarmed teenage boy of about 13 or 14 years of age.
1828 It would seem from the respondents' case in closing submissions that they now allege that the unarmed male was 14 to 20 years old with some facial hair. The applicant said that the male was definitely over 20 years of age and Person 1 said that the male was 15 to 20 years of age and had facial hair and later in cross-examination, he agreed that he had a beard. Person 2 said that the unarmed male was 14 to 15 years old. Nothing in particular seems to turn on the age of the unarmed male, particularly in light of the fact that it is not suggested that the engagement ​was other than a legitimate engagement. It seems to me that he is likely to have been within the range identified by Person 1, perhaps more towards the upper end of that range.
1829 In para (22) of the Particulars of Truth, it is alleged that at about the time Persons 1 and 2 had sent a message by radio to the layup position, the applicant and Sergeant Locke ran towards the observation post and said to Persons 1 and 2, in substance "why the fuck didn't you shoot him? Which way did he go?". The applicant and Sergeant Locke then ran after the boy and shot him. I have already addressed this matter.
1830 Paragraph (23) of the Particulars of Truth immediately follows the Particular dealing with the engagement by the applicant and Sergeant Locke and is to the effect that the shots they fired caught the attention of Taliban fighters and shortly after Taliban fighters started patrolling out of the valley below to get up the hill. It contains an allegation that a fierce gun battle between the applicant's patrol and a number of the Taliban fighters followed. The fierce gun battle happened approximately eight hours later. It appears that this is the battle being referred to in the Particular. Paragraph (36) of the Particulars of Truth contains an allegation that it may be inferred that the applicant's conduct in respect of Person 1 was, in part, to "detract" attention from the applicant's responsibility for directing the Taliban's attention towards the observation post by shooting the teenager. I have already addressed the respondents' case that the machine-gun fire from the ground below to the area of the deployed smoke shortly after the engagement indicates that the observation post was compromised. As to whether the major battle approximately eight hours later shows that the engagement compromised the observation post, I agree with the applicant's submission that it is not possible to know whether the battle that ensued some eight hours later might have been causally connected. It may or may not have been and it is not possible to know on the evidence.
1831 It emerged from the respondents' oral closing submissions that the allegation of the applicant's motive was that Person 1 knew that the applicant had compromised the mission, or had compromised the mission in order to shoot someone who was not armed. In the alternative, the applicant did not want anyone to contradict his public story that there were two armed males and then later that there was one armed male.
1832 In para (24) of the Particulars of Truth, it is alleged that the problem Person 1 had experienced with his machine-gun was caused by the fact that the belt had not been seated in the feed plate properly and it did not fire. Person 1 did not give any evidence to this effect. Person 1's ​evidence was that the machine-gun malfunctioned because he did not bring the oil and he accepted that this was a basic failure on his part.
1833 Paragraph (27) of the Particulars of Truth refers to something the applicant is alleged to have said to members of his patrol shortly after the Chora Pass battle. There is no evidence from either Person 1 or Person 4 that the applicant made this observation to members of his patrol, that is, the patrol under the command of Person 33. Person 2 did not give evidence to this effect.
1834 Paragraph (27A) of the Particulars of Truth relates to the death threat made by the applicant to Person 1. Person 1's evidence of the threat is in slightly different terms than the Particular, but I do not think the difference is material. In evidence, Person 1 said that the threat was in the following terms:
   If your performance doesn't improve on our next patrol, you're going to get a bullet in the back of the head.
1835 Paragraph (30) of the Particulars of Truth is to the effect that on more than one occasion after the Chora Pass battle, the applicant approached Person 1 in an aggressive manner and made a gun gesture toward Person 1 by putting two fingers into the side of Person 1's head. Person 1 did not give any evidence to the effect that this conduct had occurred.
Findings and Conclusions
1836 I accept the evidence of Person 1. He was an honest and reliable witness. He admitted his serious error in failing to bring machine-gun oil on the mission to the Chora Pass. He admitted to failings in the early period and, in particular, in the month or so between the mission to the Chora Pass and his transfer to Person 21's patrol. He accepted many of the criticisms of his performance as a soldier as set out in the official records such as the Exercise/Training/Activity Reports and the Performance Appraisals. The idea that Person 1 has made up his complaints of bullying because of some link with poor performance reviews has no basis in the evidence. Person 1 was cross-examined about complaints he may have made against Person 33, the late Sergeant Locke and Person 36. He denied making a complaint against Person 33. His recollection on this topic was not strong. It is of no moment that he may have complained about others at this time. The fact is that it was the applicant who undertook a course of conduct over a period of time. In my opinion, it is implausible in the extreme that Person 1 would pursue a meeting with Person 100 and a mediation in 2013 as an act of revenge for poor performance reviews in 2006. The death threat by the applicant is corroborated by Person 1's ​near contemporaneous statement to Person 21 and the fact of other statements and conduct by the applicant is consistent with what he said in the statement he prepared in 2013. Person 1's evidence as to events on the mission to the Chora Pass was corroborated in material respects by the evidence of Person 2. Person 2 was honest and generally reliable. He may have underestimated the age of the insurgent and he was mistaken about the cause of the failure of Person 1's machine-gun, but he was generally reliable. I have referred to other evidence he gave in Section 7 of this Part (at [1598]).
1837 The applicant's submission is that Person 1 has conflated his bullying allegations with genuine performance criticism or negative interactions with his colleagues. My findings as to the applicant's conduct are set out below. The conduct is the applicant's conduct and it can hardly be characterised as genuine performance criticism.
1838 I find that the conduct which the applicant engaged in was as follows:
    (1) During pre-deployment training for Rotation 3 in 2006 and, in particular vehicle-mounted training, on at least two or three occasions when Person 1was the driver, the applicant would reach down and slap Person 1 across the back of the head if he drove over rocky off-road terrain and hit something, such as a large bump.
    (2) Before the mission to the Chora Pass, the applicant and Sergeant Locke pulled Person 1 aside and the applicant said to him that he did not think that Person 1 had the required skills or ability to deploy to Afghanistan with the Task Force. The applicant went on to say that he would do everything he could within his power to have Person 1 removed from the team and to get one of his colleagues to replace Person 1. He identified Person 74 as a desired replacement.
    (3) Person 1 was abused by the applicant on the mission to the Chora Pass. Person 1 made a major and serious mistake on the mission and, in those circumstances, I put the abuse to one side in terms of the bullying allegation.
    (4) On one occasion in 2006, the applicant said to Person 1 the following:
   If your performance doesn't improve on our next patrol, you're going to get a bullet in the back of the head.
    The context in which that statement was made leads me to conclude that this was a death threat. I firmly reject any suggestion that it was the applicant advising Person 1 that he needed to improve his performance as a soldier otherwise he might be shot by the Taliban.
    (5) During a handover patrol in 2006, the applicant spoke to Person 24 about Person 1 in derogatory terms.
    (6) After Person 1 had made a complaint about the death threat, and on an occasion when he was standing in the lunch line waiting to go into the mess, the applicant approached him and standing very close to him, he looked down on him and said the following:
   If you're going to make accusations, cunt, you better have some fucking proof.
    Furthermore, the base was a small base and the applicant and Person 1 would see each other relatively often. I find that if they were walking past each other, the applicant would try and make eye contact with Person 1 and when they got close, he would spit on the ground in front of him. If they were walking into a building, the applicant would hold the door for Person 1 and then let it slam in his face.
    (7) The applicant continued to denigrate Person 1 in strong terms when speaking to others, for example, Person 5 in 2009.
    (8) In 2010, Person 1 had been in the ready room and he was waiting outside for the rest of his team to come out. The applicant was walking back into the ready room and Person 1 was standing in his way. The applicant pushed Person 1 squarely in the middle of his chest plate and said the following:
   Get out of my way, cunt, or I will kill you.
    (9) In early 2012, Person 7 had a conversation in the gym with the applicant when the applicant disparaged Person 1's reputation and said that he was a coward.
    (10) The applicant was disparaging of Person 1's abilities at a "manning meeting" in early 2013. Person 26 told Person 7 that the applicant said that Person 1 was a coward and that he was not up to the standard required and that he would be a very bad choice to take away as a 2IC.
1839 The significance of the ongoing denigration of Person 1 by the applicant is magnified by the fact that Person 1 and the applicant had only worked closely together for a couple of months in 2006 and yet, the applicant over six years later (in the case of the manning meeting) was offering extreme adverse opinions about Person 1. This is not a case of opinions being prised out of him. The course of events before and after make it clear that the applicant was only too willing to denigrate Person 1's reputation at any and every opportunity.
1840 Bullying involves oppressive or unreasonable behaviour which often has an element of repetition because it often involves targeting a particular person. The element of repetition ​often inherent in the concept of bullying is also part of the concept of the phrase in the imputation of "a campaign of bullying".
1841 Reasonable action taken to discipline for misbehaviour or non-performance is not bullying. What constitutes bullying is very dependent on the context and the reason for the behaviour of the alleged bully. In a very high risk environment, a strong reaction to poor performance may not only be understandable, but necessary to prevent a recurrence of an act or omission which may have potentially serious consequences. Furthermore, personality clashes are an inevitable part of human interaction.
1842 Bearing those matters in mind, I consider that the applicant's conduct towards, and in respect of, Person 1 considered as a whole amounts to a campaign of bullying.
1843 As to motive, I consider that the applicant had a poor view of Person 1 and a lack of respect for him before the mission to the Chora Pass and did not consider him up to the required standard for an SASR operator. He was even more antagonistic towards Person 1 after the mission.
1844 An obvious potential reason for that escalation is Person 1's basic failure to bring machine-gun oil. The motive suggested by the respondents of keeping Person 1 silent about the engagement compromising the observation post, or the engagement of a young Afghan male who was unarmed compromising the observation post, is not made out in circumstances where it is not clear the observation post was compromised and it appears that the applicant was acting under the orders of Person 33.
1845 The difficulty with the other motive suggested by the respondents of keeping Person 1 silent so that he did not contradict the applicant's public statements is that those statements were made five years after the mission and by then, the pattern of bullying had been established.
1846 In my opinion, the obvious motive for the escalation in the bullying after the mission to the Chora Pass is the applicant's perception of Person 1's failings on that mission.
1847 In any event, I find the applicant engaged in a campaign of bullying towards Person 1 and that is sufficient to establish that Imputation 12 is substantially true.
1848 In the alternative, and should I be wrong, the Group 3 articles convey Imputations 9, 10, 11 and 14. It follows that they also convey Imputations 2 and 3. I have found that the murders at W108, Darwan and Chinartu occurred and, therefore, Imputations 2 and 3 have been shown by ​the respondents to be substantially true. In my opinion, Imputation 12 does not further harm the applicant's reputation because of the substantial truth of Imputations 2 and 3. Therefore, in the alternative, the respondents have a defence under s 26 of the Defamation Act to the defamatory matter giving rise to Imputation 12.