# Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA)/Part 3/Section 2

​Section 2 — Whiskey 108
Introduction and Background
207 The respondents contend that the applicant's involvement in two murders at Whiskey 108 establishes the substantial truth of Imputations 2, 3, 4, 5, 6 and 9.
208 The Particulars of Truth with respect to the mission to Whiskey 108 on 12 April 2009 are as follows:
   Incident on Easter Sunday 2009
   (40) On or about 12 April 2009 the Applicant and the troop of which he was a member conducted a mission providing commentary and sniper support to the infantry who were trying to get across a river.
   (41) In or about the late afternoon the Applicant and the troop of which he was a member were instructed to assault a compound code-named Whiskey 108. The Applicant's patrol was one of the patrols responsible for conducting the assault.
   ​"Blooding the rookie"
   (42) Rotation 9 was Person 4's first deployment. Person 4 was a member of the Applicant's patrol.
   (43) At various times throughout rotation 9 the Applicant and his patrol commander, Person 5, made statements, in substance that they needed to "blood the rookie" (referring to Person 4).
   (44) "Blooding" refers to initiating a person in the practice of killing, or giving them the taste for killing.
   (45) During the mission in relation to Whiskey 108 an Afghan male (Afghan Male 1) was detained.
   (46) In the presence of the Applicant Person 5 ordered Person 4 to execute Afghan Male 1. Pursuant to that order Person 4 placed Afghan Male 1 on his knees and shot him in the back of the head. Person 4 was ordered to execute Afghan Male 1 so that he could be "blooded". The Applicant did not say or do anything to encourage Person 5 to withdraw the order or to stop Person 4 following the order. In these circumstances, and in the circumstances set out in particular 43 above, it may be inferred that the Applicant was complicit in and approved of the order.
   (47) In the circumstances, by his conduct with respect to Afghan Male 1, the Applicant breached Common Article 3 in that he was complicit in and responsible for murder.
       (a) [Deleted]
       (b) [Deleted]
   (48) In the circumstances, by his conduct with respect to Afghan Male 1, the Applicant was complicit in and responsible for murder.
   Murder of Afghan Male 2
   (49) After the assault was complete and the patrols were conducting SSE (sensitive site exploitation, being a process post-assault where a detailed and thorough search of the site is performed in order to gather intelligence) the Applicant carried an Afghan male with a prosthetic leg (Afghan Male 2) outside the compound and threw him on the ground. The Applicant then shot Afghan Male 2 approximately 10-15 times with a F89 LSW. A F89 LSW is a light machine gun.
   (50) Afghan Male 2 was a "PUC" (person under control) who posed no imminent threat, particularly given that Afghan Male 2 was physically impaired and the Applicant was able to carry him outside of the compound and throw him to the ground.
   (51) In the circumstances, by his conduct with respect to Afghan Male 2, the Applicant breached Common Article 3 in that his conduct constituted murder.
       (a) [Deleted]
       (b) [Deleted]
   (52) In the circumstances, the Applicant's conduct with respect to Afghan Male 2 constituted murder.
   ​Prosthetic leg
   (53) After Afghan Male 2 had been killed by the Applicant, Person 6 retrieved the prosthetic leg and brought it back to base. To the Applicant's knowledge the prosthetic leg was subsequently:
       (a) brought back to the SASR base in Australia;
       (b) mounted and framed;
       (c) used as a prop in photographs; and
       (d) used as a beer drinking vessel by members of the troop, including the Applicant.
   (54) By drinking from the prosthetic leg the Applicant, as a senior member of the troop, encouraged and contributed to a culture within the troop in which it was acceptable to drink from the prosthetic leg.
   (55) The Applicant's conduct in drinking from the prosthetic leg and in encouraging and contributing to the culture referred to in the preceding paragraph was callous and inhumane.
209 The allegation with respect to Afghan Male 1 is one of a breach of Common Article 3 of the Geneva Convention and complicity in and responsibility for murder (Particulars (47) and (48)), and the allegation with respect to Afghan 2 is one of a breach of Common Article 3 and murder (Particulars (51) and (52)).
210 I begin by identifying some background matters. Whiskey 108 was the codename for an Afghan compound. The question of whether it was one compound or two adjoining compounds was alluded to in the course of the trial, but not answered. It is not necessary to resolve that issue. I will refer to the compound as W108. W108 is located in Deh Rafshan in the village of Kakarak in the West Dorafshan district of Uruzgan Province in Afghanistan. Although I refer from time to time to the mission to W108, it should be noted that after clearing W108, at least part of the troop went on to clear Whiskey 109 (W109) which was nearby.
211 A 500-pound bomb was dropped on the compound by Coalition Forces shortly before it was cleared. An unmanned aerial vehicle (ScanEagle) took photographs of W108 before, during and after the bomb was dropped. The photographs were produced at the trial. Almost every witness who gave evidence of events at W108 was asked to mark one or more of the photographs showing that witness' evidence concerning his position and the position of other soldiers at various points in time, the location of structures and areas, the direction of movements through the compound and the location of bodies and a number of other matters. I attach to these reasons for the assistance of the reader an unmarked aerial photograph of W108 before the bomb had struck the compound and an unmarked aerial photograph of W108 after ​the bomb had struck the compound (Annexure G). The evidence is that the bomb did considerable damage to W108.
212 There was a misunderstanding on the day of the mission by those recording events concerning the cardinal points and that led to the location of areas, bodies and objects not being correctly described. The location of north is correctly shown on the attached photographs and the courtyard which was the focus of a great deal of evidence is at the north-eastern end of W108. On the day, north was thought to be more towards the bottom right hand corner of the photograph placing the courtyard at the north-western end of W108. This misunderstanding did not cause any confusion in the evidence. There was only ever one courtyard referred to in the evidence and it was agreed on all sides that a tunnel was found in that courtyard. Except where otherwise indicated, I will refer to locations by reference to the cardinal points as they were understood on the day.
213 It will be necessary to refer to the time at which various events occurred. A number of Australian Defence Force (ADF) records were tendered in evidence and in those records, DE (Delta Echo) refers to the local time in Afghanistan. Local time is four and-a-half hours ahead of Zulu (Z) time which is also referred to in some of the records. Zulu time is Greenwich Mean Time.
214 Finally, Afghan Male 1 referred to in the Particulars was referred to in the evidence as the old or older Afghan male or EKIA56. EKIA is the abbreviation for enemy killed in action. Afghan Male 2 was referred to in the evidence as the man with prosthetic leg or EKIA57. For convenience, I will continue to describe those two men as EKIA56 and EKIA57 respectively, although whether they were, in fact, killed in action is the key issue. There are photographs of both deceased men and those photographs are the subject of non-publication orders. Exhibit R6 comprises five photographs of EKIA56 and exhibit R7 comprises six photographs of EKIA57.
The Applicant's Contention that the Pleaded Allegations are Insufficient in Law and that there has been a Departure in the Evidence from the Pleaded Allegations
215 The applicant contends that there are two difficulties facing the respondents with respect to their pleading of the alleged murder of EKIA56. The first is an argument of an insufficiency in law and the second is an argument of an impermissible departure from the Particulars.
216 The first argument is as follows. First, it is clear from the respondents' Particulars of Truth that the allegation is that Person 4 murdered EKIA56 and that the applicant's responsibility is ​alleged to be based on complicity in murder, that is to say, that he aided, abetted, counselled or procured Person 4 to commit the offence (see s 11.2 of the Criminal Code Act 1995 (Cth) (the Criminal Code)). Secondly, it is clear from the Particulars that the respondents do not invoke or engage the type of command criminal responsibility identified in s 268.115 of the Criminal Code. Thirdly, in order for the applicant to be criminally responsible as an aider or abetter, he must have provided intentional assistance or encouragement to the principal offender. The Particulars do not identify any intentional assistance or encouragement by the applicant because all he is alleged to have done is not say anything or do anything to encourage Person 5 to withdraw the order or to stop Person 4 following the order (Particular (46)). The applicant submits that that "conduct" is not sufficient to bring his conduct within s 11.2 of the Criminal Code. Furthermore, insofar as the Particulars might be taken to suggest an agreement between the applicant and Person 5 to aid, abet, counsel or procure murder (see Particular (43) referring to statements about the need to "blood the rookie"), there was no liability for a joint criminal enterprise until after 20 February 2010 when s 11.2A was introduced into the Criminal Code and the relevant events at W108 are said to have occurred on 12 April 2009.
217 The words, "aids, abets, counsels or procures" in s 11.2 are not defined in the Criminal Code. They are to be given their established legal meaning (Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282 at [6]). The applicant submits that that established legal meaning involves some form of assistance or encouragement.
218 The applicant's submission seems to be that the pleading is insufficient in law. In the ordinary case, that would have been a matter raised before the trial. In any event, even on the Particulars, the position concerning criminal responsibility by reason of s 11.2 of the Criminal Code is not as clear as the applicant submits. It should be noted that the matter was not the subject of detailed submissions from the parties and, in particular, the applicant. I note from a perusal of the commentary on s 11.2 in Watson and Watson, Australian Criminal Law: Federal Offences (Thomson Reuters, subscription service) at [CC.11.2.40] (update 224) that under the traditional common law approach, much depends on the circumstances and minor encouragement and simply standing by may be sufficient.
219 As will become clear, the case presented by the respondents in terms of evidence and submissions undoubtedly involves complicity by the applicant within s 11.2 of the Criminal Code. If that case is established and if it does not involve an impermissible departure from the Particulars, then the first argument does not, in fact, arise.
​220 The second argument is as follows. It is said by the applicant that through the evidence of Person 41, the respondents now seek to maintain a case in which the applicant, not Person 5, ordered Person 4 to shoot EKIA56. That case is, the applicant submits, an impermissible departure from the Particulars being the pleaded case. I note that no objection on this basis was taken by the applicant at the time Person 41 gave his evidence.
221 The applicant has had proper notice that the respondents advance a case in accordance with Person 41's evidence. In Roberts-Smith v Fairfax Media Publications Pty Limited (No 12) [2021] FCA 465 (Roberts-Smith (No 12)) (published with redactions on 6 May 2021), I considered an application by the respondents for leave to issue Subpoenas to give evidence to Persons 24, 40, 41, 42, 43 and 56. No outlines of evidence had been filed in relation to those persons, but there was in each case, except for Person 56, what I considered to be a sufficient equivalent. I granted leave in the case of each person, except for Person 56. I said (at [52]):
   The applicant's principal objection to the application in relation to Persons 24, 40, 41, 42 and 43 is that their evidence is inconsistent with the pleading of the incident in the existing Particulars of Truth. I do not propose to go through the details of what the applicant said were inconsistencies, other than to address the applicant's best example. In (46) of the existing Particulars of Truth, the respondents allege that in the presence of the applicant, Person 5 ordered Person 4 to execute Afghan Male 1, No doubt this is a significant difference on an important topic. However, inconsistency per se is not a reason to refuse the application. It might be if it is such as to raise a new case, but I do not consider that any inconsistencies (if, and to the extent, there are inconsistencies) rise to that level. I grant the application with respect to Persons 24, 40, 41, 42 and 43.
There was no appeal from that decision. An unredacted copy of this paragraph is set out in the closed Court reasons (at [1]).
222 I am also informed by the respondents, without contradiction by the applicant, that they wrote to the applicant on 6 June 2021 stating that, for the avoidance of doubt, they relied on the evidence that the parties could anticipate would be given by Person 41. In the circumstances, I do not consider that there has been an impermissible departure or that there is any unfairness to the applicant in considering the case the respondents now advance.
Approach and Witnesses
223 In undertaking the fact-finding exercise, I must bear in mind the matters in Section 1 of this Part.
​224 I will proceed by describing the relevant events at W108 in chronological order. I will make findings in the course of doing that. Of course, in making findings, earlier or later or subsequent events may be relevant and where they are, must be taken into account. In other words, findings are made having regard to (where relevant) the whole sequence of events of which they form a part.
225 The key witnesses for the respondents in relation to events at W108 are Persons 41, 40, 42, 43, 18, 14 and 24. The applicant makes a clear challenge to the honesty and reliability of Persons 14 and 24. He suggested to both of them in cross-examination that they were lying and referred to them in closing submissions as "liars", "perjurers" and "discredited witnesses". The applicant challenged the evidence of Persons 41, 40, 42, 43 and 18, but it was less clear whether that was done on the basis of both honesty and reliability or reliability alone. The matter was the subject of submissions, but I will proceed by considering the nature of the challenges as formulated, rather than engaging in a process of characterisation (i.e., does the challenge relate to honesty or reliability or both) and then dealing with the matter in light of that characterisation. That seems to me to be the appropriate course in light of the seriousness of the allegations. Some of the respondents' witnesses are also witnesses in relation to other missions and events. For example, Person 14 is the respondents' key witness in relation to events at Chinartu and Person 18 is an important witness in relation to the threatening letters. In assessing the credit of a witness, it is necessary to have regard to the whole of the witness' evidence while at the same time recognising that the witness may be correct as to one matter and mistaken as to another, or truthful as to one matter and dishonest as to another. As will be seen, I accept the evidence of Persons 41, 40, 42, 43 and 18. As I will explain, there are reasons to scrutinise Person 14's evidence with care, but having done that, I accept his evidence. Person 24's evidence must be approached with considerable caution, but it does not stand alone and is supported by the evidence of Persons 14 and 41.
226 The key witnesses for the applicant in relation to events at W108 are the applicant and Persons 5, 29, 35 and 38. As with the respondents' witnesses, some of these witnesses gave evidence in relation to other missions or events. The applicant is the obvious example. Person 35 gave evidence in relation to the Person 12 lie. In assessing credit, all of the witness' evidence must be taken into account in the same way and subject to the same qualifications as I have indicated in relation to the respondents' witnesses. In addition, in the case of the applicant and Persons 5, 29 and 35, I take into account the adverse credit findings set out in ​Section 12 of this Part. As I will explain, I do not accept the applicant and Persons 5, 29, 35 and 38 as honest and reliable witnesses.
References to Person 4 as the "Rookie", "to Blooding the Rookie" and Events on a Prior Mission
227 Rotation 9 was for the period from approximately March to July 2009. The respondents' Particulars are to the effect that at various times throughout Rotation 9, Person 5 and the applicant made statements, in substance, that they needed to "blood the rookie" referring to Person 4 and that "blooding" refers to initiating a person in the practice of killing, or giving them the taste for killing (Particulars (43)–(44)).
228 In the circumstances of this case, this issue gives rise to a number of sub-issues. Those sub-issues are as follows: (1) whether Person 4 was referred to as the "rookie"; (2) whether Person 5, the applicant and perhaps others spoke of "blooding the rookie"; and (3) whether Person 4 had already been responsible for killing an insurgent or being involved in the killing of an insurgent prior to the mission to W108 and, therefore, the blooding allegation made by the respondents should be rejected.
229 The respondents link the "blooding the rookie" allegation with the murder of EKIA56 because they allege that Person 4 was ordered to shoot EKIA56 so that he could be "blooded". Although the respondents pressed this part of their case with force, they submit in the alternative, that even if it is not established, it is not fatal to their case because there is no obligation on them to prove a motive or reason for the killing of EKIA56. This submission is correct.
230 For his part, the applicant submits that the "blooding the rookie" allegation is an intermediate fact which is a legally indispensable step upon the way to an inference of guilt (Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573).
231 Motive, in the circumstances of this case, is not a legally indispensable step. This "fact" may be contrasted with the "fact" that two men were taken from the tunnel which the respondents accept is central to their case.
232 Person 4 was the newest member of Person 5's patrol in 2009. His first deployment to Afghanistan as an SASR trooper was in 2009.
233 Person 14 said in his evidence that in early 2009, his understanding of the term "rookie" was a junior trooper who was very new to the squadron or troop, if not on their first deployment. Person 14 said that his understanding was that the "rookie" in 2009 was Person 4. The ​respondents submit that he was not expressly challenged on that evidence. I do not need to pursue this issue because, in any event, I accept Person 14's evidence.
234 In 2009, Person 18 was in the same patrol as Person 4, the applicant and Person 5 and he said in his evidence that it was a running joke, derived from the movie "Super Troopers", between Person 4 and himself that although Person 4 was a good 20 years older than Person 18, he (Person 4) was the "rookie fuck". The respondents submit that he was not expressly challenged on that evidence. I do not need to pursue this issue because, in any event, I accept Person 18's evidence.
235 Person 18 also gave evidence that at a meeting in 2013 involving the Regimental Sergeant Major (RSM) (Person 102), Persons 32, 4 and himself, he was asked by the RSM whether he had heard a rumour about blooding the rookie at W108. The applicant asked me to reject this evidence which he elicited in cross-examination, but I accept Person 18's evidence and I see no reason to reject the evidence.
236 Person 24 gave evidence that shortly prior to the mission to W108, he understood Person 5's reference to the "rookie" to be a reference to Person 4. He considered that as far as Person 5 and the applicant were concerned, Person 4 was the "new guy" who they could influence. The respondents submit that he was not challenged on his understanding that Person 4 was the "rookie". For reasons I will give, Person 24's evidence must be approached with considerable caution. Nevertheless, I accept Person 24's evidence that Person 4 was referred to as the "rookie".
237 The applicant said that he did not challenge the evidence of Persons 14, 18 and 24 that Person 4 was understood by them as a "rookie". He submits that their evidence was of limited probative value because it was their understanding and no more.
238 However, there was other evidence that the junior member in a patrol, or at least in Person 5's patrol, was referred to as the "rookie".
239 First, in 2010, Person 8 had replaced Person 4 as the newest member of Person 5's patrol. A photograph of the patrol room door for Person 5's patrol has a sign identifying the members of the patrol and Person 8 is described on the sign as the "rookie fuck" (R210 open Court exhibit; R200 closed Court exhibit). It is true that this is in 2010, but in my opinion when this evidence is considered with all the evidence in the case, there is a strong body of evidence that the junior ​member of Person 5's patrol was known as the "rookie" or "rookie fuck" earlier and more generally and widely than just by Persons 14, 18 and 24.
240 In his closing written submissions, the applicant sought to have the evidence concerning what was on the patrol room door in 2010 excluded on the basis that it is tendency evidence which did not meet the requirements of s 97 of the Evidence Act. The point was not developed in circumstances where there was no objection to the evidence at the time it was tendered. It is not clear to me that it is tendency evidence as distinct from evidence which, with other evidence, suggests a practice. Furthermore, whilst there is no suggestion a notice in writing in relation to the evidence was given by the respondents (s 97(1)(a)), I can indicate that had the point been reached of considering s 97(1)(b), I would have had no difficulty in concluding that the evidence, with other evidence, has significant probative value in this case. Furthermore, as I have said, the evidence was not objected to at the time of its tender and was admitted and it is too late to object to it now (Federal Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74; (2011) 193 FCR 149 at [26]).
241 Secondly, Person 19 was in the applicant's patrol in 2012 and he said that the term "rookie" was both used and understood. I will return to the evidence of Person 19 in Section 3 of this Part. I can indicate now that I accept his evidence on this issue.
242 The applicant submits that the respondents must establish that Person 5 said in 2009 that he wanted to blood the rookie, that Person 5 was referring to Person 4 when he referred to the rookie and that he, Person 5, meant killing an insurgent whether the killing was lawful or unlawful.
243 The applicant's witnesses included Persons 5, 27, 29, 35 and 38 and they denied having heard of Person 4 being referred to as the "rookie" or referring to him in that way themselves. I reject that evidence for two reasons. First, I do not accept them as honest and reliable witnesses. Secondly, such evidence is inconsistent with evidence I do accept. They certainly have a motive for denying that they heard Person 4 referred to as the "rookie" in view of the allegation that there was a need to "blood the rookie".
244 The applicant relies on the fact that, although the respondents called Person 4, they did not seek to adduce evidence from him as to what he was called by Person 5 in 2009. That is correct. The applicant submits that, in those circumstances, a Jones v Dunkel inference that Person 4's evidence would not have assisted the respondents' case should be drawn. I decline to draw this ​inference from the fact that the respondents did not ask Person 4 what he was called by Person 5 in 2009. Clearly, that issue is closely related to the issue of the events that occurred at W108 on 12 April 2009. Person 4 claimed the privilege against self-incrimination in relation to events that occurred at W108 on 12 April 2009 and it is reasonable to assume he would have done so in relation to the issue now under consideration. I upheld Person 4's claim to the privilege in relation to a number of questions and would have upheld the claim had the question now under consideration been asked.
245 Counsel for the respondents asked Person 4 what he could recall of the mission to W108 on Easter Sunday in 2009 and at that point Person 4 claimed the privilege against self-incrimination. The offence identified by his counsel was that set out in s 268.70 of the Criminal Code, that is, the war crime of murder. I held that Person 4 had reasonable grounds for the objection within s 128(2) of the Evidence Act. Person 4 was not willing to give the evidence even with the benefit of a certificate under s 128(3) of the Evidence Act and, after addressing the matters in s 128(4) of the Evidence Act, I ruled that I would not require Person 4 to give the evidence.
246 In cross-examination, Person 4 took an objection on the same ground when asked whether he told his psychiatrist that if he was required to give evidence about W108, that could potentially result in him taking his own life. I ruled that I would not require Person 4 to give the evidence. Person 4 was also asked whether he was aware the respondents have alleged in the case that he murdered an unarmed Afghan male on 12 April 2009 and he objected to that question. In the case of that question, I was not satisfied that there were reasonable grounds for the objection and ruled accordingly. Person 4 was asked in cross-examination whether he was anxious that the respondents may put to him their allegation in these proceedings that he unlawfully killed an Afghan male on 12 April 2009 and a question as to whether he would have come to Court to give evidence under the subpoena if he felt he would be in a position where the respondents would inform the Court that he ought to be compelled to answer questions in relation to the allegation that he murdered an unarmed Afghan male in April 2009. Person 4 objected to answering those questions on the basis of self-incrimination. I held that there were reasonable grounds for the objection and that I would not require Person 4 to give that evidence. I overruled an objection by Person 4 to a question about whether he started to have ruminations about W108 on the basis of self-incrimination.
​247 In addition to these questions, in the course of a long and detailed cross-examination, Person 4 was asked questions to the following effect:
    (1) how many kills within the rules of engagement he had in 2009;
    (2) whether he had the right to refuse to carry out an unlawful order;
    (3) whether he, Person 5 and Person 6 had killed Objective Depth-Charger;
    (4) what his patrol was tasked with doing on 12 April 2009;
    (5) what was the scheme of manoeuvre for 12 April 2009;
    (6) whether his patrol entered W108;
    (7) whether he saw a fighting age male in the compound; and
    (8) whether he observed a tunnel;
He objected to answering these questions on the basis of self-incrimination. I did not require him to give the evidence.
248 In the circumstances, I decline to draw an adverse inference that Person 4's evidence would not have assisted the respondents' case from the respondents' failure to ask Person 4 what Person 5 called him in 2009. Even if this be wrong, the relevant inference is that it would not assist a party's case, not that it would damage the case. Furthermore, the rule does not compel the rejection of the evidence of the party said to have failed to have called a witness, or ask a question of a witness, or the drawing of an inference in favour of that party.
249 I find that in 2009, Person 4 was referred to as the "rookie" or the "rookie fuck" within Person 5's patrol and by other members of the troop.
250 The next question is whether in the weeks leading up to the mission to W108, Person 5 said that he was going to "blood the rookie".
251 Person 14 said in his evidence that in the period leading up to the mission, he heard Person 5 say in a troop or group setting in Tarin Kowt that he was going to "blood the rookie" which Person 14 understood to be a reference to Person 4 and to Person 4 getting a kill in action. The applicant was present in the room on the occasion. However, Person 14 made it clear that Person 5 was not addressing the room. He said that, to his recollection, Person 5 was speaking to Persons 3 and 24 and himself. Counsel for the applicant elicited from Person 14 in cross-examination that the applicant was not within earshot when Person 5 said that he was going to "blood the rookie".
​252 It is relevant in assessing this evidence, although not decisive, that as the respondents point out, the challenge by the applicant in cross-examination to this aspect of Person 14's evidence was not that Person 5 never said that he was going to "blood the rookie", but that "blooding" could mean a lawful killing of the enemy in action and that, in fact, Person 14 agreed that Person 5 has never said that the rookie would be asked to undertake an unlawful killing.
253 Person 5, although denying that he had used the expression "blood the rookie" in 2009, said that the term "blooding" has been used for centuries in the military to mean a first kill in battle or action.
254 The applicant submits that I should not accept Person 14's evidence about what Person 5 said. He pointed to the fact that the evidence of Person 14 was not corroborated by Person 24 who was said by Person 14 to be a party to the conversation.
255 I agree that I should take into account the fact that another party to the conversation, according to Person 14, that is to say, Person 24, did not give evidence of the conversation.
256 The applicant also relies on the absence of corroboration of Person 14's evidence from other persons who were in the room according to Person 14, being Persons 3, 4, 5, 6, 14, 18, 24, 27, 29, 68 and 73. I have already referred to Persons 5 and 24. Person 3 did not give evidence in the case and, in that sense, he did not corroborate Person 14's account. The others were in the room, but not party to the conversation and the absence of evidence from them is immaterial.
257 I find that the conversation described by Person 14 took place. I accept Person 14's evidence. I do not accept Person 5's evidence.
258 Person 24 gave evidence that about one week before the mission to W108, Person 5 came to Person 6's patrol room at Tarin Kowt when he, Person 6 and others were present and said that "we" are going to "blood the rookie". Person 24's understanding at that time was that that meant to get Person 4 in a position where he could get a kill under his own name.
259 The challenges to this evidence by the applicant in his cross-examination of Person 24 ranged from no challenge to the words used, but a challenge to Person 24's understanding of their meaning (based on what he read, particularly that the words meant an unlawful killing, whereas previously he would have understood them to mean to kill someone lawfully) to a suggestion that he might have imagined the making of the statement. However, as to the latter suggestion, there is no obvious basis for it as the interaction at the doorway of the patrol room was not ​referred to in the articles complained of and nor was a suggestion made by the applicant that it had been "implanted" in Person 24's memory by something someone else had said.
260 The respondents accept that there was a clear challenge in closed Court on 14 April 2022 to Person 24's evidence that Person 5 had said that "we're going to blood the rookie" on a particular basis, but submit that that particular basis was flawed. The respondents submit that the challenge by the applicant to Person 24's evidence was without any basis having regard to the contents of closed Court exhibit A188. I reject the particular challenge made by the applicant in closed Court for the reasons given in the closed Court reasons (at [52]–[54]).
261 The applicant submits that Person 24's evidence about the conversation at the patrol room door is not corroborated. That is correct. Furthermore, they submit that Person 6 who, on Person 24's account was present, was not called to support Person 24's account and, in those circumstances, they ask that an inference be drawn from the fact that Person 6 was not called as a witness by the respondents that his evidence would not have assisted the respondents' case. The applicant also suggested that it is relevant that, albeit in a different context, the respondents acknowledged that their decisions about what witnesses to call were forensic decisions based on the evidentiary case identified in the outlines of evidence. In other words, the respondents made a deliberate and considered decision not to call Person 6. I do not consider that what was said by the respondents' counsel in a different context adds a great deal because it would be assumed anyway in the absence of a suggestion of carelessness or mistake.
262 Assuming for present purposes that Person 6 is in the respondents' "camp" and that there is no explanation for his absence from the witness box, I do not consider that, in any event, a Jones v Dunkel inference has any significant role to play. The fact is that I have direct evidence from Person 24 of the alleged conversation and I must decide whether I accept it.
263 The applicant submits that there is a further reason why Person 24's account of the conversation at the patrol room door should be rejected and that is that there was evidence from Person 5 that he disliked Persons 6, 14 and 24. In those circumstances, the applicant submits that it is inherently unlikely he would have gone to Person 6's patrol room. Person 5 did say that he did not like "any of them", but he did not seem to advance that as a reason he would not go to Person 6's patrol room. I do not consider that this so-called further reason has a basis in the evidence.
​264 In addition to his evidence about the use of the term "rookie", Person 19 gave evidence that he had heard Person 5 use the term "blooding" and the respondents contend that the applicant did not expressly challenge that evidence. Person 19's understanding of the word was that it meant an unlawful killing, "the fortitude to shoot – to shoot a prisoner if required". I accept Person 19's evidence that he had heard Person 5 use the term "blooding". I do not accept the applicant's submission that the evidence has no probative value because Person 19 could not remember where and when he heard Person 5 use the term. However, the probative value of the evidence is limited because of those circumstances.
265 As I will indicate later in these reasons, I find that Person 5 mentioned having "blooded the rookie" after the mission to W108. This provides further support for the finding, which I make, that Person 5 made comments to the effect that he or we were going to "blood the rookie" before the mission to W108. Those were the comments made by Person 5 as related by Person 14, the comments made by Person 5 as related by Person 24 and supported by Person 19's evidence that he had heard Person 5 use the term "blooding".
266 Although 2009 was Person 4's first deployment to Afghanistan with the SASR, he went on a mission during the deployment before he went on the mission to W108. This mission involved the pursuit of a high-value target known as Objective Depth-Charger in the Mirabad Valley. The oral evidence establishes that the mission was shortly before the mission to W108. A closed Court exhibit (A10 Tab 6) appears to establish a more precise date for the mission.
267 The significance of the mission to the Mirabad Valley is said to be that Person 4 was "involved" in an engagement and during the mission, Objective Depth-Charger was killed. Depending on the extent of Person 4's involvement and the circumstances, it might be said that there was no longer a need to blood Person 4. The issue is not necessarily one of objective fact and may involve perceptions and, in particular, the perception of Person 5 and other soldiers.
268 The applicant's case about the mission is to the effect that whether Objective Depth-Charger was killed by Person 4 alone or by a combination of rounds from more than one SASR soldier is beside the point, because, "blooding" according to the respondents' Particulars of Truth (at para (44)) "refers to initiating a person in the practice of killing, or giving them the taste for killing". The applicant submits that the definition of "blooding" propounded by the respondents "eschews any requirement that the initiate take sole and unambiguous credit for the kill". "Blooding" had undoubtedly occurred in the case of Person 4 and even if there was ​a practice of "blooding" (which the applicant denies) the blooding of Person 4 had occurred before the mission to W108.
269 The respondents on the other hand, submit that the need for "blooding" still existed because Person 4 shot at Objective Depth-Charger after other SASR operators had shot and killed him or, at the very least, the responsibility for killing Objective Depth-Charger could not be "securely" attributed to Person 4.
270 In his evidence, Person 4 described the mission as involving a clandestine infiltration where he and the rest of Person 5's patrol were behind a gate in an alleyway next to a compound. Person 4 said that he was third in the order of march as the gate was opened and they rushed out and engaged the target. Person 6, as the lead planner, was first out followed by Person 5. Person 4 agreed that he, together with Persons 6 and 5, rushed out and engaged the target.
271 Person 18 was on the mission and involved in the engagement in which Objective Depth-Charger was killed. He was in a different position from Persons 6, 5 and 4. He was on a ladder next to a high wall with Person 14 who was also on a ladder. Person 18 said that Person 6 on the ground as the commander engaged first followed by Persons 18 and 14 followed by (Person 18 believed) Person 73 as Person 6's 2IC. Person 18 said that if anyone else engaged thereafter, he did not see it or hear it and that they would have been engaging "dead bodies". Person 18 said that he could not see anyone else below from his elevated (or overwatch) position. He said that he could hear Person 6's M14 engage and that Person 4 did not have an M14. Person 4 would have had an M4 rifle. In cross-examination, Person 18 said that he could not rule out Person 4 engaging, but the first he had heard of it as a possibility was during the week before he was cross-examined in March 2022.
272 Person 5 gave evidence that the mission was a kill/capture mission which was planned by Person 44. Person 44's patrol took up an overwatch position. Person 6's patrol and Person 5's patrol were on the ground. Person 5 said that he, Persons 4, 18 and the applicant were at the front. They ran out with Person 6 and the rest of his patrol. He and Person 4 engaged Objective Depth-Charger first. Persons 14 and 73 were in another part of the compound on telescopic ladders.
273 Person 5's account of the engagement was unsatisfactory because it changed from his evidence-in-chief to cross-examination and then in the course of cross-examination. Under cross-examination, Person 5 said that Person 4 shot and killed Objective Depth-Charger and that he ​(Person 5) was, in fact, shooting at "the guy on the back of the motorbike" who was Objective Depth-Charger's bodyguard. Later in his cross-examination, Person 5 reverted to saying that he was "aiming at the men on the bike" and that he fired "at both of them".
274 ccept Person 4's evidence as to the order of march out of the gate and I accept Person 18's evidence that he was on a ladder next to the wall in preference to Person 5's evidence that Person 18 was on the ground. I accept Person 18's evidence that he and Person 14 engaged from an elevated position shortly after the first member of the ground force engaged.
275 ccept Person 18 as an honest and reliable witness. As I will explain in connection with the mission to Darwan, I accept Person 4 as an honest and reliable witness. I do not accept Person 5 as an honest and reliable witness. In terms of the perceptions at the time, they would have been that Person 4 was involved in the engagement, but they would not have been that Person 4 was responsible for killing Objective Depth-Charger, or his associate(s). The perceptions at the time were that the soldier(s) who fired the fatal shots were Person 6 or Persons 18 and 14.
276 se conclusions are supported by the evidence of what was said by Person 5 and the applicant immediately after the mission to W108. It is convenient to address that evidence at this point.
277 Person 18 gave the following evidence with respect to that matter:
   …within the period shortly after the mission, did you hear anything said about what had happened on the mission?---When we got to the troop – vehicle drop-off point back on the western side of the valley out of the green belt, we got back into the harbour and I then heard by Person 5 and Ben Roberts-Smith that they’ve blooded the rookie.
   Right. Did both of them – did you hear both people say that?---Yes, it was a conversation that the team had had – or these members had had. I didn't know what they were talking about at the time.
278 Person 14 gave the following evidence:
   Now, Person 14, you might remember this morning you mentioned a conversation that you had heard about blooding the rookie that I said I would come back to; do you remember that?---Yes.
   Right. Can you tell his Honour now where and when that conversation took place, and who said what in it?---In the vehicle LUP [lay-up point], and that was, obviously, when we had returned from that mission. When you come into the LUP, obviously, our patrol came in first and we received, if you will, the rest of the patrols. They come – they will generally file through us. And it was at that point of marry up, within the vehicle harbour, that Person 5 mentioned - - -
   Well, just try – if you can, try and remember the words that you heard him say?---"I finally blooded the rookie".
​279 The respondents submit that the applicant did not expressly challenge either witness to the effect that the conversation or statement the witness related did not occur.
280 In the course of the applicant's evidence, he addressed the respondents' case concerning Person 4 and the execution of EKIA56 and he said that he never heard the use of the word "blooded" or "blooding the rookie" in relation to any of these actions. He said he had not heard the phrase used in the SASR until a few years ago when it was being bandied around.
281 Person 5 denied that when the troop was back at the Vehicle Drop-Off Point (VDOP), he had a conversation with the applicant in which they both said words to the effect of "we blooded the rookie" and he denied that he said to someone other than the applicant "I've finally blooded the rookie".
282 The applicant submits that I should reject the evidence of Person 18 about what was said at the VDOP because it is vague, uncorroborated and makes no sense in circumstances where Person 4 had participated in the killing of Objective Depth-Charger. I reject that submission. It is true that the evidence is general, but as I have said, I find Person 18 was an honest and reliable witness. I accept Person 18's evidence about what was said by the applicant and Person 5 at the VDOP immediately after the mission to W108. I reject the evidence of the applicant and Person 5.
283 I also accept Person 14's evidence of what he heard Person 5 say at the vehicle layup point (LUP). Person 14 did not suggest that the applicant or Person 18 were present during the conversation and Person 14's evidence is not corroborated by Person 18's evidence. I take into account the absence of corroboration and, as is the case with all the witnesses where relevant, the fact that the alleged conversation or statement occurred or was made approximately 13 years before Person 14 gave evidence. Nevertheless, I accept the evidence of Person 14 on this topic. I reject the evidence of Person 5.
284 There was evidence from some of the respondents' witnesses that "blooding" did not necessarily mean an unlawful killing and that it could mean a lawful killing in action. For example, there is evidence to that effect from Persons 14 and 24 and it is implicit in parts of Person 18's evidence. I accept that evidence and it follows that the meaning of the words depends on the circumstances and the particular context in which the words are used. To that extent, I accept the applicant's submission that the statements which I find were made do not of themselves amount to an admission of unlawful conduct by Person 5, let alone establishing ​that Person 4 murdered someone at W108. It is a question of considering the statements in the context in which they were made and having regard to other facts as found, a matter that I will address.
285 I note at this stage a submission by the respondents that the false denials by the applicant and Person 5 of having made the statements is suggestive of a consciousness by each of them of a meaning of unlawfulness. I would not go that far, although clearly the false denials are relevant to credit.
286 I also note that it was in this context that the applicant made a broader submission that the respondents have not put forward a case theory as to why in 2009, Person 5 would "all of a sudden" become a patrol commander who would give directions to members of his patrol to engage in unlawful killings. Certainly, motive or absence of motive is a factor to take into account but, as the respondents submit, it is not decisive.
The Mission to W108 on 12 April 2009
287 On 12 April 2009, G Troop consisted of five patrols and the names and composition of those patrols was as follows:
    (1) Gothic 1: Person 44 (PC), Person 45 (2IC), Persons 27, 46, 47 and 48;
    (2) Gothic 2: Person 29 (PC), Person 40 (2IC), Persons 35, 38, 41, 42;
    (3) Gothic 3: Person 43 (PC), Person 72 (2IC), Persons 3, 98, 108, and 109;
    (4) Gothic 4: Person 6 (PC); Person 73 (2IC), Persons 14, 24, 68 and 80; and
    (5) Gothic 5: Person 5 (PC); the applicant (2IC), Persons 4, 18 and 52.
288 The "Headquarters" element of the G Troop consisted of Person 81 who was the troop commander, Person 82 who was the troop sergeant, and an interpreter.
289 It is not in dispute that G Troop established an overwatch position a short distance from the green belt on the western side of the Deh Rafshan River. An element of the MRTF, the 7th Battalion of the Royal Australian Regiment, was on the eastern side of the river and was being engaged by insurgents who appeared to be operating out of a number of compounds on the western side of the river, including W108 and W109.
290 G Troop could observe insurgents manoeuvring against the MRTF and engaged some with sniper fire. Three insurgents were identified entering W108. Person 81 said and I accept that ​that the troop also received intelligence from a ScanEagle drone utilised in support of Australian forces which identified insurgents in W108.
291 As I have said, a 500-pound bomb was dropped on W108. The bomb was dropped at 1221DE following the observation of insurgent activity in and around the compound. The bomb caused extensive damage to the compound.
292 The respondents point out that the operators on 12 April 2009 regarded the side of the compound closest to the river as east with the opposite wall being west. Consistently with that understanding, the corner of the compound where the tunnel courtyard of the compound was located was thought to be the north-western corner and the markings on the Sensitive Site Exploitation (SSE) bags reflect that fact. As I have said, there was only one tunnel courtyard referred to in the evidence. As the respondents submit, later documents and, in particular, the aerial photographs of W108 shown to a number of witnesses, have identified north as being closer to what was understood as west on the day of the mission. As the respondents submit, evidence given in the context of such documents, and sometimes other times, thus involved a corresponding adjustment of the cardinal points used and an example is the area where the tunnel courtyard was located being described as the "northeast corner".
293 After the bomb, there was a lot of rubble and large mounds of dirt in W108. The applicant said that the bomb had effectively blown out the internal component of the compound, but left a lot of the external structures and some of the external accommodation intact. It can be seen from the photograph which is annexed to these reasons that substantial damage was done to what was understood on the day to be the northern half of W108.
294 Following the dropping of the bomb, Person 81 gave orders to the patrol commanders to clear both W108 and W109.
295 It is convenient at this point to refer to information in ADF documents which are sensitive and which were referred to in closed Court. They set out details of pre-mission intelligence and various events during the day. Both sides referred to entries for their own purposes. The entries said to be relevant are set out in the closed Court reasons (at [2]–[8]).
296 Each patrol was assigned a particular role in the assault and clearance of W108. Person 5's patrol and Person 29's patrol were assigned the role of assault patrols. That meant that they were to conduct the clearance of the compounds. Person 6's patrol was assigned the role of leading the approach of the troop from the VDOP to W108 and then of providing external security and performing cordon duties while the compound was being cleared. Person 43's patrol and Person 44's patrol were, like Person 6's patrol, each given the role of providing external ​security and performing cordon duties during the clearance. Various witnesses described the roles in a way which is not contentious. Person 14 described the role of the primary assault patrols as follows:
   … once we got to the compounds of interest and a cordon was set they would answer [enter] the compounds of interest and assault and clear.
297 Person 42 (a member of Person 29's patrol) described the role assigned to Person 6's patrol as follows:
   I remember Person 6's patrol led us in. So they would to scout the path in. Clear the path in. They – they remained on the outside of the compound providing cover – cover and screening for us basically to the north of – of the compound whilst we did the clearance.
298 Person 18 referred to Person 6's patrol as the cordon team and the team which was the advance party. Person 6's patrol would do perimeter security on the north-western corner and Person 43's patrol would do security on the southern aspect of the target compound.
299 The troop stepped off from the VDOP at 1500DE. Again, I refer to the closed Court reasons and the entries in the Sametime chat record (at [5]–[6]).
300 As I have said, Person 6's patrol was the lead patrol for the movement of the troop from the VDOP to W108 and Person 14 was the scout or lead soldier. Person 6 engaged an insurgent on the way into W108. It seems that that EKIA was not photographed during the SSE process. A second insurgent was engaged by Person 24 approximately 500 metres south of W108. The information in a closed Court exhibit confirms the engagement (at [14]). A third EKIA was engaged by Person 14 at a point close to the compound. This insurgent was designated "EKIA50". Exhibit R5, an NPO document, comprises five photographs of his body. The information in a closed Court exhibit confirms the location of the engagement (at [28]). I am satisfied on the evidence that Person 14 engaged and shot an insurgent and that insurgent was designated EKIA50 in the reports prepared after the engagement.
301 Persons 14 and 24 were members of Person 6's patrol which was providing security by way of a cordon outside the compound. The location of Persons 14 and 24 at the time of the assault and clearance of W108 and for a period thereafter is important because each of them said that they saw the incident in which EKIA57 was shot and each of them gave a description of what they saw.
​302 One of the matters various witnesses were asked to mark on the aerial photographs (assuming they were in a position to do so) was the location of Person 6's patrol at the time of the assault and clearance of W108 and for a period thereafter. I turn to that issue.
The Location of Person 6's Patrol during the Assault and Clearance of W108 and thereafter
303 During the course of the evidence at the trial, it seemed there was a difference between the respondents' witnesses and the applicant and some of his witnesses as to the location of Person 6's patrol and, in particular, Persons 14 and 24 while Person 6's patrol was performing cordon duties outside W108. A related issue also bearing on the location of Person 6's patrol was the location of Person 14 and EKIA50 at the time Person 14 engaged him.
304 The applicant marked the location of Person 6's patrol in the shape of an arc or semi-circle at the southern end of the compound (exhibit R4). By contrast, Persons 14 and 24 marked their location as members of Person 6's patrol much further to the north and in a similar general area (exhibits R98, R141 and A130). There are some differences between the location that Person 14 identified and that identified by Person 24 in terms of their distance to the north and out from the compound wall, but for present purposes, I do not consider these differences to be material. The material difference is between the evidence adduced by the respondents and the evidence adduced by the applicant.
305 The applicant's closing written submissions in relation to W108 include a heading of "C. Facts Not in Dispute" and then a subheading of "Location of Person 6's patrol in the cordon". Under that subheading, there is no mention of the applicant's evidence or that of his witnesses as to the position of Person 6's patrol, including Persons 14 and 24. The applicant submits that the evidence of Persons 14 and 24 is at best unreliable and that it is likely they were positioned somewhere between the respective positions which the two identified. In other words, the applicant appears to place no reliance on his own evidence and the evidence of some of his witnesses as to the location of Person 6's patrol.
306 However, it is necessary to consider the evidence because the respondents contend that the applicant and his witnesses colluded about the entry point of the assault or clearance patrols. They submit that the entry point has little significance in itself; its significance in this case is the extent to which it, in turn, suggests the likely position of Person 6's patrol acting as a cordon. The respondents also contend that the applicant lied about the location of Person 6's patrol being on the southern side of W108 and that this is not only relevant to the applicant's credit, but is also evidence of a consciousness of guilt.
​307 The evidence from Persons 14 and 24 was to the effect that they were close to the north-western corner of W108.
308 Person 14 gave evidence that both he and Person 24 were stationed near the north-western corner of W108. He marked his location and his line of approach to that point on exhibit R98. He also marked Person 24's position on exhibit R98.
309 Person 24 marked his location on exhibits R141 and A130 and he said that he was approximately two to three metres from Person 14. As I have said, this is not in exactly the same location as Person 14's evidence, but I do not consider the differences to be such as to give rise to concerns as to credit or, as the respondents put it, to undermine the essential consistency of their evidence.
310 Person 18 gave evidence that just prior to his arrival at the compound as a member of Person 5's patrol, which was one of the assault or clearance patrols, Person 6's patrol had broken away from the main body and moved left which would have been to the northwest to take up a position on the north-western corner of the compound. He marked the location of Person 6's patrol on exhibit R132. This is in the same general area identified by both Persons 14 and 24. He said that the troop converged on the western side of W108 and prepared to make entry along that wall. He recalls seeing part of a door on the western side which had been partly removed and he can recall going through that entry point. Person 18 also gave evidence that when he went outside the compound and saw a low wall about 10 metres in front of him which he could see over, he then looked to his left and he could see persons from Person 6's patrol who were "off to the northwest".
311 The evidence of other witnesses called by the respondents as to the location of Person 6's patrol was as follows. Person 41 said that his understanding was that Person 6's patrol would be a cordon and overwatch to the left and as to the other two patrols, one was in the rear and the other one was out to the right hand side for a cordon. Person 42 said that his understanding of the role assigned to Person 6's patrol was that they were to scout the path in and then remain outside the compound providing cover and screening basically to the north of the compound while the assault patrols did their clearance. He said that the north was covered by Person 6's patrol.
​312 It is relevant to note the particular challenges made in cross-examination by the applicant to the evidence of Persons 14, 24 and 18 as to the location of Person 6's patrol and, in particular, Persons 14 and 24.
313 With respect to Person 14, the only challenge made to his evidence on this topic was that it was put to him that he was not in an open field. As the respondents point out, Person 14 had never said that he was in an open field and he made it clear in his evidence that he was at or beside a tree.
314 With respect to Person 24, the applicant put to Person 24 that his position on the cordon was at the north-western corner of the open field that is rectangular in shape to the north of W108. In other words, it was put to him that he was in the location identified by Person 14 on exhibit R98. As I have said, that location is not markedly different from the location identified by Person 24.
315 Person 24 said that he had only seen the particular compound from the ground over 10 years ago and he was trying to be as accurate as was possible. He made it clear that his specific role was to cover an infield route to the north and east from W109. He was carrying the Maximi 7.62-mm machine-gun and his specific job was to maintain security and to keep an eye out for spotters who may have approached from the direction of W109. He must have been located towards the northern end of W108 because he was covering the approach from W109. He was firm in his recollection that Person 14 was a couple of metres to his left. He denied the suggestion put to him that he was making up his evidence that Person 14 was to his left.
316 With respect to Person 18, he was not challenged on his evidence that he saw Person 6's patrol as he moved outside the compound during the SSE process to photograph the two bodies outside the northern end of the compound. He was not challenged on his evidence about the role of Person 6's patrol in the scheme of manoeuvre or seeing them move to the northwest corner before he made entry to the compound. He was cross-examined as to whether he saw Person 6's patrol enter the compound, but he was not challenged, as I have said, about their role in the scheme of manoeuvre or seeing them move to the northwest corner before he made entry to the compound.
317 Returning then to the applicant's evidence, it was that Person 6's patrol was at the southern end of the compound and were formed in an arc shape. Later he said that Person 6's patrol "had gone firm, effectively in a half-moon shape, around the entry point, so on that southeastern ​corner". The applicant denied the suggestion that Person 6's patrol was on the eastern edge of the ploughed field which was the location identified by Person 14.
318 Person 5 marked on a copy of an aerial photograph of W108 (exhibit A194) the location of Person 6's patrol at the time Person 5 made entry into the compound at the south-western corner of the compound. In cross-examination, he said that Person 6's patrol was split and part of Person 6's patrol moved further north on the north-western side. They were still some distance to the south of the position identified by Persons 14, 18 and 24. Person 5 denied seeing Persons 14 and 24 near the edge of the field on the northwest corner of W108. When asked whether he had a recollection of seeing Person 14 in a particular location on the day of W108, he said that he did not. He was inside and Person 14 was outside. He agreed that the evidence he had given about the location of Person 14 was based on assumptions he had made.
319 Person 29 did not see Person 14 and he did not know exactly where he was. He was not aware of where Persons 14 and 24 were positioned on the ground.
320 The respondents submit that, in circumstances where it was not put to any of Persons 14, 24 and 18 that their evidence as to their location or, in the case of Person 18, the location of Person 6's patrol, was false or mistaken and no positive alternative case consistent with the applicant's evidence was put to them, the Court would not disbelieve them and would not accept the evidence of the applicant. There are two observations to be made about this submission. First, the submission appears in the respondents' closing written submissions which were filed and served before the applicant filed his closing written submissions. I have already referred to the applicant's approach to this issue in those submissions (at [305]). Secondly, the applicant had given his own evidence about the issue before the respondents adduced any evidence on the topic so the respondents were aware of what the applicant said on the topic. That was the result of an order I made on 25 May 2021 about the order in which evidence was to be adduced at the trial. That order was as follows:
   4. The trial proceed as follows:
       a. The Applicant's Counsel will open his case.
       b. The Applicant will give evidence-in-chief and be cross-examined on all issues joined on the pleadings, including the defences of justification, section 25 of the Defamation Act 2005 (NSW), and contextual truth, section 26 of the Defamation Act 2005 (NSW).
       c. The Applicant will call such other witnesses as he proposes to call on all issues joined on the pleadings other than justification and contextual truth.
       d. The Respondents will present their case.
       e. The Applicant will then call such other witnesses as he proposes to call (not being any of the witnesses he has called at the third stage identified above) with respect to the defences of justification and contextual truth.
       f. Should the Applicant himself wish to give further evidence, it will be limited to evidence in reply.
(Roberts-Smith v Fairfax Media Publications Pty Limited (No 13) [2021] FCA 549.)
321 The applicant himself elected not to give evidence in reply.
322 The effect of the order is that where the matter not put to one of the respondents' witnesses arises from the applicant's earlier evidence, there is no Browne v Dunn point as such because the respondents and their witnesses are on notice of the applicant's case. The position is different where the matter not put to the respondents' witnesses arises from the evidence of the applicant's witnesses called in reply on the issues of substantial truth and contextual truth.
323 None of this is to say that the way in which a witness is cross-examined is irrelevant. Inevitably, cross-examination highlights points of difference.
324 As it happens, the evidence of Persons 14, 24 and 18 as to the location of Person 6's patrol and, in particular, Persons 14 and 24 themselves, is supported by a number of objective matters.
325 First, there is no suggestion that Person 14 did not engage and kill EKIA50. The location of EKIA50's body was next to the break in a field wall 15 to 20 metres from the northwest corner of W108. The field wall can be seen in one of the photographs which is exhibit R5. Person 14 marked the wall with a solid black line and the location of the insurgent he engaged with a dot on exhibit R98.
326 In closed Court, Person 5 was taken to the Exploitation Report with respect to W108 and W109 (closed Court exhibit A10 Tab 11 p3) and he agreed that the location of a circle with the number 50 in it, accurately identified the location of the person engaged by Person 14.
327 Person 29 marked the location of EKIA50 on exhibit A219.
328 The applicant marked the wall with a black line and the location of the body of EKIA50 on exhibit R4.
329 Person 14 said that the assault or clearance patrols were close to the entry point at the time he engaged EKIA50. Person 14 must have been in a position to take the shot that killed EKIA50 ​and, although there are limits to how precise one can be in light of the very general nature of the materials, it is difficult to see how he would have been in a position to take the shot if he was located at the southern end of the compound as described by the applicant.
330 The second objective matter which supports the evidence of Persons 14, 24 and 18 as to the location of Persons 14 and 24 is Person 14's role at W108 and the position of W109 to the north of W108. As I have said, Person 14 was the patrol scout or lead soldier of the lead patrol into W108. There was obvious potential for threats to emerge from the uncleared areas between W108 and W109. I agree with the respondents' submission that it accords with sound military tactics that Person 14 and the cordon formed by Person 6's patrol was in the position indicated by Person 14. If it were otherwise, there would be a significant area unprotected in terms of attackers coming from W109 or persons attempting to leave W108, that is to say, squirters.
331 Person 14 referred in his evidence to his approach and being "obviously trained" towards W109 and kneeling on one leg at a tree which was "roughly in line with the edge of Whisky 108 towards Whisky 109". Other witnesses supported or implied that it made sense that Person 14 and the cordon formed by Person 6's patrol would be in the position indicated by Person 14. Person 41 was cross-examined about the positions that might be adopted by a patrol performing the task of a cordon. He agreed that he would not put himself in a position where he was in an open field without cover. Significantly, he agreed with the proposition put to him by counsel for the applicant that while on the cordon, the task was to monitor activity at W109 to keep an eye out for spotters, who may have approached from the direction of W109.
332 Person 5 was cross-examined about the positon of Person 6's patrol. He said that Person 6's patrol was on the north-western side of the compound. Initially, he disagreed with the proposition that to place the cordon generally in the area identified by Person 14 was "tactically sensible". When it was suggested to him that it would be tactically sensible to put the cordon in the general area identified by Person 14 because the cordon could then deal with threats to the north and west of the compounds and squirters, he answered "potentially, yes".
333 Person 29 was asked whether there would have been a cordon placed to guard against any further threats from W109 had there been two engagements outside W108 with the insurgents thought to have emerged from W109. He answered that that would be correct and that that was his understanding of what Person 18 was doing and Person 6's patrol was doing, that is to say, guarding against potential threats from W109.
​334 In his cross-examination, Person 35 said that if he was placing the cordon, he would place it to the north, but further away from the compound.
335 This is a convenient context in which to identify certain evidence given by Person 29 which was unsatisfactory. I say that because it is linked to what Person 14 could or could not see from his stationary position.
336 The respondents submit that at the time Person 29 gave his outline of evidence, he believed that there were two insurgents outside the north-western corner or exit of W108. At that time, he was unaware that Person 14 had engaged EKIA50. He gave an account in which he said that he saw the dead body of the insurgent with the prosthetic leg. At the trial, he denied being able to identify either body. That was, according to the respondents, because he was aware by that time that Person 14 had engaged EKIA50.
337 In his outline of evidence, Person 29 made statements as to the location of Person 6's patrol of which Person 14 was a member and asserted that Person 14 could not have seen anything that occurred outside the northern end of W108. In his outline of evidence, Person 29 said the following:
   24 I recall seeing the bodies of the two insurgents, including the insurgent with the prosthetic leg, as my patrol exited W108, using the exit on the north-west side. The man with the prosthetic leg was a middle-aged FAM. The Applicant and members of his patrol were near the bodies. My patrol then moved out and proceeded to clear W109.
   25 Based on the location of Person 14's patrol, I do not know how Person 14 could have seen anything that occurred outside the northern end of W108. The two bodies that I observed were not within visual of the southern entry point of the compound because of the presence of the compound's walls and the thick vegetation surrounding the compound. While the dividing wall in the middle of the compound was damaged from the bombs, the other external walls were largely intact.
338 Person 29's evidence at the trial was that he could not see where Person 6's patrol was at the time he made entry. Under cross-examination, Person 29 gave the following evidence:
   What I want to put to you is that, in fact, you colluded with Mr Roberts-Smith to agree that the entry point was where you've marked it at letter A; do you agree with that?---No, I don't agree with that.
   And that was what you were doing when Mr Roberts-Smith sent you that email with the marked-up image of Whisky 108 showing the entry point at that location, correct?---No, that is not correct.
   And I want to put to you that at the time you approved your outline of evidence which stated that entry was made at around point A, you knew that Person 14 had said that ​he could see Mr Roberts-Smith's engagement of the man with the prosthetic leg. You knew that, didn't you?---No, I did not.
   You're saying you didn't know in July 2019 that Person 14 said that he could see the location where Mr Roberts-Smith shot the man with the prosthetic leg?---No, I did not.
   … Look at paragraph 25 that we looked at before. That whole paragraph is dealing with whether Person 14 could have seen what happened outside Whisky 108, correct?---Yes.
   And if you look at paragraph 18, you will see that you said you were advised of allegations that Person 14 had seen the applicant, etcetera, shoot the man outside Whisky 108, correct?---I – I would concede that I was aware of that at that time, yes.
   So it's right, isn't it, that you and Mr Roberts-Smith decided together that you had to say something that would mean that Person 14 couldn’t have seen what he said he saw, correct?---No, that is not correct.
   And what I want to put to you is that you and Mr Roberts-Smith decided that you would say the entry point was on the opposite side of the compound to try to place Person 6’s patrol in that location, correct?---No, that is not correct.
   You were trying to place Person 6's patrol in a location where the compound walls would have inhibited them from seeing what Person 14 said he saw, correct?---No, that is not correct.
   And you now agree, don't you, that you didn't see the location of Person 6's patrol on the day of Whisky 108?---I've stated that I wasn’t immediately aware of where Person 6's patrol was.
   Do you now – do you – well, sorry, let me ask this question. On the day of Whisky 108, did you see Person 6's patrol located in the cordon somewhere?---Yes.
   Where?---Effectively, in line with the southern edge of Whisky 108.
   That is false, isn't it?---No. That's not false.
   And you know it's false, because you know that Person 14 engaged the insurgent at point E; correct?---That is correct.
   And so Person 14 must have had a clear line of sight to that location; correct?---Yes. He must have.
   And what I want to put to you is that, in fact, Person 14 was located on the left side edge of that cleared area just to the north of Whisky 108. Do you see the area that I'm indicating?---Yes.
   Yes. Do you agree that that is, in fact, where Person 14 was located?---No. I can't agree or disagree, because I don't know exactly where – I did not see Person 14. Didn't see Person 14, and I didn't see Person 14 engage the EKIA in the vicinity of E. So I can't confirm or deny whether he was there.
   All right. And is it also correct that you can neither confirm nor deny whether Person 24 was there?---Two seconds, Mr Owens.
   Yes?---No. I can't confirm or deny.
339 As to the identification of the dead bodies that he saw, Person 29 gave the following evidence:
   Thank you. In relation to the body that you saw at E first, do you recall, sitting here today, any identifying features of that body?---No.
   In relation to the body that you have marked as being at point F, do you recall any identifying features of that body?---No.
   What I want to put to you for the moment is just this: that once you came to learn that the body at point E had been engaged by Person 14, at that point, you understood that if Mr Roberts-Smith's account was correct, there would be three bodies outside that corner of Whisky 108; correct?---No, that is correct, Mr Owens, but I would like to add that I've only, like, at the start of my visit here in Sydney was the first time that I had been informed that the EKIA at position E was engaged and killed by Person 14.
   I don't dispute that and, indeed, I put to you that it is the fact that you have only recently been informed that that EKIA was Person 14s that you have come to court and given evidence that you have no recollection whatsoever of any distinguishing features of either of the bodies that you saw?---That is not correct.
   Because you realised, didn't you, that you had already committed to seeing only two bodies outside Whisky 108?---I can only recall seeing two bodies outside of Whisky 108.
   And you knew for a fact, didn't you, that one of those bodies was the man with the prosthetic leg; correct?---No, that is not correct.
   You certainly knew that in July 2019, didn't you?---No, I did not. My – my statement of evidence states that I was aware that one of the EKIA had a prosthetic leg. Without, you know, quoting or paraphrasing that statement, I can't recall – in court I can't recall whether that body was one of the bodies I saw. I can only recall two bodies coming outside Whisky 108.
   Look at paragraph 24 of your outline that you approved. It says you recall seeing the bodies of the two insurgents, including the insurgent with the prosthetic leg; correct?---Yes. That's what that paragraph says. Yes.
   And in July 2019 you had a very clear recollection that one of the bodies you had seen was the man with the prosthetic leg; correct?---Not a – not a – I can't say I had a clear recollection. But, as it says there in paragraph 24, yes, I recall seeing that.
   What I'm putting to you is that the reason you have come to tell his Honour that you now do not have any recollection about anything to do with the two bodies you saw is because you have realised that saying that poses a problem for Mr Roberts-Smith's case; correct?---No. That is not correct.
   Now, what I want to put to you is that you knew and still know full well that the body you saw around point F was the body of the man with the prosthetic leg; correct?---That is not correct.
   And you knew that there were photographs of that man that would show clearly that that is exactly where he was; correct?---That is not correct.
   And what you did was come to court and deliberately lie to his Honour to try to leave open the possibility that the body you saw was, in fact, the body of the old man?---That is not correct, your Honour.
   And what I want to put to you is that you've changed your account as given under oath to his Honour from the account in your outline because you were trying to help ​Mr Roberts-Smith; correct?---That is not correct, your Honour.
   When is the last time you looked at your outline?---It would have been most probably in 2019 when I initially gave it.
   And how do you explain the fact, on your evidence, that something you had a recollection of in 2019 is something about which you have no recollection today?---The fact it was two years ago. And the fact that memory isn't robust. And I may have recalled – you know, not forgetting that this recollection in my statement of – outline of evidence is from an event that occurred, in 2019, that was 10 years prior. And now we're a further, you know, three years after that. I'm not saying that my memory is infallible, Mr Owens.
   No. And you would accept, wouldn't you, if nothing else, that your memory in July 2019 of the events at Whisky 108 would be likely to be better than your memory today?---That is correct. Well, you could reasonably make that assumption. Yes.
340 I do not accept Person 29's evidence that he did not recall any distinguishing features of the body identified by the letter "F" on exhibit A219. I find that he falsely invented that evidence for the reason put to him in cross-examination, that is, it posed a problem for the applicant's case in terms of the location of the body of EKIA56. That problem was that the statement in his outline of evidence that he saw the body of the man with the prosthetic leg outside the compound coupled with evidence that the other body was that of EKIA50 supports the notion that the body of EKIA56 was somewhere else, whereas his evidence at trial leaves open the possibility the body he saw in addition to seeing the body of EKIA50, could have been the body of either EKIA56 or EKIA57.
341 The respondents submit that I can have further confidence in the evidence they have adduced as to the location of Person 6's patrol by reason of the fact that the applicant and some of his witnesses have colluded to give false evidence concerning the entry point into W108. They identified an entry point at the southern end of the compound in order to make it more likely that Person 6's cordon was at the southern end of the compound. If that were so, it would follow that Person 14 was not in the location he said he was in and it would mean that neither he nor Person 24 was in a position to see the alleged execution of the Afghan male with the prosthetic leg by the applicant.
342 The respondents' allegations of collusion between the applicant and some of his witnesses are dealt with in Section 12 of this Part. One matter of alleged collusion between the applicant and some of his witnesses concerns the entry point into W108 by the assault or clearance patrols. This is a convenient point to set out the key features of that particular matter of alleged collusion.
​343 The applicant filed and served his outlines of evidence in reply (i.e., dealing with matters relevant to the pleas of substantial truth and contextual truth) on 12 July 2019. The respondents' outlines of evidence with respect to those pleas had been filed and served six weeks prior to that date on 31 May 2019 and they included an outline of the evidence to be given by Person 14.
344 On 29 June 2019, the applicant sent an email to Person 29. That involved a link to "108.avi" in the applicant's Dropbox. The applicant said that his recollection is the attachment was footage of the bomb hitting W108. He said that he obtained that footage from one of the USBs he had been sent in the mail. The applicant agreed that it was most likely he communicated with Person 29 about it. He agreed that to some degree, he was sending the video to Person 29 and communicating with him for the purpose of working out what had happened at W108. He said that, in addition, they were looking at what happened at the compound. They talked about what happened in the video and about the "route" in. The applicant said that he did not recall exactly what they talked about, but "we were not talking about our evidence". Person 29 said that he could only surmise the applicant's reasons for sending him the video. It may have been to refresh his memory, although he was not sure. He said in that context that there was a whole lot of doubt and misunderstanding about where W108 was and the nature of the mission on W108.
345 On 3 July 2019, the applicant sent Person 29 an email entitled "W108 copy.pptx". The email attached an aerial photograph of W108. The photograph was marked up by the applicant. The relevant metadata indicates that Person 5 was the author of the document. The markings on the document indicate a purported entry point, a breach point, field walls, the tunnel entrance and the location of a "Dead Insurgent". This document was sent to Person 29 nine days before the applicant's outlines of evidence were due to be filed. The entry point shown is at the southern end of the compound and in a position consistent with the evidence of the applicant and Persons 5 and 29 at the trial.
346 Ms Emma Roberts gave evidence that Person 29 stayed at the home of the applicant and herself in July 2019 and she could recall the applicant and Person 29 in the office within the home looking at documents on the applicant's laptop. She said that she could recall the image of an aerial shot of a white building "and they were describing what was going on around the building". As I will explain, I accept Ms Roberts' evidence.
​347 On the other hand, the applicant's evidence about the images of W108 that he had before he prepared his outline was not particularly satisfactory. His evidence was as follows:
   All right. And whether it was those initial images or images of Whisky 108 on the USBs, you had shown them to your lawyers for the purposes of preparing your evidence?---No. I don't recall that.
   Well, isn't that what you - - -?---I never had – I didn't have the images of 108 when I did my outline. I'm sure of it. Because we had trouble trying to work it out. That was the whole point. We didn't have images.
   Mr Roberts-Smith, go back, please, to tab 17. This is an email that you sent to Person 29 on 3 July about a week before your outline of evidence was due; correct?---2019. Yes.
   All right. And you gave evidence before that you and Person 29 and others
   - - -?---I'm sorry. I thought you said my outline was in '18. That's what I was talking about.
   Right. Your outline was in 2019?---Yes. I got no problem with that.
   You had these images and the USBs, at least some of them, with images of Whisky 108 by the time you prepared your outline; correct?---Yes.
348 Furthermore, as I will explain in Section 12 of this Part, I do not accept the distinction the applicant sought to draw between talking about what happened in the video and the route in on the one hand, and not talking about "our evidence" on the other.
349 I have already referred to Person 29's evidence concerning the entry point to W108, the location of Person 6's patrol and the bodies he saw outside the north-western corner and the fact that that evidence was unsatisfactory. I am satisfied that there were discussions between the applicant, Person 5 and Person 29 (and possibly others) about what occurred at W108, including the entry point into the compound, at or about the time at which the outlines of evidence were prepared. Their evidence is contaminated to that extent. I will consider later in these reasons whether it was deliberately fabricated so that, in the case of the applicant's evidence as to the location of Person 6's patrol, it is evidence of a consciousness of guilt.
350 I accept the evidence of Persons 14, 18 and 24 as to the location of Person 6's patrol. I consider Person 14's representation in exhibit R98 is the most likely to be accurate. He, Person 24 and Person 73 were a distance out from the northwest corner of W108 and near what appears to be an open field or cleared area.
351 Although a finding as to the entry point for the assault or clearance patrols to W108 is not essential, I accept the evidence of Person 14 that the entry point was about halfway along the western wall of the compound at a point he marked on exhibit R98. I accept Person 14's ​evidence as to the location of the entry point. Person 14 described the entry point about halfway along the western wall as an "alcove area" or "alcove/alley system" and that when he was perpendicular with it, he could see "10 to 15 metres down this — like a half, hallway lane".
352 After Person 14 had taken up a position by the tree, Person 6 came up to him and told him that he was going to clear the entry point. Person 14 marked the entry point and what he described as the force separation point on exhibit R98. He saw the assault teams come to the force separation point. He said he saw them as they pivoted from the force separation point to the entry point.
353 I agree with the respondents' submissions that as the scout of the lead patrol, Person 14 was in a unique position to observe the entry point. Furthermore, Person 14 said that after the assault of W108, the entry point became a thoroughfare and that evidence is, to some extent, supported by Person 5 who entered and exited the compound through the central alleyway throughout the mission. Person 14's evidence is also supported to some extent by the evidence of Person 29 who said that if there was an easy access to the west (referred to as north side of the compound in the transcript) side of the compound, then "we would have gone through it". Person 42 (Person 29's patrol) gave evidence that the entry point to the compound was on the western side, as did Person 18 (Person 5's patrol), although in the case of the latter, a relatively short distance from the point marked by Person 14.
354 The respondents' evidence as to the entry point was not all one way. Person 41 recalls that the patrol of which he was a member (Person 29's patrol) made entry into W108 on the southern side and that his recollection was that it was only his patrol that made entry to the building. He said that he did not have any recollection of other patrols entering from that direction. Person 29 did not see Person 5's patrol enter the compound. Person 42 (Person 29's patrol) could not remember where Person 5's patrol entered the compound. Person 5 said that he did see Person 29's patrol, and Person 38 (Person 29's patrol) said that he could see Person 5's patrol during entry. Person 38 said that he believed that Person 5's patrol were through the door before them and that he, as part of Person 29's patrol, followed after Person 5's patrol.
355 Person 14 was the scout. I accept his evidence as to the entry point (marked on exhibit R98). It was approximately halfway along the western wall of the compound as the cardinal points were understood on the day.
​The Clearance of W108
356 Various witnesses gave evidence of what they saw as they moved through the compound. It is clear that in the case of a number of witnesses, their recollections were general and not precise. For example, recollections varied between witnesses as to whether they saw Afghan women and children and (if they did) where they were in the compound.
357 The weight of the evidence is to the effect that Person 5's patrol entered the compound first and that the southern half of the compound was cleared first. Person 29 could not recall any persons being in the first portion of the compound. He could recall some women in the second portion "on the, sort of, northeast portion" of the compound. Person 35 (Person 5's patrol) did not recall encountering any local Afghan nationals in the southern half of the compound and into the northern half of the compound.
358 On the other hand, Person 41 (Person 29's patrol) said that in the first building of the compound, the Australian soldiers found women and children and they were "rounded up so to speak" and passed down the line and back to the troop sergeant. The troop sergeant would have collated them in a location and the soldiers continued on. Person 41 said that he saw women near what he marked as to the entry point to the compound (exhibit R92). Person 5's evidence is to similar effect. Person 38 said he saw Afghan women in the southern side of the compound.
359 The applicant said that some women and children were found in the compound at some point. He was asked in cross-examination "when" and he said in response that it was "fairly close to the main entry". Person 27 (Person 44's patrol) said that there were two women at least. He said that the troop did not encounter any fighting age males. The Afghan women were taken to another compound on the "exfill" and they were secured there. W108 was later destroyed. Person 27's recollection is that the other compound was W109 and that it was vacant.
360 Sensitive Documents provide information about the effect of the "cordon and callout conducted at W108" and the fate of a PUC. I refer to the closed Court reasons (at [17]).
361 Person 29 recalled coming across women in the northern part of the compound. Person 40 identified two women in the area adjacent to the tunnel. Person 42 (Person 29's patrol) said that there were women within the courtyard where the tunnel was discovered.
​Was the Compound Declared Secure Before the Tunnel was Discovered?
362 There was a courtyard at what was thought on the day to be the north-western end of the compound. A tunnel was discovered in the courtyard.
363 The respondents submit that it is at around the point when the assault or clearance patrols entered the courtyard at the northern end of the compound, where the tunnel would ultimately be discovered, that the evidence of the witnesses called by them and the witnesses called by the applicant begins to diverge. In their closing written submissions, the respondents submit that a key matter in dispute can be reduced to the following question: "Who was present in the tunnel courtyard when the tunnel was discovered, and shortly thereafter?". The respondents submit that the significance of this issue is concerned with the identification of those witnesses who were able to observe whether or not any men were found in the tunnel.
364 The respondents submit that the evidence of each relevant witness called by them was that the tunnel was discovered after the compound had been declared secure and that the SSE process had commenced while the witness was present, or shortly before the witness was present. The respondents submit that that issue had appeared to be uncontroversial and, subject to limited exceptions, the respondents' witnesses were not challenged by the applicant on these aspects of their evidence. They submit that it was in only peripheral respects that a positive contrary case to what the witnesses in fact did, saw, or heard was put to them by the applicant.
365 Person 18's evidence, which is summarised below, provides a description of the clearance process, the decision or declaration that the compound is secure and then the SSE process which is undertaken (at [377]–[379]). One event which takes place only after a compound has been declared secure is a Commanders' Rendezvous (Commanders' RV) involving the troop commander and the patrol commanders. If a Commanders' RV is to take place in the compound, it will provide an occasion for a patrol commander on cordon duty outside the compound during the clearance to enter the compound in order to attend the Commanders' RV. Person 43 was a patrol commander who was on cordon duty at W108.
366 The respondents submit that, in addition and significantly, the lack of a dispute about the tunnel being discovered while the SSE process was being undertaken was reinforced by the outlines of evidence served in relation to the applicant's witnesses. Person 35's outline of evidence (exhibit R270 at [14]) said that the tunnel system was discovered while the SSE process of W108 was being undertaken. Person 35 was cross-examined about this and seemed to say that what he meant was that the clearance of W108 was extremely quick and it was obvious that ​there was no-one there. Person 29 said in his outline of evidence that while conducting an SSE, the troop located a large cache of rockets and a tunnel in the northern part of the compound towards the northern wall (exhibit R271 at [22]).
367 The respondents submit that the evidence of these witnesses changed in the witness box. The respondents submit that despite the manner in which the respondents' witnesses had been cross-examined, the case advanced by the applicant through his witnesses (after the respondents' witnesses had given their evidence) was that none of the respondents' witnesses were present in the tunnel courtyard at the time of the tunnel's discovery. The respondents submit that the obvious inference to be drawn is that the position changed for the reason that at the time the applicant served the outlines of evidence in reply for his witnesses, none of Persons 40, 41, 42 or 43 were on the respondents' witness list. After leave to subpoena those witnesses was granted by the Court in the circumstances identified in Roberts-Smith (No 12) at [49]–[54], decision pronounced 23 April 2021 and reasons published 6 May 2021, the applicant had to contend with four witnesses who were not only going to say they were present when the tunnel was discovered, but that they observed one or more Afghan males emerge from it. The respondents submit that one way in which to contend that the witnesses were not in the tunnel courtyard at the critical time was to shift the timing of the tunnel's discovery from a time during which the SSE process was being undertaken to a time before the compound had been declared secure. In that way, Persons 40, 41 and 42 could be said to have not yet reached the tunnel courtyard at the critical time, while Person 43 could be placed outside the compound where he and his patrol were still part of a cordon. Persons 40, 41 and 42 were all members of Person 29's patrol and Person 43 was the patrol commander of a different patrol.
368 The respondents submit that the Court should prefer the evidence of the respondents' witnesses on this issue as it was honest, accurate, materially consistent and largely unchallenged. By contrast, the evidence of the applicant's witnesses had material inconsistencies, including prior inconsistent statements of Persons 29 and 35, and material inconsistencies between each other. The respondents submit that the most striking effect of the change of position is that on the applicant's case, only he and his closest friends — Persons 5, 29, 35 and 38 — were in the tunnel courtyard when the tunnel was discovered. The respondents submit that it is wholly implausible that with two assault patrols inside the compound and three more outside, it just happened to be the peculiar combination of the applicant and his close friends, by themselves, who found the tunnel.
​369 These then were the submissions made by the respondents in their closing written submissions with respect to the defences of substantial truth and contextual truth which, as I have said, were filed before the applicant's closing written submissions with respect to those matters.
370 However, the respondents submit that the developing nature of the applicant's case as to who was present when the tunnel was discovered did not stop there. In the applicant's closing written submissions, he first notes that the respondents contend that the following persons were present in the courtyard or near the courtyard just before the tunnel was discovered:
    (1) A group of commanders who were beginning to assemble for the Commanders' RV, including Persons 81, 80, 43, 5 and 29. The troop interpreter was also present;
    (2) Members of Person 5's patrol, who had commenced SSE duties, including the applicant and Person 4;
    (3) Members of Person 29's patrol, who had commenced SSE duties, including Persons 35, 38, 40, 41 and 42; and
    (4) A group of Afghan women, who were agitated and indicating something in relation to the tunnel.
371 The applicant then notes that he does not dispute and there is no dispute between the parties that the applicant and Persons 5, 29, 35 and 38 were in the northern tunnel courtyard area when the tunnel was discovered or very shortly after the tunnel was discovered.
372 The applicant then goes on to say that he does not challenge the evidence of Persons 18, 40, 41, 42 and 43 that they were present in the tunnel courtyard area either when the tunnel was discovered or shortly afterwards except to the extent that it also involves the proposition that they were present at a time when the compound had been declared secure and at a time when the SSE process had properly commenced. The applicant seeks a finding that the tunnel was discovered before the compound was declared secure and "therefore" before the SSE process had properly commenced. The applicant makes it clear that this lack of challenge to the evidence of these witnesses goes no further than the location of those persons at the tunnel courtyard contemporaneously with the discovery of the tunnel and does not extend to their evidence "insofar as it is relied upon to support the Respondents' allegations that two Afghan men came out of the tunnel, were PUC'd and then executed by [the applicant] and/or Person 4".
​373 There is a related point made by the respondents which I have already addressed and that is, although the applicant makes a strong challenge to the credit of Persons 14 and 24, he claims to make no challenge to the honesty of Persons 18, 40, 41, 42 and 43.
374 The respondents pointed to difficulties in the coherence of the evidence in the findings identified by the applicant, including the limited concessions he appeared to make. The difficulties are best illustrated by reference to two examples given by the respondents. Person 43 was a patrol commander. His patrol held the entry point to the compound and then set up a cordon outside the compound on the south-western aspect. His patrol would have been called in once the compound had been declared secure and the SSE process was in progress and he would have gone into the compound for the purpose of attending the Commanders' RV. As I have said, a Commanders' RV is not called until after a compound has been declared secure. The applicant's approach involves accepting Person 43's presence in the tunnel courtyard area, but effectively denying his only reason for being there. Another example is the evidence of Person 18. He went to the tunnel courtyard area from another area in the compound where he was conducting the SSE process, that is, a process that commences after the compound had been declared secure in response to a radio call to the effect that a tunnel had been found. The applicant's approach involves accepting his presence in the tunnel courtyard area, but not what he was doing immediately beforehand. Person 40 is another example in the same category.
375 The respondents identify other difficulties with the applicant's limited concession about the persons present at or shortly after the discovery of the tunnel. First, the concession contradicts his own witnesses or raises at least a doubt about their recollection being the applicant, Persons 5, 29, 35 and 38 who either denied others were present or could not recall others being present. Secondly, whilst it is clearly open to a court to accept parts of a witness' evidence and reject other parts, if it is accepted that Persons 18, 40, 41, 42 and 43 were present in the tunnel courtyard area at or shortly after the time at which the tunnel was discovered and that they were honest and reliable witnesses, then it is difficult to see a basis to reject their evidence that a man or men came out of the tunnel.
376 The respondents' submissions about the development of the applicant's case and the effect of the applicant's so-called concessions raise points of some subtlety. I return to them to the extent necessary. For present purposes, I put them to one side and address by reference to the ​evidence whether the compound had been declared secure at the time the tunnel was discovered.
377 Person 18 was a member of Person 5's patrol. He gave evidence that 2009 was, what he described as, the commencement of 2 Squadron's introduction "into SSE". He said that the SSE process commenced a year before with the rotations of 103 Squadron and that one of his roles in 2008 was to be 2 Squadron's SSE developers with Person 68. He said that that involved taking the lessons identified in previous rotations and putting them into a process which suited 2 Squadron. He described the main output from the troop's perspective was obtaining a labelling process so that the troop could coordinate moving evidence from the battlefield back to the base.
378 Person 18 described what he called the "fight through". That involved the assault patrols going through assaulting and clearing the compound. He recalls his patrol assaulting up into an open area which was in the northern sector of the compound. From there, they met up with other teams who had gone to the right from the entry point and come to a convergence. At that point, they had cleared the compound and covered off on all the areas. The patrol commanders (or team commanders as they were alternatively referred to in the evidence) then give the order for a fight back. A fight back was described by Person 18 as a more methodical clearance and search of the compound back to the entry point. Person 18 said that during the fight through, the soldiers commenced doing exploitations and that a more thorough search was done during the fight back. There would then be, what he referred to as a "re-org", which involved the patrol/team commanders initiating a conversation with the troop commander to say that areas are complete. An order would then be given as to who was going out on security. He recalls Person 6's patrol remaining outside and doing perimeter security around the northwest corner. Person 44's team was also assigned a security role. The remainder of the teams commenced exploitation inside the compound.
379 The steps in the process then are fight through, fight back and then a re-org. The next stage after that is the exploitation. Person 18 said that once the troop commander had placed the teams out on the ground, compound secure would be declared and the troop commander would say clearly on the radio "to let everyone know, and the officer commanding the squadron" that the target was secure. Person 18 estimated that the time it would have taken to carry out the process up to the declaration of compound secure was no more than five minutes.
​380 Person 18 said that during the exploitation process, he began searching the compound. He went back to the main entry point which was along the western wall and he commenced searching through the rubble; working in a clockwise direction from the entry point. A cache of rockets was found inside the walls.
381 While Person 18 was undertaking the SSE process on the western side of the compound, there was a radio call to the effect that a tunnel had been found, or a tunnel entrance, and that there is a person or people who have been pulled out of the tunnel. He went and gave assistance in relation to the tunnel. Person 18 can recall that there was a meeting of team commanders. When he started his exploitation, the team commanders were congregating around a point in the southern half of the compound which he marked on exhibit A117. However, the Commanders' RV was moved because they were all standing in the vicinity of a pile of rockets.
382 Person 18 was not expressly challenged by the applicant on his evidence as to the sequence of events and the discovery of the tunnel after the compound had been declared secure. He was challenged about the content of the radio call he said that he heard and the location of the Commanders' RV.
383 The challenge to Person 18's evidence by the applicant concerning the radio call appeared to relate to that part of the call which referred to a person or people being pulled out of the tunnel. The applicant's own witnesses referred to a radio call announcing the discovery of the tunnel. Person 5 said that he made the radio call to make everyone aware that "we had found a tunnel in case there were any other potential tunnels within the compound". Person 29 said that he could not recall whether he sent out a message that a tunnel had been found over the tactical net or he made a verbal call, "but I communicated the fact that we had found a – a tunnel". Person 35 recalled that at some point during the clearance he described in his evidence, a call over "our troop net came – came the call that a tunnel had been discovered".
384 With respect to the Commanders' RV, the suggestion made to Person 18 by counsel for the applicant that the Commanders' RV occurred outside, was not only denied by him, but not supported by any evidence.
385 Leaving to one side for present purposes the contentious aspect of Person 18's evidence about the content of the radio call, I accept Person 18's evidence as summarised above.
386 Person 40 was the 2IC in Person 29's patrol. He said that when they arrived at the compound, it was "in rubble; pretty much destroyed, yes". He said that after he had entered the compound, ​the SASR operators cleared it to make sure it was safe and that that involved working through the compound clearing all the rooms. The initial sweep is the fight through and once that is completed, a fight back is done. That involves a more detailed search. Once that is completed and the "re-org" is given, at that point the compound is relatively safe. Person 40 described a "re-org" as the reorganisation of troops. That means that troops are placed or manoeuvred into certain positions to provide overwatch if that is required. If there are any PUCs, tactical questioning would be conducted. Drawings, photographs, sketches would be made or taken during that phase. The next phase would be extraction and that would involve orders given by the troop commander. Person 40 said that there were no engagements before the compound was declared secure.
387 Person 40 said that after the compound had been declared secure and during the SSE process and the thorough search, he recalls finding a cache that was well hidden within a wall. He said that during the SSE phase, he was "kind of running back and forth". There was commotion or heightened interest in an area and he recalls hearing that there was a tunnel.
388 Person 40 said that he became aware of the tunnel in the following circumstances. There was a gathering of key personnel from the troop in broadly the courtyard area and as he was running back and forth or, as he put it on one occasion in his evidence, "bouncing" back and forth and asking what was going on, he received the response from the person who responded that he believed or said that "we believe that there's a tunnel there". He went into the area and he recalls the following persons being present: the patrol commanders and troop headquarters, Persons 81 and 82, and the troop interpreter. The other people in the area were the applicant, Person 35 and two women who were obviously concerned. He said that when he was told that there was a tunnel, he was approximately five to seven metres from the area of the tunnel.
389 It was not expressly put to Person 40 in cross-examination that he was wrong about the following two matters: (1) that the tunnel was found during exploitation; and (2) that he was present in the vicinity of the tunnel in the immediate aftermath of its discovery. He was challenged about the location of the Commanders' RV. It was put to Person 40 that he was wrong about the location of the Commanders' RV. It was put to him that he observed the Commanders' RV "at the southwest after the assault on the compound". He appears to have accepted that at one point, although he then denied it and said that he saw it in the courtyard area. I will come to Person 43's evidence in due course. For present purposes, it should be noted that Person 40's evidence is directly supported by that of Person 43.
​390 Person 41 did not say whether the tunnel was discovered before the compound had been declared secure or in the course of the SSE process. However, the respondents submit that his evidence is consistent with the conclusion that the tunnel was discovered during the SSE process. They point to the following matters. Person 41 said that when he went to the courtyard area, the applicant, Persons 4, 5, 35 and 29 were there. He had "a bit of a look around" and there did not appear to be too much there. At that point, someone, and he believes it was either Person 29 or Person 35, discovered a tunnel entrance. He said that Person 29 started yelling down the tunnel and that this went on for a short time. Person 41 decided that there was not much there and he left the tunnel area and went to look at two rooms which were to the northwest of the courtyard area. He saw batteries, wires, wood, hacksaw blades and concluded that the Afghan nationals must have been making Improvised Explosive Devices (IEDs) in that room. He also observed a black sticky substance which he later discovered was opium.
391 Person 41 was cross-examined on the basis that his evidence about the discovery of the tunnel and then leaving to search the two rooms he described was correct.
392 It was suggested to Person 41 in cross-examination by counsel for the applicant that he left the area of the tunnel and did not protect the back of Persons 29 and 35 because he was scared to go down into the tunnel. The following question was put to him:
   See, is this the case, that you've been lying to yourself about what happened that day in order to cover up for the fact that you were scared and walked away from backing up Persons 29 and 35?---No. That's incorrect.
393 The "backing up" referred to by the applicant's counsel in this passage is a reference to the proposition put to Person 41 that after the tunnel had been discovered, Person 41 left and did not cover the back of either Person 29 or Person 35.
394 Person 42 was also a member of Person 29's patrol. Person 42 said that the tunnel in the courtyard was not found "on the initial assault", but that there were some women in the area making a noise and indicating that there was something else within the courtyard. A more thorough search was done and the tunnel entrance was exposed. Person 42 has a recollection of Persons 35 and 38 being present when the tunnel was found. He could not recall which other members of his patrol were still present at that point.
395 It was put to Person 42 in cross-examination that he was not present when the tunnel was discovered. He denied that. As the respondents point out, the place where he was said to be, on the applicant's case, was never put to him. It was not put to Person 42 that he was back in ​the northern half of the compound at the time the tunnel was discovered. Person 5 gave the following evidence:
   So after you made your way to the area which is marked L, [a point in the northern half of the compound proper] what then happened?---I saw a member of Person 29's patrol. I asked him if that area was clear. He said "Yes", and then I moved back to the tunnel.
   Can you recall who that person was?---Yes, Person 42.
396 It was never put to Person 42 in cross-examination that at the time the tunnel was discovered, he was at the location that Person 5 marked with the letter "L" on exhibit A194.
397 Person 42 was a member of Person 29's patrol. The respondents submit that given that it is, on any view, clear that all members of Person 29's patrol were in the vicinity of the tunnel when it was discovered, and no motive for lying whatsoever could be attributed to Person 42, there is no reason not to accept Person 42's evidence as summarised above.
398 Person 43 was a patrol commander. His 2IC was Person 72 and the other members of his patrol were Persons 98, 3, 108 and 109. He described setting up a cordon and then a cordon and callout being completed. The cordon was set up on the south-western aspect. Two patrols made entry and once they had finished clearing the compound, they would call in the other patrols for a commanders' briefing. The commanders (troop headquarters) on that day were Persons 81 and 82.
399 Person 43 could not recall precisely where the meeting was to take place. He said that there was a lot of bomb damage to the compound. He could not recall the area other than to say it was an open area so that it would have been on, "probably, the – the eastern end of that building". He described the process where "[we] were getting ready to have a commanders' brief and everybody else was involved in the SSE process" when he saw Person 35 kick over some green hay or straw whilst he was doing his SSE and he noticed immediately that he "had spotted something and his weapon was pointed down at a hole, a tunnel entrance …". Person 43 immediately ran over to provide assistance. It was not expressly put to Person 43 that these aspects of his evidence were wrong and, as the respondents point out, a positive alternative case was not put to Person 43 as to where he was when the tunnel was discovered. The respondents pose the question as to whether it is being said by the applicant that the compound had not been declared secure and thus that Person 43 remained outside the compound at the relevant time. Alternatively, the respondents pose the question of whether it is being said by the applicant that the Commanders' RV had been called, but was being held in ​a different part of the compound. Alternatively, the respondents pose the question whether it is accepted that Person 43 was present when the tunnel was discovered, but is lying about seeing people come out of the tunnel. The first part of that last question has, in the sense I have described, been answered by the fact that the applicant has made it clear in his closing written submissions which were filed after the respondents' closing written submissions that he does not challenge that Person 43 was present at or shortly after the time at which the tunnel was discovered.
400 The respondents submit that, especially in circumstances where Person 40's evidence squarely supports that of Person 43 and vice versa, and the applicant did not challenge Person 40's evidence that he was in the vicinity of the tunnel when it was discovered, and the applicant did not challenge any witness' evidence about the tunnel being discovered during the SSE process, the Court should accept Person 43's evidence as summarised above.
401 The respondents' primary submission is that, in light of the lack of direct challenges to the evidence of the above witnesses, the contrary evidence of the applicant's witnesses should be rejected. The respondents further submit that, even considered on its own terms, the evidence of the applicant's witnesses is unpersuasive and ought not to be accepted. I turn to consider the applicant's evidence and that of his witnesses.
402 The applicant gave evidence that at the time he arrived in the tunnel courtyard, Person 29's patrol arrived soon after, although he cannot recall whether all of them were there. He did not remember how the tunnel was found. All he can recall is seeing a couple of the guys "and I don't remember who, move the grass and find the grate". He does not know whether they found it or someone else found it. He said that all he knew was that he remembered seeing someone move the grass and find the grate that was sitting on top of the hole.
403 The applicant said that he had no idea whether or not the compound had been declared secure at the point immediately after the tunnel had been found and, on his account, he was walking outside. He said the SSE process would not have started before the tunnel was cleared.
404 Person 5 said that on the mission to W108 and W109, the troop had two Afghan army members attached to it and it was one of those members who drew his attention to what turned out to be the tunnel. Person 5's evidence of the presence of ANA members or Afghan Partner members was not supported by other witnesses. Person 81 said that the troop did not have any ANA members or Afghan Partner members with it at W108. Person 29 said that an Afghan Partner ​member or an interpreter was present. Person 38 could not recall any Afghan Partner members. Person 41 did not refer to ANA members or Afghan Partner members. I do not accept Person 5's evidence. I consider it more likely that Person 81 is correct on this issue. Furthermore, I do not accept Person 5 as an honest and reliable witness.
405 Person 5 said that Person 18 was with him at the time he was called back by the Afghan Partner member. Person 18 gave evidence that he went into the tunnel courtyard following a radio call to the effect that a tunnel had been found. The applicant did not put to Person 18 that he was with Person 5 at the time Person 5 was called back by the Afghan Partner member. I prefer the evidence of Person 18 on this point. Person 18 was an honest and reliable witness and there is no reason to think he is mistaken about this evidence.
406 Person 5 gave evidence that at the point at which the tunnel was discovered, the applicant and Persons 29 and 35 ran over. The respondents submit that it may be accepted that those witnesses were present, but the Court would not conclude from this evidence that Persons 40, 41, 42 and 43 were not present.
407 Person 5 said that after Person 35 said the tunnel was clear, he advised Person 81 that the compound was secure. I do not accept this evidence because I find that the tunnel was found after the compound had been declared secure and the SSE process had commenced.
408 Person 29 in his evidence disagreed with the proposition that the tunnel was found after the SSE process had commenced. However, the following statement appears in the outline of evidence approved by Person 29:
   22. While conducting a sensitive site exploitation (SSE), we located a large cache of rockets. We also located a tunnel in the northern part of the compound towards the northern wall. …
409 When asked about this statement, Person 29 said that he probably should have proof-read and communicated with the applicant's counsel "a bit better about this outline of evidence". He denied that he had deliberately changed his evidence so that it aligned with the evidence of the applicant's other witnesses. Prior to his explanation in relation to this alleged inconsistency, Person 29 had said in his evidence that he had approved his outline of evidence and he did not at that time suggest that he had not carefully considered the outline of evidence. The respondents submit that Person 29's oral evidence should be seen as a transparent attempt to undermine the evidence of eyewitnesses giving evidence unfavourable to the applicant, that is ​to say, witnesses who said that they were present in the courtyard when the tunnel was discovered or shortly thereafter.
410 The Court's Defamation Practice Note provides that outlines of evidence are not to be the subject of cross-examination or tendered as a prior statement of the witness without the leave of the Court. That, as the Practice Note makes clear, is because the purpose of an outline is to provide notice of the evidence a witness is to give. Person 29 gave evidence that he approved his outline of evidence. In the circumstances, I granted the respondents leave to cross-examine Person 29 on the outline. I did this in similar circumstances in the case of other witnesses as well, both witnesses called by the respondents and witnesses called by the applicant. I accept that, generally speaking, it is necessary to be careful before placing too much weight on differences or omissions between a witness' evidence in the witness box and the outline of the witness' evidence. The latter document is, after all, only an outline and often a document prepared by the lawyers for one of the parties. However, the weight to be accorded to apparent inconsistencies and omissions depends on the circumstances and where a specific statement is made and approved, it may be significant. I consider the inconsistency referred to above to be another reason to regard Person 29's evidence to be unsatisfactory.
411 Person 35 agreed that at the time he approved his outline of evidence, he did not know that Persons 40, 41, 42 and 43 would be giving evidence. He denied changing his evidence to say that the tunnel was discovered before the compound was declared secure. He denied that he was giving a new and deliberately false account of what happened at W108 because he wanted to say that Persons 40, 41 and 42 were not in the tunnel courtyard at the time the tunnel was discovered. Person 35 gave the following evidence:
   And you've decided to change your evidence only after you've learnt that Persons 40, 41 and 42 were coming to give evidence?---No, that's incorrect, Mr Owens.
   Because you know that each of those men was, in fact, in the tunnel courtyard when the tunnel was discovered?---That's incorrect, Mr Owens.
   And you know that they were there during the SSE process, correct?---That's incorrect, Mr Owens.
   And another reason you have deliberately changed your evidence to this false account of when the tunnel was discovered is because you knew that Person 43 was coming to give evidence, correct?---That's incorrect, Mr Owens.
   And the reason you have changed your evidence to say that the tunnel was discovered during clearance is because you knew that Person 43 only came into the compound after the compound was declared secure?---That's – that's incorrect, Mr Owens.
   Because you knew that Person 43 came into the compound for the purpose of attending ​the commanders' RV, correct?---That's incorrect, Mr Owens.
   And so what you've done is change your evidence so as to undermine the account of Person 43?---That's incorrect, Mr Owens.
412 Person 35 was asked about a statement which appeared in the outline of evidence which he approved as follows:
   14. While conducting a sensitive site exploitation (SSE) of W108, a tunnel system was discovered within the confines of an outhouse on the northern side of the compound. As I was the smallest of the team, I was nominated to clear the tunnel system. …
413 In cross-examination, it was put to him that he intended to convey by this statement that the tunnel was found after the compound had been declared secure. He denied that. He said the following:
   …. Like, when conducting a sensitive site exploitation of Whisky 108, like, there – there was no – there wasn't opposition on the – on the – on the compound itself. We were essentially doing a battle damage assessment on that strike. The many – its clearance was extremely quick; there was no one there. The bomb had destroyed most of the compound that was to the east, so – and you can see in a number of the photos that it was a search, and then that search was still underway when that – that tunnel was found. …
414 Insofar as that statement might be taken to suggest that the troop was unconcerned about the potential risk in approaching and clearing W108, it is contrary to a good deal of other evidence. I realise that there may be a difference in apprehended risk in the approach to the compound and in the clearance of the compound itself, but that was not a difference reflected in the evidence to which I now refer. For example, Person 14 said that he thought he was going to be either wounded or killed on 12 April 2009, "based off how that day had panned out". Person 5 referred to the situation as the troop marched to W108 and said that the situation was already one of troops in contact (TIC). He said that by the nature of what happened that day, TIC was called straightaway and that comes about where hostile intent is present. Person 5 explained that the reason TIC would be called is because "you want to vie for assets", that is, "you want to get assets above you". Person 29 said that in the morning of 12 April 2009, W108 and W109 were regarded as serious threats. Person 38 referred to "a lot of shooting everywhere" on the way to W108 and that insurgents had been engaged on the way to W108. Person 40 said that the expectation was that on the approach to W108 they were going to get engaged and he said that everyone seemed to be on alert level expecting to be shot at.
415 The applicant submits that the force of the respondents' submission concerning the inconsistency between statements in the outlines of evidence and evidence in Court in the case ​of Persons 29 and 35 is diminished because when the outlines of evidence were prepared in 2019, the applicant was not on notice that the timing of the discovery of the tunnel would be in issue, nor was he on notice that the respondents would allege that EKIA56 and EKIA57 were PUCs who had been found hiding in a tunnel in a courtyard at W108. The respondents' answer to that submission is that there is no evidence that the difference between the clearance process and the SSE process was then considered a minor or trivial detail. In my opinion, the inconsistency between outline and oral evidence in the case of Persons 29 and 35 is not an inadvertent slip by either witness and it is a matter to be taken into account in the assessment of both witnesses.
416 Person 38 was a member of Person 29's patrol. He gave evidence towards the end of the applicant's case in reply on substantial truth and contextual truth. He denied that the compound was declared secure before the tunnel was found, but I reject that evidence. This is a convenient point at which to deal with a significant matter which arose in the course of Person 38's evidence and which means that I do not accept him as an honest and reliable witness. In one important respect, Person 38's evidence was different from the evidence of every other witness who gave evidence in relation to the events at W108. He introduced an entirely new matter. His evidence as to what he did immediately after Person 35 had reappeared from the tunnel and advised those on the surface that it was clear, was as follows:
   And what did you do after that?---I then pushed – I pushed forward from that compound and passed the area that I've marked E [the area in which the tunnel was found], and in the thick foliage area there that is, I guess, past that last line that I – I've drawn, there was an orchard area, and I asked Person 40 to assist me with that clearance. He – he declined, because he – he stated that his rifle was too long. He had an SR-25 sniper rifle. And then Person – hang on. Where are we at? Person 41 joined me, and we cleared the orchard area to the – as the cardinal point image on this map indicates, it would be an orchard to the northeast of the compound.
   Are you able to indicate the route that you took from the position you've marked D to the area which you've referred to as the orchard that you went to clear, and mark with the letter F the orchard area on MFIA240.
   MR OWENS: Can I just make a formal objection on Browne v Dunn grounds.
417 The orchard area marked on exhibit A240 by Person 38 was to the northeast of the compound next to the courtyard area in which the tunnel was found. Person 41 gave eyewitness evidence in this case of the execution of EKIA56 by Person 4 at the applicant's direction and it is very difficult, if not impossible, to see how Person 41 could have witnessed the events he said that he did if Person 38's account that he and Person 41 were clearing the orchard is correct.
​418 The evidence of Person 38 about clearing the orchard with Person 41 was not put to any of the respondents' witnesses, including Person 41. Nor was the "event" referred to by any of the other SASR witnesses called by the applicant. In my opinion, it is quite clear that Person 38's account of clearing the orchard with Person 41 should have been put, not just to Persons 40 and 41, but also to Persons 14 and 24 who would have been in a position to observe Person 38's (and, on his account, Person 41's) movements outside the compound and to Persons 42 and 43, and potentially Person 18. When these matters were put to Person 38 in cross-examination, he said the following:
   And to be clear, I'm putting to you that there were also present in the court [sic courtyard] at that point in time at least Persons 40, 42 and 43 and if they were there, whether or not they actually looked, they would have been in a position to see you move from the tunnel courtyard to the orchard; correct?---Yes, that is correct.
   And it's correct, isn't it, that if you were in the orchard area, you would have been visible to the cordon patrols; correct?---Again, that is not correct. I – I don't know what the cordon could or couldn't see. I didn't see any member of the cordon. Person 41 certainly saw me move, because he ended up coming with me. And Person 40 knew that I moved, because I asked him to assist me. So they will definitely know that I moved.
419 The respondents submit that had Person 38's account of clearing the orchard been put to their witnesses in cross-examination, they would have cross-examined each of Person 5, Person 29 and Person 35 about Person 38's account and may have sought to lead additional evidence-in-chief to deal with it. I accept that submission. I also accept the respondents' submission that, in the circumstances, the failure to comply with the principles in Browne v Dunn is sufficient reason in and of itself to reject the evidence of Person 38.
420 The respondents raised an objection during the evidence of Person 5 (who gave evidence well before Person 38) on the basis that a number of matters about which Person 5 gave evidence and was giving evidence, had not been put to the respondents' witnesses as required by the principles in Browne v Dunn. I considered this objection in Roberts-Smith (No 36). I referred to the range of "remedies" for a breach of the principles in Browne v Dunn (at [24]), but in that ruling, I was only required to consider the issue of whether the evidence of Person 5 identified by the respondents should be ruled inadmissible and excluded (see at [22]).
421 The respondents submit that, in any event, that is leaving aside the objection based on the rule in Browne v Dunn, the evidence of Person 38 was inherently implausible. A series of propositions were put to Person 38 in cross-examination which, although he denied, suggested that his account of clearing the orchard was implausible. It was put to Person 38 that an orchard ​would be cleared by an entire patrol and not just two men, particularly in circumstances in which the presence of insurgents in the area was well known. It was put to Person 38 that a decision to clear an orchard would be the subject of orders from the commander of the patrol and a decision to clear an orchard would not be made by the most junior member of a patrol. Nor would the most junior member of a patrol be telling the 2IC of his patrol (Person 40) to come with him to do that. It was also put to Person 38 that he did not know where the cordons were located and that clearing the orchard on his hands and knees which he said he did would involve a significant risk of him being mistaken by a member of the cordon for an insurgent.
422 In my opinion, these matters strongly suggest that Person 38's account of clearing the orchard is implausible. A further matter suggesting that Person 38's evidence about clearing the orchard is implausible is the evidence of Person 29 to the effect that once the troop had cleared the tunnel courtyard area, that was the limit of exploitation for the clearance. Person 29 explained the concept of the limit of exploitation for a clearance in the following way:
   So generally, we would, you know, designate a stop point for where we, you know, finish our actual clearance or actual assault so we just don't continue, you know, overextending. And at this point in time, you know, the compound and any affiliated courtyards or outbuildings to that compound would have, you know, been designated as that limit of exploitation just as a – as a physical barrier.
423 Counsel for the applicant recognised that no part of Person 38's account of clearing the orchard with Person 41 was put to Person 41 when the latter gave evidence at the beginning of February 2022. In closing submissions, counsel for the applicant said that no part of the evidence from Person 38 about clearing the orchard was relied upon by the applicant to impugn the credit of Person 41 in these proceedings and that that particular evidence was not deployed by the applicant in the proceedings. Counsel for the applicant made it clear that he was not submitting that Person 38 should not be accepted as a witness of credit, and he said that the applicant relies on Person 38's evidence in respect of other issues, such as blooding the rookie and whether the tunnel was discovered before the compound was declared secure. I presume the applicant also relies on Person 38's evidence that he did not see any men come out of the tunnel. Counsel for the applicant submitted that Person 38 was an impressive witness. Counsel explained that the reason the applicant was not relying on Person 38's account in relation to clearing the orchard is because the applicant accepts that it would be contrary to the principle in Browne v Dunn to deploy that evidence in circumstances where Person 41 was not given an opportunity to address it. Counsel for the applicant also noted that the applicant did not give evidence that Person 38 ​cleared the orchard with Person 41. Counsel for the applicant also recognised that the account was not in Person 38's outline of evidence.
424 The respondents submit that the failure of the applicant to comply with the rule in Browne v Dunn leads to the inescapable inference that Person 38's evidence was a recent invention, designed as an attempt to salvage the applicant's case. They submit that this is especially so in circumstances where the substance of Person 41's evidence was known to the applicant's legal representatives, those legal representatives were aware that Person 38's evidence was relevant to Person 41's evidence and Person 38 was available at all relevant times to meet with the applicant's lawyers and did, in fact, meet with them. It was certainly put to Person 38 in cross-examination by counsel for the respondents that his account about clearing the orchard with Person 41 was a recent invention. He denied that.
425 I have previously referred to the fact that in the first half of 2021, the respondents sought leave to issue Subpoenas to give evidence to various persons, including Person 41. The circumstances in which that application was made are set out in Roberts-Smith (No 12) (at [28]–[48]). I noted in those reasons (at [47]) that Mr O'Brien of Mark O'Brien Legal, the solicitors for the applicant, believed that if the respondents were granted leave to rely upon the evidence of Person 18 as now set out in his amended outline and four or five witnesses (including Person 41) in respect of whom no outlines of evidence had been or would be served, the applicant's legal representatives would be required, among other things, to reinterview Person 38 and others. That is the effect of Mr O'Brien's affidavit of 24 March 2021. Person 38 agreed in cross-examination that he was generally available to speak to the applicant's solicitors at any point between June 2018 and May 2022. The respondents submit that, in those circumstances, the reasons to infer that Person 38's account of clearing the orchard with Person 41 is a recent invention are overwhelming.
426 I asked counsel for the applicant whether the fact that the applicant did not rely on Person 38's evidence about clearing the orchard affected the Court's approach to the other evidence he gave. He submitted that it did not and that it did not impact on his credit. He submitted that I should not draw an inference adverse to Person 38 from the fact that his account of clearing the orchard was not put to the respondents' witnesses. Counsel for the applicant referred to the decision in R v Manunta [1989] SASC 1628; (1989) 54 SASR 17 (R v Manunta) at 23 per King CJ.
​427 I have considered the relevant passage in R v Manunta carefully. That case involved a jury trial and central to the Chief Justice's observations is that the jurors may not be familiar with the course of trial or preparation for trial such that they may not be aware of the reasons an account is not put to a witness other than recent invention. It seems to me, however, that I can rule out in this case the other explanations suggested in R v Manunta, such as counsel misunderstanding his or her instructions, a lack of cooperation by the witness, forensic pressures resulting in looseness or exactitude in framing questions or that the matter was simply overlooked. In rejecting those possible explanations, I have had regard to how the parties have conducted their respective cases and how the matter has proceeded generally. It is fair to say that neither party in this case has given any indication that any possible line of inquiry has not been pursued to the fullest extent. I have reached the conclusion that Person 38's account of clearing the orchard with Person 41 is a recent invention. I consider that that conclusion reflects in a significant and adverse way on the honesty and reliability of Person 38's evidence and I am not prepared to rely on any of his evidence unless it is corroborated by evidence which I accept. I should say that even if the account had been put to the respondents' witnesses, I would reach the conclusion based solely on the implausibility of the account of clearing the orchard and Person 29's evidence that it was a dishonest invention which fundamentally undermines all of Person 38's evidence.
428 Person 81 said that he would not have seen the tunnel before the compound had been declared secure because he would not have approached the compound until it was secure. Furthermore, he could not recall whether he had been told that the tunnel had been found before or after the compound had been declared secure. Person 81 said, when asked whether it is possible that the tunnel was found while he was present in the area where the tunnel was located, that he would not like to speculate. Person 81 said that he was engaged in a range of tasks and he did not carefully observe what other SASR operators were doing around him. He let them get on with their job. Person 81 said that it would follow logically if he saw the tunnel at or about the time of the Commanders' RV that, although he could not recall where the Commanders' RV was held, it was likely to have been close to the tunnel entrance.
429 The respondents submit that Person 81's evidence is consistent with the tunnel being found after the compound had been declared secure and while he was waiting nearby for the Commanders' RV to commence. The applicant submits that I should reject this submission and that considered "as a whole", Person 81's evidence was consistent with the tunnel being discovered before the compound was declared secure and he entered it. That was said to follow ​from the fact that he could not recall being nearby when a tunnel was discovered. The passage of Person 81's evidence is as follows:
   Now, I also want to put to you that, when you were standing with that group of people including Person 43 and Person 82, it was around that point in time that the tunnel was actually discovered. Are you able to say whether you were standing nearby when the tunnel was discovered?---I don't recall that.
   Now, when you say you don't recall it, do you mean you don't recall one way or another?---Well, yes. I don't recall it. Yes.
Person 81 did not have a good recollection of events at W108. That is not a criticism, but a reflection of his evidence and the fact that his focus was on a number of matters in respect of which, as troop commander, he bore responsibility. I do not consider his evidence provides any real assistance in terms of the present issue.
430 In summary, the respondents ask the Court to make a finding that the tunnel was discovered after the compound had been cleared and declared secure, the commanders had been called in for the Commanders' RV and the SSE process had commenced. The applicant seeks a finding that the tunnel was found before the compound was declared secure based on the troop's standard operating procedures and the evidence of Persons 5, 29, 35 and 38. The applicant submits that the troop's standard operating procedures were such that, to take this particular circumstance, a compound would not be declared secure until after a tunnel had been cleared and troop headquarters would not have been called into the compound for the purpose or, at least a purpose of conducting a Commanders' RV, until a compound had been declared secure. I do not understand the respondents to dispute that that would be the standard operating procedure; their point, which I consider is correct, is that the tunnel was not discovered until after the compound had been declared secure as the evidence of their witnesses was to the effect that they were carrying out tasks related to the SSE process at the relevant time or, in the case of Person 43, by, among other things, his very presence in the compound.
431 I accept the evidence of the respondents' witnesses, Persons 18, 40, 41, 42 and 43, and, as I have said, I do not accept the evidence of the applicant and Persons 5, 29, 35 and 38 on this issue insofar as it suggests that the tunnel was found before the compound was declared secure.
432 The applicant made a submission in closed Court by reference to Sensitive Documents involving a related point and that is whether the engagements of EKIA56 and EKIA57 occurred before the compound was declared secure The submission to that effect, and the reasons I reject it, is dealt with in the closed Court reasons (at [39]–[44]).
​433 I find that the tunnel in the courtyard area in W108 was discovered after the compound had been declared secure.
Were Afghan Men Found in the Tunnel?
434 The next factual issue is whether two men came out of the tunnel at W108. This is a critical issue in the case. In addition to the evidence of eyewitnesses, the respondents rely on the evidence of Persons 14 and 24 even though they were at all times outside the compound. The respondents submit that if the evidence of Persons 14 and 24 is accepted as to what happened outside the compound, then that makes it more likely that men were found in the tunnel. At the same time, the respondents submit that if men were found in the tunnel, then it is more likely that the evidence of Persons 14 and 24 is correct. As general propositions, those submissions are correct.
435 Three of the respondents' witnesses — Persons 40, 42 and 43 — gave evidence that they saw men come out of the tunnel. Two of the respondents' witnesses — Persons 18 and 41 — saw fighting age males under guard in the courtyard when they went into the courtyard not long after the tunnel's discovery. The evidence of the applicant's witnesses was that there were no men in the tunnel.
436 Person 40 said that there were two women in the tunnel area and they and the interpreter were doing callouts, that is to say, calling the insurgents to come out of the tunnel. The interpreter was speaking Farsi or an Afghan dialect. Under cross-examination, it became apparent that Person 40's recollection as to the language spoken by the interpreter was poor other than that he was using an Afghan dialect. Person 40 agreed that he could neither speak nor understand Farsi. He agreed that it was possible that the interpreter was speaking Pashto. Person 40 said that Person 35 was instrumental in persuading the individuals to come out of the tunnel and that:
   There was a lot of talk. There was a lot of yelling, shouting, assurance. "Come out. You will not be harmed".
437 Person 40's evidence was to the effect that the person who spoke to the interpreter said words to the following effect:
   "Come out, you will be safe. You're not going to be harmed. We want to talk to you".
438 There were two insurgents in the tunnel and when they came out they were "obviously very frightened". One of the insurgents had a distinctive limp and that was the insurgent with the ​prosthetic leg. As he was coming out of the tunnel, he was lifting his trouser leg and pointing to the prosthetic leg "expecting some sort of sympathy". Person 40 described the insurgent with the prosthetic leg as an older sort of man with a beard and no shoes. He said that he did not recall anything significant about the second insurgent:
   You know, beard. Baldish.
439 Person 40 said that the two insurgents were searched and then marched off to another area by the applicant and Person 35.
440 The insurgent with the prosthetic leg did not have the prosthetic leg taken off and searched. The two insurgents were marched off by the applicant and Person 35 who were behind the insurgents. Person 35 was behind the insurgent with his hands on the scruff of his neck. The applicant was controlling the other insurgent either by holding his shoulder or the scruff of his neck. Person 40 considered that what was happening was that the insurgents were led to an area for the conduct of tactical questioning. Person 40 could not recall whether the insurgents were handcuffed, but he said that it would have been standard practice for them to have been handcuffed.
441 The respondents submit that it is important to consider the nature of the applicant's challenge to Person 40's evidence. Person 40 said that he was moving back and forth between the tunnel area and an area within the northern half of the compound which he marked on exhibit R137. He was not challenged on that evidence and, therefore (so the respondents contend), he was not challenged on his evidence that he was in a position to see whether or not men emerged from the tunnel. It was put to Person 40 that he did not have an actual recollection of two men coming out of the tunnel and that he had come to think that he saw something on that day because somebody had told him that the applicant had pulled the trigger that killed the insurgent with the prosthetic leg. It was put to him that he had come to think that he saw something on that day and that he had convinced himself that he saw something on that day that is relevant to the rumour that was circulating. The rumour is what somebody had told him.
442 The respondents submit that the theory put to Person 40 in cross-examination cannot be correct. They submit that there is nothing in Person 40's evidence to suggest that his memory is unreliable and he made appropriate concessions in terms of the matters he could remember and those matters he could not. When challenged in cross-examination about the strength of his recollection of events at W108, he said:
   I would say it's – the key – really important bits and pieces are very accurate, but, like, ma'am asked me, you know, what was the assault plan. I can't remember, you know?
443 As the respondents point out, it was put to Person 40 by the applicant that there was no interpreter present at W108 on 12 April 2009 and yet Person 29, a witness called by the applicant, gave evidence that he recalled a person who was either an interpreter or an ANA Partner Force soldier shouting something in Pashtun in the vicinity of the courtyard. In addition, Person 29 said that he and his patrol moved from W108 to W109 with a member of the ANA Partner Force or the interpreter who accompanied his patrol "for the purposes of communicating if we came across persons on 109". Furthermore, Person 81, a witness called by the applicant, indicated that he had an interpreter with him.
444 As I understand it, there is no suggestion by the applicant that Person 40 was dishonest, motivated or affected by jealously or ill will, suffered from a mental illness or issue that would or might affect his recollection, or was confusing W108 with another mission, or innocently mistaken in his observations. There is no evidence of any of those matters. The applicant's submission was that Person 40's evidence had, through the passage of time, which in this case is substantial, "fermented to reconstruction, which in turn has escalated into selective recollection".
445 As I will explain, I do not accept that submission. The difficulty with the submission is that not only is there no reason for me to think that Person 40 was not an honest and reliable witness, but his evidence was supported by other witnesses who had no interest in the matter and who gave no indication that they were doing anything other than honestly and reliably recounting their respective recollections. The passage of time is an important matter to take into account, but is not of itself a reason to reject a witness' evidence.
446 In my opinion, there is no evidence to suggest that it is possible that Person 40 has undergone a process of creating a false memory about men coming out of the tunnel.
447 Furthermore, the evidence of Person 40's contemporaneous conversations negates any such suggestion.
448 First, Person 41 recounted a conversation he had on the day with Person 40 in the course of his evidence in which Person 40, using Person 41's name, said "Hey", Person 41, "do you know what happened to those two blokes that they pulled out of the tunnel?" Person 41 said in response the following "No, mate, I was just in that cowshed there". The applicant did not put to either Person 41 or Person 40 that that conversation did not occur.
​449 Secondly, Person 43 said he had a conversation with Person 40 on 12 April 2009 about the PUCs. He said that Person 40 asked him when they were walking off or getting ready to walk off W108 where the PUCs were and Person 43 said, "You know where they are". Person 43 said that he made a vague comment so as not to incriminate someone for something that he did not know had happened or not happened. Person 40 said in response, "That's fucked". Again, the applicant did not put to Person 43 that that conversation did not occur.
450 Thirdly, Person 40 said although he did not recall the "precise verbiage", he recalled a conversation with Person 42 in Tarin Kowt in their accommodation. He said to Person 42 that what occurred was wrong and that was a reference to the killing of the man with the prosthetic leg.
451 I accept that these three contemporaneous conversations involving Person 40 occurred and I make it clear that I do so irrespective of whether there was a challenge by the applicant to the evidence.
452 Person 41 gave evidence of standing around the tunnel with Persons 29 and 35 and Person 29 yelling down the tunnel to see if there was anybody in there that would come out. This continued for a short time and Person 41 said that there was not really much there and he went to search two rooms in the north-western area of the courtyard. He marked those rooms on exhibit R92. He then heard some louder voices and talking "a bit of a commotion" outside in the courtyard. He stepped out of the room he was in and to his immediate left he noticed the applicant and Person 4 standing there and just beyond them squatting against the wall just near the tunnel entrance was an Afghan male. He described the Afghan male as an older male dressed in traditional Afghan loose top and clothing, either white or a very light colour. He had short cropped hair. Person 41's evidence is as follows:
   All right. Now, when you went off to look in those rooms, you said before you had seen Mr Roberts-Smith, Person 4, Person 5, Person 29, Person 35, I think, in that courtyard area. Do you remember what they were doing, or do you remember what you saw them doing around the time that you went into those rooms?---No, I don't.
   Okay. Now, tell me, when you went into those rooms, when did you see or do in there?---So I went into the first room, and there was a bit of damage to the walls from the percussion from the bomb strike. I saw there was, like, batteries on, like, a makeshift sort of shelf in there. A lot of wires. Things like wood, hacksaw blades, a couple of wires where attempted to be hidden within the mud walls. I sort of decided myself then that they must have been making IEDs in that room or within that area. There was also two – two or three large bags of a black sticky substance, which I didn't know then, but it turned out that was opium, and they were also located in that room.
453 The respondents submit that no coherent theory which might lead the Court to doubt Person 41's evidence to the effect that he saw an Afghan male squatting down near the tunnel entrance not long after the tunnel was discovered was put to Person 41 in cross-examination. The respondents submit that a number of matters were put to Person 41 that in the end went nowhere. For example, he was asked about whether he had been told about the events or had read about them, or had had them suggested to him by enemies of the applicant. In each case, he denied that any of those things had happened. As the respondents submit (correctly in my opinion), there was no suggestion that Person 41 was a person with any grievance against the applicant or was influenced by any of the applicant's enemies.
454 Person 41 was asked by the applicant whether he had been receiving psychiatric treatment. He said that he had been receiving such treatment since the middle of 2020 and he put that down to hearing that he had been subpoenaed and having a large workload and a manager who, he described, as quite a micro-manager. I do not consider that anything emerged from the evidence of Person 41, or indeed the evidence in the case, that suggested Person 41 had a mental health illness or issue which had or may have affected his evidence.
455 It was put to Person 41 by the applicant that he may have been feeling guilty about not reporting what he saw. Person 41 denied that he had a feeling that he was a coward because he saw something that should not have happened and did nothing to stop it.
456 It was also put to Person 41 by the applicant that he walked away from the tunnel because he was too scared to go into the tunnel. He went to the other rooms instead. I have already referred to this suggestion (at [392]–[393]). It was put to him that he had been lying to himself about what happened to cover up for his own conduct. The relevant passage in cross-examination is as follows:
   But on this day, 12 April 2009, in which you saw other members of your patrol engage in heroic acts, you were scared?---No. I don't recall see any heroic acts on that day by members of my patrol.
   See, is this the case, that you've been lying to yourself about what happened that day ​in order to cover up for the fact that you were scared and walked away from backing up Persons 29 and 35?---No. That's incorrect.
   And you've read articles about happened on Easter Sunday and have come to believe that is what happened?---No. I know what I saw, and that's the evidence I gave, your Honour.
   Well, that is what you think you saw?---That's what I know I saw. That's why I gave that evidence.
457 I do not consider that Person 41 has or had feelings of guilt or shame as suggested to him by the applicant. Even if he did, that would not, to my mind, explain a false story about an Afghan male squatting down adjacent to the tunnel. The connection between the two is not in any way apparent.
458 I will need to come back to Person 41's evidence. I note at this point that he denied being told anything by anybody about what had happened at W108. He was asked about reading media reports and he agreed that he had done that.
459 Person 42 said that after the tunnel had been discovered, the members of the patrol had their weapons trained on it. There were Afghan women present who by their body language were indicating there was something "they didn't want hurt or damaged or something". Members of his patrol were shouting out Pashto phrases in order to have anyone in the tunnel come out. Person 42 recalls men coming out of the tunnel and he said there were at least two, but potentially there could have been three. The men were compliant. They were unarmed and came out freely. The SASR operators present did an initial pat down search. He recalls clearing and searching one of the individuals. They needed to make sure that they did not have any concealed weapons, or any type of suicide vest or fragmentation grenades that could injure the SASR operators. Person 42 said that after he had conducted his search, he passed the individual on, but he could not remember to whom. He could not recall whether the individual was handcuffed, although he said it would be normal practice to handcuff the individual. Person 42 could only recall members of Person 29's patrol being present at that point.
460 The respondents submit that no proposition was put to Person 42 that would explain why he had either misremembered or manufactured evidence about seeing men come out of the tunnel. The respondents went further and said that in the final portion of Person 42's cross-examination he confirmed his evidence without any challenge being made to it. The respondents submit that although it was put to Person 42 that he was not present when the tunnel was discovered, that two or three women were not present and that he was making up his evidence that Person 29 called out to any people in the tunnel, no proposition was put to Person 42 to the ​effect that he had fabricated any part of his evidence, or that there was any particular reason why his evidence would be unreliable and, in those circumstances, the Court would accept it. The respondents' submission that it was not put to Person 42 that he had not fabricated any part of his evidence is not correct and it was put to him at various points that he had made evidence up. However, no plausible motive for him to lie was suggested. Again, as I will explain, in the result Person 42's evidence falls into the same category as Person 40's evidence. He was an honest and reliable witness whose evidence is supported by other witnesses with no interest in the matter and like those witnesses, he gave no indication he was doing anything other than honestly and reliably recounting his recollection.
461 Person 43's patrol was part of a cordon on the south-western aspect. The compound was declared secure and the SSE process was underway. He was called into the compound for a Commanders' RV. The people present were getting ready to have their meeting when Person 43 saw Person 35 discover the tunnel. He ran over to render assistance. He was pointing his weapon down at the entrance to the tunnel. There were other soldiers present. Person 43 was calling for the interpreter so that anybody in the tunnel could be warned to come out. Before the interpreter reached them, he saw someone crawling out of the tunnel. The person was an elderly Afghan male with a beard and dressed in local clothing. Person 43 said that he helped remove the elderly Afghan male from the tunnel along with several other pairs of hands and that they PUC'd the person straight away. Person 43 said that the elderly Afghan male had his hands out in front of him in the universal "I give up" position. Person 43 recalled the elderly Afghan male being placed on the ground head first and searched. Person 43 then went back to his job of decision-making. It was decided that the majority of the call sign was going to move on to W109 and clear that compound before returning.
462 The elderly Afghan male was handcuffed and walked away by people holding his upper body and walking him. After he had been handcuffed and possibly blindfolded, he was handed over to the tactical questioning team which was Person 5's team.
463 It was put to Person 43 by the applicant that his evidence that he was present when an elderly Afghan male emerged from the tunnel was made up and that it was part of a story that he had been spreading as a rumour in relation to what happened at W108. He denied that. He denied that he was one of the persons who had been spreading rumours about W108. It was put to him that he was telling stories. It was put to him that he had deliberately refrained from mentioning the presence of particular persons at W108 other than Person 35 so that his "story" ​could not be disputed. He denied that. It was put to him that the only important recollection that he had of W108 is what he wanted to tell the Court. He denied that.
464 Person 43 agreed in cross-examination that he did not consider that the applicant was entitled to the Victoria Cross and that he has expressed that view to other people a number of times. He agreed that he had told other people that the applicant is a bully. He said that he did not particularly like the applicant. He denied that he had come to Court to give evidence favourable to the respondents' case.
465 The respondents submit that Person 43's evidence is corroborated by other witnesses whose honesty was not challenged. They submit that Person 43 was plainly making an honest attempt to give evidence only as to those matters he could recall, and his plausible recollection of more unusual or significant events, and non-recollection of more mundane occurrences, is entirely consistent with genuine memory. For example, he said that it did not matter whether he came through the wall or through a door or over a fence. He said that the "only important recollection" he had of W108 is the tunnel with that PUC. The respondents submit that the Court should reject the suggestion that the matters of detail which Person 43 said he could not recall were designed to insulate his evidence from challenge by the evidence of other witnesses.
466 The respondents submit that the initial attack on Person 43's recollection by the applicant was to the quality of his recollection. That can be seen from the questions in cross-examination about his mental health. He agreed that he took medication, but he denied that it in any way impacted upon his memory. The respondents submit that the lines of cross-examination based on mental health problems and the taking of medication go nowhere in the absence of medical evidence. Person 43 agreed that it is possible to confuse matters when one is recalling them, but denied that that had happened in the case of the man who was pulled out of the tunnel. The respondents submit that it was only when it became clear that an attack on Person 43's memory would not succeed that there was an attack on his honesty.
467 Person 43 had heard rumours about the execution of PUCs, but not the discovery of a man in a tunnel.
468 I do not consider that the fact that Person 43 did not like the applicant and did not think that he deserved the Victoria Cross motivated him to give false evidence and, as I will explain, I consider that he was an honest and reliable witness. ​469 After Person 18 had received the radio call about the tunnel, he left the area where he had been searching and he went to the area where the tunnel had been found. As he walked from the area where he had been searching to the tunnel area, he saw two or three soldiers standing around a person in white. He gave that person a quick glance. He said "it was just an Afghan who had been found, so that it was nothing out of the ordinary". He moved to the tunnel entrance and there was a solider there with a weapon pointing down into a black dark hole or the recess in the grass. He does not recall the identity of the Australian soldiers standing around the person in white. All he could remember about that person was that he was dressed in white. He marked on exhibit R132 the area where the tunnel was found and the location of those soldiers and the person in white. The person in white had flexi cuffs on his wrists. Person 18 said that he went over to the tunnel entrance and had a look down into the tunnel. Person 35 went into the tunnel and Person 18 slid after him so that he was in up to his waist "inside the tunnel leaning on the – on the stairs".
470 Person 18 said that he had heard rumours about the man with the prosthetic leg being murdered. He started hearing rumours about the event in Afghanistan. He denied the suggestion by the applicant that he had decided to "jump in and spread a bit of rumours" himself in relation to W108 and he denied a suggestion that the evidence he had given in respect of going to the tunnel was false. He denied a suggestion that the evidence about him going halfway into the tunnel was false.
471 The respondents submit that it was never expressly put to Person 18 that his evidence that he saw a person in white under the control of the Australian soldiers was incorrect.
472 The respondents submit that the applicant in his evidence appears to accept Person 18's evidence to the effect that he was not present in the courtyard when the tunnel was found. This is contrary to the evidence of Person 5 who said that Person 18 was with him when the tunnel was discovered and the respondents submit that Person 5's evidence is presumably disavowed by the applicant to that extent.
473 The applicant gave evidence that whilst Person 35 was in the tunnel, "one of the other team members, possibly Person 18" was supporting him at the top of the tunnel. In other words, the SASR operator, possibly Person 18, was covering Person 35 at the top of the tunnel. As the respondents submit, having accepted that Person 18 was giving honest evidence as to his location when the tunnel was discovered, and as to his involvement in assisting to clear the tunnel, it is unclear why Person 18's evidence should be regarded as other than honest in other ​respects. The respondents submit that the applicant has not pointed to any rational reason why Person 18, who the applicant accepts was covering Person 35 at the top of the tunnel, would add to the rumour by throwing in "the false story in respect of the tunnel".
474 Person 18 admitted that he did not consider that the applicant deserved the Victoria Cross and that he had said that to other people, but he denied that he had expressed that view because he was upset that he had not received a medal. It was not expressly put to Person 18 that he made up the story about seeing the person in white with two or three soldiers in the tunnel courtyard because he considered that the applicant did not deserve the Victoria Cross and because he was upset that he himself had not been awarded a medal.
475 Person 18 said that he had heard rumours about a killing at W108, but how that circumstance might have led him to invent a memory of a man in white with flexi cuffs on and standing in a small group of soldiers was never made clear by the applicant.
476 I have referred to the evidence of five witnesses, Persons 40, 41, 42, 43 and 18, concerning an Afghan man or Afghan men coming out of the tunnel while they were there or being near or adjacent to the tunnel when they arrived in the courtyard.
477 In their closing written submissions, the respondents referred to the nature of the challenges made to the evidence of those witnesses and submit that the weaknesses of those challenges when properly considered leads to the conclusion that the applicant is unable to offer any plausible explanation as to why the witnesses should not be believed.
478 By reference to the applicant's cross-examination of Persons 40 and 42, the respondents submit that the applicant effectively concedes that they were honest witnesses. As I have said, I do not accept that there was no challenge in cross-examination to the honesty of Person 42. The respondents submit that there is no rational explanation for how those witnesses could honestly have given the evidence they did which aligned with each other and other witnesses called by the respondents, if it was untrue.
479 Furthermore, the lack of a rational explanation in relation to those witnesses undermines the submission that the evidence of Persons 41, 43 and 18 was invented. The respondents submit that there was no explanation for how the evidence of each of those men could have been so consistent if it was fabricated, both with the honest evidence of Persons 40 and 42 and with the evidence of the other allegedly dishonest witnesses. The respondents submit that the ​motivation given for each of those men to lie was utterly implausible as a motivation to invent such serious untruths.
480 The respondents submit, correctly in my view, that although the witnesses' evidence did not accord in all respects, it is a coherent and plausible account of two Afghan men being in the tunnel.
481 First, all of the respondents' witnesses who were present say that after the tunnel was discovered, many SASR operators trained their weapons on the entrance to the tunnel. Person 41 said that he recalled standing around with Persons 29 and 35. Person 42 recalled the complete patrol (i.e., Person 29's patrol) being present when he first entered the courtyard. Person 42 recalled Persons 35 and 38 at the time he looked into the tunnel, but said that "the people around me and exactly who they were is not the focus. The focus is the threat in the tunnel". Person 43 recalled Person 35 being on his right, but could not recall anybody else. He was "focussed on the hole".
482 The respondents submit that the fact that different witnesses recall different people does not mean that they are providing inconsistent accounts. It simply means that of all of the people present, individual witnesses recall different individuals. The respondents submit that, in any event, to the extent that a witness may have misremembered the identity of an individual, that is unexceptionable in circumstances where the tunnel was a newly discovered threat. The respondents submit that the presence of so many people makes Person 41's recollection that he perceived that he was not required and, therefore, left to search another area, particularly plausible.
483 Secondly, all of the respondents' witnesses who were present recall a callout taking place. The respondents submit that while only some of those witnesses recall an interpreter being involved in the callout, none positively denied it.
484 Person 40 recalled an interpreter essentially doing callouts. The interpreter was speaking Farsi. In cross-examination, Person 40 said that an interpreter was present at W108 and that he heard that person speaking Farsi and then later, Person 40 said, speaking an Afghan dialect. Somebody was speaking to the interpreter who relayed whatever it was in an Afghan dialect. Person 40 could not remember who was saying things to the interpreter. He remembers troop headquarters being present. He said that the two men in the tunnel were spoken to in both ​English and in Farsi and, in the latter case, that was done by the interpreter. The interpreter was in the vicinity of the tunnel entrance.
485 Person 42 said that either he or another member in the patrol started calling out into the tunnel using broken Pashtun. He did not recall an interpreter being present. He said he was unsure whether there was an interpreter on the task at all, but that it would be highly unlikely that they would be there at that phase of the assault anyway. Person 42 said that he believed that it was Person 29 who called the people out of the tunnel. Later in his evidence he said that he was not one hundred per cent sure that it was Person 29 who called them out.
486 Person 43 said that he and others were shouting out for an interpreter and that he was shouting out in English for the people to come out of the tunnel. The effect of Person 43's evidence is that someone appeared crawling out of the tunnel before the interpreter reached the tunnel.
487 The respondents submit that the fact that different witnesses recall different people calling out is unremarkable as the scene was likely to have been a chaotic one. In answer to the suggestion made by some of the applicant's witnesses that calling out into the tunnel would not have been performed because it would have alerted any occupants of the tunnel to the presence of Australian soldiers, the respondents submit that that suggestion should be rejected as it was readily accepted that anyone in the tunnel would have been aware that it had been discovered as soon as the cover to the tunnel had been removed. For example, the evidence of Person 38 was as follows:
   It's correct, isn't it, that the presence of SAS operators outside this tunnel would have been obvious whether or not a callout was performed?---You could assume that. Yes. It would have been obvious.
   Because once the tunnel covering has been removed, light would have flooded into the tunnel?---That – that would be an assumption.
   And there's no way that anyone in the tunnel wouldn’t have heard the noise going on in the tunnel courtyard; correct?---You could – you could say that would be a good assumption.
488 Thirdly, the respondents submit that the evidence of Persons 40, 42 and 43 was consistent as to Afghan men coming out of the tunnel.
489 Person 43 remembered a person emerging from the tunnel who he described as an elderly Afghani male with a beard and dressed in local clothing which was light coloured. He helped pull the man out of the tunnel and then in PUCing the man. He does not recall anyone else coming out of the tunnel. He is not sure whether any other person came out of the tunnel. ​Person 40 recalled two men coming out of the tunnel, one had a distinctive limp and he was lifting his trouser, pointing to the prosthetic leg, expecting some sort of sympathy from the troops. He further described that man as an older sort of man with a beard and no shoes. He did not recall anything significant about the other man other than that he had a beard and was baldish. Person 42, on the other hand, said he recalled at least two, but there potentially could have been three, men come out of the tunnel. He could not remember anything specific about the physical appearance of the people that came out of the tunnel other than that they were Afghan males.
490 Fourthly, the respondents' relevant witnesses recalled the men coming out of the tunnel being PUC'd. I have already referred to the evidence of Person 43. Person 42 said that it was normal practice to handcuff individuals. Person 40 said that he saw the PUCs being searched and then marched off to another area. The respondents submit that that is consistent with the evidence of both Person 42 and Person 43 who each recalled passing the PUC that they assisted with to other SASR operators who took them away. Person 40 recalled that the two insurgents were marched off by the applicant and Person 35. Person 43 said that the insurgent he was involved with was handed over to the tactical questioning team which was Person 5's patrol. Person 42 said that, as to the individual he searched, he could not recall to whom he passed on the individual. Person 41 gave a description of the Afghan male that he saw squatting down just near the tunnel entrance which was consistent with the evidence of Person 43. He referred to the Afghan male as an older male dressed in traditional Afghan loose top and clothing, either white or very light in colour, short cropped hair. Person 18's description of what he saw when entering the tunnel in the courtyard area concerning the group of two to three soldiers with a person in white who had flexi cuffs on his wrists is also consistent with the accounts of other witnesses.
491 Person 81 was asked about this topic. He said that he was not informed as to whether there were any Afghan fighting age males found in the tunnel. He did not see any Afghan fighting age males come out of the tunnel. Person 81 said that he had a recollection of seeing fighting age males as he moved through the compound, but he did not have a recollection as to where they were in the compound. He then gave the following evidence:
   Now, when you – I accept that you don't have a crystal clear recollection. But when you think that you may have gone to see the tunnel entrance, are you able to say one way or another whether there would have been any local nationals at all in that area where the tunnel was when you went to see it? --- The exact position of the local nationals: I couldn't give firm details of it. But, you know, it wasn't a large area that ​I would have gone through in that compound, so wherever that troop [commanders'] RV was is likely to where I have seen - - -
   And - - -? – ---those persons.
492 Person 81 also agreed that he is unable to say one way or another whether there were people in the tunnel. All he could say was that he did not see any people come out of the tunnel. The respondents' submission is that Person 81's recollection of seeing fighting age males in the area near the Commanders' RV is as highly corroborative of the fact that men were found in the tunnel. I would not put the matter that highly. Person 81's evidence does not rule out a finding that two Afghan males were taken from the tunnel. Person 81's evidence about whether there were Afghan women present shortly after he entered the compound was as follows:
   Okay. Now, I also want to put to you – and it may be that you just can't say. But at the point in time just before the commanders' RV, there were some Afghan women nearby, some of whom were quite agitated. Are you able to say one way or another whether you recall that?---I don't recall anything significant, but that is reasonably typical that they would be agitated as we enter the compound. So - - -
   And, to be clear, I wish to suggest that their agitation suggested that they were concerned about people or something being hidden in the vicinity?---I don't recall.
493 I accept the submission made by the respondents that, although the documentary evidence found in the tunnel relating to EKIA57 (that is, the Afghan male with the prosthetic leg) does not prove that he himself was present in the tunnel at any particular point in time, it does establish a connection between that man and the tunnel, and strongly suggests that he used the tunnel and had been present in it. The identity documents are exhibit R193 and they relate to a man named Ahmadullah who was a right leg amputee and had a right below knee prosthesis. Furthermore, the connection between EKIA57 and the documents in the tunnel was made at the time. The Exploitation Management Data Card, Op Harpoon – COI W0108 (exhibit R17), contains the following note:
   Info obtained from FE-TSE of KIA 57. NE Corner W108. 5 metres from doorway. Had prosthetic leg. Documents likely related to KIA 57 recovered from tunnel complex, in the name of "Ahmadullah". Photographed on target.
494 I turn now to address the evidence adduced by the applicant concerning the discovery of the tunnel at W108 and whether there were men in the tunnel.
495 The applicant said that he did not see any fighting age males in W108 on 12 April 2009.
496 The applicant said that the tunnel was discovered and Person 35 was chosen to go into the tunnel because he is very short in stature. The applicant did not go into the tunnel at that point. Other team members, possibly Person 18, were supporting Person 35 while he was in the tunnel ​by covering him at the top of the tunnel "from what I understand". The applicant did not become aware of what was found in the tunnel at that point. The applicant recalled that there were some local women in the compound. In his closing written submissions, the applicant contends that it was not expressly put to him in cross-examination that there were Afghan women in the courtyard, although precisely what he seeks to make of that is unclear. The applicant left the area of the tunnel to go outside. He went through an exit point in the courtyard on the north-western side of the extension to W108. In cross-examination, the applicant said that he did not have a recollection of who covered Person 35 at the tunnel entrance. He said that there were no men found in the tunnel.
497 Person 5 said that one of two Afghan army soldiers with the troop pointed out the place where the tunnel was discovered. The soldiers present were the applicant and Persons 18, 29 and 35. He referred to the discovery of the tunnel and said that it was followed by a call on the radio to make everybody aware that a tunnel had been found "in case there were any other potential tunnels within that compound". Person 5 said that he made a decision to hold on the tunnel. They were going to continue the assault through the living area. Person 5 said that the troop was not going to open up two avenues of approach and he referred to the possibility of a courier system all the way down to the river. He said that it was important to clear what was in front of one and then take on the next problem. Security was held on the tunnel by Person 35 who kept his weapon trained on the entrance point. The rest of the compound was cleared, including the living areas. That was done by Person 29's patrol. On reaching that area, Person 5 was informed by a member of Person 29's patrol, that is, Person 42, that the area was clear and Person 5 went back to the tunnel with Person 18. Person 5 did not recall seeing any Afghan women in the compound, let alone in the tunnel courtyard. It was at that point that a decision was made by Persons 5 and 29 that Person 35 would go down into the tunnel.
498 No other witness in the case said that there was a delay in clearing the tunnel. It is against the weight of the evidence and I reject Person 5's evidence to this effect. At the same time, I consider that it is speculation to say, as the respondents submit, that Person 5 made this aspect up to reinforce the case that the compound had not been declared secure at the time the tunnel was discovered.
499 Person 5 went on to say that before going down into the tunnel, Person 35 took off his body armour and helmet, took out his pistol and put his long gun down and jumped into the tunnel. After no more than a couple of minutes, Person 35 came back, stuck his head up and said the ​tunnel was clear. Person 5 said that no-one came out of the tunnel. Person 81 was informed that the compound was secure and the troop commenced a rummage search of the compound. Person 5 moved to the Commanders' RV. (The balance of the key features of Person 5's evidence is dealt with below (at [709], [846], and [859])). As I have said, I do not accept Person 5's evidence.
500 The applicant's case is that EKIA56 and EKIA57 were lawfully killed by him and another SASR soldier in engagements outside the north-western corner of W108. A full description of his account is set out later in these reasons. He submits that the contemporaneous reporting supports his account of the engagements outside the north-western corner of W108 because it establishes the following:
    (1) a significant level of foot traffic between W109, W103 and W108 throughout the afternoon;
    (2) the presence of more than one tunnel at W108; and
    (3) the presence of insurgents moving between W108 and W109.
501 The respondents submit that the engagements as described by the applicant did not occur. There are, among others, two factors suggesting that such engagements were unlikely. First, the insurgents were not seen by Person 6's patrol and they would have been if they had been there. Secondly, the failure of Person 6's cordon team to detect the insurgents is a serious matter which would have been brought to Person 81's attention had it happened and yet it was not.
502 With respect to the first matter, the applicant submits that the courtyard walls and relatively dense vegetation would or may have prevented Person 6's patrol from seeing the insurgents.
503 With respect to the second matter, the applicant relies on the following evidence of Person 81 in cross-examination:
   Now, if insurgents had managed to approach Whisky 108 from the north to a distance of, say, 10 metres, that would have been a serious matter that you would have expected to be brought to your attention; is that right?---Not necessarily. Obviously, a range of contacts occur, a range of time and other complicating factors. In the end, my job is coordinating a range of different support mechanisms to enable that action to occur rather than specifically about that tactical manoeuvre inside a compound.
504 I will return to these submissions.
​505 The applicant submitted that contemporaneous sensitive records support the engagements which he described. Those matters are addressed in the closed Court reasons.
506 Person 29 said that he found the tunnel and he communicated that fact to others. He cannot recall whether he did that over the tactical net or he made a verbal call. The only persons he distinctly recalls being present were Person 35 and the applicant. He could not recall the presence of Afghan women. He could recall Afghan women being in the compound, more specifically that they were in the northern half of the compound not far from the tunnel courtyard (see the location marked on exhibit A219). He could not confirm or deny whether they were in a location where there was visibility of the tunnel courtyard. The next thing he recalls is an interpreter or an ANA Partner Force soldier shouting something in Pashtun in the vicinity of the courtyard. He was not directly next to Person 29. His voice seemed to emanate from the walkway between the compound and the courtyard. He marked the position of the walkway on exhibit A219. He maintained a security posture at the tunnel and there was then a discussion as to who should go into the tunnel. It was agreed that Person 35 would do so. Person 35 took off his body armour and his weapon and unholstered his pistol which had a light source on it. He crawled into the tunnel head first and Person 29 had his hand grabbing the back of Person 35's pants where his belt order was as he entered the tunnel. Person 29 had hold of Person 35 for 15 to 20 seconds before he wriggled to let Person 29 know to release him. After about 30 seconds or so, Person 35 communicated to Person 29 that the tunnel was clear. Person 35 then started handing equipment out of the tunnel to Person 29 and he started laying it next to the tunnel entrance. Person 29 recalls what he called the "ubiquitous" yellow palm oil container of water, batteries, wire, documents and chest rig. Person 29 said that no fighting age males came out of the tunnel. Once the tunnel had been cleared and all items removed, Person 29 moved to the Commanders' RV.
507 Person 35 said that at some point during his involvement in the clearance of the compound, a call came over the troop net that a tunnel had been discovered. He cannot recall whose voice it was. He only had to move 15 to 20 metres to be at the tunnel entrance. Person 29 moved into a position where he could cover the entrance into the tunnel. The applicant was present. Person 35 could not recall seeing any members of the Afghan Defence Force and he said that there were no Afghan local nationals present. He did not see anyone emerge from the tunnel. There was a discussion about clearing the tunnel and that Person 29 was in cover. Person 35 did not call out prior to going into the tunnel. Person 35 said that he removed his body armour. He was carrying the breaching charge on his back and it is bulky and so is his armour. The ​hole was small so it would just be an encumbrance. His M4 rifle was too long for tunnel clearance so he left that behind. He cleared the tunnel with his pistol. Prior to going into the tunnel, he fixed his night vision goggles out of the back of his armour to his helmet so that he could clear the tunnel under "NODs". He did not locate or observe any individuals in the tunnel. He did locate and observe weaponry in the tunnel. He described what he observed. Person 35 said that he was in the tunnel for about a minute. He then went back into the tunnel and proceeded to gather everything up and started ferrying it up to the surface. He took photographs of the tunnel and the layout of the tunnel.
508 Person 35 denied the suggestion that Person 18 covered him whilst he was in the tunnel. Person 35's evidence was as follows:
   And when you went into the tunnel, Person 18 covered you; correct?---That is incorrect, Mr Owens, and that simply physically could not happen. You could not describe to me that scenario where Person 18 can cover me when I made entry into that tunnel; you cannot.
   Person 18 was lying down on his stomach in the tunnel hole entrance pointing his weapon into the tunnel; correct?---He was not, Mr Owens. Person 29 was covering that tunnel and only Person 29.
509 Person 38 said that he saw the applicant, Persons 5, 29 and 35 in the courtyard area in the vicinity of "some form of tunnel". He could not see any Afghan women in that area and when he was asked whether there were any fighting age males in that area, he said no and went further and said:
   … there were no fighting age males in the compound.
510 Person 38 observed Person 35 take off his armour and he said that he believed that Person 35 used a handgun, a pistol and possibly his night vision and entered the tunnel. He said that he believed Person 29 had a hand on the back of Person 35 for the initial entry so as to pull him out if he was engaged. Person 38 saw Person 35 after he had cleared the tunnel, stick his head back out of the tunnel and say "clear". Person 35 said that he had found a "bunch of equipment" in the tunnel. Person 38 said that he then pushed into the orchard area to clear it. As I have already said, the applicant does not rely on that evidence and, in any event, I reject that evidence and indeed, any evidence of Person 38 except where it is supported by evidence that I do accept.
511 The applicant submits that Person 81's evidence about seeing fighting age males in the compound supports his case rather than the respondents.
​512 On Wednesday, 1 June 2022, Person 81 gave the following evidence in the course of his evidence-in-chief:
   Are you able to recall in terms of the area that you moved into after the Whisky 108 compound was called secure whether you saw any Afghan fighting-aged males in the Whisky 108 compound?---I did see people in Whisky 108, yes. As to their actual description, I would say I couldn’t give you an accurate picture, but there was people inside the compound, yes.
   Are you able to recall whether you saw any Afghan women in the compound?---Yes, one of the memories I do have is a lady sweeping.
513 On the following day, Person 81 gave this evidence in the course of his cross-examination:
   Now, did I understand your evidence correctly yesterday that you do have a recollection of seeing fighting-age males as you moved through the compound?---That is correct.
   And may we take it again that you don’t have a recollection of where in the compound you saw fighting-age males?---That is also correct.
514 A little later, Person 81 gave the following evidence:
   But are you able to say that there were men and – local men and women present?---There was. Yes.
515 The applicant submits that the first question put to Person 81 in cross-examination as set out above did not summarise accurately his evidence from the previous day. Whether that be so or not, the fact is that Person 81 listened carefully to the questions he was asked and he answered quite clearly that he had a recollection of seeing fighting age males as he moved through the compound and I do not consider that he was misled at the time.
516 The respondents submit that the evidence of Persons 5, 29, 35 and 38 about how Person 35 cleared the tunnel does not contradict the evidence of the respondents' witnesses in that it may be that Person 35 entered the tunnel and cleared it in the manner described after the two men had already come out of the tunnel compliantly as described by the respondents' witnesses. It may also be the case that Person 29 covered him for this initial clearance. However, the respondents submit that evidence that Person 29 was the one assisting Person 35 when he exploited the tunnel — as opposed to the initial clearance which was completed in a matter of minutes — and was receiving items "ferried out of" the tunnel should not be accepted.
517 It was not put to Person 18 that it was Person 29 performing the task and not him and, furthermore, the performance of such a task is inconsistent with the role of a patrol commander who, as the respondents submit, has the role of planning and commanding and not the carrying ​out of menial tasks such as receiving items ferried out of a tunnel. I prefer the evidence of Person 18 on this matter.
518 The respondents submit that the applicant, Persons 5, 29, 35 and 38 are very close friends, have a range of shared interests giving them a powerful motive to lie and have engaged in a course of sustained communications designed to arrive at a common narrative concealing the commission of crimes. The reasons I do not accept them as honest and reliable witnesses are addressed later in this Section.
519 The applicant put forward a number of reasons in closed Court as to why I should find that there were no men in the tunnel. Those submissions and the reasons I reject them are set out in the closed Court reasons (at [45]).
520 I return then to the evidence of the respondents' witnesses.
521 Person 40 was asked a number of questions in cross-examination and various matters were put to him. He agreed that he disliked Person 29 and had a poor relationship with him. He ceased being 2IC of Person 29's patrol. He disagreed that he had been removed for poor performance and he considered that Person 29 had treated him unfairly. He was questioned about his recollection concerning the events at W108 and there were gaps in his recollection. He agreed that he had heard rumours that the man with the prosthetic leg had been unlawfully killed. However, none of the matters put to him caused me to doubt his honesty or reliability.
522 I mention these matters because I have considered Person 40's evidence irrespective of whether his honesty was conceded by the applicant. His evidence must be considered in light of the fact that it was given some 13 years after the relevant events. That is an important matter, but is not one that causes me to doubt the honesty or reliability of his evidence. The existence of rumours must also be considered, but I did not detect any link between rumours and Person 40's recollection. His evidence must be considered in light of other evidence advanced by the respondents of the relevant events about which he gave evidence. Persons 18, 40, 41, 42 and 43 saw different things. For example, Person 43 saw one man come out of the tunnel, whereas Person 42 saw at least two and potentially three men come out of the tunnel. I have considered these differences. The fact is that there were a number of people in the area, they were in a highly tense situation attending to different tasks and they saw different things. None of the differences persuade me that Person 40's account should be rejected.
​523 In considering Person 40's evidence, I must also have regard to subsequent events insofar as they bear on his evidence and the applicant's evidence and that of his witnesses. For reasons I will give, I have considered and accept Person 41's evidence as to the execution of EKIA56 and EKIA57. Although the evidence of Person 14 must be scrutinised with care and that of Person 24 with considerable caution, I have considered and accept their evidence of what they observed outside the north-western corner of W108.
524 For reasons I will give, I have considered and reject the applicant's evidence as to the engagements outside the north-western corner of W108. I do not accept the evidence of the applicant or his witnesses unless it is corroborated by evidence which I do accept.
525 I find that Person 40 was an honest and reliable witness and I accept his evidence.
526 Person 42 was asked a number of questions in cross-examination and various matters were put to him. A couple of matters were put to him concerning statements or information in or omitted from his proof of evidence compared with his evidence at the trial. None of the matters put to him caused me to doubt his honesty or reliability. He was straightforward about what he could and could not recall. There were clearly matters he could not recall.
527 I have taken the same approach to Person 42 as I have with Person 40 and considered all of the matters I considered in the case of Person 40. I have reached the same conclusion and I find that Person 42 was an honest and reliable witness and I accept his evidence.
528 Person 43 was asked a number of questions in cross-examination and various matters were put to him. He was asked some questions about health issues he had as a result of his service in Afghanistan, but I do not consider that anything emerged from his evidence that affected his honesty and reliability. As I have said, he did not like the applicant and considered him a bully. He did not consider that the applicant was entitled to the Victoria Cross for his actions at the Battle of Tizak. However, nothing emerged that suggested to me that he was inventing his evidence because of his views about the applicant. Person 43 could not remember a number of details of events at W108 and he was quite forthcoming and candid about that.
529 I have taken the same approach to Person 43 as I have taken with Persons 40 and 42 and considered all of the matters I considered in the case of those persons. I have reached the same conclusion. I find that Person 43 was an honest and reliable witness and I accept his evidence.
530 Person 18 was asked a number of questions in cross-examination and various matters were put to him. He falls into a different category from Persons 40, 42 and 43 in that, in addition to ​evidence concerning events at W108, he gave evidence on other topics and he was cross-examined about those other topics. He was asked about a number of matters including the following. He agreed that he did not consider that the applicant deserved the Victoria Cross and that he had expressed that opinion to a number of people. He agreed that a number of people did not like the applicant and that included Persons 6 and 7, who were friends of his and who had also expressed the view that they did not think the applicant deserved the Victoria Cross. Person 18 agreed that there were a lot of rumours and discussions within the Regiment about whether the applicant deserved the Victoria Cross and there were rumours about what happened at W108 and that a man with a prosthetic leg had been murdered. None of these matters caused me to think he was inventing his evidence because of a dislike of the applicant or that his memory was affected by the rumours. Person 18 agreed that in his amended outline of evidence, he referred to the radio message that a tunnel had been found, but did not mention the reference to a person or persons being pulled out of the tunnel. In the context of all of Person 18's evidence, I do not consider this matter affects his honesty or reliability. Nor do I consider Person 18's honesty or reliability affected by his agreement with the proposition that the first time he mentioned the conversation between the applicant and Person 5 which he overheard dealing with the intelligence surveillance reconnaissance platform flying above was in 2018. This conversation is discussed below.
531 I have considered all of Person 18's evidence. I find that he was an honest and reliable witness and I accept his evidence.
532 I will set out my conclusions with respect to Person 41's evidence after I have addressed his evidence of witnessing the execution of EKIA56 and the execution of EKIA57.
533 With respect to the discovery of the tunnel, the persons who were present when the tunnel was discovered and whether there were men in the tunnel, the respondents seek the following findings:
    (1) Immediately prior to the discovery of the tunnel, the following persons were present in the courtyard, or very nearby:
       (a) a group of commanders who were beginning to assemble for the Commanders' RV, including Persons 81, 80, 43, 5 and 29. The troop interpreter was also present;
       (b) members of Person 5's patrol, who had commenced SSE duties, including the applicant and Person 4;
       (c) members of Person 29's patrol, who had commenced SSE duties, including Persons 35, 38, 40, 41 and 42; and
       (d) a group of Afghan women, who were agitated and indicating the presence of something in the vicinity of the tunnel.
    (2) The tunnel was discovered by a member of Person 29's patrol, most likely Person 35;
    (3) When the tunnel was discovered, a group of operators quickly moved to the tunnel entrance, pointed their weapons down the entrance, began calling out and called for an interpreter;
    (4) The interpreter soon joined and began calling out; and
    (5) Two Afghan men came out of the tunnel and were placed under control.
534 The respondents submit that the most powerful indication of whether men came out of the tunnel is found in a consideration of the competing accounts of the deaths of EKIA56 and EKIA57. I turn to consider those accounts. It is worth noting that such an approach emphasises a point I made earlier (at [224]), that is, that findings are made having regard to (where relevant) the whole sequence of events of which they form a part.
The Respondents' Case as to the Execution of EKIA56
535 The respondents' approach in their submissions was to analyse the competing cases of the parties in relation to the incidents which led to the deaths of EKIA56 and EKIA57. The analysis involved the following steps. First, the respondents analysed their witnesses' account of the death of EKIA56. The respondents submit that the location of the body of EKIA56 provides the surest guide to the resolution of the conflict between the respective cases of the parties. The respondents' case is that the body of EKIA56 was located inside the tunnel courtyard. On the applicant's case, the body was located outside the compound. The respondents submit that it will follow, almost inevitably, from a finding about the location of the body, that the corresponding party's case in relation to the circumstances of EKIA56's death should be accepted. Similarly, once a party's case concerning the circumstances of EKIA56's death is accepted, it will follow almost inevitably that the party's case in relation to the death of EKIA57 should be accepted. The respondents submit that because there is a considerable amount of evidence, both testimonial and documentary, capable of shedding light on the question of the location of the body of EKIA56, that death provides a useful prism through which to commence the analysis.
​536 The second step in the respondents' analysis involves an analysis of the evidence of the applicant's witnesses relevant to the death of both EKIA56 and EKIA57. On the applicant's account, both those men were killed in close succession outside the north-western corner of the compound in what was effectively a single engagement. It is thus not possible to analyse the applicant's account of the death of one of those men independently of the other.
537 The third and final step in the respondents' analysis is to analyse the accounts of the respondents' witnesses of the death of EKIA57.
538 The respondents' approach provides a convenient framework in which to analyse the circumstances. I bear in mind throughout the analysis that the onus of proof remains from start to finish on the respondents.
539 Each of the respondents' witnesses who were in the tunnel area when it was discovered or shortly thereafter (i.e., Persons 40, 41, 42, 43 and 18) gave an account of what they did immediately after the discovery of the tunnel. None of those respective accounts were challenged by the applicant in cross-examination.
540 Person 40 moved out of the compound to the north-western side and took up a defensive position which he marked on exhibit R137.
541 Person 41 left the tunnel area and went to look at the two rooms in the north-western corner of the compound which he marked on exhibit R92.
542 Person 42 left the courtyard area and continued with the clearance of the compound. He said he remembered clearing down to the south, that is, down the southern side, down closer to the river.
543 Person 43 said that after he had assisted with the detention of the elderly Afghan male who came out of the tunnel, he continued with the Commanders' RV. The decision was made, according to Person 43, that the majority of the call sign was going to move on to W109 and clear that compound.
544 Person 18 gave evidence that after his particular involvement in the clearance of the tunnel, he moved back to where he had finished doing exploitation and recommenced searching that area. The area consisted of rooms on the western side of the compound.
545 I turn now to the evidence of the respondents' witnesses with respect to the alleged murder of EKIA56.
​546 Person 24 was located outside the compound. He never went into the compound. He circled the area in which he was located with Person 14 on exhibit R141. Person 24 said that before he saw the applicant come outside the building with the other man in his hand, he heard Person 5 referring by name to Person 4 a couple of times saying "get in here, get here now". It seemed that Person 5 was close to the same entrance/exit that the applicant subsequently used. The respondents point out that Person 24 was not challenged about that evidence. I will refer to Person 24's evidence in some detail later in these reasons. I indicate now that I accept his evidence on this particular topic.
547 I have already referred to Person 41's evidence to the effect that he was searching one of the rooms he marked on exhibit R92 for about a minute or two when he heard some louder voices and talking, a bit of commotion outside in the courtyard. I have already described his evidence of what he saw when he stepped back into the courtyard (at [452]).
548 Person 41 gave evidence as to what happened thereafter. His evidence was as follows:
   And what happened next? Person 4 and RS then approached me, and using my nickname, they said, "Hey, Person 41, can we borrow your suppressor?" I thought a bit of a strange request at first, but I complied. I removed the suppressor from my M4 assault rifle and handed it to Person 4.
   Can I just stop you there. Why did you think it was a strange request? I would have thought that Person 4 would have had his on him at the time, as it was – fact that it was – well, in my patrol, at least, you either – if it wasn't on your rifle, you carried it when you left, so you had it on you at all times. So I thought initially it was a bit strange Person 4 did not have his suppressor on him. So I removed mine and handed it to Person 4, thinking he must need it because he's going to go into the tunnel and the suppressor would have muffled the loud noise if he had to use his rifle within that tunnel. So I handed it to Person 4. He then proceeded to turn around and commenced fitting the suppressor to his M4 rifle. They started to walk back towards where this Afghan male was squatting against the wall.
   Just to be clear, who's they? RS and Person 4. I then thought to myself, "I think I know what's about to happen here." So I just stood there for another few seconds and – watching. Person 4 stood facing where the Afghan male was towards the tunnel entrance. RS then walked down and grabbed the Afghan male by the scruff of the shirt, picked him up, marched him a couple of metres forward to – he was in front of Person 4. He then kicked him in the back of the legs behind the knees until he was kneeling down in front of Person 4. He pointed to Person 4 and said – sorry, he pointed to the Afghani and said to Person 4, "Shoot him." And as he said that and he stepped to the side, I didn't wish to witness what was about to happen and I stepped back into that room where I found those IED components.
549 Person 41 clarified in cross-examination who asked him for his suppressor. He said that he thought it was the applicant because the applicant would call him by his nickname, whereas ​Person 4 would call him by his christian name. When asked for his suppressor, he recalled his nickname being used.
550 Person 41 said that he was about three metres from Person 4, the applicant and the Afghan male during the events previously described. He stepped back into the room where he had been and within a second or two he heard a single suppressed shot which he knew was from an M4 rifle. He waited for 15 or so seconds and stepped back out. He noticed the following:
   Person 4 was the only one there at the time and there was a dead Afghan male at his feet.
551 He gave evidence that the dead Afghan male was the same person that he had previously seen by the wall and handled by the applicant. Person 41 said he walked up to Person 4 who did not say anything. Person 4 removed the suppressor from his rifle and gave it back to Person 41. The suppressor was warm so Person 41 knew that it had just been used to shoot the Afghan male with Person 4's M4 rifle. Person 41 fitted the suppressor back onto his rifle and walked over to see the dead Afghan male. Person 4 was just standing there and he seemed "to be in a bit of a shock to me".
552 Person 41 noticed that the Afghan male had been shot once in the head and that he was dead. There was quite a bit of blood flowing down around out of his head wound. He was lying on his back.
553 The respondents submit that Person 41's description of the injury is consistent with the photographs in exhibit R6. That submission is correct.
554 The applicant submits that I should not accept Person 41's evidence. An execution in the courtyard could not have taken place without a number of the witnesses, who the respondents contend were in the courtyard, having witnessed it. None of the witnesses who were in the courtyard gave evidence of having seen an execution.
555 The steps in the applicant's submission are as follows: (1) there were a significant number of people in the tunnel courtyard or very nearby, including Person 5 and members of his patrol including the applicant and Person 4, Person 29 and the members of his patrol (Persons 40, 42, 35, 38 and 41), Person 43 and Persons 81, 80 and an interpreter and a group of Afghan women. It must have been, according to the applicant, a hive of activity with the applicant seeking to draw an analogy or parallel with the factual situation in Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123; (2) Person 41's evidence was that he was in the tunnel courtyard at the ​time the tunnel was discovered and at that point, the only people he can recall seeing were the applicant, Persons 4, 5, 29 and 35; (3) Person 41 left to examine two rooms nearby and he described what he did; (4) Person 41 said that he searched there for a minute or two before hearing a commotion in the courtyard and stepping back into the courtyard and witnessing the execution. He could not remember people other than the applicant, Person 4 and the Afghan male being in the courtyard, although he said that he was fixated on the applicant, Person 4 and the Afghan male; (5) Person 41's account cannot be correct because there would have been insufficient time for two men to be pulled from the tunnel courtyard and for all those who were in the courtyard on the respondents' case, to disperse; (6) the notion that the other people mentioned by the respondents as being in the tunnel courtyard were present and witnessed the execution and said nothing, either at the time or in their evidence to the Court, is a possibility that can be quickly ruled out; and (7) the execution as described by Person 41 did not take place.
556 For their part, the respondents made it clear that they do not contend that Persons 18, 40, 42 and 43 were in the tunnel courtyard at the time when, on their case, EKIA56 was shot. Their case is that those persons had left the tunnel courtyard to undertake the activities they identified. The respondents' case is the reference by Person 41 to a minute or two was a figure of speech for a short time or not a very long time. In my opinion, when all the evidence is considered, that must be the case. Two Afghan men were found in the tunnel. EKIA56, the older Afghan male, was shot in the tunnel courtyard and that is where he fell and his body remained. Person 41 was not using the expression "a minute or two" literally, a conclusion supported not only by the location of the body of EKIA56, but also by his evidence of what he did in those rooms.
557 I turn then to the important question of the location of the body of EKIA56.
The Location of the Body of EKIA56
558 Person 41 marked the location of the body of EKIA56 on exhibit R92. This location is within the tunnel courtyard area. On the applicant's account, by contrast, EKIA56 was shot outside the compound and courtyard area.
559 The evidence of Person 18 is important as to the location of the body of EKIA56. Person 18 was involved in the SSE process at W108. He described how he carried out that process in 2009. He said that he had a white piece of paper that was laminated that allowed him to do a quick sketch map and place down items he had found or events that had occurred. This sketch ​map would be transcribed into a larger line diagram at Tarin Kowt. Person 18 said that prior to going out on a mission, a line diagram would be established by the multimedia cell if possible. If not, he would make this up on the ground and just do a sketch map on the white piece of laminated paper. That would allow him to put in such things as a tunnel entrance. He would also be able to place persons detained and any specific variations in the compound that was not apparent from the imagery they had. Person 18 would mark the location of the persons under confinement and he would also mark where the bodies of the EKIAs were located. Person 18 went out to the northern side of the compound where he had been told there were two bodies. He commenced the scrunch method of searching. Person 18 said that he did not have a recollection of doing that with respect to the first body, but he definitely did in relation to the second body. The first body had a gunshot wound to the face and the second body was significant because the body had a prosthetic leg. Person 18 described the procedure in relation to the first body which had an injury to the face which, to his recollection, was a gunshot wound around the eyeball. He did not locate any weapons on the first body. He searched the body and anything found on the body was placed into an evidence bag and the evidence bag was placed on the body's chest. He then took a photograph. Person 18 described his search of the second body, EKIA57. He said that he took the prosthetic leg off and inspected the inside of the prosthetic leg. It was hollow. He did not locate any weapons on EKIA57. As with the first body, Person 18 said that everything that was found on the body of EKIA57 was placed in a bag and the bag was placed on the person's chest and a photograph was taken.
560 Exhibit R18 consists of 36 photographs. The first four photographs taken by Person 18 are of the body of EKIA50. Person 18 took the next five photographs which are photographs of the body of the man with the prosthetic leg, EKIA57. He identified this person as the first person outside the door or closest to the door and the man with the prosthetic leg. It was the second body he searched. He marked on the aerial photographs of W108 which contain his markings (exhibit R132; see also exhibit A117) the location of the first body he searched and the location of the second body he searched. He completed the evidence bag in relation to EKIA57.
561 Person 18 did a search of another body which was inside the compound. This body was of a man in white lying on his back. Person 18 said that he used the same searching method he had previously described with respect to the other two bodies. He put everything in a bag and took a photograph of the body. He said that this body was inside the compound, roughly near the tunnel entrance. He marked the location of the body on exhibit R132. He said that this body is shown in photographs he took which are pp 10 to 13 in exhibit R18. They show the person ​found in the compound (EKIA56). Person 18 said that the notation "NW corn tunnel" on the evidence bag placed on the chest of EKIA56 signified that "it was the northwest corner in the vicinity of the tunnel".
562 Person 18 said that he believes he took most of the remaining photographs in exhibit R18, although he may have passed off the camera at some stage. He did not remember taking photographs 30 to 33 inclusive and he did not take photograph 34 because he is shown in that photograph. He said that the photograph shows the low wall just outside the northern doorway and the body of EKIA50. Person 18 did not recall whether he took photographs 35 and 36.
563 Person 18's evidence with respect to these matters was not the subject of a direct challenge. Person 5 said that the reason he chose Person 18 to be a member of his patrol in 2009 was because Person 18 was good at his job.
564 The respondents submit that given the unchallenged evidence of Person 18 that the body of EKIA56 was photographed during the SSE process just near the tunnel entrance, the overwhelming inference is that that was the location where the man was both shot and later photographed.
565 The location of EKIA50 and EKIA57 was recorded on the SSE evidence bags for those bodies as "NW corner" and the location of EKIA56 was recorded on the SSE evidence bag for that body as "NW corn tunnel". This is evidence that the body of EKIA56 was found in a different area from the other bodies, being the courtyard in which the tunnel was found. Further support for this conclusion is another ADF document being the Exploitation Management Data Card, Op Harpoon – COI W0108, previously referred to (exhibit R17) which describes the location of EKIA56 as follows:
   NE Corner W108. In courtyard containing tunnel complex. Photographed on target.
566 The respondents also rely on some other matters to support the conclusion that the body of EKIA56 was found in the tunnel courtyard.
567 Person 42 gave evidence that the area shown in the photograph of the body of EKIA56 was consistent with his memory of what the courtyard in which the tunnel was found looked like. The features he referred to included the fact that the grass which was part of the matting that covered the tunnel was consistent with what Afghan locals would have as feed in the areas in which they kept their animals. Person 42 said:
   … I think I said at the start my experience is whilst Afghans live in mud huts, they ​maintain their living area quite well, so that doesn’t look well-maintained as a normal living area would be. There is a couple of those oval/circle shapes which – which is normally their cooking areas, which again can be – can be sometimes slightly outside – outside their compounds. So it – it looks like it could be the area where the – the tunnel was found.
568 Person 43 said that the grass or hay shown in the photograph is similar to what was covering the entrance to the tunnel and "kicked over" by Person 35.
569 Person 29 said that one of the items handed to him by Person 35 as he was removing items from the tunnel was "the ubiquitous yellow palm oil container of water". A yellow palm oil container is shown in the photograph of the body of EKIA56. Person 29 went on to say that yellow palm oil containers are everywhere in and around compounds in Afghanistan and that one would find a yellow palm oil container in the vicinity of almost any room in any compound in Afghanistan. Person 29 said that he did not consider that there was anything significant about the yellow palm oil container. The respondents submit that, in fact, the presence of the yellow palm oil container strongly corroborates the location of the photograph of the dead body of EKIA56 as being in the tunnel courtyard.
570 The respondents also rely on the timing of the photographs which comprise exhibit R18. Each photograph bears a time-stamp. There is a three minute time period between the last photograph Person 18 took of EKIA50 and the first photograph he took of EKIA57. There is a four minute time period between the last photograph Person 18 took of EKIA57 and the first photograph he took of EKIA56. There in a one minute time period between the last photograph Person 18 took of EKIA56 and the first photograph he took of the tunnel. The respondents ask the Court to infer from the order in which these photographs were taken and the time period between the last photograph Person 18 took of EKIA56 and the first photograph he took of the tunnel, that the body of EKIA56 was located relatively approximate to the tunnel entrance and not where the applicant says it was located. On the applicant's account of the engagement of EKIA56 and EKIA57 (which I will refer to shortly), the body of EKIA56 would have been between the body of EKIA50 and the body of EKIA57.
571 Before any conclusions are drawn from the location of EKIA56 at the time his body was photographed, consideration must be given to the possibility that the body was moved after the person was shot and before the body was photographed. Person 18 was asked in cross-examination whether bodies were sometimes moved for SSE photographs. He said he did not remember a time "right now" and again, it would be an assumption. There was a possibility that they were moved. During exploitation, the bodies may need to be moved in order to do a ​correct search. He agreed that it really depended on the situation confronting the operator. Person 18 agreed that he did not know whether the bodies were moved after the engagement and before he engaged in the SSE process.
572 I find that the body of EKIA56 was not moved to another location after the person was shot. EKIA56 was shot and fell to a position lying on the ground. His body was photographed as part of the SSE process in the area in which he was shot. The body may have been moved slightly for the purposes for searching it and taking different photographs for the SSE process, but that is all. Nothing put to Person 18 or emerging from the evidence generally suggests a contrary conclusion.
573 First, the questioning of Person 18 about a body being moved before it was photographed was ambiguous. As I have said, a body may be moved for the purposes of conducting a search or taking a photograph from a particular angle or it may be moved to an entirely different location. The respondents correctly submit that the questioning of Person 18 was not capable of establishing that he accepted the possibility that any particular body he saw may have been moved from an entirely different location.
574 Secondly, the applicant's evidence is inconsistent with the notion of the body of EKIA56 had been moved. Exhibit R8 comprises a number of photographs of the tunnel, items retrieved from the tunnel and other weapons. Page 9 of that exhibit is a photograph of an SASR operator holding a rifle. The photograph is not time-stamped. The applicant admitted that he is the SASR operator and that the photograph was taken in the tunnel courtyard. The photographs comprising exhibit R18 are time-stamped and they include the photograph of the applicant holding the rifle in the tunnel courtyard. That photograph was taken approximately six minutes (8.43 pm) after the photographs of EKIA56 were taken (8.37 pm). The respondents submit, correctly in my view, that it follows that if the body of EKIA56 had been moved into the tunnel courtyard after the person had been shot, but before the SSE process was undertaken with respect to the body, the body would have been in the tunnel courtyard when the applicant was assisting with the SSE process. The applicant did not suggest that the body had been moved. He said in cross-examination that "the body dropped and lay where it fell" and he denied that the body of EKIA56 was inside the compound wall.
575 Thirdly, the respondents submit that the physical circumstances of the body of EKIA56 as shown in the photographs is inconsistent with the body having been moved after he had been shot. I would ordinarily hesitate before drawing any conclusions of that nature from a ​photograph and without the aid of evidence, including perhaps medical evidence, but in this case, the photographs, which are NPO information and cannot be described in the open Court reasons, make it clear that the person was killed in the location he was photographed.
576 Fourthly, there is nothing in the evidence at all which suggests a reason the body of EKIA56 would have been moved. The bodies of EKIA50 and EKIA57 were left outside the compound and the SSE process was conducted on them outside. In other words, they were not brought into the compound and there is no apparent reason why the body of EKIA56 would have been brought inside the compound.
577 Finally, the applicant did not put to any witness of the events at W108 that he, the witness, had moved the body of EKIA56 or had seen it being moved or had seen it in some other location.
578 The respondents submit that the Court can be "comfortably satisfied" that EKIA56 was killed in the tunnel courtyard. No witness suggested that any legitimate engagements occurred inside the compound. In the circumstances, the fact that EKIA56 was killed in the tunnel courtyard, corroborates Person 41's evidence and undermines the evidence of the applicant and his witnesses about EKIA56's death occurring outside the compound. The respondents submit that it is thus powerful evidence that EKIA56 was found in the tunnel and executed by Person 4 in the circumstances described by Person 41.
Challenges to the Respondents' Case
579 Before making any findings about the location of the body of EKIA56 (other than that it was not moved) and the circumstances of his death, it is necessary to consider a number of matters, including the applicant's account of the engagements of EKIA56 and EKIA57.
580 The applicant reminded the Court (correctly) on a number of occasions that he does not bear the onus of proof and that that rests on the respondents. Whilst an acceptance of the applicant's account means the respondents' case must be rejected, a rejection of the applicant's case does not of itself mean that the respondents' case is established. I must be satisfied to the required level that the respondents' case is correct.
581 The applicant relied on documents relevant to the deaths of EKIA56 and EKIA57 and on oral evidence of engagements outside the north-western corner of W108. I turn to consider those matters.
​582 The applicant relies on, inter alia, the contemporaneous reporting as to the circumstances surrounding the deaths of EKIA56 and EKIA57.
583 I refer at this point to the closed Court reasons (at [5]–[6]) for details of entries in the Sametime chat record, including the time at which the compound was declared secure.
584 The Patrol Debrief for Gothic Troop for Operation Harpoon (Phase 1), including the mission to W108, includes the following entries:
   5. …
       c. Spotter and squirter engagement: Throughout the day numerous INS were engaged. The INS were identified as either spotters or squirting from known INS locations within the green.
       f. Clearance of W108 & W109:
          i. Infil: A daylight infil was conducted into the green. Due to the high risk and the known threat G TP conducted the infil with two patrols up and one back with two patrols further back for reserve. The infil route pushed toward W125 and then changed direction NE to W108. This gave the Tp an approach that would prevent any friendly fire and also enable MRTF to provide fire support if required. The infl route is shown at figure 3.
          ii. Passage of info from ISR: Scan Eagle was available, but there is no capacity to have direct liaison with the asset and therefore not viable.
          iii. Approach route: There were numerous aqueducts and channels throughout the approach route with good water flow. The rate of movement was approximately 1km/hr. The heavy cloud, rain and good vegetation provided excellent cover and concealment for the approach. This inturn enabled the FE to close with the INS and kill using stealth and precision. Three x INS were KIA on the approach.
          iv. Clearance W108:
             (1) MOE: EMOE used.
             (2) Squirters: 2 x squirters were killed.
             (3) Exploitation:
                (a) EKIA: 9 x EKIA (including 3 x EKIA from JDAM).
                (b) PUCs: Nil.
                (c) FAMs: 1 x FAM.
                (d) LN Protected: Several WaCs.
                (e) Items of Interest: Substantial cache found with 107, 73 RCL, 7.62, 2.75", AKs, RPD, etc. There were tunnel systems, false walls and cache locations throughout the compound. More detail can be found in the Exploitation Report to be released SEPCOR.
   24. MRTF engagement. The INS used spotters to report on CF locations. They were positioned north and south of the engagement area. During the infil for the clearance of W108 and W109 the INS used spotters in the green IOT attempt to detect CF movements.
   26. Upon breaching the compound and commencement of clearance INS attempted to squirt, but were engaged.
585 Person 81 cleared the Patrol Debrief for release in 2009 and he agreed that the reference to "2 x squirters were killed" in para 5. f. iv (2) of the document was based on something he was told. Person 81 said that the statement in para 26 would have been based on what he was told and that he had no recollection of such an event or of the conversation reporting such an event. Person 81 said that whatever he was told about the event, he would have endeavoured to record it accurately in the report.
586 The parties agree that the reference to the two squirters in the Patrol Debrief is a reference to EKIA56 and EKIA57. Person 81 said that he did not know this and he proceeded on the basis of what he was told.
587 Person 81's understanding of what was meant by the statement in para 5. f. iv (2) was that "on approach, two people were seen departing the compound and they were engaged".
588 The likely source for the information in the Patrol Debrief is Person 5.
589 There was a dispute between the parties about the meaning of the term, "squirter". The respondents contend that the term means, and only means, a person leaving a compound of interest. The applicant's contention seems to be that a "squirter" is a person moving away from a target area, being an area the SASR is trying to contain and, as a generalisation, a person around a compound. The first part of the applicant's definition is not materially different from the respondents' definition. The second part, based on the evidence of Person 5, is different. I do not accept Person 5's evidence on this point. It is contrary to the other evidence in the case.
590 The applicant gave evidence that as used by SASR operators in Afghanistan, in simple terms, the word "squirter" relates to any person who is trying to leave an area that the SASR is trying ​to contain. He agreed with the proposition that effectively it is someone who is trying to run away. Person 14 described a squirter as a fighting age male leaving the vicinity of the VRI (Very Reliable Intelligence). Person 11 said that in 2012, his understanding of a squirter was any individual who was attempting to flee a target area in the presence of Coalition Forces. Person 32 said that he understood a squirter to be someone fleeing the target area, for example, a target building or out of a cordon, either on foot or on a motorbike. Person 38 understood a squirter to be someone who was leaving an area of interest in a suspicious manner, usually because they did not want to be processed or identified and they were moving in a manner that was not normal. It could be somebody who is moving fast.
591 Person 81 gave evidence to the effect that he would not describe a person approaching a compound as a "squirter". He said:
   So we may take it that what you were told after the mission was that, upon breaching the compound and commencing clearing, there was an attempt to squirt by insurgents?---Yes.
   Now, is this right: you certainly don't have any recollection of being told, either during the mission or after the mission, that while G Troop was present at Whisky 108 there had been any EKIAs of insurgents who were approaching – the insurgents who were approaching the compound?---No. I don't recall that.
   And if you had been told that, ie, that insurgents had approached the compound, you wouldn't have described that situation in the report as "insurgents squirting"; correct?---That is correct.
592 The applicant also referred to a report, Australian Special Operations Task Group (ASOTG), titled "Tactical Site Exploitation (TSE) results from TF66–A Operations in Deh Rafshan", and said to be correct as at 15 April 2009 and, in particular, the references therein to an eastern tunnel, a southern tunnel and a northern tunnel which is consistent (so the applicant submits) with references in the Patrol Debrief to "tunnel systems, false walls and cache locations throughout the compound". The report also contains the following information:
   2. …TF66-A conducted special operations in DEH RAFSHAN (specifically KAKARAK and SEYYEDAN) over the period 11 – 13 Apr. On 11 Apr, the FE conducted ‘cordon and call out' and subsequent clearances of compounds W0108 and W0109 near KAKARAK. The details of actions taken on target and initial TSE results are provided in ref A.
   3. … In addition to an INS KIA 500m South of W0108, a further two INS were KIA; one of these 10m from the North-west corner of W0108 and third 5m from the North-west corner of W0108. Hand held imagery was captured of the first INS but not of the second and third INS due to the tactical situation at the time.
   ​4. … Three INS were also found KIA inside W0108 as a result of an earlier CAS engagement; however, they could also not be identified or photographed due to the tactical situation.
(Footnotes omitted.)
593 The applicant also relied on Sensitive Documents to support his version of the engagements. They are dealt with in the closed Court reasons (at [9]–[16]).
594 Person 29, upon being shown a video of the bomb being dropped on W108, raised the prospect of another tunnel by reason of the location and shape of the dispersal of dust and debris (exhibit A221) which is on the secure laptop and was shown to Person 29 on 6 May 2022.
595 I turn now to the evidence of the applicant concerning the engagements at W108.
596 On 12 April 2009, G Troop cleared two compounds which had been designated W108 and W109. Prior to the clearance of the compounds, the troop had been out for a number of days conducting a vehicle mounted operation targeting elements of the Taliban using particular equipment. The troop were in the desert when they were told that they were required at W108. The Australian Regular Army had been engaged in a battle with the Taliban in the vicinity of various compounds, including W108 and W109. The applicant's evidence was that the Australian Regular Army had said that it had a problem with W108 or W109 due to the amount of fire that the Army had received from those compounds and G Troop was asked to deal with it.
597 The applicant was 2IC in Person 5's patrol. The troop drove to the VDOP. They were then to approach the compounds on foot. They did not immediately approach. For a time, they adopted sniper positions on top of buildings close to the VDOP. Once they had obtained situational awareness, they walked to W108 in open file. Open file is a formation where one patrol is at the front and two patrols are behind and offset to the left and right. There is a patrol at the back with troop headquarters effectively in the middle of that patrol.
598 The applicant said that they knew that a battle was going on as they could hear the chain guns firing. They are larger guns from the armoured vehicles. Person 5's patrol was offset on the left hand side. Person 6's team was the lead patrol. The applicant said he could recall that Person 6's team had one or two engagements. He saw insurgents on the way through.
599 The route taken by the troop was to walk to Whiskey 116 and then take a hard left turn moving north towards W108.
​600 Upon arrival at W108, Person 6's patrol spread out on the south-western side to secure the entry into the compound of Person 5's patrol and Person 29's patrol. A 500-pound bomb had previously been dropped on W108 and, according to the applicant, it had been close to a direct hit. The bomb had done considerable damage to the compound.
601 The applicant said that it was raining on and off and that immediately upon entering W108, it was apparent that it was a Taliban facility because there were a number of rockets and IEDs.
602 Person 5's patrol and Person 29's patrol entered the building. Person 29's patrol started to clear the rooms closest to the entry point. Person 5's patrol provided some assistance, but then moved towards the northern end of the compound. There was another team which entered the building at some point. The applicant was not clearing rooms because he had a Para Minimi machine-gun which was not effective for combat within a room. It is a large weapon and the user does not have as much control over the weapon as he does in the case of a rifle.
603 The applicant recalled that there were a couple of women and possibly a couple of children in the compound. He did not recall seeing any fighting age males in the compound on 12 April 2009, although he said in evidence that he is now aware that there was one such person.
604 The applicant said that there was a sheet hanging over a gap in one of the exterior walls which opened up into what was a courtyard that was at the very end of W108.
605 The applicant said that the courtyard was quite a large area, perhaps 18 by 30 metres and that there were no animals in the courtyard. There was a large pile of grass hay towards the outer wall which he said was not typical. Somebody moved the grass hay and there was a grate on the ground which served as an entrance to a tunnel. Because of his short stature, Person 35 was chosen to go down into the tunnel. Ultimately, the applicant went down into the tunnel, but he did not do that until sometime later.
606 Person 35 was instructed to clear the tunnel. The applicant said that he understood that possibly Person 18 was supporting him by covering him at the top of the tunnel. The other soldiers, including the applicant, were searching the areas. The applicant said that because he had a machine-gun there was no point in him assisting in the clearance of the last couple of rooms. The applicant decided to go outside the compound. He did not at that point in time know what had been found in the tunnel. There was an exit point from the courtyard on the north-western side of the extension to W108 and he walked outside towards the corner of W108. He said that ​he walked down the track and as he did so, he saw an insurgent moving from right to left on the outside of the line of the compound. He said that the insurgent was:
   … just coming around — it wasn't in corn; it was effectively around the outside of corn, sort of on an arc, and I engaged that individual with my Minimi, but I had a stoppage. I think I got maybe two rounds away. …
607 The insurgent was killed and given the designation "EKIA57". The applicant said that there was a second insurgent who was shot by a soldier who came up from behind him. He did not see who that soldier was. The second insurgent was killed and given the designation "EKIA56".
608 The applicant said that the insurgent he shot was running in a crouched position and was holding a bolt action rifle in his hand.
609 The applicant said that once he had rectified the stoppage, he saw that the insurgent he had shot had fallen past the line of the compound. He considered it would be dangerous for him to try and clear the body or conduct any type of SSE in the open because he would have no cover. He decided to move out and grab the insurgent's body and drag it back perhaps five metres so that it was on the inside of the corner of the building side. He had the protection of a wall. He gave the body a quick pat search in order to identify whether the insurgent had any further weapons. The applicant had secured the insurgent's weapon. He took the bolt out of it and placed it in a position at the far end of the building against the wall. At that point, the applicant did not notice anything about the insurgent's leg. The search he conducted was a quick one.
610 The applicant denied the allegations made by the respondents to the effect that the "two insurgents" had been taken out of the tunnel and executed. The applicant identified the man with the prosthetic leg as the man he had shot. The evidence bag for that man identifies the insurgent by the number 57 and also contains the following reference:
   108
   NW corner
611 The applicant identified the photograph of Person 18 near a damaged wall with a dead body (designated "EKIA50") next to him. The applicant also identified the photograph of the elderly Afghan male who was shot. He identified the raised path upon which the body was lying and what appeared to be a plastic fuel jerry can. He said the path looked like a foot pad. The applicant had no idea what the oval shaped small structures were in the photograph. The applicant said that his recollection was that the elderly Afghan male had a PKM, which is a ​Russian machine-gun, at the time he was engaged. The applicant realised that the insurgent he had shot had a prosthetic leg at some point during the SSE process. He said that he knew that one of the particular Taliban commanders hid homemade explosives in his prosthetic leg. The applicant said that he was not aware of Person 18's location during the engagements, although he still believed Person 18 or Person 4 was one of the people that engaged the elderly Afghan male.
612 The applicant said an information operations pamphlet was placed on dead insurgents which basically said to those that read it that they should contact the allied forces if they see Taliban and that they should not trust the Taliban.
613 The applicant said that when he went down into the tunnel, most of the items had been removed from it. He went down because it was unique, he had not seen a tunnel system in Afghanistan like that before.
614 Person 6 took the prosthetic leg of EKIA57 and it was used as a drinking vessel in the Fat Lady's Arms at Tarin Kowt. The Fat Lady's Arms was a SASR "pub" at Tarin Kowt. People drank from the leg. The applicant himself did not drink from the leg.
615 The applicant said that he dragged the body of the insurgent with the prosthetic leg (EKIA57) back to the approximate point from which he had shot him.
616 ISR refers to information surveillance and reconnaissance and is a reference to an aerial platform which may be a Predator drone or one of the Australian drones known as ScanEagle.
617 In cross-examination, the applicant said that he did not remember which patrols were the cordon patrols on the mission to W108 and W109 other than Person 6's patrol. He did recall that Gothic 5 (Person 5's patrol) and Gothic 2 (Person 29's patrol) were assault patrols. Gothic 4 (Person 6's patrol) was a cordon team. The applicant said that he recalled that there were two engagements after the troop left Whiskey 115 where it had paused to put sniper overwatch up. He was not sure whether the two engagements he recalls occurred before the troop reached Whiskey 116. The applicant recalled that Person 14 was number one scout for Person 6's patrol and that he had an engagement. He could see an EKIA and he was told that that person had been engaged by Person 14.
618 As I have said, the applicant placed the cordon formed by Person 6's patrol in a semi-circular position or arc on the southern side of the compound as the cardinal points were understood on the day. The applicant said that the women and children were encountered fairly close to the ​entry point. Person 5's patrol pushed through in a northerly direction to the courtyard. The applicant said that he did not know whether Person 6's cordon moved during the course of the assault. The applicant described the tunnel courtyard as "effectively an animal pen". The courtyard was enclosed by walls, but there was a gap on the north-eastern side (assuming the correct cardinal points) where it joined the wall of the compound.
619 Person 29's patrol joined Person 5's patrol in the tunnel courtyard, but the applicant did not recall whether "all of them were there". The applicant recalled someone moving grass out of the way and removing the grate. There was a discussion and Person 35 was chosen to clear the tunnel. The applicant remembered women and children, not necessarily being around when the tunnel was found, but potentially being with Person 29's team. He did not recall whether the women and children were in the tunnel courtyard. He did not recall whether anybody conducted a callout. He was in the tunnel courtyard when Person 35 went in. Once Person 35 went into the tunnel, the applicant went outside. He moved to the north-eastern corner of the compound, assuming the correct cardinal points. The applicant said that part of the reason he went outside was because the machine-gun he was carrying was not conducive to room combat. He decided to push to that corner of the compound and hold a security position. He was providing security in the area so he was doing something, rather than not doing something. He walked along the edge of the compound wall and wanted to have a look and assess what was out there. He had no idea whether the compound had been declared secure at that point, although he did not consider that likely in view of the fact that the troop was still searching the tunnel. For the same reason, he did not think it likely that the SSE process had commenced. As soon as he went out, he saw an insurgent moving and he had the engagement. He said that he had taken a few steps "down the wall". He considered that he was halfway down the wall when it happened. He described the manner in which the insurgent was holding his weapon as an "admin" carry.
   He wasn't patrolling with it. He was holding the top of it.
620 At that point, the applicant was not aware or conscious of the presence of another SASR soldier. He fired a two or three round burst and the insurgent basically fell instantly. He then had a stoppage in his weapon. Again, at this point he was not aware of another SASR soldier in his vicinity. He estimated that there was a distance of approximately three metres between the two insurgents.
621 He assumed that the person behind him was someone in his patrol:
   So either Person 18 or Person 4 was my assumption, but I actually don't know.
622 The applicant said that he dragged his insurgent back and that while he was doing that, the other body was back and there was a weapon there. The applicant said that he moved out to clear the body and that he could remember that the other operator was with him. He dragged the body of the insurgent he had shot back behind the wall. The other operator dragged the other body back behind the wall as well. The applicant said that he dragged the body back because he needed to clear it. He said he did not "radio in" the engagement. In 2009, things like that were done by the team commanders. He is sure that the engagements would have been reported because his weapon was loud. He did not have a suppressor. He was sure it had been reported, although he did not recall speaking to his patrol commander or Person 29. He said that once they had had an engagement, people were coming outside to see what had happened. Then he said he could not recall if people came out or not. During his movement to drag the body back, the applicant had his weapon up. The applicant said he went out twice, once to get the body and a second time to take possession of the insurgent's bolt action rifle. The body of the insurgent dragged back by the other operative was to the north of the body of the insurgent engaged by the applicant.
623 In his evidence given on the following day, the applicant sought to correct his evidence insofar as he had said on the previous day that the second operator had dragged back the body he, the second operator, had engaged. He said that he had reflected on his evidence and that his evidence was a mistake. The insurgent's body engaged by the second operative lay where it fell. The applicant said he had no idea why the second operative had not followed the drill of clearing the body. He said that he was dealing with the situation presented to him. He described his mistake in saying that the second operative dragged back the body as a problem with his memory saying in that context that he had had multiple engagements in Afghanistan.
624 The applicant said he did not know whether the second body was ever moved. He participated in the SSE process. He recalled that he was around the location of the bodies at some point. He did not recall whether he saw the body of the second EKIA in a different position to the position it was in when that person was shot. He did not recall if the body was moved. The applicant said that he placed the rifle he retrieved from his insurgent near the entry/exit point he had used to leave the tunnel courtyard and go outside. The applicant did not recall whether the second operative remained outside the compound to guard the entrance. He accepted that it was likely that somebody would remain outside to perform security duties. The applicant ​said that he may have contacted Person 5 by radio or he may have spoken to Person 5 in person. He may have spoken to Person 29. He could not remember.
625 When the applicant went back inside, he noticed that the SSE process had or was about to start. As the 2IC of his patrol, one of his responsibilities was to initiate that process. The applicant said he assisted with the SSE process with respect to the insurgent he had killed; he is not sure who assisted with the SSE process with respect to the other body. The applicant said that the machine-gun which the second insurgent had was placed at the wall where the bolt action rifle was. He does not know who placed it there.
626 The applicant's recollection was that he was present when the SSE process was carried out with respect to the insurgent he had shot and Person 18 was also present. He said that he would probably have noticed the prosthetic leg in the initial search, although he does not recall whether it was the first search or during the SSE process that he realised the insurgent had a prosthetic leg. The applicant's recollection was that he removed the prosthetic leg when he was undertaking the SSE process. It was left somewhere near the body. He was not aware of putting it back on the body. The applicant identified the man with the prosthetic leg as the man he shot. The evidence bag refers to the northwest corner of the compound. The applicant agreed that there was a lot of confusion about the cardinal points because of the way the patrols had entered the building. He agreed that the reference to the northwest corner, now that it is known precisely which way north is, should be understood to be a reference to the northeast corner. The applicant agreed that he may have assisted with the SSE process in relation to the body designated EKIA50. He took the photograph of Person 18 kneeling near the wall with the dead body of EKIA50 next to him (exhibit R18 p 34).
627 The applicant said that it was his understanding that the elderly Afghan male (EKIA56) was shot by the second operative. The evidence bag for that EKIA contains the following notations:
   56
   108
   NW corn
   Tunnel
The applicant said that he did not write the notation and that he had no explanation for why the author did that.
628 Some of the photographs showing weapons which are in evidence were taken inside the tunnel courtyard. The applicant said that he did not know where Person 6's patrol was at or about the time he was in the tunnel courtyard. The insurgent he shot was not moving to attack and, as ​previously stated, the applicant said that the insurgent was carrying his gun in what the applicant called an "admin" carry.
629 The applicant was again asked how he had made a mistake about the body of the second insurgent being dragged back. He said that he had corrected his evidence:
   … because on reflection last night, I felt that it was just not right. I got it wrong yesterday. I made a mistake.
630 He denied the suggestion that he needed to have the body outside the compound to explain the killing as the engagement of an insurgent. He said that his recollection was that the body dropped where it fell and he does not know what happened in the SSE process. He denied the suggestion that he knew that the body of the elderly Afghan male was never outside the compound. He denied that he knew that the elderly Afghan male was killed inside the courtyard. He agreed that he did not remember who it was that was behind him and shot the elderly Afghan male. He said that somebody had probably told him that they were the person who shot the elderly Afghan male. When he was pressed, the applicant said that he had no recollection at all of anyone ever telling him that they had shot the elderly Afghan male.
631 The applicant agreed in cross-examination that he did not remember the name of the person who, on his account, saved his life. His evidence was as follows:
   Yourself and one other unknown soldier; is that what you mean?---Well, clearly, someone else had engaged, so I was being supported.
   And there were lots of people in the – well, you don't remember who that was, do you?---No, I don't.
   No. This is a person who, on your account, saved your life?---Yes.
   And you have no recollection whatsoever of who that person was?---That's correct.
   Or of ever having a conversation with them in which you spoke about this engagement?---No, that's not correct.
   Are you saying you do have a recollection of talking to this person about the engagement?---I have a recollection of talking to everybody about the engagement on the day, and perhaps someone may have said that. What I'm suggesting is, as you have previously asked me, do I have a recollection of the individual during that engagement who fired? And the answer to that question is no, I don't.
   And just to be clear, I'm putting to you that you have no recollection of ever having a conversation with the person who you say shot that second insurgent?---That's correct.
632 The applicant denied that he had invented the story of dragging the body of the man with the prosthetic leg back in order to explain why, on his account, the body was in the positon it was.
​632 The applicant denied that he had invented the story of dragging the body of the man with the prosthetic leg back in order to explain why, on his account, the body was in the positon it was.
633 The applicant described the reason a body needs to be cleared quickly. He said that that is done to make sure there is no further threat by way of weapons or "anything out there that you should or don't want to leave out there".
634 When the applicant was asked why he did not move the body of the second insurgent, he said that task was the responsibility of the second SASR operative. He said that he made a decision to drag back the body of the insurgent he engaged in order to clear it.
635 The applicant disagreed with the suggestion put to him by the respondents that it is clear from the photographs of the elderly Afghan male EKIA56 (exhibit R6, p 5), that his body had never been moved and had never been dragged anywhere.
636 The applicant was unable to say whether Person 6's patrol was on the eastern side of the cleared field shown on the aerial photograph of W108 which he had marked (exhibit R4).
637 The Exploitation Management Data Card for the mission to W108 contains the following notation:
   Info obtained from FE TSE of KIA56. NE corner W108. In courtyard containing tunnel complex. Photographed on target.
638 The applicant was cross-examined about aspects of the photographs which were taken during the SSE process and which comprise exhibit R18. The photographs of EKIA50 were taken between 8.26 pm and 8.27 pm on 12 April 2009. The photographs of EKIA57 were taken between 8.30 pm and 8.32 pm, and the photographs of EKIA56 were taken between 8.36 pm and 8.37 pm. The photograph of the man with the prosthetic leg, EKIA57, at p 35 of exhibit R18 bears the time of 9.31 pm and the prosthetic leg is still on the body. The applicant denied the suggestion that he did not remove the prosthetic leg. He said that he did remove it. He said that he had a recollection of Person 5 telling him that he should be checking the prosthetic leg.
639 The applicant said in cross-examination that there was no standard operating procedure about immediately making a radio call for help upon the occurrence of an engagement. The applicant gave the following evidence:
   I want to put to you that too that you would not have left the area of contact until there was a properly organised presence in the region to provide security, correct?---Which there may well have been. And in fact, given the other individual that I don't remember, it probably was out there, which is why I don't remember it, because I went back inside.
   Are you saying that you have a recollection of this second person being out there as the person to provide security in the area?---No, I'm putting forward, as you're putting ​forward a proposition to me, that that was probably the most likely thing that happened.
   But you have no recollection of that happening, do you?---No, I don't.
640 The applicant was questioned about whether he made a radio call reporting the engagement. He said that he did not recall making one, but he may have made a radio call. There was some fencing with the cross-examiner by the applicant about whether he made a radio call reporting the engagement. The applicant said it was "a matter for hindsight" as to whether he should have taken possession of the rifle before dragging back the body rather than the other way round.
641 The applicant agreed that he had cheered on other soldiers drinking from the prosthetic leg and that he is in photographs in which people are drinking from the prosthetic leg. He agreed that as a senior member of the troop, he encouraged and attributed to a culture within the troop in which it was acceptable to drink from the prosthetic leg.
642 The applicant agreed that the rifle carried by EKIA57 and the machine-gun carried by EKIA56 are shown in a photograph in the Exploitation Report (p 32). He disagreed with the suggestion that the weapons were part of a cache found in the north-eastern corner of W108 under a haystack and destroyed on target.
643 This then is the applicant's account of the engagements outside the compound which resulted in the deaths of EKIA56 and EKIA57.
644 The applicant submits that the Court should find that EKIA56 was engaged outside the tunnel courtyard on the north-western side of W108. The applicant submits that the contemporaneous reporting as to the location of the body of EKIA56 is inaccurate for the reasons which follow.
645 First, the applicant submits that none of his witnesses who were each present in the tunnel courtyard at the time of the discovery of the tunnel said that they saw an engagement in that courtyard or that they saw the body of EKIA56 in the courtyard. This is part of a key point made by the applicant and is related to Person 41's time-line of events.
646 Secondly, the applicant submits to the fact that none of Persons 40, 42 or 43, who were also present in the tunnel courtyard at the time of the discovery of the tunnel or shortly thereafter, gave evidence that they saw the body of EKIA56 in the tunnel courtyard. This again, is part of a key point made by the applicant relying on Person 41's time-line of events, but this time focussing on the evidence of Persons 40, 42 and 43.
​647 Thirdly, the applicant relies on the evidence of Person 81 as follows:
   And in relation to the body of the old man, I want to put to you that the location of that body was inside the courtyard area where the tunnel was. Now, are you able to say one way or another whether that body was in that location?---Not when I was there.
   Now – which was close to the time of the patrol commanders' RV, correct?
   HIS HONOUR: Sorry, did you answer that?---Sorry, yes. Yes, your Honour.
648 Again, this is part of a key point made by the applicant relying on Person 41's time-line of events.
649 Fourthly, the applicant relies on the evidence of himself, Persons 5 and 35 to the effect that the location of the body of EKIA56 as shown in the Exploitation Report is incorrect.
650 Fifthly, the applicant submits that there are circumstances surrounding the preparation of the Exploitation Report and errors therein which, although they do not relate directly to the location of the body of EKIA56, mean that the document may be unreliable, including what it shows about the location of the body of EKIA56. The circumstances surrounding the preparation of the Exploitation Report are that it was prepared between 2 am and 3 am in the morning and the errors include an error regarding cardinal directions and Person 18's acceptance that there may be other errors in the report.
651 Finally, the applicant makes a series of points about the dangers of relying on a witness' opinion as to the area, the similarities in grass, the presence of a yellow palm oil container and time-stamps on photographs.
652 The applicant submits that the evidence of Persons 42 and 43 as to the location shown in the photograph of the body of EKIA56 and some of the surrounding area (exhibit R6 p 5) should be given no weight.
653 As I have said earlier in these reasons, Person 42 gave evidence that there was nothing specific that indicated to him where exactly the photograph is taken, but that what is shown is consistent with his memory of what the courtyard looked like. He identified the cut grass as similar to the cut grass covering the tunnel and the type of grass kept by Afghan nationals as feed for their animals. He referred to the small man-made structures shown in the photograph which he considered were their cooking areas which can sometimes be outside their compounds. He said that it "looks like it could be the area where the – the tunnel was found". I note for completeness that Person 42 did not give evidence that he saw EKIA56 at any time, much less in the courtyard.
​654 Again, as I have said earlier in these reasons, Person 43 was asked about the same photograph and he was asked whether he was able to tell the Court anything about the area depicted in the photograph. He said that it showed the grass or hay which was kicked over, or was similar to the grass or hay that was covering the entrance to the tunnel and that was kicked over, by Person 35 and Person 43 identified the man shown in exhibit R6 as the person he pulled out of the tunnel, but he did not give evidence that he saw the man's dead body in the courtyard.
655 The applicant submits that the Court should place no weight on the identification evidence relating to the grass depicted in the photograph for the following reasons: (1) the Court is able to draw its own inferences and conclusions from a comparison of the grass depicted in the photograph and the grass depicted in the area adjacent to the tunnel entrance. The applicant submits that even if the cut grass shown in the photograph seems to be similar to the cut grass shown in the area near the tunnel entrance as seen on p 1 of exhibit R8, that the Court should not go any further than that; (2) neither Person 42 nor Person 43 recalled the area depicted in the photograph as being the tunnel courtyard. At most, Person 42 said that it looked like it could be the area where the tunnel was found; (3) Person 42's evidence that the oval shaped mud structures shown in the photograph were cooking areas and that such areas can be sited outside the compound was not corroborated by any other witness. There was conflicting evidence on the point. Person 35 agreed that the oval shaped mud structures were cooking ovens of a kind commonly found inside Afghan compounds, but said that he found it strange that you would cook any food in an animal pen. Person 5 did not even know whether the oval shaped mud structures were cooking ovens. Person 29 did not recognise the oval shaped mud structures as cooking ovens. Person 38 gave evidence to similar effect and said that the oval shaped mud structures were latrines and that the area "looks like an external area"; (4) none of the respondents' witnesses said that they recalled seeing the mud structures or the drainage channel that appear in the photograph in the tunnel courtyard area. The applicant submits that the absence of evidence to this effect confirmed that the area depicted in the photograph was not inside the tunnel courtyard.
656 The applicant submits that it would be pure conjecture to conclude that the area shown in the photograph of the body of EKIA56 is the tunnel courtyard based only on the fact that there is cut grass in the area and cut grass in the area adjacent to the tunnel. The applicant submits that, in fact, the evidence of Person 41 who marked "animal stables" on exhibit R92 and said that there was a drainage channel that ran adjacent to a compound wall, although he could not recall its exact location and that there were a couple of small foot pads leading up to those small ​buildings, describes an area consistent with that shown on exhibit R92 as outside the north-western tunnel courtyard.
657 Furthermore, the applicant submits that the presence of the yellow palm oil container in the photograph of the body is of no significance, having regard to the following evidence from Person 29:
   And you know for sure, don't you, that there was a yellow palm oil container in that courtyard on that day?---The yellow palm oil – yes. I can say that. Because there was a yellow – to the best of my recollection, a yellow palm oil container came out of that tunnel. Whether that yellow palm oil container is that yellow palm oil container there, I can't say. And I can't say whether that was inside – well, I can say that that's not inside the courtyard, because when I was inside the courtyard there was no EKIA engaged or killed inside that courtyard.
658 The applicant submits that the time-stamps on the SSE photographs taken by Person 18 (exhibit R18) do not unambiguously support the respondents' case about the location of the body of EKIA56. For example, there is a one minute difference between photograph 13 (a photograph of the upper part of the body of EKIA56) and photograph 14 (a photograph of the tunnel entrance). However, there also appears to be only a one minute time difference between photograph 35 (a photograph of EKIA57) and photograph 36 (a photograph of EKIA56). The applicant submits that ultimately the evidence of the time-stamps of the photographs in exhibit R18 is equivocal and equally supports the applicant's submission that EKIA56 was engaged outside the tunnel courtyard in close proximity to EKIA57.
659 Whether EKIA56 was killed in the tunnel courtyard and his body later photographed in that location depends on a consideration of a number of interrelated issues, including whether two men came out of the tunnel, whether Person 41's evidence should be accepted or rejected, including what is to be made of his reference to a minute or two, whether the applicant's account is to be accepted and whether the evidence of other witnesses, including Persons 14 and 24 is to be accepted.
660 Person 18 gave evidence that the body of EKIA56 was found inside the compound and near the tunnel entrance. This is confirmed by a contemporaneous document, that is to say, the notation on the evidence bag. I find two men came out of the tunnel. I accept the evidence of Person 41. I find that Person 41's “minute or two” is not to be taken literally. It was a short period, but a sufficient time for the majority of people in the courtyard area to disperse. I reject the applicant's account of the engagements of EKIA56 and EKIA57. The first three points made by the applicant are rejected.
​661 With respect to the applicant's fourth point, my findings with respect to the honesty and reliability of the applicant and Persons 5 and 35 are set out elsewhere.
662 With respect to the fifth point, I do not accept that the circumstances surrounding the preparation of the Exploitation Report or the errors which were identified and the fact that SSE Reports were not designed to be evidentiary documents, leads to the conclusion that the location of the body was incorrectly marked on the Exploitation Report, particularly when one has regard to the evidence of Person 18 and the contemporaneous and on the ground notations on the evidence bags.
663 A number of challenges were made by the applicant to the Exploitation Report and the SSE process in closed Court. I consider and reject those challenges in the closed Court reasons (at [17]–[38]).
664 With respect to the final collection of points concerning the evidence of Person 42 about the area, the evidence about the grass shown in the photographs, the presence of the yellow palm oil container and the time-stamps on the photographs and whether they show the body of EKIA56 in the courtyard, I would not be prepared on the basis of that evidence to conclude that they do show the courtyard. It is simply too slender a basis to reach that conclusion. I have reached the conclusion that the photograph of EKIA56 shows his body in the courtyard based on all the evidence and there is nothing in the final collection of points which dissuades me from reaching that conclusion.
665 The applicant relies on the contemporaneous records (see at [584]–[592]). He submits that the respondents are, in effect, seeking a finding that the records are inaccurate. The assertion in the Patrol Debrief is that two squirters were killed. The background to this submission is a contention by the applicant that the respondents do not allege that anyone other than Person 5 and/or the applicant had any involvement in the fabrication or falsification of the accounts in the contemporaneous meeting and yet the evidence establishes that the documents were the result of the input of a number of persons. In those circumstances, the allegation that the reporting is false cannot be made out.
666 The applicant points to his own evidence about how After Action Reports or Patrol Debriefs are prepared. The applicant said:
   … As we evolved into strike operations, the debriefing remained in a similar – a similar way, but the patrol commanders would typically have to take – or do a debrief with their team, then they would leave the team, they would go to the officer commanding ​the squadron's office with the operations staff there. We would then all go around the room and explain what our part of that mission was on the – on the actual job and the operations officer would record that. Typically record it with a – you know, a notebook and pen. And then they would write the after action report, which can come in many forms. We had – a lot of duplication was done because you need certain reports to be sent to coalition partners, which may contain more or less information due to, you know, our secrets. And then there had to be reports done for headquarters itself.
   … In 2009, the troop commanders were still writing the after action reports, if you like. But you're also talking about an issue around terminology, your Honour. So an after action report is what we call it now, whereas there may have been – back then, it could be simply termed a patrol report. It could have been termed a debrief ---
   … because some things – I mean, 2006, people would literally get a Toughbook laptop out and they would type it up on a laptop and send the Word document to the headquarters and that was the after action report. And now we have a templated system. In 2009, it was definitely the troop commanders that were – the troop commander that would write the reports because we were still in vehicles for the moment.
667 The applicant also referred to the evidence of Person 5. Person 5 gave evidence of a troop debrief after the Tizak mission which was in 2010 involving the troop commander, the troop sergeant and the patrol commanders. Person 5 said:
   So it's pretty much a set standard, a debrief; you go through the whole process from prelims to launch to orders to the execution, the exfil and then the post-assault, as I said. He generally starts it off and opens it up to the floor and then all the team leaders give their – their version of – or the lessons learnt that they want to add to that document or their version of events.
668 A number of witnesses were asked about whether there was a troop debrief after the W108 mission. Person 5 said that there was a troop debrief after the mission. Person 29 could not recall whether there was or not, but expressed the opinion that it would have been something that would have occurred. Person 42 believed that there would have been a troop debrief on return to Tarin Kowt, although he did not have an independent recollection of it. Person 24 said that he could recall a Patrol Debrief in relation to W108. He said that all of Person 6's patrol would have been there. That was "the SOP post a mission". It was not always clear in the evidence what the witnesses meant by a "Troop Debrief". It seems that the usual procedure was that there was a Patrol Debrief involving the patrol commander and members of his patrol and then the patrol commanders met with each other and the troop commander and troop sergeant.
669 Person 81 agreed that in 2009, he relied on his patrol commanders to provide information to him concerning EKIAs that their patrols had had and to tell him the circumstances. He relied on them to give an honest and accurate report in relation to any EKIAs that they had had. He agreed that whatever it was that he came to learn of the circumstances of any EKIAs at W108, ​would only be based on what people had told him. He explained that what the patrol commanders told him would have been put in a report and that report provided to the operations team who would have put it in an operational summary. Person 81 read it and "cleared it" for release.
670 Based on the assumption that only a minute or two elapsed between Person 41 going into a nearby room and then re-emerging into the courtyard to see the execution of EKIA56, the applicant submits that not only were the applicant, Persons 4, 5 29, 35 and 38 in the courtyard, but Persons 40, 41, 42, 43 and 81. All of those persons must have seen two fighting age males emerge from the tunnel and be PUC'd and would have seen or heard the alleged executions, the subject of Person 41's evidence. I have already indicated that I reject the assumption.
671 I mention at this point that in relation to EKIA57 who, on the respondents' case, was executed by the applicant outside the compound, Person 14 claimed that everyone in his patrol witnessed the alleged execution by the applicant of EKIA57 and that included Persons 6, 24, 73, 80 and 68. The applicant submits that even if it may be doubted that all members of Person 6's patrol witnessed the alleged execution, Person 14 was adamant that Person 6 saw it. Person 24 claimed that the topic of an execution and a blooding had been discussed at his Patrol Debrief with Person 6 following the mission.
672 The applicant submits that even if only a fraction of the SASR operators claimed by the respondents to have been present in the close vicinity of the alleged executions by the applicant and Person 4 were, in fact, present, it would have been all but impossible for Person 5 and the applicant to get away with falsely reporting the circumstances in which EKIA56 and EKIA57 were killed. The applicant submits that enough members of the troop would have seen and/or heard sufficient of the relevant conduct alleged by the respondents for the patrol commanders at the troop debrief to immediately reject Person 5's account. Person 43 who was a patrol commander claimed that he had understood that PUCs had been executed during that mission. On his version, he must have done nothing to challenge Person 5's account about the engagement of squirters at the troop debrief. Furthermore, if the evidence of Persons 14 and 24 is accepted, Person 6 knew about at least the alleged execution by the applicant and did not challenge Person 5's account at the troop debrief either. The applicant submits that the respondents' case theory about false reporting presupposes, at the least, the existence of a widespread failure to challenge a false account of how two PUCs came to be executed during the W108 mission or, at worst, a widespread conspiracy by at least four patrol commanders ​(Persons 5, 29, 43 and 6) to conceal the truth concerning the deaths of EKIA56 and EKIA57 in the reporting of the operation.
673 The applicant submits that he and Person 5 did not fabricate the contemporaneous reporting that two squirters were killed to conceal the deaths of EKIA56 and EKIA57. The high number of persons who are alleged to have seen the PUCs alive, the likely presence of a high number of troops in the vicinity when the PUCs were allegedly executed shortly thereafter and the troop's debriefing process, which in effect requires the whole troop to contribute to the consolidated reporting, make it highly unlikely that the contemporaneous reporting about the W108 contains fabricated accounts.
674 The applicant's point is not that he is accepting that two men were taken from the tunnel. His case is that no men were found in the tunnel. He points to the unlikelihood of the respondents' case that two men were taken from the tunnel and then executed because one of the features of that case is that a large number of SASR soldiers knew about the executions and did not report them or do anything about them. There is obvious force in that point, but the respondents' case is too strong otherwise and sadly this is part of the conclusion.
675 The applicant submits that if the evidence of Persons 14, 18, 24, 40, 41, 42 and 43 is accepted, broadly speaking, EKIA56 and EKIA57 were removed from the tunnel and then shortly afterwards executed by the applicant and Person 4 in or just outside the tunnel courtyard.
676 As I have previously said, the applicant accepts that Persons 81, 80, 43, 5, 29, 18, 4, 35, 38, 40, 41 and 42 were in the tunnel courtyard either at the time of its discovery or shortly afterwards. Although the applicant accepts that Persons 18, 40, 41, 42 and 43 were in the tunnel courtyard either at the time of its discovery or shortly afterwards, he does not accept the evidence given by those witnesses as to what they saw. The applicant submits that given Person 41's time-line relating to when he left the tunnel courtyard and then re-entered it, there would have been a large number of persons in the tunnel courtyard carrying out the SSE process when the alleged executions occurred or proximate enough, as the applicant put it, for example, at the Commanders' RV, to hear them. None of Persons 18, 40, 41, 42, 43 or 81 gave evidence of witnessing executions or hearing them. I have already dealt with this point which is based on an interpretation of Person 41's evidence which I do not accept.
677 The applicant submits that the Court should not accept the evidence of Persons 14, 24 and 41 to the extent that each of them say that they witnessed an execution or executions. The ​applicant also submits, in effect without elaboration, that the recollections of Persons 40, 41, 18, 42 and 43, who say they saw local nationals in the vicinity of the tunnel courtyard, should also not be accepted by the Court.
678 With respect to EKIA57, the applicant submits that considerable weight should be placed on the fact that the alleged unlawful killing was not the subject of contemporaneous reporting. When Person 14 did raise the matter, he did so with Mr Masters nearly a decade after the event and on that occasion, he gave an inconsistent account to the one provided to the Court. Person 6, who on the respondents' case had a degree of animus towards the applicant, raised complaints about the applicant on a range of matters, but never mentioned this allegation. Person 24 is a discredited witness and his evidence has clearly been coloured by his discussions with Person 14 over the years.
679 I have already explained the reasons I do not consider there were a large number of people who knew about the execution of EKIA56. Those that must have known were the applicant, Person 5, Person 4 and Person 41. Others may have known, others may have suspected, for example, Persons 40, 42 and 43, but not known.
680 As to the alleged execution of EKIA57, I will deal with who must have known about that, or may have known of that, when I come to deal with the circumstances of that event.
681 The applicant submits that the evidence given by Person 41 is not reliable. He points to the following matters.
682 First, the applicant submits that no other person has corroborated Person 41's evidence about the alleged execution of EKIA56 by Person 4 and the actions of the applicant. I have already identified the applicant's submission about the improbabilities of the events Person 41 described assuming his time-line is correct, that is to say, the events either did not happen or they were (improbably) witnessed by a large number of people who did not see the body or failed to report an execution. I reject this submission. On Person 41's account, there were three people present. He has given evidence of the incident. The applicant has denied it and Person 4 claimed the privilege against self-incrimination under's 128 of the Evidence Act and was not required by the Court to give evidence about events at W108.
683 Secondly, the applicant makes the point that Person 41's account is inconsistent with the contemporaneous mission reporting in two respects. First, none of the reports record more than one fighting age male being located at W108 and secondly, the Patrol Debrief describes ​EKIA56 and EKIA57 as squirters who were engaged while attempting to squirt during the clearance of W108. Those matters as to the contents of the reports are correct. However, they are likely based on information provided by Person 5 and the applicant, both of whom were aware of what, in fact, had happened.
684 Thirdly, the applicant submits that Person 41's account of the execution of EKIA57 contradicts Person 14's account and the account of Person 24. Under cross-examination, Person 41 said he did not see the applicant carry an Afghan male. He saw the applicant holding onto an Afghan male. He was holding the male with one hand and holding the weapon in his other hand. By contrast, Persons 14 and 24 said that the applicant was carrying the Afghan male with one arm while carrying his Minimi in the other. Furthermore, neither Person 14 nor Person 24 corroborated the alleged conversation between the applicant and Person 41 following the alleged execution. These are differences which must be taken into account, but in my view they are not fatal to an acceptance of Person 41's evidence. I will return to these differences when addressing the alleged execution of EKIA57.
685 Fourthly, the applicant submits that Person 41's evidence about the borrowing of his suppressor is not credible. It is necessary to examine what a suppressor does and when it is used.
686 Person 5 said that a suppressor quietens the round coming out of the end of a gun and that it is exactly the same thing as a silencer. The applicant said that there was a difference with the suppressor being designed to suppress the noise and flash of the weapon to which it is attached to make it "more low-signature when you're in battle". Person 41 said that unlike a silencer, a suppressor will not make a weapon completely silent. A suppressor will reduce the noise and the muzzle flash. Person 14 said that a suppressor reduces the noise of a weapon when fired, but does not remove it altogether. I accept the evidence of Persons 41 and 14.
687 Person 5 said that in 2009, there was a standard operating procedure in relation to carrying a suppressor with an M4 rifle and that that standard operating procedure, which he enforced within his patrol, was that suppressors were not required to be fitted to a weapon during the day, but were required to be used at night. It was put to Person 5 that if Person 4 only intended to fire one shot from his rifle, it would have been an easier and quicker process simply to borrow the suppressor of a nearby operator whose suppressor was actually fitted to his rifle at the time. In response, Person 5 said that in the alternative, Person 4 could have asked someone to go into his pack and pull it out for him which would have been just as fast.
​688 Person 29 said that if a suppressor was not on the weapon, it would be carried "readily accessible on the body armour" and that although there was no designated place for it to be carried on the body armour, "the member had to be able to access it himself". Person 29 said that a suppressor was designated to be carried in a position whereby it could be retrieved by the soldier carrying it.
689 Person 35 said that he had never borrowed another person's suppressor. He explained his reason as follows:
   By adding the suppressor onto the end of your barrel, you change – you change the barrel harmonics of that rifle. They're – in layman's terms, that's – that bullet is not going to go where you want it to go once you suppress that gun with a suppressor that's not yours, that has not been zeroed to your rifle. That's not something you change out. It would make as much sense to change out a suppressor as it would to change out a scope mid operation.
690 The applicant also referred to the evidence of Person 4 in cross-examination to the effect that he was competent in respect of the operation of weaponry and knew what he was doing. He knew what type of equipment to carry with him in respect of his weapons and he did that without exception during his whole time within the SASR.
691 The applicant makes two submissions about Person 41's evidence that he lent his suppressor to Person 4. First, he submits that in light of the above evidence, it is unlikely that Person 4 forgot to bring his suppressor with him during the mission to W108 or that he had placed it in a position on his body that meant it was not readily accessible to him. The Court is also asked to infer that another reason why Person 4 would not have borrowed a suppressor is because using somebody else's suppressor may affect the firing ability of the rifle. The second reason relied on by the applicant is that there was no apparent reason for Person 4 to borrow a suppressor because it would not hide the fact that someone had been shot and the use of a suppressor would simply have the effect of distinguishing the shots as friendly fire.
692 Person 4's request to borrow Person 41's suppressor was the subject of considerable evidence and debate during the course of the trial. In cross-examination, Person 41 agreed that a suppressor is an essential part of his kit and that Person 29 required every member of his patrol to use suppressors as part of standard operating procedure. Person 41 said he could not recall if it was still personal choice back then or it was "the patrol commander said you will use a suppressor". Person 41 did not know what the position was in respect of Person 5's patrol. Person 41 also said that in 2009, a suppressor was an item which members of Person 29's patrol would carry with them at all times. Suppressors were used at night time. Person 14 agreed in ​cross-examination that in 2009, it was standard operating procedure to carry a suppressor with an M4 rifle and that a suppressor was part of the weapon system. SASR operators were taught to carry a suppressor with them if it is not attached to the rifle. The evidence of Persons 40 and 43 was to similar effect.
693 Person 5 gave the following evidence about the use of suppressors in cross-examination:
   Now, by saying that it was SOP to carry a suppressor, you agree, don't you that it wasn't SOP for the members of your patrol to actually have their suppressor fitted to their weapons at all times?---No, that's correct, and there was a reason for that.
   Yes, what was the reason?---So the reason was suppressors were used at night to, you know, hide your position. When we owned the night, we had NVGs on. They were used in unison. We found during the day when we got in contact with the enemy, when our weapons were firing like cap guns, it didn't really get us the – the advantage in winning the battle because they thought they were winning it because the most noise was coming from their side. So the decision was made by some of the TLs that during the day, we would remove them, so after initial contact, the weight of fire went down. Could essentially, you know, scare the enemy into defeat before we even got any of them. That was the reason for that.
(See closed Court exhibit R130.)
694 Person 18 said that back in 2009, it was the standard operating procedure of 2 Squadron not to have suppressors on all the time. They were still using the basis of reconnaissance whereby the suppressor was left off during the day and was only attached to the weapon at night. Person 18 said that the effect that this had was that if and when they were in contact, the sound of the weapon systems would assist in regaining initiative during a contact.
695 Person 5 was cross-examined about a SASR operator's ability to retrieve his suppressor. He said the following:
   And if the suppressor was in his pack, in order to fit it, do you agree that the steps that he would have been required to take would first to be to put his M4 down, correct?---I guess so.
   Yes. He would have to take his pack off and open it?---Yes.
   He would have to find the suppressor in his pack?---Well, I don't know if he would have to find it. I would hope he would know where it was.
   Well, he would have to locate it in his pack?---Yes.
   Yes. He would have to close the pack?---Yes.
   He would have to put the pack back on his back?---Yes.
   He would have to pick up his rifle?---Yes.
   And the fit the suppressor to the end?---Yes.
   ​Now, it's the case, isn't it, that if Person 4 only intended to fire one shot from his rifle, it would have been easier and quicker for him to borrow the suppressor from someone who had one already fitted to the end of their rifle rather than rummaging through his pack, correct?
   MR MOSES: Objection.
   THE WITNESS: Well - - -
   HIS HONOUR: What's the basis for the objection?
   MR MOSES: Well, your Honour, it's calling for the witness to speculate as to what Person 4 may or may not have done in respect of a situation that the witness is not aware of.
   HIS HONOUR: All right. Thank you. I overrule the objection. Yes.
   MR OWENS: Do you remember the question?---Could you repeat it, please.
   Sure. If - - -?---Obviously, I – I – I remember all the steps you went through. Just what the last part was, please.
   I understand. What I was putting to you is that if Person 4 only intended to fire one shot from his rifle, it would have been an easier and quicker process simply to borrow the suppressor of a nearby operator whose suppressor was actually fitted to his rifle at the time?---Or he could have asked someone to go into his pack and pull it out for him as another option, which would have been just as fast.
   It still would have required that person then to open the pack, to look inside the pack, to find it, to get it out, to close the pack - - -?---I - - -
   - - - repeat the process, correct?---I mean, we can speculate all day, but I can't put myself in the mind of Person 4.
696 The respondents submit that there may have been circumstances in which it made it more convenient for Person 4 to borrow Person 41's suppressor and because Person 41 considered it to be quite safe at the time, he was content to lend his suppressor to Person 4.
697 The respondents submit that if Person 41 was making up his account, it is inherently unlikely that he would have built such a "strange" detail into his evidence about the request to borrow his suppressor. In the circumstances, the presence of the detail enhances, rather than undermines, the credibility of Person 41's account.
698 The evidence does not establish a reason why Person 4 or the applicant would want or need to borrow a suppressor from Person 41. That is a matter to be taken into account. At the same time, it seems to me that there is considerable force in the respondents' submission that it is a very strange detail for Person 41 to include in his account if he is making up that account.
699 Fifthly, Person 41 did not explain why it was 11 years before he told anybody about what he had seen. He gave an account of what he had seen in 2020. The evidence of Person 41 was ​that he attended an interview with the IGADF Inquiry in late 2019 and then, at Person 41's request, a second interview in early 2020. The applicant submits that it may be inferred that it was at this time that he gave his account. This is certainly a matter to be taken into account. As part of this submission, the applicant submits that the Court should not accept Person 41's explanation as to why he did not tell Person 40 what he had seen. Person 41 said that he was toeing the line, he was a new trooper and it was his very first trip with the SASR. He said he "just wanted to toe the line and it's sort of an unwritten rule is you just go along with whatever happens". The applicant submits that this evidence should not be accepted in view of the fact that Person 41 was not afraid to express his concerns to Person 29 about the performance of the patrol's 2IC, Person 40, and nor was he afraid to criticise the performance of the commanding officer. It seems to me that there is a significant difference between those types of matters and raising the murder of PUCs. The applicant submits that the "[t]he critical issue is the delay". Person 41's failure to report what he had seen is dealt with in more detail later in these reasons (at [728]). The applicant submits that whatever the reason for its occurrence, the existence of the delay is a matter that undermines the reliability of Person 41's evidence about the mission to W108.
700 Sixthly, the applicant submits that Person 41's identification of EKIA56 and EKIA57 from photographs shown to him in his evidence-in-chief should be given little weight as that evidence was given in circumstances that strongly suggested the answer that was ultimately given. The applicant identified the risk with identification by means of selection as "the inherent risk of error associated with suggestibility, and what is sometimes called the displacement effect" (Alexander v The Queen (1981) 145 CLR 395 at 426 per Mason J; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [22] per Gleeson CJ). The applicant submits that, in this case, being presented with exhibits R6 (EKIA56) and R7 (EKIA57) at the relevant junctures during his evidence-in-chief, strongly suggested the answers that were ultimately given by Person 41 about the imagery shown in the photograph.
701 The applicant submits that Person 41's identification of EKIA56 as "an older male dressed in traditional Afghan loose top and clothing, either white or very light colour with short cropped hair" and of EKIA57 as wearing a "dark coloured top" should be given little weight as it is not credible that Person 41 could recall to the level of detail that he provided to the Court the physical attributes of a person who he had seen fleetingly some 13 years previously. The applicant submits that Person 41's identification evidence is a reconstructed memory based on ​imagery that he has seen prior to giving evidence in these proceedings. The Court should place no weight on Person 41's description of the appearance of EKIA56 and EKIA57.
702 In my opinion, Person 41's identification evidence, although I consider that it was given in good faith, must, for the reasons given by the applicant, be approached with considerable caution.
703 Person 43 identified the Afghan male shown in the photographs comprising exhibit R6 as the man he pulled out of the tunnel. He explained the notations on the evidence bag as follows. The "56" was used to identify who had taken or filled that bag and the number underneath, "108" was the target building. The description underneath is where the Afghan male was found, that is to say, the northwest corner tunnel. I have already referred to Person 43's evidence of his conversation with Person 40 about the PUCs and of Person 41's conversation with Person 40 about the PUCs. Person 43 said that the photographs did not "particularly" refresh his memory because he could recall the details shown in the photographs. In other words, he recalled the face of the person in the photographs.
704 Before moving to the respondents' case with respect to the execution of EKIA57, it is necessary to identify the respondents' case with respect to the involvement of Person 5 in the execution of EKIA56.
705 There is no direct evidence of Person 5's actions prior to the execution of EKIA56. The respondents submit that Person 5's involvement is established by circumstantial evidence. They submit that the fact that Person 5 ordered or directed the murder of EKIA56 by Person 4 is the most probable inference on all of the evidence and they rely on the following matters:
    (1) The evidence given by Person 24 about hearing Person 5 call Person 4 into the compound;
    (2) Person 5's statement before the mission of his intention to "blood the rookie" (i.e., Person 4);
    (3) A conversation between Person 5 and the applicant overheard by Person 18 during which the following was said:
   Person 5: "You've just done this while the ISR is still flying above and may have recorded you?".
   The applicant: "We need to find out if the ISR was still above us:.
    Person 5 sent a message on the troop internal chat to the JTAC during which the following was said:
   Person 5: "Where is the ISR platform and was it recording?"
   JTAC: "No, I pushed the ISR off station before we made entry and pushed it into another area that was a threat area:.
    As I have said previously, the ISR is the intelligence surveillance and reconnaissance platform which flies above the area.
    Person 18 gave evidence that he heard this conversation while searching the rooms inside the western wall. The respondents' case is that this conversation took place shortly after the applicant had executed EKIA57. The respondents submit that the inference is that Person 5 was expressing frustration with how the applicant had done what he had done, rather than with what the applicant had done. In checking with whether there was a problem which needed to be addressed, Person 5 revealed that he was part of the plan which involved the two killings. This conversation overheard by Person 18 is addressed in detail below;
    (4) Person 5 said after the mission that he had "blooded the rookie". In particular, he had said "I" blooded the rookie;
    (5) The respondents submit that the reference to "squirters" in the Patrol Debrief was information provided by Person 5 and that that was a deliberate lie from which a consciousness of guilt should be inferred. The content of the Patrol Debrief is referred to above (at [584]); and
    (6) The respondents submit that Person 5's denials of those matters demonstrates a consciousness of guilt along with other lies concerning EKIA56.
706 Person 18 said that he had completed exploitation of the tunnel and had returned to the area where he was before going to the tunnel and he was conducting an exploitation of a hay shed and a small tool shed at the point he marked on exhibit A117. The applicant and Person 5 were standing outside and Person 18 marked on exhibit A117 where the applicant and Person 5 were. Person 18 said that he was no more than three metres away from the applicant and Person 5. The terms of the conversation overheard as related by Person 18 are set out above.
707 It was put to Person 18 that he had made up the account of the conversation between the applicant and Person 5 and it was something he had added to the rumour. Person 18's evidence was that he had not mentioned the conversation to anyone before the point in time at which he ​had his first interview with the IGADF Inquiry. He could not rule out the possibility that prior to 2018, he may have told others about the conversation.
708 The only evidence of the conversation came from Person 18 himself and there was no evidence of the conversation from any other witness. Nevertheless, I find that Person 18 was an honest and reliable witness and I accept his evidence. I reject Person 5's denials.
709 The conversation expresses a concern that the applicant's act of shooting EKIA57 outside the compound may have been recorded. That concern is consistent with the fact that Person 5 was aware that "Troops in Contact" (TIC) was open and one reason to leave TIC open was to get assets above you. Person 5 said that, as far as he aware, when the troop was clearing W108, the Force Element had ISR on W109. Person 5 gave evidence that he did not expect ScanEagle would be above the compound during the mission because ISR does not stay above the compound during missions. He said it gets pushed off and it goes defensive and starts looking for potential threats coming in towards the compound. He said that ScanEagle would not have been above the compound; it would be out in a defensive mode looking at potential avenues of approach for enemies and "stuff like that". Person 5 said that once the troop makes entry, then they control the space and ScanEagle can move out and look at roads, routes and anything where a potential Taliban or anything can come in and attack. It is where JTAC pushes the ScanEagle to.
710 Person 5 agreed with the proposition that ScanEagle would definitely be in the general area looking around generally for threats. Person 5 agreed that ScanEagle was operating throughout the day of the W108 mission. Person 5 knew it was somewhere up above flying in circles. He had no precise knowledge of where it was that it was looking and he said that one would have to ask the JTAC who was in control on that day. He said that they get updates and get told on the radio where the sensors are. He said they always get updates and in the case of every target they hit, there are constant updates on ISR and what it is looking at and where it is. It was put to Person 5 that he did not get any updates during the SSE process at W108. He said that he could not be exact on the updates they got, but there is constant updates coming over the radio on where the ISR is and what it is looking at. It was put to Person 5 that he thought ScanEagle was up there somewhere and he responded by saying that he knew that ScanEagle was up there. It was put to him that he was not exactly sure what it was looking at at any given point in time and he responded by saying that he would put his money on it looking at W109. When it was finally put to him that he was not sure where ScanEagle was, he said that he could not answer ​that now and that if he was back on the ground he would be able to answer the question straight away. Person 5 said that ScanEagle's camera was not good enough to pick up someone in the green belt. The ScanEagle would be put out onto roads and tracks and things like that where it would be easier for them to pick up movement coming towards the compound. The respondents submit that a concern that the ISR platform may have recorded an execution in a cleared area just outside the compound was consistent with Person 5's understanding of the situation on the ground at W108. None of the evidence given by Person 5 causes me to doubt the evidence of Person 18.
711 Person 18's evidence of the response from the JTAC officer (as recounted by Person 5 and overheard by Person 18) that the ISR platform was not recording and had been pushed off station after the troop made entry and into another area that was a threat area accords with the objective facts. The evidence is that the ScanEagle UAV on 12 April 2009 was on station at 0648D/E and off station at 1230D/E and there was a lack of post-strike images due to the re-tasking of the UAV. The ScanEagle UAV was back on station at 1845D/E.
712 As I will explain, I find that EKIA56 and EKIA57 came out of the tunnel and that EKIA56 was executed by Person 4 at the direction of the applicant. The patrol commander, Person 5, had expressed an intention to "blood" Person 4 before the mission and had said that that had been done after the mission. Person 5 called Person 4 into the compound at or about the time of the execution of EKIA56. He expressed no objection to the fact of the applicant's execution of EKIA57. The proper inference is that Person 5 knew before the execution of EKIA56 that it was to take place and later that it had taken place.
The Respondents' Case as to the Execution of EKIA57
713 I turn now to the accounts of the death of EKIA57 given by the respondents' witnesses. There are four relevant witnesses, two of whom were located around the animal sheds just outside the western wall of the compound (Persons 40 and 41), and two of whom were located in the cordon off the north-western corner of the compound (Persons 14 and 24).
714 Person 41's account of events after he had looked at the body of the man dressed in white or in a very light colour was that he then walked off to the exit on the north-western side of the compound. He marked his path of travel with a dotted line on exhibit R92. He said that he stopped at a point where he was on a foot pad maybe two metres wide running alongside the walls of the compound. He looked to the front and noticed two small buildings just up a slight hill in front of him, not very far. He decided that he would go and search those areas. At that ​point, out of the right side of the corner of his eye he noticed the applicant walking along the outside wall of the compound. Person 41 marked the two small buildings and the position of the applicant when he saw him on exhibit R92. The applicant was about five metres away from Person 41. The applicant was walking up and he had another Afghan male by the scruff of his clothing with his left arm. The Afghan male had a dark top. He was being held by the scruff of the clothing, or the equivalent of the shirt collar area around near the shoulder. The applicant had his machine-gun in his right hand, right arm holding it up and "sort of frog marching the Afghan by the scruff of the neck with his left arm". Person 41 gave evidence as to what followed:
   … I turned to face RS to see what was happening. He then proceeded to throw the Afghan male down onto the ground. The Afghan male landed on his back. RS then reached down, grabbed him by the shoulder, flipped him over onto his stomach, and then I observed him lower his machine gun and shoot approximately three to five rounds into the back of the Afghan male. After he had done that, he looked up and saw me standing there, and he looked at me and said, "Are we all cool? Are we good?". And I just replied, "Yeah, mate, no worries". I continued to look at him. He then stood up and walked past me and went back into the exit that I had come towards the courtyard.
715 Person 41 identified the Afghan male shot as EKIA57, that is to say, the man with the prosthetic leg. Person 41 then proceeded to the two small buildings which he had previously identified and there he had the conversation with Person 40 which I described earlier in these reasons. He accepted that it is possible that there were other members of the patrol in the vicinity when he was searching the two small buildings.
716 The respondents submit that there is no reason to doubt the honesty of Person 41, nor the substance of his evidence. The respondents submit that there were a number of failures to comply with the principles in Browne v Dunn in relation to the cross-examination of Person 41 which mean that the Court is in the unsatisfactory position of it having been put to Person 41 that his account is false, but without the applicant putting to Person 41 what he (the applicant) contends are the true facts. The respondents submit that, in any event, the grounds that the applicant advances in support of a finding that the evidence of Person 41 should not be accepted are without substance.
717 The applicant put to Person 41 that his account of the applicant executing EKIA57 was not correct, although it was not suggested to him that he was not in the vicinity of the two small buildings he had previously identified at or about the time the applicant shot EKIA57. The ​applicant put to Person 41 that he did not witness the applicant's engagement, but it was not put to him that he was not in the area.
718 The respondents submit that Person 38's evidence that he and Person 41 were clearing an orchard on the northern side of the compound was never put to Person 41 and could not be a basis upon which the Court would find that he was not present in the vicinity of the two small buildings at the time the applicant shot EKIA57. For reasons previously given in relation to Person 38's evidence, I accept that submission.
719 Furthermore, the respondents submit that the applicant did not put his account of his engagement with EKIA57 to Person 41 and, therefore, Person 41 was not given the opportunity to provide a possible explanation as to why an engagement could not have happened in the way described by the applicant.
720 The respondents submit that, in those circumstances, "the only submission" that is open to the applicant is that Person 41's evidence, when considered in light of all the other evidence relied on by the respondents, is incapable of supporting a finding for the respondents on the balance of probabilities. As I understand this submission, it is that because the applicant's account was not put to Person 41, Person 41's evidence could not be rejected on the basis of the applicant's account.
721 My approach to the respondents' submission concerning what was or was not put to Person 41 in cross-examination is as follows. First, as far as the applicant's account of the engagements outside the north-western corner of W108 is concerned, that evidence was given by the applicant before Person 41 gave evidence. It was open to either party to put the applicant's account to Person 41. The fact is neither did in circumstances in which neither contends that both versions could be correct. Secondly, the respondents' approach of pointing to matters not put to their witnesses is a matter I have already addressed. The example in the case of Person 41 is that it was put to him that he did not witness the execution of EKIA57 by the applicant which he described, but it was not put to him that he was not in the area. That is a matter which is a feature of the body of evidence which is Person 41's evidence, but it does not, on the submissions made to the Court, amount to some form of concession by the applicant.
722 Person 41 agreed that he had drunk from the prosthetic leg on numerous occasions. It was put to Person 41 that he was not the type of person who would happily drink from the prosthetic ​leg of an individual who he thought had been killed contrary to the laws of engagement. Person 41's response to that suggestion was:
   Well, I did.
723 Person 41 admitted that he had drunk from the prosthetic leg, but maintained his denial that his account of what he saw was invented. He agreed that he now feels ashamed that he drunk from the prosthetic leg. He said that it was not "exactly appropriate, but in those situations, it was just a bit of black humour, and everyone was all in it together and it was almost like an amusing thing to do".
724 Whilst one might proceed generally on the basis that a person is less likely to drink from the prosthetic leg of a man unlawfully killed than of a man lawfully killed, the problem remains of identifying a reason Person 41 might have fabricated his evidence that he witnessed two unlawful killings. There was some suggestion that Person 41 had not "cut it" at W108, but even if in retrospect he felt some shame in leaving the tunnel area (and he denied it), that falls well short of a motive for fabricating evidence of two executions.
725 The respondents submit that, in the circumstances, there is no basis for finding that Person 41 fabricated his evidence. The respondents submit that, in the circumstances of the culture of the SASR, and especially Person 41's status as a junior trooper at the time, that the fact he drank from the leg does not cast any real doubt over the accuracy of his evidence.
726 Person 41 was asked why he did not tell Person 40 what he had seen. He said:
   I just wanted to keep quiet about the whole thing and figured it wasn't my business. And, you know, I was toeing the line, so to speak. I was a new trooper; my very first trip with the SAS, so I didn't – I just wanted to toe the line and it's sort of an unwritten rule is you just go along with whatever happens.
727 As the respondents correctly submit, if anything, the fact that Person 41 had drunk numerous times from the prosthetic leg might be considered an incentive for Person 41 to say that the man had been engaged lawfully rather than unlawfully.
728 The related topic of why Person 41 did not report what he had seen has already been addressed in part in connection with EKIA56 (at [699]). He did not report it to any of his superiors in 2009 whilst on deployment in Afghanistan or upon his return to Australia. He said he may have spoken to other SASR operatives in 2009 about what he had seen. He does not recall speaking to anyone about it after returning to Australia. He was interviewed by the IGADF Inquiry towards the end of 2019. He agreed that he had another meeting with the IGADF in early ​and that was at his request. He told Person 66 that he was going back to the IGADF, but he did not tell Person 66 what he was going to say. His belief was that Person 66 said that he was going back for another interview with the IGADF Inquiry as well. He said that Person 66 was worried. Person 66 was called as a witness by the respondents in relation to events on the mission to Syahchow and I refer to my reasons in relation to that mission. Person 41 admitted in the course of his cross-examination that he had raised with others issues he had with his 2IC, Person 40, and with respect to the commanding officer.
729 Person 41 agreed in cross-examination that nobody told him about the unwritten rule he had referred to in his evidence. He gave a further explanation as to why he did not report the incident he witnessed which was as follows:
   It was just a general knowledge, being a new trooper on the deployment, and toe the line, as you say. Back then, I was afraid that if I had had brought it up and mentioned it, I would have been seen as someone who wasn't willing to conduct the tasks of SAS trooper, and the fear with that was possibly being unsuitable to be operating within that troop, possible removal from my patrol and given a – a mundane job, for example, looking after possibly the Afghan nationals or even sent back to HQ, or, worse case, deemed just unsuitable to be a SAS soldier and possibly sent back to Australia. Word would have gotten back before I had have gotten back if I had have made anything about the events and possibly just bounced around back in Perth at the barracks with everyone knowing what you dobbed in, so to speak, not wanting to work with you, and effectively the career you had worked sort of so hard for could possibly be over just like that.
730 In re-examination, Person 41 was asked why he was prepared to make a complaint about his 2IC and about the commanding officer, but not make a complaint about what he observed at W108. He said the following:
   The reason I didn't make a complaint about Whisky 108 is because I wanted to keep my job, and I was afraid what would possibly happen to me if I was seen to be the bloke who was speaking out about incidents and not playing the team game.
731 I accept this explanation. To my mind, it is entirely plausible. There is no evidence of any involvement or threat to Person 41 which explains the fabrication by him of an extremely controversial and likely to be highly contentious account of two executions and furthermore, implicit in the account is an acknowledgement of his own failure to report at the time what he had seen.
732 The respondents submit that the most powerful argument in favour of the credibility of Person 41's evidence with respect to the killing of EKIA57 is its consistency with the evidence of Persons 14 and 24. The respondents submit that there was no suggestion of collusion between the evidence of Persons 14 and 24 on the one hand, and Person 41 on the other. They ​submit that there would need to have been collusion because there can be no credible suggestion of innocent fabrication on the part of Person 41. Absent collusion, there is no explanation for how Person 41 could have concocted a story that matches the evidence of other witnesses.
733 I will address the evidence of Persons 14 and 24 shortly. The point to note at this stage is that there is no evidence of collusion between Person 41 on the one hand, and Persons 14 and 24 on the other, and the latter's evidence does support Person 41's account.
734 Person 40 saw two men come out of the tunnel. He saw them being marched off by the applicant and Person 35. He took up a position on the north-western side of the compound which he described as a defensive posture. He said that he was waiting for the next command. He heard a burst of machine-gun fire from an LSW or F89. He was facing out and the sound came from the right. It was quite close. He estimated "maybe 30 metres, thereabouts". There was initial confusion on the radio with people saying "What was that? Where did that come from?". On the way out of the compound, he saw the dead body of the man with the prosthetic leg and he marked the location of the body on exhibit R137.
735 Person 40 estimated that 20 to 25 minutes elapsed between when he saw the PUCs being marched off by the applicant and Person 35 and when he heard the machine-gun fire.
736 There was no challenge in cross-examination to this part of Person 40's evidence. The respondents accept that, in and of itself, Person 40's evidence is consistent with both the respondents' case and the applicant's case. However, that is the case only to a point. Person 40 only gave evidence that he heard a burst of machine-gun fire and he did not give evidence of hearing either suppressed or unsuppressed fire from an M4 rifle. On the assumption that on the applicant's account Person 4 was the second shooter, then the evidence is his weapon would have been unsuppressed. Person 18 said that Person 4 was carrying an M4 rifle. He said that in 2009, 2 Squadron's standard operating procedure for carrying suppressors was not to have them on all the time. They were still using the basis of reconnaissance whereby the suppressor was left off during the day and was only attached to the weapon at night (see closed Court exhibit R135). Even if the weapon was suppressed, the evidence is that a distinctive audio noise is still made. Person 18 referred to the sound being like a "whip crack". Person 14 described the sound of an M4 rifle suppressed as "Pffft, Pffft, pffft, pfft". Person 41 accepted that even with a suppressor on it, an M4 rifle still makes a loud noise. It is clear that even an ​M4 rifle with a suppressor on it makes a noise that is capable of being heard by those in the vicinity.
737 The fact that, on the applicant's account of the engagements outside the north-western corner of W108, there would have been audible machine-gun fire (which Person 40 heard) and, assuming Person 4 was the second soldier, audible M4 rifle fire (which Person 40 did not hear) is relevant to the acceptance or otherwise of the applicant's account. However, I do not accept the respondents' submission that the failure of the applicant to put his case as to the engagements he said occurred can only be interpreted as driven by a fear that the witness would convincingly reject it. As I said in the context of Person 41, I do not think that the applicant was obliged to put his account to Person 40.
738 Person 14's evidence was that he was in the position he marked on exhibit R98. In other words, he was outside the compound on what was thought to be the north-western side near a cleared field. He said:
   … and there was silence, I heard – I was – I was looking towards Whisky 109 and I heard, like, noise to my right, which was similar to stomping or heavy footsteps, and a little bit of, you know, chatter, some like kind of people talking. Wasn't clear to me. But anyway, it – it caught my attention, obviously, and as I turned to my right – my head, only my head to my right – there was like, three Australian soldiers, and a black object which was, like, similar to a human was – was thrown to the ground, and there was, like a – a thud when the – when that person hit the ground. There was a – that kind of noise, expulsion of air when someone is kind of winded, and – and then a soldier raised their Minimi F89 Para and fired, like, an extended burst. It was loud; it was, like ….. one second and I was, like, "Okay". And that person turned and walked away out of sight back into Whisky 108, which was – walked towards – on this one, point A.
739 The point "A" referred to in this answer by Person 14 is the location of an entry/exit point along the western wall of the compound.
740 Person 14 marked the location of the object which looked like a human body thrown on the ground on exhibit R98. Person 14 did not recognise the soldier who fired the weapon. However, he noticed the camouflage paint of the soldier. It was the brown and grey camouflage paint of Person 5's patrol. He saw that out of the three people he observed, two had "that highly illuminated grey – brown cam paint". As the respondents point out, grey camouflage paint can be seen on the face of the applicant on p 25 of exhibit R18. Person 14 said that the other two soldiers were standing there observing. The respondents submit that in light of Person 41's evidence, it is possible that one of the soldiers who Person 14 observed was Person 41. In addition, it is to be noted that Person 40 was, on his own account, present in that same general ​area. Person 14 agreed that he was not in a position to deny that Person 29's patrol used the same camouflage paint as that used by Person 5's patrol. Persons 41 and 40 were members of Person 29's patrol. Person 14 said that after he had witnessed this event, he turned to his 2IC who was Person 73 and said "what the hell was that?". He said that Person 73 shrugged his shoulders and nodded his head as in, "and" which Person 14 interpreted as meaning that he did not know. The applicant put to Person 14 that his evidence in relation to the killing of EKIA57 was false. As I have said, he submits that Person 14 is a perjurer and a liar. The respondents submit that the applicant presented no persuasive or coherent theory as to why he would have made up such a lie and nor how it happened that the "lie" was consistent with the accounts of other witnesses, such as Persons 41 and 24.
741 The respondents submit that none of the four topics raised with Person 14 in cross-examination establishes that he was not a witness of credit and his evidence in relation to EKIA57 should not be accepted. Those topics, and the respondents' response in relation to each of them, was as follows.
742 First, the respondents filed an outline of evidence for Person 14 and a number of alleged inconsistencies between his evidence to the Court and statements in that outline were put to him by the applicant. The respondents submit that none of the alleged inconsistencies could fairly be described as material.
743 Person 14 said in his evidence that a black object "which was, like, similar to a human" was thrown to the ground. Paragraph 25 of Person 14's outline of evidence reads as follows:
   25. During the SSE, Person 14 remained kneeling outside the compound approximately 15 – 20 metres away from the assault entry point. Person 14 saw movement in his right peripheral vision at the entry point of Whiskey 108. Person 14 observed an Australian soldier throw a dark object from shoulder height onto the ground near the entry to the compound. The Australian soldier then shot the object approximately 10 - 15 times. From the sound of the weapon Person 14 could tell that the weapon was a F89 LSW. An F89 LSW is a light machine gun.
744 Person 14 was cross-examined about the fact that he did not refer in his outline of evidence to the fact that the dark object was similar to a human. Person 14 was cross-examined about his reference to the dark object being thrown from shoulder height and he said in his evidence that the object was thrown from a height of somewhere between the knee and the waist to the ground. The respondents submit that neither of these alleged inconsistencies is material. Other alleged inconsistencies put to Person 14 by the applicant are, according to the respondents, ​particularly trivial, for example, Person 14's reference in his evidence to a black object and his reference in para 25 to a dark object. The respondents submit that none of the matters raised with Person 14 in relation to his evidence are capable of casting any doubt over his honesty, or the reliability of the substance of his evidence. They submit that, if nothing else, it is apparent that the document was not prepared by Person 14, and not approved by him before it was finalised. Person 14 explained that he met with lawyers for the respondents in 2019 in Canberra. MinterEllison Lawyers provided the outline in 2020. He read the outline and had no concerns about it. When he was asked whether he was happy with it, he said that he did not enjoy reading "this stuff". He said that there was not anything in it that was not right. When asked whether it was accurate, he said:
   It was close enough for me.
745 Secondly, Person 14 was cross-examined about notes that Mr Masters had made of his conversation with Person 14 at a meeting on 27 February 2018. The notes are exhibit A63 and Person 14 was asked about a note at the bottom of the first page to the following effect:
   E Troop went in. P5s patrol seen through the doorway of their next compound. R-S had an M-14 and P4 a Minimi. Understood P4 had shot an old guy with a prosthetic leg.
746 He agreed that his initial assumption "on the ground" was that Person 4 was carrying the Minimi. He later came to learn the identity of the soldier who was carrying the Minimi.
747 Person 14 gave the following evidence with respect to this matter:
   So are you now saying that you told Mr Masters that you understood it was Person 4 who shot the Afghan man with the prosthetic leg?---That was my initial assumption on the ground, tactically, but I later came to learn who was carrying the Minimi.
   Stick with me. What I'm asking you is did you tell Mr Masters that you understood that Person 4 had shot the Afghan male with the prosthetic leg?---No.
   You said that to him, didn't you?---No.
   You – just let me finish. You said that to him on 27 February 2018, do you accept that?---No.
   You never said to Mr Masters on 27 February 2018 that you understood it was Mr Roberts-Smith who had shot the man with the prosthetic leg; you accept that?---What I accept is that my initial assumption was Person 4 had the Minimi, as the junior person in the patrol, and that was my initial assumption on what I saw.
   You are a liar, aren't you?---No.
   I'm going to ask you the question again: did you tell Mr Masters at this meeting that it was Mr Roberts-Smith who shot the Afghan male with the prosthetic leg?---I later came to learn that it was Ben Roberts-Smith, and yes, I would have.
   ​No, no. You told the court earlier that you did tell Mr Masters that. Do you recall giving that evidence?---Yes.
   So that's what you told Mr Masters, you say?---Yes.
   At this meeting?---At the second meeting.
   Which Mr McKenzie later turned up at?---Yes.
   What I want to suggest to you is that you said to Mr Masters you understood it was Person 4 who had shot the Afghan male; correct?---Incorrect.
   And the reason you say you understood was because you never saw anything. Do you accept that?---100 per cent incorrect.
   You were spreading rumours, weren't you?---100 per cent incorrect.
   You are a liar, aren't you?---I am not.
748 The respondents submit that it is clear on their face that the notes are a very abbreviated summary of what was said at the meeting and do not purport to be a transcript. They also incorporate Mr Masters' impressions about the subject matter. They submit that there is no reason to doubt Person 14's evidence that they do not accurately capture the complexity of his account being an initial assumption that the shooter was Person 4 and then a later realisation that it was the applicant. Another way of putting the matter is that the notes are incomplete.
749 Thirdly, Person 14 was asked about whether he had doubts about the applicant's Victoria Cross and was jealous of the applicant. Person 14 said that he did not question, but had "some doubts" about the awarding of the Victoria Cross to the applicant for his heroic acts of bravery at Tizak. Person 14 denied that he was jealous of the fact that the applicant had been awarded the Victoria Cross. It was never put to Person 14 that he was jealous about the fact that the applicant had been awarded the Victoria Cross and that as a result of that jealously, he told a lie about what happened at W108 (emphasis added). The respondents submit that jealously about the Victoria Cross could not be an adequate explanation for taking such a step as making up a false account of a war crime.
750 Fourthly, Person 14 was cross-examined extensively about his contact with journalists. Save and except with respect to alleged inconsistencies between his account as given to the Court and his account as given to journalists, Person 14's dealings with journalists are not relevant to any matter of substance, or his credit, in this case. The respondents accept that Person 14 was not at the start completely honest in answering questions about his dealings with journalists. Initially, Person 14 did not wish to speak about that topic and he indicated he was not willing to give evidence about it even with the protection of a certificate under s 128 of the Evidence ​Act. The respondents submit that Person 14 candidly accepted that he was dishonest about his contact with the media when asked by the ADF. Person 14 explained that the reasons he had been untruthful with the ADF was because he was focussed on self-preservation, security and safety, because in that period of time people who were seen to have spoken to the media were being targeted and because there was a quick turnaround for the record of conversation and he was under a lot of pressure. The record of conversation was conducted with the unit at short notice in an attempt to determine who had disclosed information to the media about an address given to the unit by Special Operations Commander Australia (SOCAUST). The respondents submit that it is clear from the evidence that there was a very strong feeling within the regiment against members who had spoken to the media. Person 7 gave evidence that at a meeting there was concern being raised about people speaking to the media rather than following proper processes and that view was put, according to Person 7, "very strongly". The respondents submit that, in the circumstances outlined, Person 14's lack of complete honestly was confined to a discrete topic, of no substantive relevance to these proceedings, in circumstances where there were particular reasons for him to fear personal and professional consequences if he were to speak candidly. They submit that Person 14's initial lack of complete candour about his contact with journalists does not provide a basis not to accept his evidence on other issues.
751 Person 14 was honest about what he was able to say and what he was not able to say. He could not identify the soldier he saw shoot EKIA57. He admitted that he was unable to say that the Minimi he saw the applicant carrying into the vehicle layup position was the Minimi that was used in relation to the dark object (LUP equals VDOP). The respondents submit that had Person 14 been attempting falsely to implicate the applicant in a war crime, it would have been expected that his evidence would have done so directly. The respondents submit that there is no explanation for how the evidence of Person 14 is so consistent with that of Person 41 other than that both are true.
752 The respondents submit that the applicant's version of his engagement of EKIA57 was not put to Person 14. Person 14's unchallenged evidence as to his location means he would have been perfectly placed to observe the engagement of EKIA56 and EKIA57 if the applicant's account was correct. The failure to put that account to Person 14 deprived him of the opportunity of providing a detailed rejection of it. The respondents ask the Court to infer that the account was not put to Person 14 for fear of what he would have said about it. As I have made clear in relation to previous witnesses, I reject this submission. Person 14 gave his evidence after the ​applicant gave his account. I do agree that Person 14 would have been well-placed to see the engagements described by the applicant if they had occurred.
753 These are the submissions that the respondents, who filed their closing written submission first, anticipated would be made by the applicant based on his cross-examination of Person 14 and their answers to the submissions. The submissions the applicant made about Person 14's evidence in both his closing written submissions and his closing oral submissions were as follows. Person 14 should not be accepted as a reliable witness. Person 14 is a perjurer and the applicant challenges his credibility (honesty) as well as his reliability. The applicant relies on the submissions he makes in the context of the mission to Chinartu concerning Person 14's reliability as a witness. I have addressed those matters in Section 5 of this Part. As I said early in this Section, the whole of a witness' evidence must be taken into account. In addition, the applicant relied on the matters which follow.
754 First, the applicant submits that Person 14 was, to start with, not completely honest in answering questions about his dealings with journalists and that this lack of honesty was not confined and affects his evidence more generally. The applicant submits that Person 14 was evasive about his contact with Mr Masters. He said that Mr Masters called him in January 2018 trying to organise a "catch up" in Canberra. Person 14 suggested that Mr Masters indicated that the catch up was as a result of, or connected with, Mr Masters developing or preparing a second edition of his book. He said that he had no further contact with Mr Masters after January 2018. Later in his cross-examination, he admitted that he had another meeting with Mr Masters in 2018. Person 14 said in his evidence that another meeting with Mr Masters was coming back to him on there being mention of Mr McKenzie (the second respondent). Initially, Person 14's evidence was that at the subsequent meetings with Mr Masters and Mr McKenzie, he did not discuss operations in Afghanistan.
755 Secondly and relatedly, the applicant submits that Person 14's evidence that he could not recall what was discussed in meetings with Mr McKenzie at further meetings that occurred in February and/or March 2018 was not credible in view of his recollection of the topics he discussed at the meeting with Mr Masters in January 2018. In addition, Person 14's denial that he provided information against the applicant to Mr McKenzie was not credible. He was asked about his meetings with Mr McKenzie and Mr Masters in or around February and March 2018. Person 14 said he definitely did not discuss matters concerning operations in Afghanistan in the subsequent meetings. Later, he agreed that he told Mr Masters at the meeting at which ​Mr McKenzie later turned up, that is, the meeting on 27 February 2018, that it was the applicant who shot the Afghan male with the prosthetic leg. Later in closed Court, he gave evidence that he did not tell Mr Masters that he had observed something on 12 April 2009 in relation to the applicant and W108. This summary of the evidence Person 14 gave is broadly correct.
756 Thirdly, the applicant submits that Person 14 admitted lying to the ADF about his contact with Mr Masters and Mr McKenzie when confronted with the record of conversation which he signed on 30 June 2020. The SASR required a signed record of conversation as part of determining who had disclosed information to the media about an address to the SASR given by SOCAUST. The record of conversation which was signed by Person 14 contained the following statement:
   You are reminded that it is an offence under the Commonwealth Criminal Code to disclose Defence information obtained in your official capacity where you are not authorised to do so. Unauthorised engagement with the media constitutes a breach of Defence's "Media and Communication Policy". Additionally, as a member of this unit you have been specifically directed not to engage with the media.
757 In response to the question about whether he had contacted or been contacted by or communicated with any journalist or media representative in the past 10 years, Person 14 made reference to the applicant, and only the applicant, in June 2018 in Canberra. The applicant was an executive at Seven Media. Person 14 accepted that he had lied to the ADF and that he had been dishonest in his answers. He did not accept that he had done so to cover up the fact that he had been disclosing information to journalists. He denied that he had referred to a meeting with the applicant in June 2018 in an attempt to mislead the ADF. Person 14 agreed that he lied to cover up the fact that he had spoken to Mr Masters and Mr McKenzie. As I have said, he said that he did so because members of the SASR who were seen to be communicating with the media were being targeted. He also referred to the absence of notice that a record of conversation would have to be completed.
758 Person 14 understood he was under an obligation to be honest when signing his record of conversation. The applicant points out that s 55(1) of the Defence Force Discipline Act 1982 (Cth) provides that a defence member commits an offence if with intent to deceive, the person makes or signs a service document that is false in a material particular. The applicant submits that the Court should infer that Person 14's misstatement in the record of the conversation was deliberate and the Court should have no confidence in the reliability of Person 14 as a witness given that he knowingly made a false representation in circumstances when he understood that he was obliged to tell the truth.
​759 Fourthly, the applicant submits that Person 14 was not truthful about his contact with other SASR soldiers during the period he was giving evidence. During the evening of the first day of his evidence he was contacted by Person 24 who gave him a "welfare call". Person 24 said in his evidence that he wanted to know from Person 14 how he was going. That would have been on the evening of 4 February 2022. The fourth of February was a Friday. On Monday, 7 February 2022 when Person 14's cross-examination resumed, he was asked whether he received any telephone calls over the weekend. He said (relevantly) that he had only spoken to his wife and he could not recall speaking to anyone else. The applicant's submission is that Person 14 was not simply a poor historian, but deliberately chose to conceal the fact of his communication with Person 24 over the weekend.
760 All of these matters must be taken into account in assessing Person 14's honesty and reliability. I note that none of the four matters just mentioned relate directly to Person 14's account of events at W108.
761 In addition to these matters, the applicant submits that the following aspects of Person 14's evidence were inherently improbable and not corroborated by any other witness: (1) that Person 14 could recall, unaided, the camouflage paint worn by members of Person 5's patrol during the W108 mission; (2) that his entire patrol, including Person 6, witnessed the alleged execution. This was not corroborated by Person 24 who said that the only other operator he could see at the time was Person 14. The applicant submits that if it were true, then the failure by Person 6 or other members of the patrol to report the alleged execution with the chain of command is "inexplicable".
762 The fact that a witness claims to remember a minor detail from many years ago is a matter to take into account, but no more than that. Person 14 gave evidence that Person 6 saw the execution and he did not report it. That is a matter to take into account, together with the fact that on the respondents' case, Persons 41, 14 and 24 also did not report it. It seems to me that despite Person 14's general statement, it is not possible to make a clear finding as to how many members of Person 6's patrol witnessed the events described by Persons 14 and 24.
763 The applicant also points out that Person 14's evidence that he saw two other soldiers in close proximity to the applicant at the time of the alleged execution was not corroborated by any other witness. That is true, although it may be that Person 14 saw Person 41 and perhaps Person 40 who were in the general vicinity.
​764 Person 14's evidence must be scrutinised with care having regard to the matters set out above.
765 Person 24 said that he was carrying a 7.62 Maximi on the mission to W108. He took up a position within two to three metres of Person 14. At no time did he go into the compound. He indicated where he and Person 14 were on exhibit R141 by placing a circle or oval shape on the document. He marked the location of EKIA50 on exhibit R141. He could not remember where the assault teams entered the compound. He saw the applicant walk out of building. He marked the point where he first saw the applicant on exhibit R141. He said:
   … Now, can you tell his Honour what you saw Mr Roberts-Smith doing?---Mr Roberts-Smith walked out of the compound of the spot I've indicated. At this stage, he was holding a man in his hand. It appeared that he had come off his feet and he was being held parallel to the ground. He was held by the pants or the back of the shirt. He marched approximately 15 metres directly out from that entrance, dropped the man on the ground and immediately began with a machine gun burst into his back.
   Okay. Are you able to indicate either, again, by a circle or a point if you're able where it is that you saw Mr Roberts-Smith machine-gun the person. And if you could put the letter C next to that? And if the officer could show us that, please. Now, Person 24, in relation to the person that you said Mr Roberts-Smith was carrying, was – could you tell if that person was alive or dead?---He was making a noise as he came out of that threshold across the doorway. Like a grunting noise.
   Okay. The person that was being - - -?---Correct.
   - - - carried. Okay. Now, you then mentioned that Mr Roberts-Smith fired a machine gun burst. Were you able to – are you able to recall either how long the burst was or how many rounds approximately or anything of that kind?---Eight –eight to 10 rounds.
   Okay. And what did Mr Roberts-Smith do after he had finished firing those eight to 10 rounds?---He – as soon as he stopped firing, because the machine gun had a stoppage, he immediately turned and started rectifying the stoppage with his - - -
   When you say "turned", which way?---Turned back towards the entrance of the building and started walking back towards the way that he came.
   Okay?---Rectifying the stoppage whilst he was moving.
   Okay. And did you see where he went?---Back inside the compound.
766 At this point, Person 24 said to Person 14, "Did we just witness an execution?". Person 14 responded, but Person 24 could not recall what his response was. Person 24 identified the person shot by the applicant as EKIA57, that is to say, the man with the prosthetic leg.
767 In terms of the applicant's cross-examination, the challenges to Person 24's evidence were based on two principal grounds.
768 The first ground was that Person 24's mental health and the medication he was taking had an effect on his memory such that it is unreliable. Person 24 was discharged from the SASR on ​mental health grounds. He has been diagnosed with mental health illnesses, including a general anxiety disorder in 2007 and depression in 2014–2015. Person 24 has been diagnosed with alcohol dependence and that continues. He is taking blood pressure medication and what he described as a "very small" depression medication called Duloxetine. He takes pain medications. He has not been told that his mental health affects his memory. He has not had flashbacks in relation to his service in Afghanistan, although he has had nightmares. Person 24 did not accept that his anxiety caused him to have memory or concentration difficulties.
769 Person 24 was cross-examined in closed Court on 15 March 2022 about what he had told a medical practitioner and his visits to a psychiatrist. The diagnoses of those practitioners were the subject of questions as was the medication that Person 24 is taking. He said that he had difficulty recalling some events from his time in Afghanistan. His memory had improved. It was suggested to Person 24 that it was difficult for him to recall what occurred 13 years ago. In answering that suggestion, he gave the following response:
   Not when it comes to watching an execution.
770 Person 31 was a witness called by the respondents. Person 31 gave evidence that Person 24 had told him whilst they were both still serving in the regiment that he had seen something at W108. He did not recall the exact detail.
771 The respondents submit that the challenge based on mental health issues and medication was not capable of undermining Person 24's evidence on any matter of importance. They point to the fact that no expert evidence was adduced to prove a causal relationship between Person 24's health and his ability to give honest and accurate evidence. To the extent that Person 24's memory on matters of detail may be deficient, there was no suggestion that he misremembered or otherwise imagined any of the key events, the subject of his evidence. The respondents submit that if Person 24's evidence is to be challenged, it could only be on the basis of deliberate dishonesty.
772 The respondents submit that the second basis upon which Person 24's evidence was challenged was what they referred to as an "outright attack" on the honesty and truthfulness of Person 24's evidence about seeing the applicant carry a man, throw him on the ground and shoot him. It was suggested to Person 24 on numerous occasions that his evidence was false or that he had come to Court to tell a story or that he was making his evidence up. It was suggested that he was trying to backup Person 14 and his evidence. The suggestion seemed to be that his account ​was the result of being coached by Person 14. It was suggested that he was in the witness box to support Person 14. In response, Person 24 said that he was in Court to support Person 4.
773 The closed Court reasons deal extensively with the respective submissions of the parties as to the approach the Court should take to the evidence of Person 24 (at [46]–[66]).
774 Person 24 denied that he was making up his evidence. He said that he was as uncomfortable as any other person has been "coming through here". He said he did not want to be in the witness box and that he was there because he had been subpoenaed. He said he found it extremely difficult to stomach having to give evidence "against the man in the corner" (referring to the applicant).
775 Person 24 attended the launch of Mr Masters' book "No Front Line" in or around October 2017 in Sydney. He said that to him it was more about catching up with friends than attending the media launch. He did not agree with "the guys" going to the media at all. In his opinion, it is extremely unfair the way the matter had "panned out" for the applicant. Person 24 said that he did not want to speak to the media and he did not agree with "how this started". He said that he had severed friendships over it. He said that he had severed his friendship with Person 6 and he explained his reasons as follows:
   I didn't agree with the agenda that he was pushing and he was pushing it really hard. And I – I still don't agree with the fact that BRS is here and he's under an extreme amount of duress for killing bad dudes who we went over there to kill.
776 Person 24 said that he had no flashbacks as to events at W108 and went on to say that he had no qualms whatsoever with what happened to the people on the ground at W108.
777 Person 24 said that he was here to support his mates who were adversely affected through "blooding". He said that he was here to support Person 4. The respondents submit that it is apparent that Person 24 was giving evidence in relation to the killing of EKIA57 most reluctantly. That was a killing in which Person 4 was not involved. His "support" for Person 4 thus involved no more than telling the truth.
778 The respondents submit that the suggestion that Person 24 was giving evidence merely to backup Person 14 should be rejected in light of the fact that there are differences in their evidence which are consistent with honest differences of recollection and difficult to reconcile with a dishonest attempt to give corroborative evidence. The respondents submit that, in any event, Person 24's evidence is not just consistent with the evidence of Person 14. His evidence ​is also consistent with the evidence of Person 41. There is no suggestion of friendship, let alone collusion, between Person 24 and Person 41.
779 The respondents make a similar submission in relation to the evidence of Person 24 as they made in relation to the evidence of Persons 14, 40 and 41. That submission is that, although the account of those witnesses as to what occurred outside the compound was challenged, the applicant's version of the two engagements was never put to them by the applicant's counsel. The respondents submit that that meant that Person 24, like the other witnesses, was deprived of the opportunity to give a detailed explanation of why that account could not have occurred. They submit that the Court should infer that the applicant feared what Person 24 would have been able to say. The respondents put their case in the following way. The applicant's account of the two engagements outside the north-western corner of W108 should not be accepted over the respective accounts of Persons 14, 40, 41 and 24 because the applicant did not put his account to those witnesses. The only question is whether the evidence of Persons 14, 40, 41 and 24 is capable of discharging the onus of proof. I provide the same response to the submission in the case of Person 24 as I did in the case of Person 14.
780 With respect to the evidence of Person 24, the applicant submits that he should not be accepted as a witness of credit.
781 There were a number of attacks on Person 24's honesty and reliability in closed Court. I refer to the closed Court reasons (at [44]–[66]).
782 The applicant submits that Person 24's evidence of what was said about the blooding and execution of the PUC in the patrol room after the mission to W108 should not be accepted. The applicant submits that it is inherently unlikely that a patrol commander, informed of serious allegations of the kind that Person 24 suggested were discussed at the Patrol Debrief, would not raise these allegations with the chain of command. The applicant also relied on the fact that the letter prepared by Person 6 in 2013 complaining about the applicant's conduct in 2012 makes no reference to possible misconduct by him in 2009. The applicant submits that even though the letter is directed to the applicant's conduct during the period from June to November 2012, it was clear that Person 6 had a dislike for the applicant and, in those circumstances, would have taken the opportunity of attacking his reputation by referring to allegations of war crimes in the letter.
​783 The applicant also submits that Person 24's demeanour is relevant to his credit. He submits that Person 24 was argumentative. They referred to this passage in his evidence concerning Person 5 coming to the patrol room door of Person 6's patrol and referring to blooding the rookie:
   Okay. Do you have a recollection of any other member of your patrol being there?---There were other members there, but I – if – if I say, "I think it was this person", or, "I think it was that person", we will go around on the Mr Moses Merry-Go-Round for the next hour.
784 The applicant also submits that Person 24 was prone to making speeches and providing non-responsive answers. In that respect, they referred to closed Court transcript of 14 April 2022 at pp 30 and 33 of which the redacted portions are as follows:
   No. Answer my question, Person 24.
   Because I wanted to protect the soldier, Mr Moses. I – as I said, I don't agree with how this has all panned out, trial by media. Um, I don't agree with how it's been the agenda that people have started with. I don't agree with BRS being under scrutiny for every kill that has come up in Afghanistan. Um, I – my – my mantra in my head has been, "Protect the solider", all along, and coming to that, it's – you know, it's just way too evil. What he's done to other people, how it's affected their lives, is way too evil to, ah, not, um – yeah. Let – get it all out on the table now, so.
   Are you finished?---Yes, I am.
   Okay. I'll ask you the question again. ?---Because I wanted to protect the soldier.
   Why did you say it?---I don't know. I don't recall.
   You don't know why you said it?---I don't know.
   So why are you now saying to his Honour that you deny that conversation happened If – if – I don't even know where you're going with this. I ---
   Don't worry. Just answer the question?---I - I - look, you're turning this into a convoluted, um, confusing conversation. Um, I'm trying to be as honest and frank as possible, your Honour. Um, I - I thought I've answered your questions clearly, Mr Moses.
   Are you finished?---Yes.
   ​Okay. So I'm going to go back and ask you this question. You denied to this Court that Person 14 said to you " You denied that, correct?---Yes.
785 Finally, the applicant submits that Person 24's admission that he had lied to the ADF about the true circumstances of an injury he suffered and his continued reliance on that injury to obtain a financial benefit means that he is not a witness of credit. In that respect, the applicant referred to his closed Court submissions at para 34. I have already referred to the relevant parts of the closed Court reasons (at [46]–[66] and, in particular, at [56]).
786 I repeat the conclusions I expressed in the closed Court reasons about Person 24's evidence (at [65]–[66] of the closed Court reasons). His evidence of what he saw involving the killing of EKIA57 is supported by the evidence of Persons 14 and 41 just as that evidence is supported by the evidence of Afghan men coming out of the tunnel.
787 In addition to the submission previously referred to, the applicant made three further submissions as to why the respondents' case should be rejected, or at least found not to have been proved.
788 First, the applicant submits that the respondents have not advanced or established a motive for the applicant's actions as alleged by them. It could not be that Person 5 ordered the applicant to direct Person 4 to execute a PUC as that allegation has not been established on the evidence. None of the witnesses suggested that the applicant wished to "blood" Person 4 on that mission. The absence of any established motive for the murders is a factor that points to the unlikelihood that any such murders occurred. As I have said previously, the absence of a proved motive is not a proved absence of motive. There is no requirement on the respondents to prove a motive. Furthermore, I have already indicated the finding I make as to the involvement of Person 5. The applicant submits that the findings sought by the respondents in relation to EKIA56 was that this person was executed by Person 4 in the tunnel courtyard at the direction of the applicant, but not at the direction of Person 5. This is true, but if it is intended by this statement to exclude any involvement by Person 5, then I do not accept it and again, I refer to my findings as to the involvement of Person 5.
789 Secondly, the applicant noted that Person 4 objected to answering questions about the mission to W108 pursuant to s 128(1) of the Evidence Act and submits that he would otherwise have been in a position to give the best evidence about the circumstances of the engagement. The applicant accepts that no Jones v Dunkel inference may be drawn by the Court against the respondents in respect of Person 4's failure to give evidence on the basis that the Court may be ​satisfied that there is a satisfactory explanation for the failure. The applicant's submission is that Person 4's election not to give evidence about the mission to W108 has left a gap in the evidence which must ultimately fall upon the respondents who bear the onus of proving their allegations. This is in a sense an observation by the applicant. I have already addressed the submission that there is simply insufficient evidence to make a decision one way or the other and rejected it. Insofar as the present submission is that the respondents bear the onus of proof and if the evidence is insufficient to discharge the onus, then the respondents fail, that proposition is undoubtedly correct.
790 The third point is related to motive and involves emphasising a point previously made. It is that the Court is being asked to find that a member of the ADF with an exemplary service record with no history of conducting himself contrary to the rules of engagement "would on 12 April 2009 decide for no reason to engage in an act of murder". That is a matter to be taken into account. The applicant also points to the evidence of Person 81 in re-examination that on 12 April 2009, he did not observe any conduct by Persons 4, 5 or the applicant that caused him to have a suspicion that they had PUC'd and murdered anybody. That is a matter to be taken into account, but is to be assessed having regard to, and in light of, the opportunity Person 81 would have had to observe the event had it occurred.
791 There were some small differences between the accounts of the respondents' witnesses with respect to the alleged execution of EKIA57. The question is whether they affect the honesty or reliability of any of the witnesses.
792 The first difference is the part of EKIA57's body being held by the applicant prior to him being put on the ground. Person 41 observed the applicant to be holding EKIA57 by the scruff of his clothing, that is, the collar/shoulder area. Person 24 said that the applicant was holding EKIA57's clothing in the region of the lower back. Person 14 did not say that he saw where EKIA57 was being held. He did say that a dark object was thrown to the ground from a height of between waist and knee. The witnesses were viewing the rough manhandling of a struggling PUC from different directions and at different distances and I agree with the respondents that the significant point is that both Persons 41 and 24 recalled the applicant holding EKIA57 by his clothing at the back.
793 The second difference relates to whether the applicant "flipped" EKIA57. Person 41's evidence was that the applicant threw EKIA57 down to the ground and EKIA57 landed on his back. The applicant turned him over before shooting him in the back. Person 24's evidence ​was that the applicant threw the man on the ground and immediately shot him in the back. Person 14's evidence was silent on the point. Again, I think the difference is not significant and as the respondents submit, the event was a fast moving event involving a struggling man. The witnesses were viewing the event from different distances and angles. Both Persons 41 and 27 said that they saw the applicant shoot the man in the back.
794 The third difference relates to the number of rounds fired by the applicant from the Minimi. Person 14 said that he saw an extended burst of Minimi fire which he estimated to be 10 to 15 rounds. Person 24 estimated 8 to 10 rounds. Person 41's estimate was 3 to 5 rounds. Person 40 did not say how many rounds were in the burst of Minimi fire that he heard.
795 It is important to bear in mind in this context that the issue is not whether the Minimi was fired or not, but rather the number of rounds fired. Furthermore, there was evidence from Person 5 about counting accurately the number of rounds fired from a Minimi:
   And you would agree, wouldn't you, it's very difficult to count precisely how many rounds are fired from the Minimi?---I don't understand the question.
   Well, it's very difficult to accurately count how many rounds are fired from a Minimi; correct?---Yes. What – on time, it's a rough estimate because it's maximum rate of fire is rough as well. It's not exact.
   Well, it's maximum rate of fire is somewhere between 700 to 1100 rounds a minute; correct?---That's correct.
   So it's firing at least, well, 11 rounds a second?---Yes. Somewhere between 9 and 13 a second.
   Yes. So you could never be too precise about how many rounds had been fired; correct?---Well, you can. You can fire one round from a Minimi.
   Other than one round; correct?---Yes. I was just answering your question.
   I accept that. But it's correct, isn't it, that if what you're dealing with is a burst of fire, it will be very difficult to provide anything other than a rough estimate; correct?---The lower – the lower the burst, you can definitely count them. As it – the burst gets longer, then obviously it's harder to count those rounds. Yes.
796 In those circumstances, I do not think that the differences are significant. Nor do I consider it significant that all observed him firing the gun with one hand. As the respondents correctly submit, the cross-examination on those topics was directed to the correct operation of a Minimi in ordinary battle conditions and those standard procedures have no application or no necessary application to an illegal murder.
797 The fourth difference is whether the applicant had a stoppage. Person 24 recalls the applicant having a stoppage, whereas Person 14 did not observe a stoppage. The evidence of Persons 40 ​and 41 was silent on this topic. The respondents submit that it is relevant that the applicant himself said he had a stoppage in his account of the engagement outside W108, but it is not clear to me how this last point assists if the applicant's account is rejected. In any event, I consider that the difference is relatively minor and far outweighed by the essential similarities on the accounts.
798 The fifth difference is as to how many soldiers were seen in the vicinity at the time of the alleged execution of EKIA57. Person 14's evidence was that he could see three soldiers in the vicinity of EKIA57. Person 41 said he could see no-one other than the applicant. Person 24's evidence is to similar effect. Obviously this difference must be carefully considered. As I have said, it is possible Person 14's field of vision took in Persons 40 and 41. In any event, the similarities far outweigh this difference or, indeed, all of the differences.
799 The final difference is who said what to whom in the cordon as to what they saw. Person 14 recalled saying "What the hell was that?" to Person 73. Person 24 recalls asking "Did we just witness an execution?" to Person 14. Both those comments could have been made or alternatively, there are different recollections of what was said. Either way, this difference is not a reason for rejecting either witness' account generally.
800 I have mentioned the essential similarities in the evidence of Persons 14, 24 and 41. In summary, those similarities are as follows: (1) each of Persons 14, 24 and 41 observed a PUC being forcibly and aggressively moved in an area outside the north-western part of W108; (2) each of them heard, together with Person 40, an extended burst from a machine-gun; and (3) each of them witnessed a soldier fire a burst of machine-gun into the body of a human being outside the northwest corner of W108. Persons 41 and 24 identified the soldier as the applicant. Person 41 was independent and he had no obvious motive to fabricate the account he gave. There is no evidence of any collusion between Person 41 on the one hand, and Persons 14 and 24 on the other.
801 Before moving to aspects of the applicant's account and those of his witnesses, I will address briefly the move by the troop, or at least part of the troop, to W109.
Moving to W109
802 It seems that different elements of the troop moved to W109 at different times.
803 Person 18 said that the troop commander said that the troop was going to split and commence the assault on W109. Person 18 said that his team remained in W108 prior to the move. ​Person 18 said that the last elements of the troop probably left W108 as he was approaching W109. He said the following:
   … It's not everyone just going and walking out together; it's a – it's a slow, methodical manoeuvre to get everyone out.
804 Person 18, who was a member of Person 5's patrol, thought that his patrol was the only patrol that remained in W108.
805 Person 43 said that it was decided at the Commanders' RV that the majority of the call sign was going to move on to W109 and clear that compound before returning. He said that he went on to W109 and that they came back via W108 to pick up the teams that had been left behind and then continued on to the vehicles. Person 43 said that his recollection was not clear, but one or possibly two teams may have been left at W108. Later in his cross-examination, Person 43 said that his team was to assault W109, but he could not recall which other teams were to do so.
806 The evidence does not clearly establish which members of the troop were involved in the initial clearance of W109. Person 29 said that his patrol was given the task of clearing W109. He said that his patrol was authorised to conduct a dynamic breach of W109 in order to maintain initiative of their assault through the compounds. He gave his patrol a quick set of verbal orders. Person 38 prepared his specific equipment so that a dynamic breach of W109 could be conducted. Person 29 said that the full complement of his patrol was part of this mission and, in addition, there was a member of the ANA Partner Force or the interpreter for communicating if they came across persons in W109. There may have been SASR operators in addition to Person 29's patrol involved in the clearance of W109. Person 5 said that his patrol undertook the task of assaulting W109 save and except for Person 52 who was still on the roof. He said that Person 29's patrol was going to take the lead because he had a full complement and his patrol was going to assist them in the assault of W109.
807 Person 42, who was a member of Person 29's patrol, said that he was involved in the assault on that compound. He thought that explosives had been used in relation to that assault. He is unsure whether it was just Person 29's patrol or a "collective of people" which was sent to clear W109.
808 The Sametime chat for the mission to W108 on 12 April 2009 is closed Court exhibit A10 Tab 12. That indicates various matters in relation to the clearing of W109 and the times at which those matters occurred. I refer to the closed Court reasons (at [5]–[6]).
​809 As the troop left W108, two matters of significance occurred. Person 43 said that as they were walking off and getting ready to walk off W108, he had the conversation he related which is referred to earlier, with Person 40, and Person 40 gave evidence that he saw the body of EKIA57 as they were walking off target and he recognised that man on the day as the man who came out of the tunnel.
810 Person 14 said that he went and inspected the object which looked like a human body and he confirmed that it was a human body. He noticed the prosthetic leg. He had observed Person 18 clearing the body. Person 18 described the body as a man lying on his back. He had a shaved head, a bit of a beard, dark Afghan robes or dress. He had a prosthetic leg. He had blood generally concentrated around the upper torso, upper body and centre and some blood that was kind of coming out of the nose and the mouth. He identified the body as the EKIA shown as the man with prosthetic leg, that is to say, EKIA57.
811 No witness gave evidence of seeing the body of EKIA56 outside of W108 as they departed.
812 In addition to evidence that in the post-mission discussion and reporting there was discussion about Person 4 having had an engagement, it is important to note there was evidence that shortly after the mission it was reported that there had been two men found in the tunnel who had been shot. There is evidence given in closed Court which is relevant in this respect. I refer to the closed Court reasons (at [67]).
813 The respondents submit that the initial reporting relating to the W108 mission did not include any reference to the engagement of EKIA56 and EKIA57 or the circumstances of the engagements (refer to A7 and A8 of the respondents' closed Court submissions). The first description of the circumstances of the engagement of those men was contained in the Patrol Debrief (see closed Court exhibit A10 Tab 5) which contained the now admittedly (so the respondents contend) false account that they were "squirters". The respondents submit that the lack of any contemporaneous support for the account that the applicant now advances, supports the conclusion that that account is a recent invention, and false.
814 There is no dispute between the parties that Person 6 removed the prosthetic leg of EKIA57 from W108. There is no dispute that the prosthetic leg was used as a drinking vessel in the Fat Lady's Arms in Tarin Kowt. It was brought to Australia, although the evidence does not establish who brought the leg to Australia. The applicant did not himself drink from the prosthetic leg. He has cheered on other soldiers as they have drunk from the prosthetic leg and ​he has been in photographs showing people drinking from the prosthetic leg. He has two glasses shaped like a prosthetic leg with the emblem of 2 Squadron engraved on it. The applicant agreed that as a senior member of the troop, he encouraged and contributed to a culture within the troop in which it was acceptable to drink from the prosthetic leg.
Aspects of the Applicant's Account and those of his Witnesses
815 The applicant's account of the engagements of EKIA56 and EKIA57 outside the north-western corner of the compound is set out above (at [595]–[642]).
816 On the applicant's account, EKIA56 was shot some distance outside the north-western corner of the compound. The body lay where it fell and was not dragged back by the second operator. The body of the man with the prosthetic leg was dragged back by the applicant.
817 The applicant gave evidence that he did not know whether the body of EKIA56 was moved. For reasons previously set out, I find that the body of EKIA56 was not moved (at [572]–[577]).
818 With one exception, none of the witnesses apart from the applicant gave evidence that they saw the body of EKIA56 outside the compound. The one exception was Person 5 who gave an account to the effect that as he left W108 to conduct a reconnaissance on W109, he passed the body of EKIA57 at a point which he marked with the letter "S" on exhibit A194 and the body of EKIA50 at a point he marked "P" on that exhibit. He did not see any other bodies at that point in time. He said that when he returned, there was another body there at that point near the body of EKIA57. He marked the location of that body with the letter "T" on exhibit A194. Person 5 said that his understanding was that EKIA56 was one of the two squirters that ran away to the northwest. They were on the outside of the compound walls and then they were dragged back. He was told this by the applicant. The evidence of the body of EKIA56 being dragged back is not consistent with the applicant's evidence as corrected.
819 Person 29 saw two bodies and one of them was the body of EKIA50. Initially, Person 29 said in his outline that one of the bodies was of a man with a prosthetic leg. His evidence was different and he said he could not remember an identifying feature of either body. As I have said, Person 29's evidence on this topic was unsatisfactory (at [335]–[340]).
820 Person 35 said that he did not see the body of EKIA56 or the body of EKIA57 on the ground at any time during the mission to W108.
​821 There are aspects of the applicant's account of the engagements at W108 which are improbable. They vary in significance and it is a matter of standing back and assessing the sequence of events as a whole.
822 First, the reason the applicant gave for leaving the compound is difficult to accept at face value. His explanation in cross-examination was that he could not go into rooms in the compound with the Minimi machine-gun because it was not suitable for room combat and so while people were standing around the courtyard, he was going to push to the north-western corner and "hold a security position". In other words, he was going to provide security in the area so that he was not simply standing around and not doing anything. He went alone, it seems, without taking anyone else with him.
823 Secondly, it does seem unlikely, although not impossible, that two insurgents would appear so close to the compound at almost the precise instance the applicant walked out. The applicant said in his evidence that the insurgents appeared in a matter of three seconds. Person 6's patrol was performing cordon duties in the area identified by Persons 14 and 24 and it is unlikely that two insurgents would appear from the direction which was the threat area as far as the cordon was concerned. That would have involved a serious failure of the cordon and it is reasonable to expect that had it occurred, it would have been the subject of comment on the ground or in the post-mission reporting, or both.
824 Thirdly, I have great difficulty accepting the applicant's evidence that he does not know the identity of the SASR operator who engaged EKIA56. More accurately, I do not accept that had the engagements occurred as he described, he would not know the identity of the soldier who engaged and killed EKIA56. For convenience, I repeat some evidence of the applicant in cross-examination previously set out:
   Yourself and one other unknown soldier; is that what you mean?---Well, clearly, someone else had engaged, so I was being supported.
   And there were lots of people in the – well, you don't remember who that was, do you?---No, I don't.
   No. This is a person who, on your account, saved your life?---Yes.
   And you have no recollection whatsoever of who that person was?---That's correct.
825 Earlier in his cross-examination, the applicant had said that he assumed the person who had engaged EKIA56 was either Person 18 or Person 4, "but I actually don't know". It would appear that he never asked either of them whether they were the SASR operator who engaged ​EKIA56. He has no recollection of anyone ever telling him that they had shot that man. Although I do not accept the evidence of Person 5 or Person 35, it may be noted that on their evidence, the applicant's evidence of not knowing the identity of the second operator becomes even more improbable. In the case of Person 5, I refer to his quite detailed evidence of seeing the applicant and Person 4 and being advised by the applicant that they had just engaged two squirters to the north and of seeing the applicant and Person 4 near bodies upon his return from W109 and his evidence that at the troop debrief that Person 4 had said words to the effect that he had killed an insurgent and outlined the circumstances. In the case of Person 35, I refer to his evidence that he heard at Tarin Kowt after the mission that the applicant and Person 4 had had engagements.
826 Person 5 said that the fact that Person 4 had had an engagement on the day of W108 was discussed in the troop debrief and the applicant would have been there. Person 5 gave the following evidence:
   And so do you say that everyone in the debrief would have known that it was Person 4 who had the second engagement outside that corner of the compound?---Yes. Again, it was a troop debrief, so everybody would – would have been – would have heard what he – what was said in there.
   Has Mr Roberts-Smith ever spoken to you about the fact that Person 4 had an engagement of other insurgent?---Yes, the – it would have happened in the same debrief.
   And has Mr Roberts-Smith told you that he knew that it was Person 4 that shot that insurgent?---Yes. It began – well, I'm answering the same question – it was under debrief.
   So is this right? The troop debrief it was made very clear that it was Person 4 who had shot the second insurgent?---As – as – as best as I can recall it; you know, it was 13 years ago.
827 If that evidence of Person 5 was correct, it would significantly undermine the applicant's evidence that he never had any knowledge of who shot the second insurgent in the engagement he described.
828 Fourthly, there are aspects of the applicant's account of dragging the body of EKIA57 back which are improbable. In his evidence-in-chief, the applicant said that the insurgent he engaged had fallen past the line of the compound. For him to go outside and into the open and try and clear the body or carry out any form of SSE process with respect to the body would be dangerous because he would be exposing himself with no cover. In the circumstances, the applicant moved out and grabbed hold of the insurgent and dragged him back perhaps five metres just so it was on the inside of the corner of the building side with the protection of the ​wall. He then gave the body a quick pat search and that initial search was simply to identify whether there were any further weapons or anything like that. The applicant put the weapon the insurgent had up at the far end of the building against the wall at the entrance point. In cross-examination, the applicant said that the body of the insurgent he had engaged was approximately three metres from the body of the insurgent engaged by the SASR operator behind him. The applicant said that he grabbed hold of the insurgent he had engaged and dragged him back behind the wall. He walked to the end of the tunnel courtyard wall and looked around the corner to the right. He went out and grabbed hold of the body and dragged it back behind the wall. His focus was on making sure there was no other insurgent in the area where the two insurgents had come from.
829 As I previously said, when the applicant first gave his account he said that when he grabbed the body of the insurgent he had engaged, the other SASR operator grabbed hold of the other body because they both ended up getting dragged back behind the wall. The applicant said that he dragged the body of the insurgent he engaged back in because it needed to be cleared. He said that that was the drill. The body needs to be cleared once the SASR operator is not in threat. The applicant did not radio in the engagement. Having dragged the body back in, the applicant confirmed that he gave the body a quick pat search. It involves making sure that there are no weapons military equipment. It is a primary search, said the applicant, to make sure there is no threat or danger like a suicide vest. He said it could be anything and that the SASR operator was simply making sure there was nothing there.
830 The applicant said that the insurgent he engaged had a bolt action rifle. The applicant is fairly sure that he went out a second time to retrieve the rifle.
831 On the following day, the applicant changed his evidence about the second operator dragging the body of the insurgent he engaged back in the same way as the applicant had done with the insurgent he engaged. The applicant said he had no idea why the other SASR operator did not follow the same drill. The situation was the same, there was an insurgent in a similar position with a weapon. The applicant disagreed with the proposition put to him in cross-examination that EKIA57 had never been moved. He disagreed with the suggestion that it was not standard procedure to clear a body in the circumstances of the engagement of EKIA57. He said that it was necessary to clear the bodies to make sure that there was no further threat and he identified further threats as weapons or things that you need to be aware of. He was asked why, if it was ​necessary to move the body of EKIA57, he did not go and move the body of EKIA56. He said the following:
   … As I said, it's up to each individual operator as to what they're doing, how they want to do it. If you're clearly a – we're in TIC here. The TIC was still open. That's in the documents; everybody agrees with that. Troops in contact. You make decisions when you're in contact about what you want to do and how you want to do it to the best of your ability. If someone didn't clear that body; if I should've gone out and cleared it; if you can second-guess that in retrospect, maybe, but I was dealing with what I had in front of me and what I perceived to be what I had to deal with before I went back inside. That's it.
832 Person 5 said that the standard operating procedure in terms of clearing the body of a dead insurgent after an engagement was that they would be the subject of the SSE process and that would be during the post-assault procedure. In the case of the insurgent engaged by Person 14, EKIA50, that body was cleared by Person 18.
833 Person 29 was asked whether there was a standard operating procedure with respect to clearing the body in terms of checking the body of an insurgent engaged by an SASR operator. He said that as part of the SSE process, the bodies would be searched for weapons, equipment, documents. Everything that came off the body would be placed in a bag and that bag would be allocated to that body. Photographs would be taken and geographical data would be recorded.
834 The evidence of how the body of EKIA50 was dealt with is instructive. The body of EKIA50 lay close to where EKIA57 lay and that body remained in place for the duration of the mission. The body of EKIA50 was not cleared until the SSE process began and that was in circumstances where Person 14 had heard a mobile phone ringing in the vicinity of the body which was a known indicator of the dead person having been an insurgent. Person 14 said that the fact that a mobile phone rang was a good indication of someone being an insurgent. Person 14 said that he did not clear the body at that stage. There was no need to. He was in a good position, static with hard cover of the tree in front of him. To clear the body, he would have to move across open field. A little later, Person 14 gave the evidence I have referred to that the body of EKIA50 was cleared by Person 18. On the way back from W109 to W108, Person 5 observed EKIA50 in the location he marked on exhibit A194. Person 29 saw Person 18 and EKIA50 as he went from W108 to W109 and he marked the position on exhibit A219.
835 It seems to me improbable that the applicant would have seen the need to drag the body of EKIA57 back. The following factors vary in significance, but all are relevant. First, there does ​not appear to be a drill or standard operating procedure requiring the body to be immediately cleared. Secondly, the immediate danger must have been considerable. Two insurgents had just appeared and it was not known whether there were others in the immediate vicinity. Thirdly, not only was the applicant exposing himself to danger in retrieving the body, but also he was not fully protected in the position to which he dragged the body. Fourthly, if the matter of clearing the body was of concern to the applicant, then it is difficult to understand why the applicant did not clear the body of EKIA56 or suggest to the second SASR operator that he do so. Finally, it is even more improbable that the applicant would go out a second time, as he said he did, to retrieve the rifle EKIA57 was carrying. If his concern was with a rifle lying around, he would have retrieved that before the body.
836 The respondents submit that the photographs of the body of EKIA57 (exhibit R7) do not suggest that it has been dragged. The area the applicant marked as showing drag marks suggesting the body had been moved from the right of the page to the centre of the page do not appear to be drag marks when p 5 of exhibit R7 is compared with p 6. On the respondents' analysis of the photographs (exhibit R7) and the transcript, the drag marks postulated by the applicant would suggest that the body was dragged away from the compound, not towards it as the applicant contends. I have considered the photographs carefully. I am not disposed to draw any firm conclusions from them.
837 During the SSE process, it was recorded that EKIA57 was found in the NE corner W108 "5 metres from doorway" and the applicant himself said in cross-examination that the body of EKIA57 was "[p]erhaps two metres" from the compound wall. That is close to the compound. Whilst it is possible that insurgents would be very close to the compound, the respondents submit that a story invented about the engagements would be more plausible if the insurgents engaged were further out from the compound. In light of the location of EKIA57 when it was photographed, that could be achieved by saying that the body had been dragged back in. It seems to me that that is a possible explanation for a matter otherwise established. In a similar category is the point made by the respondents that the change of evidence overnight was not the result of an altered recollection, but an appreciation by the applicant that the photographic evidence strongly suggested that the body of EKIA56 had not been moved after the person had been shot.
838 The respondents submit that the applicant's evidence about the weapons carried by EKIA56 and EKIA57 should be rejected having regard to Person 18's evidence that those weapons were ​discovered during a search of the compound and there was no challenge to Person 18's evidence on that point. The fact that there was no challenge to Person 18's evidence does not mean that it has to be accepted as the applicant gave his evidence first. The applicant gave evidence to the effect that the machine-gun on p 17 of exhibit R8 (the gun on the right) was the weapon carried by EKIA56 and that the rifle with the strip of blue tape around its barrel (the gun on the left) was the bolt action rifle being carried by EKIA57. He said that the two guns did not form part of a weapons cache found in the north-eastern corner of W108 under a haystack as the title to the photographs of the weapons suggests.
839 Person 18 said that after he had finished taking the photographs up to p 29 of exhibit R18, he leaned up against "the hay store or what remained of that–of the hay shed, and had my arm go into, fell in, hit something hard, and that's when I pulled out these–these weapons". They are the weapons shown on p 30 of exhibit R18 and include the machine-gun and the bolt action rifle previously referred to. The description in the Exploitation Report of the provenance of these weapons supports Person 18's account.
840 I accept Person 18's evidence on this matter. I reject the applicant's evidence.
841 Fifthly, the applicant's account of what happened immediately after the engagements was improbable. The applicant gave the following evidence:
   Had you told anybody at this point what had happened?---I do not recall telling anybody specifically in terms of having a conversation with a particular individual, but it is inevitable that if that had happened – that's one of the reasons I either went back inside – I may have even made a radio transmission. But it was known that an engagement had taken place. I may have radioed Person 5; I may have physically told Person 5. I actually don't remember. It could have been Person 29. But the reason for going back in is to give them the situational awareness of what's happening.
   Now, after you went back inside, what did you do then?---Going back inside, it was effectively, I believe, SSE called, or to start SSE. And being a 2IC, that was one of my responsibilities was to help initiate the process. Not necessarily carry it out, but help start the process.
842 It seems to me improbable that the applicant, having just been involved in engagements with two insurgents who were quite close to the compound, would not remain outside the compound in a security position, but instead would go inside and help with the SSE process. It is improbable that, having regard to the engagements, the area would have been left without increased security. The applicant was asked whether he recalled the other SASR operator remaining outside to guard that entrance and he said he did not know. At the same time, it is ​true that he agreed that it was very likely that somebody would have been required to guard the compound at that point. In relation to that, I make some allowance for the fact that the applicant's recollection may be poor.
843 The applicant's evidence about whether a radio call reporting the engagements was made was vague and unconvincing.
844 The applicant's evidence about when he first noticed the prosthetic leg on EKIA57 was unclear. In his evidence-in-chief, he said that his initial search of EKIA57 was a quick search and he did not notice anything about his leg. A little later in his evidence-in-chief, he said that he discovered that EKIA57 had a prosthetic leg at some point after he had gone back into the compound to help with the SSE process and they had come outside to carry out the process on the bodies. He said that at that point, he identified EKIA57 as having a prosthetic leg. In cross-examination, he said that when he did his initial search, he could see there was a prosthetic leg. He qualified that immediately by saying that he did not remember whether he saw it then or whether he saw it when he was involved in the SSE process. Later in his cross-examination, it was put to him that there was an inconsistency in his evidence-in-chief and the cross-examination. In his evidence-in-chief, he had been quite clear that he did not discover the prosthetic leg on the initial search, but did so during the SSE process. In his earlier cross-examination, he said that he could not remember whether it was upon the initial search or at the SSE process that he discovered that EKIA57 had a prosthetic leg. I found some of the applicant's evidence on this topic in cross-examination to be unconvincing. The respondents make the further point that the applicant's evidence in relation to the removal of the prosthetic leg to search for explosives was inconsistent. In his evidence-in-chief, the applicant suggested that it was his idea to take the prosthetic leg off the insurgent. Under cross-examination, the applicant said that Person 5 had spoken to him about hiding explosives within the leg and "that's why it came off". Then, later in cross-examination, he said that he could recall at the end of the SSE process, Person 5 telling him that he should be checking the leg. It appears that until Person 5 spoke to him, it had not occurred to him to remove the leg. Again, I found some of the applicant's evidence on this topic in cross-examination to be unconvincing.
845 The accounts of the applicant's other witnesses must also be considered in assessing the applicant's account.
846 Person 5 said that he was at the Commanders' RV meeting and they were discussing the munitions which had been found at W108 and a plan for W109. A plan was being formulated ​and then Person 5 said that he heard gunshots outside the compound towards the north-western corner. He ran out of the compound on the western side towards where the gunshots were coming from. That took him about 10 to 15 seconds. He could see the applicant and Person 4 up to the northern corner. Person 5 shouted at the applicant asking him if they were alright. The applicant said yes and that they had just engaged two squirters to the north. Person 5 asked whether they were KIA and the applicant said yes. Person 5 went back to the Commanders' RV. He said he informed Person 81 that there would be two KIA on the northwest corner of the compound. The Commanders' RV meeting continued. One matter to note about this account if it is correct, is that it does illustrate that engagements of the nature described by Person 5 would to his mind have been regarded as a serious matter requiring immediate reporting up the chain of command.
847 However, I do not consider it is correct. There are a number of problems with it, including the following: (1) it is not supported by Persons 29 and 81; (2) if it is correct, it is inconsistent with earlier statements made by Person 5 and it is inconsistent with the applicant's evidence; (3) and it was not put to Person 43.
848 Person 29 said that he did not recall hearing the engagement described by the applicant, but that he did recall that during the exploitation of the tunnel a call went out over the radio that insurgents had been engaged, or EKIA was the term. He did not recall whose voice it was on the radio or whether the message indicated who had had the engagements. He said that a reference would have been made to the call sign, but he does not recall the reference.
849 Person 29 gave evidence that the Commanders' RV was in the right hand part of the main compound. He moved there from the tunnel courtyard. Person 29 said that at the Commanders' RV, those present discussed how the plan was going to that point and what needed to be done in the future. Person 29 said that one matter that was discussed and decided upon was that there needed to be an increase in security, having regard to engagements on the northeast side of W108. Those engagements were outside "the north-eastern quadrant of the compound" (correct cardinal points). Person 29 said he did not recall hearing the engagement, but, as I have said, he recalls that during the clearance or exploitation of the tunnel, a call went out over the radio. Under cross-examination, Person 29 said that the two engagements that the applicant said happened outside W108 occurred before the Commanders' RV was called and he said that he was quite sure that there were no engagements during the Commanders' RV. He did not ​recall Person 5 having to leave the Commanders' RV to go and investigate an engagement. His evidence in this respect was clear:
   Now, are you quite sure that there was no engagements that occurred during the patrol commanders' RV?---I'm quite sure.
   Did any patrol commander have to leave the RV to investigate an engagement?---Not that I recall. Out – sorry. If I may, I do – I don't recall Person 6 being at the team commanders' RV, and that may be a reason why Person 6 wasn't there. I can't recall.
   All right. You certainly don't recall Person 5 having to leave the RV to go and investigate an engagement?---No. I don't recall. No.
850 Person 81 did not recall hearing any engagement whilst he was within the compound and he did not recall receiving any reports of any engagements taking place whilst he was within the compound. He agreed under cross-examination that he did not recall there being any engagement just outside the walls of the compound during the Commanders' RV. He said he did not recall any of the patrol commanders leaving the Commanders' RV to investigate "any engagement". Person 81's best recollection was of being told of EKIAs back at the VDOP or at some later point in time.
851 I consider that if there had been engagements during the Commanders' RV that would be a matter a witness would be likely to recall. In fact, Person 29's account is quite inconsistent with the proposition.
852 The account of the engagement provided by the applicant to the Court differs from earlier accounts given by the applicant and Person 5. It is difficult to describe two armed insurgents running in an arc around a compound as squirters.
853 I have referred to Person 5's evidence of his interaction with the applicant when the applicant told him that he, together with Person 4, had engaged two squirters to the north or who:
   … ran away to the northwest. Or northeast by your cardinal direction.
854 If that is correct and that is what the applicant said, then the applicant's account now is different from what it was immediately after the engagements. If it is correct, then it is inconsistent with Person 5's statement of complaint on or about 15 June 2018. I refer to the closed Court reasons (at [68]–[69]).
855 The respondents submit that the description of the men as squirters was connected with an earlier false assertion that the tunnel had a second exit outside the compound walls. Person 5 assumed that the tunnel had a second exit and he continued to make that assumption until he ​was told by Person 35 that he had looked for another exit and did not find one. He was told that a couple of years before he gave evidence. He said that he had always thought that the two insurgents had come from the tunnel until a couple of years ago in July 2019, "probably after IGADF".
856 Person 29 agreed that he had discussed with Person 35 and possibly Person 5, a theory that the tunnel at W108 had a second exit.
857 It is difficult to understand how anyone could entertain the notion that the tunnel had a second exit. It seems clear that it did not and that no-one who had been inside the tunnel could ever have contemplated the possibility that it did. Person 35 agreed that there was no other exit to the tunnel and in answer to a question suggesting it would be obvious if there was one, he said he believed he would have found an exit in his search.
858 Person 5's account that whilst he was at the Commanders' RV meeting he heard gunshots outside the compound towards the north-western corner and that he ran out of the compound on the western side towards where the gunshots were coming from, that he had a conversation with the applicant and that he then went back to the Commanders' RV meeting, was not put to Person 43 and was contradicted by Person 29 and not supported by Person 81. An aspect of Person 5's account was that when he returned to the Commanders' RV meeting, he informed Person 81 that "there would be two KIA on the northwest corner of the compound". Person 43 was a patrol commander. It was not put to him by the applicant in the course of Person 43's cross-examination that there had been shots and that Person 5 had left the Commanders' RV meeting and returned a short time afterwards and advised Person 81 (on the basis that he was within hearing distance) of two KIAs in the vicinity of the north-western corner of the compound. This is a breach of the rule in Browne v Dunn and is to be accorded weight (Roberts-Smith v Fairfax Media Publications Pty Limited (No 36) [2022] FCA 578 at [16]).
859 To recapitulate on some of the irreconcilable differences between the evidence of Person 5 and that of the applicant: Person 5's account supports the conclusion that the applicant and Person 4 were outside the north-western corner of the compound in the presence of bodies for a considerable period of time. The lengthy presence of the applicant and Person 4 in the vicinity of the bodies of the insurgents allegedly engaged makes it very difficult to accept the applicant's evidence that he returned immediately into the compound after the engagements and did not know the identity of the SASR operator who shot the second insurgent (i.e., EKIA56). In addition, Person 5's evidence that upon his return from the reconnaissance of ​W109, he saw another body near the applicant and Person 4 was not supported by any other evidence, except for the initial evidence of the applicant that both bodies were dragged back. These matters concerning Person 5's evidence are in addition to his evidence that the applicant's contemporaneous account was that EKIA56 and EKIA57 were "squirters" who were "running away" from the compound.
860 Person 29's evidence cannot be reconciled with the applicant's account or those of some of his other witnesses. I have already referred to his evidence that he did not recall hearing the engagement, but he did recall hearing a radio call reporting the engagement. That occurred whilst Person 29 was involved in the clearance, or the exploitation, of the tunnel. If there had been an engagement, Person 29 would have heard the engagement from the tunnel courtyard in circumstances where the applicant was using an unsuppressed Minimi machine-gun. The applicant himself said that his weapon was loud as he did not have a suppressor. He gave this evidence in the context of being asked about whether he reported the engagement. Person 41 also said that a Minimi makes a loud noise. It is a weapon that does not have a suppressor on it and it can be heard some distance away. The applicant was carrying a Minimi. Person 14 said that the Minimi is a loud weapon which has a distinctive sound. Person 29 said that, although he could not recall "specifically", he was sure that Person 81 referred to the engagements at the Commanders' RV and insurgents coming in from the northeast. As previously stated, Person 5 said that the engagements happened during the Commanders' RV and Person 81 said that he could not recall receiving any reports of engagements taking place while he was inside the compound.
861 Person 35's evidence was largely restricted to the proposition that no men were found in the tunnel. He could not recall hearing any Minimi fire and could not recall seeing any bodies. He does not provide any express support for the applicant's account beyond the proposition that there were no men in the tunnel.
862 Person 38's evidence was that after he had seen the applicant and Persons 5, 29 and 35 in the vicinity of the tunnel, and after Person 35 had gone into the tunnel and come back up and said "clear", he and Person 41 cleared the orchard area immediately adjacent to the courtyard area. Having regard to the applicant's evidence and the short time Person 35 was in the tunnel initially, that would mean that Persons 38 and 41 would have been in the area from which the applicant said two insurgents appeared, that is to say, the area directly to the north of the tunnel courtyard. Not only did Person 38 say that he only heard single shots or at most double taps ​during the mission at W108 and that he did not hear any engagements with belt-fed automatic weapons, his presence in the danger area is inconsistent with the applicant's account. It is not possible to reconcile both accounts and one or both are wrong.
Key Findings and Conclusions
863 On 23 April 2021, I granted leave to the respondents to issue Subpoenas to give evidence to Persons 40, 41, 42 and 43. None of those witnesses had provided outlines of evidence. Leave was granted to the respondents to issue subpoenas almost two years after the respondents had filed their outlines of evidence on 31 May 2019. There was no mention in 2019 of Persons 40, 41, 42 or 43. The circumstances in which the respondents became aware that these persons may be able to provide information relevant to events at W108, and decided to seek leave to subpoena them, are set out in Roberts-Smith (No 12).
864 Each of those persons came to Court and gave evidence which supports a conclusion that one or more Afghan males were taken from the tunnel at W108. Person 41's evidence goes further, but I put that to one side for present purposes. No plausible motive for lying was identified in the case of these witnesses and nor was there any evidence to suggest that they had colluded to present a false account. There were other criticisms of their evidence which I have addressed, but there was no evidence of a plausible motive to lie or collusion. These witnesses were independent, had no interest in the result and were aware of the significance of giving evidence. Furthermore, they were in a position to observe the events about which they gave evidence. The combined effect of their evidence is, without more, powerful.
865 Person 18 also gave evidence which suggests that at least one Afghan male was found in the tunnel.
866 The respondents' case involves a sequence of events and in the same way as an earlier event may make a later event more or less probable, as the case may be, a later event may bear on the probability or otherwise of an earlier event.
867 In this case, there is nothing in the later events that suggest to me that the apparently straightforward and honest evidence of Persons 40, 42, 43 and 18 about one or more Afghan males coming out of the tunnel should not be accepted.
868 Person 41 gave evidence of witnessing the execution of EKIA56 in the courtyard by Person 4 at the direction of the applicant. Again, he was a witness who was independent and had no interest in the result. He was aware of the significance of his evidence and in a position to ​observe the events about which he gave evidence. I accept his evidence. His evidence means that the body of EKIA56 would be in the courtyard. That, in fact, was the evidence of Person 18 and was supported by an inherently reliable piece of evidence being the markings on the SSE evidence bags on the day.
869 I accept Person 41's evidence about witnessing the execution of EKIA57 outside the north-western corner of W108. Persons 14 and 24 also witnessed the execution. There are reasons to scrutinise Person 14's evidence with care, but in the end and having done that, I accept his evidence and it supports Person 41's evidence. Person 24's evidence must be approached with considerable caution. However, it does not stand alone and is supported by the evidence of Persons 14 and 41. Further, relevant to the analysis is that there is no suggestion that there has been any collusion, or indeed contamination, between Person 41 on the one hand, and Persons 14 and 24 on the other.
870 It has to be said that even in the case of Persons 14, 24 and 18 the motives to lie suggested to them, being matters such as professional jealously, seem unlikely to lead one witness, let alone three witnesses, to knowingly give false evidence. In any event, I do not consider that those three witnesses have knowingly given false evidence.
871 I have considered the applicant's case and the supporting evidence of Persons 5, 29, 35 and 38. I reject it. Of course, that does not of itself prove the respondents' case in that the respondents carry the onus throughout. Furthermore, I remind myself that it is open to me to not accept the case of either party.
872 The applicant's account is highly improbable when all the matters I have identified previously are considered together. Furthermore, there are a series of inconsistencies between the applicant's account and the respective accounts of his witnesses which I have identified above.
873 I have made a number of adverse credit findings against the applicant in Section 12 of this Part. I take those findings into account and, in particular, the findings in relation to Person 6 and the threatening letters sent to Person 18. In addition, I have made a number of adverse findings against the applicant in other Sections of this Part. In terms of credit, I am entitled to take them into account, although I would make the point that the conclusions I have expressed are established without them.
874 I have not drawn any consciousness of guilt inferences against the applicant in relation to his conduct with respect to Persons 6, 14 and 18 for reasons I have given in Section 12 of this Part ​and I have not addressed consciousness of guilt by reason of lies for the reasons also given in that Section. Nevertheless, a number of matters reflect adversely on the applicant's credit and some such as, for example, the threatening letters to Person 18 reflect very poorly on his credit.
875 The applicant has motives to lie, being a financial motive to support his claim for damages in these proceedings, a motive to restore his reputation which he contends has been destroyed by the publication of the articles and significantly, a motive to resist findings against him which may affect whether further action is taken against him.
876 I take into account the fact that Persons 5, 29 and 35 are close friends of the applicant, that he had arranged the payment of the legal fees of Persons 5 and 35 respectively and, in the case of all three, he has had discussions with them concerning events at W108. These are matters to take into account, but they are not matters that of themselves mean that the evidence of these witnesses is to be rejected.
877 Person 5's account of the role of EKIA56 and EKIA57 is inconsistent between what he claims to have been told by the applicant on the day and statements in the Patrol Debrief on the one hand, and the account in the statement of complaint on or about 15 June 2018 on the other. His account of hearing shots and leaving the Commanders' RV is not supported by any other witness and, in fact, is contrary to the evidence of other witnesses. His evidence of seeing the body of EKIA56 on his return from W109 is not supported by any other evidence and is contrary to evidence I accept. I have also made some adverse findings about Person 5's credit in Section 12 of this Part and I have taken those findings into account. He also has motives to lie. He was the patrol commander and would wish to resist any findings which would involve him in the killings of EKIA56 and EKIA57. In addition, his present employment is connected with his former role as a special forces soldier and would wish to avoid reputational and financial harm from a finding that soldiers under his command murdered PUCs.
878 Person 29's evidence was unsatisfactory as to whether the tunnel was found during the clearance of the compound or while the SSE process was being undertaken and as to whether he noticed any distinguishing features on the bodies outside W108. His approaches to Persons 14 and 40 referred to in Section 12 of this Part show just how closely he is aligned with the applicant, and even putting to one side whether his approach to Person 40 was appropriate or not, I simply do not accept his evidence that his approach was done without the applicant's knowledge.
​879 Person 35's evidence was unsatisfactory as to whether the tunnel was found during the clearance of the compound or while the SSE process was being undertaken. He gave evidence about the location of the interpreter on the mission to Darwan which was untrue and he was a prominent figure in the Person 12 lie. I also refer to my credit findings in Section 12 of this Part. I do not accept Person 35's evidence.
880 For reasons previously given, I do not accept any of Person 38's evidence unless it is corroborated by evidence I do accept.
881 I have set out above findings in the course of these reasons, including findings concerning the involvement of Person 5. I am satisfied of the following and make findings accordingly:
    (1) that two Afghan males who were later designated EKIA56 and EKIA57 came out of the tunnel in the courtyard at W108 and were placed under confinement by Australian soldiers;
    (2) that EKIA56 was executed by Person 4 in the tunnel courtyard at the direction of the applicant; and
    (3) that EKIA57 was executed by the applicant outside the north-western corner of W108.
882 These findings mean that the respondents have established the substantial truth of Imputations 2, 3, 4, 5, 6 and 9 (as reformulated).
883 Imputation 6 includes an allegation that the applicant took the prosthetic leg back to Australia. It is not known on the evidence who took the prosthetic leg back to Australia. The applicant did encourage his soldiers to use it as a novelty beer drinking vessel and that is the sting of the imputation.