# Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA)/Part 3/Section 12

​Section 12 — Intimidation of Witnesses, Collusion and Contamination of Witnesses, Concealment of Relevant Evidence and Material, Lies and the Alleged Separation of the Applicant and Ms Roberts
2228 This Section addresses conduct by the applicant which is said by the respondents to be relevant to his honesty and reliability as a witness and, in some cases, the conduct is said to reveal a consciousness of guilt on the part of the applicant. Conduct showing a consciousness of guilt can be variously described as an implied admission or circumstantial evidence permitting an adverse inference to be drawn. In Kuhl v Zurich Financial Services, Heydon, Crennan and Bell JJ said (at [64]):
   … Depending on the circumstances, when a party lies, or destroys or conceals evidence, or attempts to destroy or conceal evidence, or suborns witnesses, or calls testimony known to be false, or fails to comply with court orders for the production of evidence (like subpoenas or orders to answer interrogatories), or misleads persons in authority about who the party is, or flees, the conduct can be variously described as an implied admission or circumstantial evidence permitting an adverse inference. …
2229 In the respondents' closing written submissions, they identify four categories of conduct by the applicant. Each category of conduct is said to establish a consciousness of guilt on the part of the applicant.
2230 First, the respondents submit that the applicant has attempted to intimidate Persons 6, 18, 14 and 40 not to give evidence against him or to change evidence the witness had previously given to the IGADF Inquiry. The respondents submit that should the conduct, or a substantial part of the conduct, be established then it is evidence of a consciousness of guilt on the part of the applicant in relation to the respondents' allegations concerning the mission to W108, the mission to Chinartu and the bullying allegations in relation to Person 1. As I understand it, the respondents submit that each attempt at intimidation is of itself evidence of a consciousness of guilt. If there be some doubt about that conclusion in the case of any one such attempt, then that doubt is clearly dispelled when all four are considered together.
2231 Secondly, the respondents submit that the applicant has colluded with various witnesses with a view to producing an account which, although false, is consistent. The respondents submit that there has been collusion between the applicant and Persons 5, 29 and 35 in respect of the ​mission to W108, collusion between the applicant and Person 11 in respect of the mission to Darwan, and collusion between the applicant and Persons 27, 32, 35 and 39 in respect of the involvement of Person 12 in the Squadron after 31 July 2012. I have dealt with the allegation of collusion between the applicant and Persons 27, 32, 35 and 39 in respect of the involvement of Person 12 in the Squadron after 31 July 2012 in Section 5 of this Part which deals with the mission to Chinartu.
2232 With respect to the first two allegations of collusion, that is, collusion with respect to the mission to W108 and the mission to Darwan, the respondents rely on the same conduct to contend in the alternative that even if the conduct does not amount to collusion, the conduct means that each witness' evidence is contaminated to the point where no reliance can be placed on it.
2233 Thirdly, the respondents submit that the applicant has deliberately concealed evidence in the course of this proceeding and that that conduct constitutes an implied admission with respect to the truth of the respondents' case, including but not limited to, "W108 (to which the Person 5 statement and the Person 29 emails were directed) and the Person 17 assault allegation".
2234 Finally, the respondents submit that the applicant has deliberately told a number of lies with respect to material facts. In their closing written submissions, the respondents identify 17 lies, most of which relate to the applicant's account of the mission to W108 and his account of the mission to Darwan, and they submit that these lies constitute admissions against interest which prove the truth of the respondents' allegations with respect to the mission to W108 and the mission to Darwan.
2235 The respondents narrowed their submissions in the course of their closing oral submissions. They maintain their submission that all of the matters referred to in this Section, to the extent found, reflect adversely on the honesty and reliability of the applicant and, in some cases, other witnesses involved in the relevant events.
2236 The respondents narrowed their submissions as to the conduct they contend supports an inference of a consciousness of guilt.
2237 With respect to the first category of conduct, namely, the intimidation of witnesses, the respondents contend that the applicant's conduct with respect to Persons 6, 18 and 40 supports an inference of a consciousness of guilt with respect to events at W108. They further contend ​that the applicant's conduct with respect to Person 14 justifies an inference of a consciousness of guilt with respect to events at Chinartu.
2238 With respect to the third category of conduct, namely, the concealment of relevant evidence and material, the respondents maintain the submission that the applicant's conduct in relation to certain USBs is relevant to credit, but they accept that it cannot support an inference of a consciousness of guilt. The respondents maintain a submission that the applicant's concealment of a photograph of Valium medication and a screenshot of a text message sent by Person 17 on 6 April 2018 are relevant to credit and support an inference of a consciousness of guilt in relation to the domestic violence allegation involving Person 17.
2239 With respect to lies, the respondents maintain their case as outlined in their written submissions. They note that the Person 12 lie is a prominent feature of their case in relation to events at Chinartu. They accept that other than lies, there is no stand-alone consciousness of guilt evidence in relation to events at Darwan.
Intimidation of Witnesses
Person 6
2240 Person 6 was a patrol commander and part of G Troop (2 Squadron) in 2009 and a troop commander and patrol commander and part of E Troup (2 Squadron) in 2012. He did not give evidence in these proceedings.
2241 There is no dispute that there was a high level of animosity between the applicant and Person 6. They did not get "along together" during their deployments in Afghanistan. The applicant said that he saw Person 6 as his enemy and that that belief or state of mind started in 2010. Person 6 was one of the men who complained in 2014 about the applicant receiving a Commendation for Distinguished Service.
2242 In 2017, the applicant considered that Person 6 was talking to other people about him in connection with events in Afghanistan in 2006, 2009, 2010 and 2012. Towards the end of 2017, the applicant was concerned that Person 6 was part of a whispering campaign in the regiment against him. He also considered that Persons 1, 18, 42 and 44 were part of the whispering campaign.
​2243 The applicant made efforts to have Special Operations Command investigate who was talking to the media about him. He reached the view that the hierarchy of the SASR was ineffective in stopping the whispering campaign against him.
2244 The applicant agreed that by late 2017, he was concerned that allegations that were being conveyed to the media were also being repeated to the IGADF Inquiry. In or about September or October 2017, he was frustrated at the inability of Special Operations Command to stop people from making allegations about him.
2245 As I will explain in due course in connection with the discussion of the alleged collusion between the applicant and Person 11, Person 11 received a notice to attend a second interview at the IGADF Inquiry on 19 September 2017 with the interview due to take place on 21 September 2017. Person 11 told the applicant about the notice and, as I will explain in due course, I find that Person 11 discussed with the applicant the evidence he was likely to give, or had given, at his interview.
2246 In September or October 2017, the applicant told Mr McLeod that an SASR soldier had smuggled unregistered guns from Australia into Afghanistan. The applicant agreed that the SASR solider he was referring to was Person 6. The applicant told Mr McLeod that Person 6 had an unregistered firearm in his possession.
2247 Mr McLeod gave evidence that the applicant told him that the SASR soldier had a semi-automatic weapon and that he, the applicant, wanted it investigated. Mr McLeod's response was that the police would not investigate an unsubstantiated claim from an anonymous source and that if he wanted the matter investigated he, that is Mr McLeod, would need "dates, times, locations". I accept Mr McLeod's evidence on this matter. As I will explain, I do not accept the applicant's evidence of his interaction with Mr McLeod in relation to the events concerning Person 6.
2248 Ms Roberts said that at some point she heard a discussion between the applicant and Mr McLeod concerning an SASR soldier, Person 6. She cannot recall when she heard the conversation. She said that on one occasion she was in the room when the applicant was talking to Mr McLeod on the telephone. She could not hear what Mr McLeod was saying. She could not remember what the applicant said. I accept this evidence from Ms Roberts for reasons I will give.
​2249 Mr McLeod said that the applicant gave him a USB which contained a document detailing allegations against Person 6 and said that it was "all on there". The applicant could not recall whether he gave a USB to Mr McLeod, although he accepted that he did give him a document. The document prepared by the applicant is a document approximately two pages long and consists of 14 paragraphs set out as dot points and relates to Person 6's actions in taking weapons into Afghanistan in the period between September and November 2012. The conclusion as set out in the last paragraph of the document is as follows:
2250 The applicant said that he could not recall writing the last paragraph and he denied doing so. I find that he did write the last paragraph. That was the evidence of Mr McLeod which I accept.
2251 Mr McLeod created an anonymous email account and on 3 October 2017, he forwarded the information he had been given by the applicant to the Commissioner of the AFP. He also included statements about the matter being time sensitive and a critical public safety issue due to the fact that the individual had a high level of specialised training and allegedly had access to "untraceable automatic weapons". The applicant is not referred to in the information and nor is Mr McLeod.
2252 In his evidence to this Court, the applicant attempted to distance himself from Mr McLeod's actions. The applicant denied giving instructions to Mr McLeod to send the material to the Commissioner of the AFP. For example, he said the following in an answer to one of the questions he was asked in cross-examination:
   Mr McLeod had told me that he had friends or contacts in the AFP and that he could provide that to them, and I said to him if he wanted to do that, that was fine by me.
2253 Another example was the applicant saying that he had not made a complaint to the AFP and that all he had done was give Mr McLeod the approval to take the matter to the AFP if that is what Mr McLeod wanted to do.
2254 Insofar as the applicant's evidence might suggest that Mr McLeod was acting on his own initiative and for his own purpose (other than the purpose of assisting the applicant), I reject that suggestion entirely. Subject to the issue about the last dot point, the applicant admitted that the allegations were allegations he had formulated. He was the one who had an interest in ​changing the behaviour of Person 6, not Mr McLeod. I found the applicant's evidence trying to distance himself from the results of a process he had set in train most unimpressive.
2255 On 13 October 2017, Mr McLeod sent an email to Senator Nick Xenophon using an anonymous email address. In addition to the points prepared by the applicant, the email referred to the "Los [sic] Vegas massacre" and suggested that Person 6 with automatic and semi-automatic weapons was a risk to public safety. The email stated that the matters had been raised with the Commissioner of the AFP.
2256 On 18 October 2017, the applicant's solicitors wrote to Mr McKenzie in response to an email from Mr McKenzie of 17 October 2017. The solicitors referred to the rejection by the Department of Defence of a complaint made by Person 6, among others, and went on to refer to Person 6's conduct in smuggling unregistered automatic rifles into Afghanistan. It mentioned defamation proceedings against Mr McKenzie should he publish any defamatory material about the applicant.
2257 On 20 October 2017, Mr McLeod sent an anonymous email to Mr Andrew Burrell at The Australian newspaper attaching the anonymous complaint to the Commissioner of the AFP and notes and the email to Senator Xenophon.
2258 Mr Burrell asked the anonymous source, that is Mr McLeod, if he was a serving member of the SASR. Mr McLeod raised that question with the applicant and said that he did not want to say that he was a member of the SASR. The applicant told Mr McLeod that it was not from him and that it was from the applicant and to just respond "yes". That is what Mr McLeod did.
2259 It is clear to this point that the applicant was intending to pursue, as far as he could, the allegations involving Person 6.
2260 On 3 November 2017, and again on 9 November 2017, The Australian newspaper (Mr Burrell) published articles about the matters raised in the anonymous complaints. The source of the complaints is referred to as a "whistle blower" that The Australian understood was a former SASR member or a member of the military. The applicant denied that the reference to the whistle blower as a former SASR member was a reference to him. He considered it was a reference to the individual who sent the complaints to The Australian newspaper and that he did not send them to the newspaper. Again, his attempts to distance himself from what had occurred were unconvincing and unimpressive. He was the one who told Mr McLeod that he wanted matters investigated. He was the one who prepared the information which formed the ​basis of the complaints and the newspaper articles and he was the one who told Mr McLeod to respond in the affirmative to the question about whether the complainant was a serving member of the SASR.
2261 The respondents submit that the applicant had trenchantly criticised others who spoke anonymously to the media about him and that those criticisms should be viewed with deep scepticism given that he engaged in the very same conduct. The respondents submit that the applicant's criticisms on this point are driven by self-interest, not principle. There is force in that submission, but in term of the issues I have to decide, it does not really advance any of those matters.
2262 It seems that at about this time, the AFP referred the matter to the ADF's Investigative Service and the Western Australian police commenced an investigation into Person 6 allegedly possessing prohibited items in Western Australia. Person 6's home was raided as a result of the allegations. No illegal weapons were found and the police investigation concluded with no charges being laid against Person 6.
2263 On 14 December 2017, there was an exchange of text messages between the applicant and Ms Roberts. One of the messages from the applicant read as follows:
   What happened to Person 6 Will scare the others
2264 Ms Roberts said in her oral evidence that the applicant had told her that Person 6 had had his home raided by the AFP and that he, the applicant, had told Mr McLeod to do that. I accept Ms Roberts' evidence.
2265 The respondents submit that the reference in the text message to what happened to Person 6 was a reference to the police investigation into Person 6's conduct.
2266 The applicant said that his reference to what happened to Person 6, which he said could be a reference to a number of things, could not be a reference to a police investigation because he was not aware of the fact that the complaint had led to a police investigation. I do not accept the applicant's evidence on this point. The sequence of events is that a complaint was made to the AFP on 3 October 2017. The newspaper article of 9 November 2017 referred to the AFP referring the case to the ADF's Investigative Service. The applicant knew that Person 6 had had his house raided by the AFP and that that had been as a result of what he had asked Mr McLeod to do. He knew in November 2017 that the investigation had been concluded and no charges were to be laid. Even if I was to accept that the applicant was not aware that the ​police investigation had been concluded before 14 December 2017, there is no other plausible explanation for the reference to "What happened to Person 6" in the text message other than that it was a reference to the action taken against Person 6 as a result of the applicant's engagement of Mr McLeod and his instructions to him. As the respondents correctly submit, it is implausible that at the time he sent his text message to Ms Roberts on 14 December 2017, the applicant remained unaware that his efforts to instigate an investigation into Person 6 had borne fruit over a month earlier.
2267 I will explain in due course the reasons I accept the evidence of Mr McLeod and Ms Roberts with respect to the matters referred to above.
2268 The applicant's response to these matters consists of the following points. He submits, correctly, that Mr McLeod did not give evidence that he was instructed by the applicant to provide the information directly to the Commissioner of the AFP. The applicant submits that he has not been guilty of any intimidation and there is nothing adverse to his credit in the conduct identified. The applicant had no reason to consider that the allegations were false or not to hand them over so that they could be passed on to the proper authorities. The applicant had tried to raise the issue of Person 6 going to the media and trying to ruin his reputation publicly with the SASR leadership and yet no action had been taken. The problem with this submission is that it is not based on all the facts. The Australian newspaper was not a proper authority, in the sense used in the applicant's submission, and the applicant knew Mr McLeod had been asked a question by the newspaper and directed him as to how to respond to it.
2269 The other submission made by the applicant was that Person 6 was not called as a witness by the respondents and it is to be assumed that his evidence would not have assisted the respondents' case. Other than to assert this, it was not made clear how the absence of evidence from Person 6 on this issue was being deployed by the applicant. It seems to me that the facts are quite clear and it is not at all clear what account is to be more readily accepted or inference more confidently drawn because of Person 6's absence from the witness box. Bearing in mind the applicant's evidence of his frustration at the inability of the hierarchy of the SASR to prevent allegations being made about him, it is quite clear from the applicant's own evidence that his primary purpose in engaging Mr McLeod to take steps to have Person 6 "investigated" was not to protect the public from an allegedly unstable man who had weapons, but to stop Person 6 speaking to the media or to the IGADF Inquiry. Although he denied the proposition, I do not accept his denial. He was aware that the trouble and inconvenience suffered by ​Person 6 "[w]ill scare the others", that is to say, other soldiers inclined to speak to the media or the IGADF Inquiry.
2270 As I have said, the respondents submit that these events, combined with the events involving Persons 18 and 40, justify an inference of a consciousness of guilt with respect to the events at W108. The point to note at this stage and one to which I will have to return, relates to the applicant's knowledge of what Person 6 was saying and doing. Clearly, it may be inferred that it related to the applicant's activities in Afghanistan and was adverse to him. Beyond that, there is no specific evidence linking what Person 6 was doing or saying to events at W108 on 12 April 2009.
Person 18
2271 Person 5 was interviewed by the IGADF Inquiry on 8 May 2018. An exchange of text messages between Ms Roberts and her friend, Ms Danielle Scott, on 9 May 2018 included the following message from Ms Roberts:
   Hey mate, yeh P5 rang brs late … he was drilled for hours! Lots of questions about Ben and even to the point of questioning his VC action … hence to say he didn't get much sleep! P5 was free to leave for the US with 5 hours until his flight!!
   It's obvious that someone has said a hell of a lot about Ben
2272 The respondents submit that the applicant suspected that the "someone" referred to in this message was Person 18. The applicant had believed for sometime that Person 18 was making allegations against him. Person 18 was one of the group he suspected in late 2017 of being part of the whispering campaign.
2273 The applicant's solicitors wrote to the Assistant Inspector-General ADF on 21 June 2018 and in the letter, there is reference to a number of persons at the request of Person 6 providing information to Mr Masters, including Person 18. This is also confirmed in the applicant's draft letter to Person 28 as commanding officer of the SASR prepared between 8 and 10 June 2018.
2274 Person 5 saw Person 18 at the headquarters building at the time he went in to attend his interview with the IGADF Inquiry. Person 5 had a telephone conversation with the applicant after his interview and told him to prepare himself because it was "a witch hunt". He told the applicant that they had dragged Person 18 in as well. Furthermore, it appears that Person 5's interview primarily concerned deployments in 2009 and 2010, and the only other SASR members who served in Person 5's patrol, which included the applicant, in those years were ​Persons 4 and 18. As the respondents correctly submit, none of the applicant's correspondence which is before the Court identifies Person 4 as a suspected source of leaking information to the media.
2275 In the course of the applicant's evidence about the telephone conversation he had with Person 5 during the evening of 8 May 2018, he did not indicate that Person 5 had told him that he had seen Person 18 at the premises at which the interviews were conducted.
2276 The respondents submit that the applicant deliberately concealed this information because he knew it was relevant to the question of who sent the threatening letters to Person 18 in June 2018 because it is apparent from the terms of these letters that the author knew that Person 18 had been interviewed by the IGADF Inquiry. It is certainly apparent from the terms of the letters that it is highly likely that the author knew that Person 18 had been interviewed by the IGADF Inquiry. The respondents submit that by concealing his knowledge that Person 18 had been interviewed by the IGADF Inquiry, the applicant sought to create the false impression that the letters received by Person 18 contained information of which he was unaware and, therefore, he could not be the author of the letters. The respondents submit that this omission by the applicant was deliberate and is indicative of the applicant's consciousness of guilt that he did, in fact, send, or cause to be sent, the letters which were received by Person 18. In those circumstances, the omission should be used as an admission against interest. I accept that Person 5 told the applicant that he had seen Person 18 at the premises at which the interviews were being conducted by the IGADF Inquiry and that the applicant arranged for the threatening letters to be sent to Person 18. In those circumstances, I do not need to consider the respondents' consciousness of guilt submission with respect to the threatening letters. I would only make the observation that having regard to the question the applicant was asked, there is some difficulty in concluding that he deliberately omitted to mention what Person 5 had said about seeing Person 18.
2277 It appears that the applicant was not asked by the respondents whether Person 5 had told him on the evening of 8 May 2018 that he had seen Person 18 at the headquarters building, perhaps because at that stage they did not know that Person 5 was going to say that. In any event, the evidence is evidence adduced as part of the applicant's case.
2278 The applicant disliked Person 1. As I have already set out in Section 8 of this Part, the applicant caused his solicitors to write a letter to Person 1 on 18 July 2017 threatening defamation proceedings should certain allegations of bullying and allegations relating to the sequence of ​battle at Chora Pass be included in Mr Masters' book which was soon to be published. The applicant believed Person 1 was one of the persons spreading rumours about him towards the end of 2017. Person 1 is referred to in the applicant's draft letter to Person 28, the commanding officer of the SASR.
2279 Ms Roberts gave evidence, which I accept, that she recalled having a conversation with the applicant about Person 18. A story appeared in the newspapers that members of the regiment had been sent letters in the mail. Ms Roberts asked the applicant to explain what he had done. The applicant said that he had written the letters, had saved them on a USB and printed them at the offices of Channel 7 and had sealed them in the envelopes and given them to Mr McLeod to post.
2280 Ms Roberts said that she recalled another conversation with the applicant about sending letters to members of the regiment when he asked her to tell him what the post office box was for the regiment. He also asked her how Australia Post worked and whether there were security cameras there. He became quite paranoid about the stamps. He asked Ms Roberts to ask Ms Scott how the mail system worked because Ms Scott had once worked for Australia Post. The applicant told Ms Roberts that Mr McLeod had driven over the border between New South Wales and Queensland and posted the letters. Ms Roberts said that in the week prior to seeing the article in the press and the applicant telling her that he had written those letters, the applicant had come home with a grey shopping bag in which she recalled seeing a packet of Reflex paper, a packet of envelopes and a packet of gloves. I accept Ms Roberts' evidence.
2281 Mr McLeod said that in 2018 as a part of a general catch up with the applicant at a coffee shop at Bunnings in North Lakes, the applicant said that he was under the pump. He had a blue folder in his hand and said to Mr McLeod that he was under the pump and asked if he could post these for him. The applicant said that the names were inside and that he would give Mr McLeod the addresses that evening.
2282 The applicant gave Mr McLeod the blue folder. That evening, the applicant rang Mr McLeod and gave him two addresses. He advised him not to post two of them. Mr McLeod said that the applicant said that he had the addresses for him and that Mr McLeod took the details of those addresses. There was something about stamps and how to identify which envelopes pertained to each of the recipients. Mr McLeod's best recollection was that that had something to do with the different number of stamps.
​2283 Mr McLeod said he had four envelopes and that there were two for each person. He said that the applicant told him that Person 1 was either on deployment or overseas and to throw them into the bin. The applicant said to McLeod that he could send the envelopes to Person 18. The addresses the applicant gave him related to Person 18. Mr McLeod then clarified that the addresses related to both people and that they were both post office boxes. He said that the applicant told him to throw the other two away that were destined for Person 1. That is all Mr McLeod was able to remember.
2284 The blue folder contained four envelopes and two scraps of paper between pieces of blank A4 paper. The scraps of paper had the names of Person 18 and Person 1 on them, together with details of the relevant Squadron and Troop and, in each case, an arrow with the words "insert address". The applicant agreed that the handwriting on the pieces of paper is his handwriting.
2285 Person 18 received a letter on 12 June 2018. He received another letter which was in the same terms on 14 June 2018. The terms of each letter were as follows:
   You and others have worked together to spread lies and rumours to the media and the IGADF inquiry. You have one chance to save yourself. You must approach the inquiry and admit that you have colluded with others to spread these rumours and lies about certain individuals or you will become their focus. We are very aware of your murderous actions over many tours in Afghanistan and we have specific mission details, dates and witnesses who now are willing to expose you to the authorities so you are criminally investigated. Just like when you participated in the execution of 2 PUCs from the Taliban's makeshift medical compound following the battle in Tizak. You know what you have done and so do we. Approach the inquiry and admit to working with others to concoct lies about other SAS members. You have until the end of the month to tell them the truth, and don't ignore this because it will not go away. You will go down. Better to take a reprimand than murder charges
   A friend of the regiment
2286 The applicant's evidence about these events was as follows. Mr McLeod had put himself forward as a person with numerous contacts in "State and Federal Police circles". The applicant asked him if he could obtain the home addresses of Persons 1, 6, 18, 42, 44 and one other person because the applicant said he wanted to find out if those individuals were speaking to the media and he wanted to "obtain some form of evidence to provide to Defence to show their illegal activities, because it seemed to me, at that time, one of the few options that I had to try and gain that evidence". The applicant said he wanted to approach a private investigator or firm of private investigators in Western Australia and engage them to find out whether these persons were talking to the media or collaborating with each other. The applicant said he provided the names of the individuals by writing them down on a piece of paper. He did not ​ask other members of the regiment if they knew the home addresses of the relevant persons because he was concerned other people were going to target him illegally and use that information to try and damage him in the press. He identified the two pieces of paper with the details of the rank of Persons 18 and 1.
2287 Mr McLeod did not get back to the applicant and the applicant did not cause Persons 1, 6, 18, 42, 44 and the other person to be put under surveillance and he did not cause any other person to contact them. The applicant denies being responsible for the letters sent to Person 18.
2288 The applicant explained that his idea was to approach a "PI firm" in Western Australia that would have the capacity to ascertain whether or not these individuals (i.e., Persons 1, 6, 18, 42, 44 and the other person) were actually speaking to members of the media.
2289 As I have said, Ms Roberts gave evidence that the applicant asked her to give him the details of the post office box number for the regiment. Ms Roberts knew that because she and the applicant had used the same post office box number when they lived in Perth.
2290 As I have also said, Mr McLeod's evidence was that the applicant advised him of the addresses that evening and he told Mr McLeod to throw away the envelopes relating to Person 1 as Person 1 was overseas or on deployment. It is relevant to note (as the respondents submit) that if Mr McLeod is making up this conversation with the applicant as the applicant contends, then in adding the detail concerning Person 1's location, Mr McLeod was taking a considerable risk in disclosing a matter that was capable of being easily disproved. The fact is that Person 1 was on deployment overseas at the time.
2291 Mr McLeod wrote Person 18's name on two of the envelopes. He also wrote the addresses. Mr McLeod had a way of distinguishing the envelopes which pertained to each of the recipients but he could not recall what that was. Mr McLeod said that he placed the two envelopes and the scrap of paper relating to Person 1 back into the blue folder which he kept in his office. Mr McLeod said that the two envelopes which were not posted and the two scraps of paper were given to the AFP by his legal adviser.
2292 Mr McLeod identified the first five pages of exhibit R43 Tab 10 as showing the two envelopes he was given by the applicant and he said the post code in relation to each envelope was in his handwriting. He said that the address on the two envelopes was an address he obtained from the applicant. Mr McLeod identified the two scraps of paper and he said that it was the applicant's handwriting on those two scraps of paper. He said that those two scraps of paper ​were provided to him by the applicant during their meeting at the coffee shop at Bunnings at North Lakes. Mr McLeod identified the two envelopes shown on the last page as envelopes given to him by the applicant and intended to be used in the case of Person 1.
2293 On 14 June 2018, an article written by Mr McKenzie and Mr Masters was published in The Sydney Morning Herald newspaper titled "Witnesses at war crimes inquiry subject to 'mafia style' threats". The article reported that sources within the Defence Force had confirmed that a witness and member of the SASR had been sent a letter earlier in the week "threatening retaliation if he did not recant his testimony to an inquiry led by NSW Supreme Court judge Paul Brereton". Ms Roberts gave evidence that she read the article and asked the applicant what he had done. Ms Roberts said that it was at this point the applicant described the process he had undertaken as I have set out above (at [2279]). The applicant said that Mr McLeod did not know of the content of the letters. Ms Roberts asked the applicant where he had obtained the stamps from and he said that he had obtained them from his drawer. He told her that Mr McLeod had driven over the border between Queensland and New South Wales and posted the letters. There is nothing to indicate that Ms Roberts had a source for this information other than the applicant's statements to her.
2294 Mr McLeod said that approximately a week to 10 days after he had posted the letters, he was "summonsed" by the applicant to a meeting in Milton. Mr McLeod arrived in his motor vehicle. The applicant was standing on the footpath with one of his friends. As Mr McLeod got out of the vehicle, the applicant walked towards him and yelled "No phones. No phones. No phones". Mr McLeod turned his phone off and left it in the car. He and the applicant walked to the side of the building. The applicant asked Mr McLeod if he had seen the media. Mr McLeod asked him, "What media?". The applicant said that the media was saying that the letters were threats. Mr McLeod cannot remember the exact conversation, but at some point, he realised that this could relate to the envelopes. The applicant said that the letters were not threats and it was just a "touch up". Mr McLeod realised what the applicant was talking about and said the following to him:
   If you put me in the frame, you've compromised me somewhere, you better get me a fucking – a good lawyer.
2295 The conversation then continued as follows:
   | The applicant: | "There's no need for that". ​ |
   | Mr McLeod: | "Mate, if you've done something stupid, put your hand up for it, because the cover up is 10 times worse than the offence." |
   | The applicant: | "No, no, no. All you got to say is that – just tell them you're a supporter of mine and you were sick of the way that I was being treated." |
   | Mr McLeod: | "I'm not saying that." |
   | The applicant: | "No, no. It will be all right. They're not threats. Just tell them that you're a supporter of mine, and you sent the – you sent the letters because you were sick of – sick of the way I was being treated." |
2296 Mr McLeod said that he just looked at the applicant and said:
   Fuck that, you weak dog.
Mr McLeod walked away and he has had no contact with the applicant since that conversation.
2297 The respondents submit that I should reject the applicant's account because it is implausible and unlikely and because it is contrary to the evidence of Mr McLeod and Ms Roberts which I should accept. In terms of the implausibility of the applicant's account, the respondents relied on the following five matters.
2298 First, the applicant's account requires what the respondents described as a "tortured interpretation of both the language and the intended use of the scraps of paper". On the applicant's account, Mr McLeod was to ascertain, inter alia, the private addresses of Persons 18 and 1 respectively and insert them on the pieces of paper and return those pieces of paper to the applicant. The more natural conclusion from the circumstances is that the applicant was instructing Mr McLeod to complete the envelopes in the manner indicated on the scraps of paper, together with the addresses.
2299 Secondly, the military details (Squadron and Troop) have no apparent relevance to the request the applicant says he made of Mr McLeod. There is no evidence of how details as to the Squadron and Troop to which Person 18 and Person 1 belonged would assist Mr McLeod in obtaining the home addresses of those persons. By contrast, an instruction by the applicant to Mr McLeod to insert the SASR post office box in Perth upon the applicant providing that information to Mr McLeod is more consistent with the circumstances.
2300 Thirdly, it is a circumstance to be taken into account that, on the applicant's account, he did not approach either his wife for the SASR post office box in Perth and provide that to Mr McLeod, or ask his friends, Persons 29, 27, 32 and 35, who were still in the regiment whether they had any knowledge or information as to the private addresses of the six people ​concerned. It needs to be borne steadily in mind that on the applicant's case, his ultimate aim was to have six people made the subject of surveillance.
2301 Fourthly, at or about this time, the applicant was speaking to his friends, Persons 5, 11, 29 and 35 using encrypted apps on burner phones. On his own admission, he was speaking to them about articles in the media and, as I will explain later in these reasons, I find that he was also speaking to them about the allegations of war crimes. It is a circumstance to be taken into account against the applicant's account that he considered that he would communicate with Mr McLeod via scraps of paper with his handwriting on it, rather than by the use of encrypted apps.
2302 Fifthly, there is an inherent improbability in the applicant's account. His account was that he intended to engage a firm of private investigators in Western Australia to carry out surveillance of six persons for the purposes of determining whether they were speaking to the media and to each other. This is likely to have involved a substantial exercise and is not immediately apparent how the home addresses of the six individuals would result in information as to whether or not they were speaking to the media. In any event, it is significant that the applicant, on his own admission, never followed up with Mr McLeod the request he said that he made of Mr McLeod. He said he concluded it was something that was not going to happen and he disregarded it.
2303 I agree that these considerations mean that the applicant's version of events is inherently unlikely. The applicant's account involves an odd way of proceeding, it is undeveloped and there was no convincing explanation for not pursuing the matter further.
2304 The respondents submit that there are eight matters which need to be considered in connection with the issue of whether a finding should be made that the applicant sent the letters to Person 18 through the agency of Mr McLeod. It seems to me that the first four matters are matters of context and circumstances relevant to the issue. The fifth and sixth matters involve the acceptance of the evidence of Mr McLeod and Ms Roberts. The seventh matter is the consistency between the alleged conduct in issue and the applicant's conduct in relation to Person 6. The eighth and final matter is the rejection of the applicant's account.
2305 Again, I reiterate the point that the factual issues are to be determined having regard to all of the evidence. This includes the surrounding circumstances or what the respondents referred to ​as the objective evidence of which the first four matters are examples and the evidence of the witnesses and, in particular, the key witnesses being Mr McLeod, Ms Roberts and the applicant.
2306 The sending of the letters may constitute a criminal offence of attempting to pervert the course of justice (the Criminal Code Act 1899 (Qld) s 140; the Crimes Act 1900 (NSW) s 319) or using a postal or similar service to menace, harass or cause offence (the Criminal Code s 471.12). Although the sending of the letters is not the subject of any of the imputations in issue in these proceedings, it is an issue in the case to which I must apply the principles referred to in Section 1 of this Part.
2307 I also remind myself that disbelief of the applicant's account does not of itself establish the respondents' account. The respondents carry the onus of proof. In Rhesa Shipping v Edmunds, Lord Brandon of Oakbrook said (at 718):
   The judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden.
(See also Kuligowski v Metrobus at [60].)
2308 I turn then to the respondents' eight matters.
2309 First, the respondents point to the fact that the applicant agreed in cross-examination that the statement in the first sentence of the letter that Person 18 and others had "worked together to spread lies and rumours to the media and the IGADF Inquiry", reflected his state of mind in June 2018. Furthermore, the applicant's draft letter to the commanding officer of the SASR (exhibit R33) accused Person 18 of materially the same conduct, as did the letter from the applicant's solicitors dated 21 June 2018. Those propositions are correct. Furthermore, it is correct, as the respondents submit, that there is no evidence that in or around June 2018, anyone other than the applicant had feelings of animosity towards Person 18 or any concern that Person 18 was speaking negatively to the media or the IGADF Inquiry about them. In this context, it is important to keep in mind that the concern of the letter is that Person 18 was spreading lies and rumours to the media and the IGADF Inquiry. That is the subject matter of the letter.
2310 Secondly, the respondents submit that the applicant held a "deep negative animus" (to use the respondents' words) towards Person 1 in June 2018 and had done so since 2006. On 18 July 2017, the applicant caused his solicitors to write to Person 1 threatening him with defamation ​proceedings should allegations of bullying, among other matters, appear in Mr Masters' book. The applicant did have a strong dislike of Person 1. I refer to my findings in relation to the alleged bullying of Person 1 in Section 8 of this Part.
2311 In the applicant's draft letter to the commanding officer of the SASR, the applicant stated that Person 1 had been approached by others to provide "negative and defamatory comments" to Mr Masters about the applicant. He states that although Person 1 had claimed to have declined to do so, "he admitted to the attempted collusion by Person 6 and Person 2 to the Unit RSM".
2312 The respondents submit, correctly, that there is no evidence that in or around June 2018, anyone other than the applicant held any animosity towards Person 1 or any concern that Person 1 was speaking to the media or the IGADF Inquiry.
2313 Thirdly, the respondents submit that the author of the letters to Person 18 and the proposed letter to Person 1 had a deep animus in June 2018, not just to Person 18 or Person 1, but to the unlikely combination of both. The respondents submit, again correctly in my opinion, that there is no evidence before the Court of any person other than the applicant with any level of animus towards Persons 18 or 1 in June 2018, let alone both of them. The applicant alone fits that profile. I should say that I bear in mind on this point, as I do on the previous two points, that the evidence does not go so far as to exclude all other possibilities.
2314 Fourthly, the respondents rely on the fact that the letter contains information which would have been known to only a very small group of persons and that group includes the applicant. The information to which I refer is as follows:
    (a) The letter refers to the alleged execution of two PUCs from the Taliban's makeshift medical compound following the Battle of Tizak. The applicant gave evidence that Person 18 was a member of his patrol in 2009 and 2010 and that he was Person 18's 2IC. Person 18 was a member of his patrol at the Battle of Tizak. It was put to the applicant that he would have been with Person 18 after the Battle of Tizak and the applicant denied this saying that because he, the applicant, was attached to Person 43's team and that:
   … while my team was at the medical centre, I was pushing down to the bottleneck of the valley itself with a different team.
    The medical centre at Tizak was not referred to by any other witness in these proceedings.
    (b) The letter refers to Person 18 being interviewed by the IGADF Inquiry. Person 5's evidence establishes that the applicant knew that Person 18 had been interviewed by the IGADF Inquiry on 8 May 2018.
    (c) The author of the letter states that he or she has "specific mission details, dates and witnesses" who it is said are willing to expose Person 18 to the authorities. The applicant served in the same patrol as Person 18 in 2009 and 2010.
Each of these points is correct and it is correct to say that the group of persons who had the information referred to in the letter, or suggested by the letter, was relatively small in size and that it included the applicant.
2315 Fifthly, the respondents submit that the evidence of Mr McLeod is significant and should be accepted. He had no apparent motive to lie and his evidence identifying his handwriting on the envelopes was not challenged. Furthermore, the evidence of Mr McLeod is supported by his knowledge of a confidential operational matter, that is to say, that Person 1 was deployed overseas which he would not have known. On the other hand, the applicant would have had access to that information.
2316 Mr McLeod denied the allegation put to him in cross-examination that he had engaged in bribery in Bali and he denied anything sinister in his messages with Ms Scott and Ms Roberts respectively. He denied that he had a "severe grudge" against the applicant and that he would do anything to destroy him. When it was put to him that he was giving evidence so that the applicant lost his case, he said the following:
   I did not want to be here. I had no intentions of being here. I was subpoenaed to appear here.
2317 The applicant made an unqualified attack on Mr McLeod's honesty and reliability which I deal with below. I conclude that I accept the substance of Mr McLeod's evidence.
2318 Sixthly, the respondents submit that the evidence of Ms Roberts concerning the applicant's admissions that he wrote the letters and asked her for the SASR post office box number and told her that Mr McLeod had posted the letters in New South Wales was consistent with both the evidence of Mr McLeod and the objective evidence. The applicant challenged Ms Roberts' honesty and reliability which I deal with below.
​2319 Seventhly, the respondents submit that the conduct alleged against the applicant in relation to Person 18 is consistent with the conduct alleged against the applicant in relation to Person 6, including the text message of 14 December 2017 from the applicant to Ms Roberts as follows:
   What happened to Person 6 Will scare the others
I find that to scare Person 6 so that he stopped speaking against him was precisely what the applicant sought to achieve, or at least it was a result of which he approved. The author of the threatening letters had a similar purpose with respect to Person 18 with the added purpose of making him correct information he was thought to have given to the IGADF Inquiry.
2320 Finally, the respondents submit that the Court should reject the applicant's denial that he wrote the letters to Persons 18 and 1 and caused Mr McLeod to send the letters to Person 18. I do reject the applicant's denial.
2321 I turn now to deal with the applicant's challenge to the honesty and reliability of Mr McLeod. The applicant submits that Mr McLeod is a liar and a fantasist. He submits that Mr McLeod's evidence cannot be relied upon. He attacked Mr McLeod's honesty on a number of grounds.
2322 First, the applicant submits that it is a feature of Mr McLeod's character that he exaggerates his own importance. This is true to a point. Mr McLeod was cross-examined about certain messages passing between Ms Scott and himself during the period from October 2018 to April 2021. Mr McLeod claimed to have had "techs" and "Computer Nerds" working for him. In a message to Ms Scott on 20 October 2018, Mr McLeod referred to his attendance at the Greenslopes Day Surgery clinic on 6 April 2018 and he states that he and two others that work for him "sat off the clinic for 6 hours". Mr McLeod agreed in cross-examination that when he said he had two others working for him who were with him on 6 April 2018, that was not true. He said that he had no idea why he had said what he had in his message to Ms Scott and he did not know what it related to. Mr McLeod was also asked about another message which he sent to Ms Scott on 20 October 2018 and in which he said that he needed some sleep and that he was sending "the techs home". Mr McLeod said in cross-examination that he did not know what that referred to. When it was put to him that he did not have any "techs" working for him, he said the following:
   This could be a – in relation to a problem I had with my computer at home.
2323 Mr McLeod was asked whether he had provided security services to the applicant. He answered that question by saying that at a function at the applicant's home, he had pretended ​to be a bartender to listen to conversations that were happening and report back to the applicant about the conversations. When he was asked what he meant by "pretended to be a bartender", he said that he dressed in white. He put on black pants and stood behind the bar and served the Channel 7 guests alcohol all night. The following exchange then occurred:
   So you were actually a bartender, I take it?---An average one.
2324 Both Mr McLeod and Ms Roberts gave evidence relating to the fate of the applicant's uniforms and military equipment. Mr McLeod said that in December 2020, Ms Roberts gave him the applicant's uniforms and military equipment. He could not be sure of the time when that happened. He then referred to when everything was thrown out of the home. He then denied that Ms Roberts had given him the applicant's uniforms. He said that he picked the uniforms up from the rain. He said that the uniforms were thrown all over the driveway and they were in the rain. He did not know who had thrown them there. He collected the uniforms from the driveway to keep for the applicant's daughters and he still has them. He has not returned them to the applicant because he believes it was the applicant who had thrown them out into the rain. Mr McLeod denied that he was keeping the uniforms for himself.
2325 Ms Roberts said that the applicant had already come to the home and collected what he wanted. He had left the uniforms at the family home and, in those circumstances, she was going to throw them in the skip bin. Mr McLeod urged her not to. He took them from Ms Roberts. He did not say what he was going to do with them. Those events occurred at or about the time Ms Roberts moved out of the home.
2326 The events concerning the uniforms are said by the applicant to be not only examples of Mr McLeod's grandiose imagination as with the previous examples, but also to show that Mr McLeod had some kind of peculiar obsession with the applicant and to emphasise his tendency "to self-aggrandise and exaggerate his connections to, and involvement in the lives, of powerful or well-known people".
2327 Mr McLeod was asked about his relationship with Mr Stokes. There are various references to Mr Stokes in Mr McLeod's messages to Ms Scott. On 11 April 2021, Mr McLeod, in messages to Ms Scott, referred to the fact that "Kerry" was stoic and that the feds should speak to "Kerry". In his cross-examination, Mr McLeod said that he was worried about Kerry. He agreed that he had never met Mr Stokes and was not on first name terms with him. He said that he was to work for him on two different occasions, but that did not eventuate.
​2328 Mr McLeod has a strong dislike of the applicant. He referred to the applicant in very uncomplimentary terms in March 2021. He referred to the applicant as a "psycho" and made the comment:
How many lives has this prick fucked up!!!
2329 The applicant submits that Mr McLeod's evidence concerning a "60 Minutes" program telecast by Channel 9 on 11 April 2021 strained credulity. That program dealt with actions of the applicant, including his action of allegedly burying the lunchbox, the correspondence in relation to Person 6 and the correspondence in relation to Person 18. Mr McLeod said that he recorded the program on 11 April 2021. He did not know whether he had watched the whole program since then. He had watched "bits and pieces of it". He did not know when he first watched it.
2330 On 11 April 2021, the following messages passed between Mr McLeod and Ms Scott:
   | Scott: | "U good?" |
   | McLeod: | "They will come for me." |
   | Scott: | "Referred to 'an associate'". |
   | McLeod: | "Do you think it was enough to wake Kerry?" |
   | Scott: | "Not sure, hope so." |
   | McLeod: | "Kerry is stoic, if not sure it won't be enough." |
2331 Mr McLeod was asked about the reference in this passage to the "they" will come for me. He said that this was a reference to the applicant "or his people". The applicant's case is that that answer was dishonest and that when he made the comment on 11 April 2021, he meant either the AFP or the journalists. I have difficulty accepting Mr McLeod's evidence on this particular point. The nature of the comment and the context suggests quite strongly that the reference is a reference to the AFP or (less likely) to the journalists.
2332 Mr McLeod gave evidence, in the context of it being put to him that he had watched the 60 Minutes program on 11 April 2021 and knew what Ms Scott meant when she referred in the exchange of messages set out above to "an associate", that he did not know what Ms Scott was talking about. He then denied that in giving that evidence he was lying. The reference to an "associate" is a reference to a statement in the program by Mr McKenzie as follows:
   60 Minutes can confirm the malicious complaints were sent to the police and others by an associate of Ben Roberts-Smith who, according to sources, was acting on his orders.
2334 Finally, on 12 April 2021 in a message to Ms Scott, Mr McLeod said that he was worried about getting shot in the head. The applicant submits that that was another example of Mr McLeod's tendency to exaggerate and fantasise. I would not put the matter that strongly. In my opinion, it is an example of Mr McLeod's tendency to dramatise events and his role in them.
2335 The applicant submits that Mr McLeod's account concerning the letters sent to Person 18 suffer from the following "critical implausibilities".
2336 Mr McLeod said that the applicant gave him two addresses relating to Person 18. Ms Roberts said that the applicant had asked her for the regiment post office box number. It was put to the applicant that the two addresses were Campbell Barracks and a post office box in Claremont. The applicant submits that if the addresses had been obtainable so easily from Ms Roberts, then Mr McLeod's whole story about the pieces of paper simply makes no sense. I do not agree with this as I will explain.
2337 The applicant submits that the applicant's reason for requesting Mr McLeod's assistance as relayed by Mr McLeod that he, the applicant, was "under the pump" did not make sense on the respondents' account. On the respondents' account, the applicant had already done the work of buying the envelopes and stamps and filling in names on pieces of paper. I reject the applicant's submission that this as a "critical implausibility". It is not implausible at all, bearing in mind that ultimately, Mr McLeod, not the applicant, wrote the names and addresses on the ​envelopes and he drove to Tweed Heads to post them. The applicant had every reason not to have his handwriting on the envelopes or risk being seen posting them.
2338 The applicant submits that he had no reason to apprehend that Person 18's evidence to the IGADF Inquiry would be a particular threat to him. The applicant submits that even if he had become aware that Person 18 was giving evidence to the IGADF Inquiry (and, as I have said, I find that he did become aware of that fact by reason of speaking to Person 5), he had no reason to believe that Person 18, as distinct from Person 6 or Person 7, was a person making serious allegations against him. I reject this contention. The draft letter to the commanding officer of the SASR prepared by the applicant between 8 and 10 June 2018 refers to "negative commentary, rumours and false allegations" and to Person 18 being approached by Person 6 to speak to Mr Masters. The draft letter goes on to say that given the information Mr Masters divulged in interviews with the applicant, the applicant believed that Person 18 engaged with Mr Masters because the information could only have been known to Person 18. The letter which was sent by the applicant's solicitors on 21 June 2018 to the Wing Commander, Assistant Inspector-General ADF referred to serving and ex-SASR members being asked to provide to Mr Masters false and disparaging claims about the applicant's service in Afghanistan. Person 18 is referred to in this context. This evidence discloses that the applicant believed that Person 18 had made false and disparaging claims about the applicant's service in Afghanistan to Mr Masters. This is to be coupled with the fact that I find that Person 5 told the applicant that Person 18 was attending an interview with the IGADF Inquiry. The applicant had a reason to apprehend that Person 18's evidence to the IGADF Inquiry would be adverse to him.
2339 Mr McLeod appeared pursuant to a Subpoena to give evidence. He is secretive and tends to dramatise and exaggerate his role in events. I would hesitate to rely on his recollection of the details of events. There are topics such as the circumstances in which he came to have the applicant's uniforms and his viewing and understanding of the "60 Minutes" program where I have considerable reservations about his evidence. However, I accept his evidence about the threatening letters he was given by the applicant. His evidence about that matter is supported by the objective circumstances identified by the respondents and referred to above (at [2309]–[2314] and [2319]) and by the evidence of Ms Roberts of what she was told by the applicant and what she herself saw. It is also to be borne in mind that the context is that even on the applicant's account he had contact with Mr McLeod about tasks the latter was to perform in relation to Persons 18 and 1 and it is not in dispute that Person 18 received the threatening letters. Even if the latter ​point was not expressly conceded by the applicant, I have no hesitation in finding on the evidence that Person 18 received the threatening letters.
2340 The applicant submits Ms Roberts' evidence to the effect: (1) that the applicant admitted writing the letters, saving them on a USB, printing them at the offices of Channel 7, sealing them in envelopes and giving them to Mr McLeod to post; (2) that the applicant had asked her for the post office box for the regiment and had asked her about how Australia Post worked; (3) that the applicant had told her that Mr McLeod had driven over the border of Queensland and New South Wales to post the letters; and (4) that the applicant came home with a grey shopping bag in which there was a packet of Reflex paper, a packet of envelopes and a packet of gloves about a week before an article appeared in the press about soldiers receiving threatening letters, should be rejected.
2341 The applicant made the following submissions. First, Ms Roberts is an unreliable witness who has given false evidence concerning whether she and the applicant were separated between late September 2017 and about April 2018, and whether the applicant buried USBs in the backyard of the family home. Secondly, even on her own evidence, Ms Roberts was prepared to provide outlines of evidence which were false. Thirdly, there are a number of matters which indicate that Ms Roberts strongly disliked or even hated the applicant and sought to cause him harm when an opportunity to do so presented itself.
2342 I will address each of these matters in detail. Ms Roberts' account in relation to the USBs is addressed in that part of this Section dealing with the concealment of relevant evidence and material and the alleged separation is dealt with at the end of this Section. I resolve both matters in favour of Ms Roberts' account after taking into account the matters which I identify, including the false outlines of evidence, the fact that the divorce between the applicant and Ms Roberts was a very bitter one and the evidence concerning access to the RS Group Australia Pty Ltd (RS Group) email account.
2343 The applicant also submits that there is an "obvious contradiction" between Ms Roberts' claim that the applicant brought Reflex paper home (with the gloves and the envelopes) on the one hand, and that he printed the letters at work on the other. This submission does not accurately summarise the evidence. Ms Roberts said that the applicant had told her that he had written the letters, had saved them on a USB and printed them at the Channel 7 office, had sealed them in envelopes and had given them to Mr McLeod to post. That is what the applicant said to Ms Roberts. Whether or not that is entirely accurate, does not cause me to change my view of ​her honesty. In addition, I find that she did see the applicant with a packet of Reflex paper, a packet of envelopes and a packet of gloves in the week prior to the articles appearing in the press.
2344 The applicant submits that the Court should accept his version of events. He submits that his account is supported by his evidence that previous attempts to address leaks to media via the chain of command had been unsuccessful. Even assuming that to be true, it does not say anything as to the method he adopted in taking matters into his own hands. The applicant submits that the respondents' case as to the conduct carried out by the applicant is inconsistent with the draft letter he prepared in or about June 2018 and the subsequent letter from his solicitors on 21 June 2018. That is a matter to take into account, but even on his own version of events, he had decided to take his own action, that is, engaging private investigators in Perth to address leaks to the media.
2345 Finally, the applicant relies on the fact that the respondents carry the onus of proof. He submits that it would be erroneous to accept a submission that there is no other plausible candidate for the sending of the letters to Person 18 in circumstances in which there were persons who were aware that he was attending or had attended an interview at the IGADF Inquiry and there has been no exploration by the respondents of whether those persons informed anybody about Person 18's attendance before the IGADF Inquiry. The applicant submits that a related point is that there is no evidence before the Court as to what evidence Person 18 provided to the IGADF Inquiry and whether there were persons he named at the Inquiry who may have become aware of his evidence to the Inquiry. Such persons would clearly have a motive to send a letter or letters to Person 18. These are matters I take into account in assessing the whole of the evidence.
2346 Nevertheless, I am satisfied on the evidence that the applicant, through Mr McLeod, arranged for two threatening letters to be sent to Person 18. I accept the evidence of Mr McLeod and Ms Roberts and I reject the evidence of the applicant. Clearly this conclusion reflects adversely on the credit of the applicant. I will come back to the respondents' submission that, combined with the applicant's conduct with respect to Persons 6 and 40, this conduct indicates a consciousness of guilt by the applicant with respect to events at W108. It is pertinent to note at this point that the evidence does not reveal the subject matter of Person 18's interview by the IGADF Inquiry.
​Person 14
2347 The applicant commenced these proceedings on 15 August 2018. The respondents filed their Defence in each of the proceedings on 9 October 2018. On 19 October 2018, the applicant met Person 14 at a coffee shop in Canberra. The applicant had a copy of the respondents' Defence with him at the meeting.
2348 Person 14 said, and I accept, that Person 29 called him and said that he was "reaching out" on behalf of the applicant and that the applicant wanted to have a chat with him. Person 29 asked Person 14 whether he could give his telephone number to the applicant and Person 14 agreed. Person 29 agreed that he put Person 14 in contact with the applicant or vice versa. Person 14 said that he received a message on WhatsApp from the applicant.
2349 Although Person 29 said that his understanding of the purpose of the meeting was a catch up of old comrades, so to speak, it is apparent from the applicant's own notes of the meeting that the reason for the meeting was because the applicant had commenced defamation proceedings against the respondents and the respondents had used Person 14's name in their Defence in each proceeding. I do not accept Person 29's evidence about his understanding of the purpose of the meeting and I find that his understanding was that the applicant wanted to speak to Person 14 because it appeared that Person 14 would be speaking against the applicant in the proceedings.
2350 Person 14 was given the document by the applicant and read a paragraph relating to the mission to Chinartu. The applicant suggested that his lawyers could prepare a statutory declaration confirming that he, Person 14, had not spoken to the respondents and that what they were attributing to him was not true. Person 14 said that the statement in the document was accurate. He said to the applicant the following:
   Well, actually, that's how I remember – remember it.
2351 The applicant's response was as follows:
   So it's going to be like that, is it?
2352 The applicant said at that point Person 14 said that he would not lie. The applicant said that he did not remember any scenarios "like that" and that "you can't get into trouble for perjury if you legitimately cannot remember". Person 14 said to the applicant that "2012 was pretty loose" and in connection with the mission in 2009, the applicant said to Person 14 "your team was not even with us" to which Person 14 responded along the lines of "come on mate, you ​machine gunned that guy". The applicant said that Person 14's patrol was on the other side of the compound. The meeting ended.
2353 The applicant claimed in cross-examination that he believed he was being recorded during the conversation. When Person 14 was asked in cross-examination whether he was wearing a hearing device, the Commonwealth made a claim for public interest immunity and the question was not pressed.
2354 Person 14's recollection of the conversation was somewhat patchy. It is clear that he was not expressly threatened or offered any inducements. He would have learnt from the conversation that his account of events on the mission to Chinartu was disputed by both the applicant and Person 11.
2355 In the absence of a threat or material inducement, I do not consider that this meeting bears on any issue in the case. Clearly, the applicant was concerned about what Person 14 might say about the mission to Chinartu, but absent a threat or material inducement, there is nothing inappropriate in the conduct. It does not provide a basis for an inference of a consciousness of guilt in relation to the alleged murder at Chinartu.
Person 40
2356 Person 40 was served with a Subpoena to give evidence in these proceedings in approximately April or May 2021. That followed my decision in Roberts-Smith (No 12). Approximately three or four weeks later, he was with Person 29. Person 29 was running a parachute training course for the unit and he and Person 40 were working closely together. Person 29 was Person 40's superior in the SASR at the time. It was a Friday and Person 40 said that out of the blue, he and Person 29 had the following conversation:
   | Person 29: | "RS knows that you're going to be a witness for this defamation case. You don't — you don't have to be a witness. You know, if you speak to RS's lawyers, they will get you to sign some sort of a piece of paper, and you won't have to act as a witness." |
   | Person 40: | "Yes. Okay". |
   | Person 29: | "If you don't, he will see you in court". |
2357 Person 29 did not dispute that a conversation broadly in these terms occurred. Person 29 attempted to paint the conversation as an attempt by him to administer pastoral care. I reject that characterisation of the conversation. The applicant and Person 29 were close friends and Person 29 was following closely the IGADF Inquiry and these proceedings. Person 29 had ​been involved in setting up the meeting between the applicant and Person 14. Person 29 said that he had not spoken to Person 40 at the applicant's request. I do not accept that evidence. I take the conversation at face value and that is that Person 29 knew from the applicant that if Person 40 did not sign a piece of paper excusing him from appearing as a witness, then the applicant's attitude was that he would see Person 40 in Court.
2358 In other words, the answer to the applicant's submission that there is no evidence that Person 29 had spoken to the applicant before speaking to Person 40 is that I infer that they did speak to each other before Person 29 spoke to Person 40. I do so, not only on the basis of their previous close involvement, but also because the terms of the conversation itself strongly suggests that the applicant and Person 29 had spoken about approaching Person 40.
2359 It is true, as the applicant submits, that Person 40 himself did not give evidence that he viewed what Person 29 said as a threat or attempt to intimidate him. That is relevant, but not decisive because the focus is on the actions of the applicant and Person 29 and, in particular, the former's state of mind. This conversation shows the close association between the applicant and Person 29. In my opinion, the conversation was inappropriate coming as it did from a superior and involving a threatening undertone evidenced by the reference to the applicant seeing him in court if he did not sign the piece of paper.
2360 I have found the alleged murders at W108 were committed and it is not strictly necessary for me to consider whether the applicant's conduct with respect to Persons 6, 18 and 40 forms a sufficient basis for an inference of a consciousness of guilt with respect to the murders at W108. That conduct and his lies about it in the case of Persons 6 and 18, reflects adversely on the applicant's credit, but does it also reveal a consciousness of guilt?
2361 I infer that the applicant's intention in relation to Person 6 was to silence him with respect to allegations about the applicant and his conduct in Afghanistan being made to the media and to the IGADF Inquiry. The applicant's intention in relation to Person 18 was similar with the added feature of trying to have Person 18 "correct" his evidence before the IGADF Inquiry. The difficulty with the respondents' submission that the conduct is evidence of a consciousness of guilt is that each of Persons 6 and 18 accompanied the applicant on a number of missions and there is no clear and detailed evidence of the subject matter of the media articles and the information provided by them to the IGADF Inquiry. Absent clear evidence that it was with respect to events at W108, I am unable to see how the respondents' submission can succeed. The applicant's conduct with respect to Person 40 does not encounter the same difficulty ​because the subject matter is quite clearly evidence to be given in this Court and it was clear that that evidence related to events at W108. Nevertheless, in view of the fact the conduct in relation to Person 40 involves "no more" than a threatening undertone, I am not satisfied that I should draw a consciousness of guilt inference in respect of it.
2362 If I am wrong and a consciousness of guilt inference is appropriate in relation to the applicant's conduct with respect to one or more of Persons 6, 18 and 40, such an inference simply adds to a case already established.
Collusion and Contamination of Witnesses
2363 The respondents ask me to find that the applicant has colluded with various witnesses (Persons 5, 11, 29 and 35) with a view to the presentation of a consistent story to the IGADF Inquiry and to this Court. The respondents submit that this collusion, together with the witness intimidation, concealment of relevant evidence and material and lies, is evidence of a consciousness of guilt on the part of the applicant.
2364 If witnesses collude in order to present a consistent, albeit false, account of events or conversations, that will be a basis to reject their account and it might also lead to an inference of a consciousness of guilt.
2365 A case where the plaintiff alleged that there had been collusion between witnesses or inappropriate pressure placed on witnesses is Day v Perisher Blue Pty Ltd [2005] NSWCA 110; (2005) 62 NSWLR 731. The trial judge accepted the defendants' witnesses, but did not deal with the plaintiff's submission that their evidence should be rejected because of the contact between them. The appeal was allowed and a new trial ordered. Sheller JA (with whom McColl JA and Windeyer J agreed) described the dangers of witnesses discussing their accounts with each other before a hearing as follows (at [30]):
   It has long been regarded as proper practice for legal practitioners to take proofs of evidence from lay witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly not with other potential witnesses. For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly. In the present case, it is hard to see that the intention of the teleconference with witnesses discussing amongst themselves the evidence that they would give was for any reason other than to ensure, so far as possible, that in giving evidence the defendant's witnesses would all speak with one voice about the events that occurred. Thus, the evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true. This seriously undermines the process by which evidence is taken. What was done was improper. The process adopted was more concerned with ensuring that all the witnesses gave evidence which would best serve their employer's ​case. This realisation makes particularly sinister the precept in the Witness Protocols for Court Cases and Arbitration Hearings, "Not about facts or credibility".
His Honour did make it clear that it may be possible for a witness' credibility to survive an attack based on extensive discussions with other witnesses, but the point must be considered by the trial judge (at [35]).
2366 Even if collusion is not established, contact between witnesses may lead to a conclusion that the evidence of one witness has been contaminated by the evidence of another such that it cannot provide corroboration of the other witness' evidence (Victory Projects Pty Ltd v AAA Self Storage Pty Ltd [2016] NSWSC 1758 at [6]–[7] per Black J).
2367 It is convenient to identify the conduct relied on by the respondents by describing the relevant events in chronological order.
2368 Person 11 attended his second interview at the IGADF Inquiry on 21 September 2017. He received notice to attend that interview two days before that date.
2369 Person 11 denied sending the applicant a message to tell him that he had been summoned to appear before the IGADF Inquiry shortly after receiving his notice to attend an interview. He said that he did not recall any communications with the applicant regarding the interview. He did notify various members of his chain of command of the notice. When he was pressed in cross-examination on whether he had a communication with the applicant, he said that he could not recall if he did and he was saying that he could not confirm if he did. He did not agree with the proposition that the only person outside his chain of command that he told he had been summoned was the applicant.
2370 Person 11's denial of the proposition that he contacted the applicant almost immediately after he had been given a notice to attend an interview was false. I refer to the closed Court reasons (at [223]).
2371 Person 11 also denied the suggestion that at the time he received the notice to attend an interview he had any indications of any allegations about wrongdoing and he said that he was not aware of any allegations which had been discussed in these proceedings until he was with the IGADF Inquiry in 2017. He denied that he knew of the allegation involving a cliff kick by the applicant prior to the IGADF Inquiry in 2017. He denied that the engagement by the applicant over the river at Darwan by the applicant was likely to be raised or, at least, he did not know. He denied that he had a discussion with the applicant about what he would say to the IGADF Inquiry about the allegation of a cliff kick by the applicant. He denied that he had a discussion with the applicant about what he would say to ​the IGADF Inquiry about the allegation of a cliff kick by the applicant. He denied that he had a discussion with the applicant about what he would say about all of the topics that he thought would come up at the interview. He denied that he knew the allegation of a cliff kick by the applicant would be raised at the IGADF Inquiry. He denied that he concealed those facts because he knew it would reveal significant collusion on their part and, therefore, was adverse to the applicant's interest and his own credit. Person 11 only conceded he was wrong when confronted with incontrovertible proof to the contrary. I refer to the closed Court reasons (at [224]–[226]).
2372 The applicant and Person 11 met at the Floreat Hotel on 5 February 2018.
2373 The applicant admitted that he met with Person 11 at the Floreat Hotel on 5 February 2018. He said it was not true to say that he spoke to Person 11 about the IGADF Inquiry. He said he was not sure if he was aware whether Person 11 had or had not been to an interview with the IGADF Inquiry at that point, that is to say, at 5 February 2018. That evidence was untrue. He had had contact with Person 11 three to four months earlier.
2374 The applicant and Person 11 remained in contact after their meeting on 5 February 2018. The applicant said that he remained in contact with Person 11 after the meeting at the Floreat Hotel. Person 11 said that he spoke to the applicant once every week or two after his interview by the IGADF Inquiry in 2017.
2375 As has been stated previously, on 8 May 2018, Person 18 attended an interview by the IGADF Inquiry at Campbell Barracks. He saw Person 5 in the office of the Chief Personnel Officer. Person 5 was also interviewed on that day.
2376 Person 5 gave evidence to similar effect. He agreed that it was apparent to him when he saw Person 18 that he had either already been in for an interview or was going in for an interview, or had otherwise had some involvement with the IGADF Inquiry. Person 5 had a telephone conversation with the applicant during the evening of 8 May 2018 and during that telephone conversation, he told the applicant that he had seen Person 18 in the administration office before he went in for his interview. Person 5 said that he told the applicant during the telephone conversation that and that he needed to prepare because it was a "witch hunt". The applicant agreed that Person 5 probably did say something about being drilled for hours and that there was stuff about the Victoria Cross in there.
​2377 The respondents submit that the denials of both Person 5 and the applicant that any other matters were discussed were false. They submit that the denials are contradicted by a contemporaneous record being a text message from Ms Roberts to her friend, Ms Scott. I have already set out the contents of the message which passed between Ms Roberts and Ms Scott on 9 May 2018 (at [2271]). As I have indicated, I accept the evidence of Ms Roberts and I accept that what is contained in the text message is what the applicant told her.
2378 The respondents ask the Court to infer that Person 5 disclosed the substance of his interview to the applicant during his telephone call that night. They submit that it is implausible that Person 5 would have told the applicant that he had been "drilled for hours" and asked "lots of questions about Ben" without disclosing what he was drilled about and what the "lots of questions" concerned. Person 5 and the applicant's denials are directly contradicted by the fact that Ms Roberts records one of the interview topics in her text message, being "his VC action" at Tizak. I do not think there is a direct contradiction because the applicant accepted in his evidence that Person 5 told him that "there was stuff about the VC in there". Nevertheless, the respondents submit that it is implausible that Person 5 would warn the applicant to prepare himself because it was a witch hunt without informing his close friend what he was meant to be preparing for. The respondents submit that the conclusion that Person 5 disclosed the substance of the interview during the telephone call is reinforced by Person 5's decision on 15 June 2018 to send his statement of complaint to the applicant disclosing the substance of his interview by the IGADF Inquiry.
2379 I accept the respondents' submission to the point of inferring that the applicant and Person 5 discussed the substance of the matters raised during Person 5's interview by the IGADF Inquiry, at least insofar as they involved the applicant or Person 5 and the applicant. I cannot be any more precise than "the substance of the matters raised". I draw this inference having regard to the following matters: (1) the close contact the applicant maintained with his close personal friends, including Person 5 as described below; (2) the inherent probability that the substance of the matters raised were discussed in the circumstances; and (3) the extent to which Person 5 was prepared to disclose the contents of his interview in the statement of complaint sent to the applicant on or about 15 June 2018. I reject the evidence of the applicant and of Person 5 to the contrary.
2380 One other piece of evidence is of some significance in terms of this topic. The applicant told Ms Roberts after the telephone conversation on 8 May 2018, that Person 5 had gone into ​somebody's office at the SASR and that when he walked in, Person 18 was in the office and there was an altercation. This evidence is relevant as to the applicant's state of mind. As I have said, the respondents submit that the applicant did not give any evidence about Person 5 seeing Person 18 before, during or after Person 5's interview by the IGADF Inquiry and that that omission was deliberate because the evidence had the potential to support the respondents' case that the applicant was the person who sent the threatening letter to Person 18. I have already addressed this submission (at [2276]).
2381 On 23 May 2018, Person 11's chain of command was notified that the IGADF Inquiry sought to reinterview Person 11 on 4 June 2018. The IGADF Inquiry later agreed to reschedule the interview to 6 June 2018. It would seem that there was a further rescheduling of the interview to 13 June 2018. Person 11 contacted the applicant almost immediately after he had been advised that the IGADF Inquiry sought a further interview. He told the applicant that he was very worried that the IGADF Inquiry wanted to speak to him again.
2382 The respondents submit that Person 11 posed a material risk to the applicant at this point because he knew the truth about the murders at Darwan, Chinartu and Fasil and within a matter of days, Person 11 would have the opportunity to divulge that information in an interview where any admissions or disclosures would have attracted use and derivative use immunity for Person 11. Although Person 11 was entitled to legal representation provided by the Department of Defence, the applicant raised the issue of legal representation and put Person 11 (and Persons 5 and 35) in contact with his solicitors. The solicitors engaged Mr Moses SC to act on Person 11's behalf. The possibility of a conflict of interest arose and different lawyers (Addisons) took over and acted for Person 11 (and Persons 5 and 35).
2383 The arrangements for the payment of the legal fees of Persons 5, 11 and 35 were unusual and difficult to penetrate. The respondents tendered the following documents:
    (1) exhibit R195 – a bundle of accounts rendered by Addisons to Seven Network (Operations) Limited (Seven Network) for legal work carried out for Person 5 in relation to the IGADF Inquiry and these proceedings over the period from 12 May 2020 to 31 March 2022;
    (2) exhibit R228 — a bundle of accounts rendered by Addisons to Seven Network for legal work carried out for Person 35 in relation to the IGADF Inquiry and these proceedings over the period from 15 June 2018 to 31 March 2022; and
    (3) exhibit R252 — a bundle of accounts rendered by Addisons to Seven Network for legal work carried out for Person 11 in relation to the IGADF Inquiry and these proceedings over the period from 11 June 2018 to 31 March 2022.
2384 The invoices rendered by Addisons to Seven Network were paid by Seven Network and were then added to the loan account that the applicant maintained with Seven Network. The legal effect of the arrangement was that the applicant was responsible for paying the legal fees of Persons 5, 11 and 35, in connection with the IGADF Inquiry and these proceedings.
2385 Each of Persons 5, 11 and 35 were cross-examined about their knowledge concerning the payment of their legal fees. I do not consider that any of them were completely frank and forthcoming about their knowledge concerning the payment of their legal fees and that is a matter that affects their credit.
2386 Person 5 has never had any discussions with his solicitors about their rates of charging, the times at which accounts would be rendered or an overall estimate of the cost of the work. He has never received an invoice for the work and he has never paid any money. He is unaware of the basis upon which any of his barristers charge their fees. He has never had any discussion with any person, including the applicant, about why in the first instance a public company, Seven Network, has been paying his legal fees. He has never spoken to anybody at Seven Network. He found out on Tuesday, 19 April 2022, which was the first day upon which he gave evidence, that Seven Network had been paying his bills for the last two years. He did not ask his solicitor, Ms Munsie, how that came about. Person 5 said that he has never spoken to the applicant about his fees. Person 5 said that no-one from Seven Network had ever told him that the money was a loan. On the other hand, he would not describe it as a gift as he has not spoken to anyone at Seven Network about fees. When asked whether he was concerned that the value of the legal work being done for him might exceed the $100,000 that he has left in his account, he said that he would cover that when he got to it.
2387 Person 11 not only denied that he knew on or about 5 June 2018 that the costs of his legal representation would be added to the applicant's loan account in respect of a loan that the applicant had taken out for legal fees, but he said he denied knowledge of anything to do with that. He denied knowing from the time he spoke to the applicant about the arrangement concerning lawyers that he would not have to pay for the costs personally. Person 11 said that he made no assumptions about what "the deal" is with any fees.
​2388 Person 35 said that his understanding was that Mr Kerry Stokes was paying for the legal representation. He denied any knowledge of the fact that the applicant had agreed to add the amount of any legal fees paid by Mr Stokes for Person 35 to his loan account with Mr Stokes. Person 35 said his understanding was that Mr Stokes was paying for the legal representation and then one of his lawyers contacted him and "we progressed from there".
2389 The invoices indicate that the value of the legal work done for Person 11 is approximately $125,000; approximately $65,000 is for legal work done for Person 5; and approximately $86,000 is for legal work done for Person 35.
2390 The respondents submit that this is a material financial benefit conferred or arranged by the applicant for the benefit of these individuals and that its purpose was to instil in them a sense of obligation and loyalty to the applicant and to ensure that they did not turn on him. In the circumstances, these arrangements have an adverse effect on the credibility of Persons 5, 11 and 35. A further issue bearing on their credibility is that the denial by each of them of knowledge of some, or all, parts of the arrangement and of whether they were responsible for their own legal fees was not itself credible. I will come back to these submissions after I have identified an apparent change to the payment arrangements during the course of the trial.
2391 A further matter in relation to the topic of the payment of the legal fees of Persons 5, 11 and 35 respectively is said by the respondents to go directly to the applicant's credit. The applicant swore an affidavit on 21 September 2021 in connection with an interlocutory application in the proceedings. The affidavit was witnessed by his solicitor (Ms Monica Allen). The affidavit included the following paragraph:
   11. On 6 August 2019, I signed a loan agreement with Seven Network (Operations) Limited. A copy is annexed at BRS-1. I have caused redactions to be made to that document to redact references to amounts.
BRS-1 is annexed to the affidavit and it includes a ledger of the applicant's loan account with Seven Network. The redactions do not merely redact amounts. The redactions also include redactions of references to Addisons who were and are the legal practitioners acting for Persons 5, 11 and 35. An unredacted loan schedule was produced on 26 April 2022 in response to the respondents' Notice to produce to the applicant dated 24 April 2022 and that shows the references to Addisons. The respondents submit that para 11 of the applicant's 21 September 2021 affidavit was deliberately false and that the redactions concealed more than amounts. The respondents submit that the positive inference of dishonesty arises from the following four matters: (1) the references to Addisons would have revealed the existence of an arrangement ​that bore on the credibility of the applicant's key witnesses; (2) no witness knew the details of the arrangement, which is consistent with an intention to keep it concealed; (3) no witness possessed or produced any material relevant to the arrangement, which again is consistent with an intention to conceal; and (4) the subsequent efforts to unravel the arrangement, which I now turn to describe.
2392 Person 5 concluded his evidence on 26 April 2022 and Person 35 commenced his evidence on the same day. As I have said, Person 5 was asked about the payment arrangements involving Seven Network. On the same day, Mr Bruce McWilliam, an officer of Seven Network, wrote an email to internal parties and a representative of Australian Capital Equity and Herbert Smith Freehills in the following terms:
   It appears $60K – Alicia will give u exact figure shortly -of addisons bills have been charged to BRS and added to loan account
   These were for witness expenses so not payable by Ben. So can we pls credit his loan account with that much and just hve ACE take the witness expenses as an expense like the rest of the addisions
   Ring if not clear. Alicia will confirm amount.
2393 A response included the following:
   Confirming an adjusting journal has been processed in the books of ACE this afternoon to reduce the BRS loan receivable by $59,178.66 and to recognise this same amount as a direct legal expense of ACE.
2394 Later in the afternoon of 26 April 2022, a representative of Seven Network wrote to a representative of Australian Capital Equity stating that that representative had arranged for an adjusting entry that needed to be "journalled" for the applicant's loan account. The email goes on to say:
   Legal fees posted in the opening balance of the loan receivable from SNOL June 2020 that are to be directly expensed by ACE.
2395 A Transaction Detail Print of Australian Capital Equity as at 27 April 2022 shows a credit to the loan account of $59,178.66 and a debit for legal fees to Australian Capital Equity.
2396 The respondents submit that no witness gave evidence that the arrangements which involved the Addisons' invoices being added to the applicant's loan facility with Seven Network prior to 26 April 2022 was an error. They further submit that if it was an error, it almost certainly would have been detected when redactions were being applied to the loan schedule which was attached to the applicant's affidavit sworn on 21 September 2021. In other words, if it was an ​error, one would have expected the applicant to have noticed hundreds of thousands of dollars being wrongly added to his personal loan account. The veil of secrecy over the arrangement makes little sense if the applicant was not involved in it. The respondents ask the Court to draw the inference that the retrospective attempt to alter the arrangement was a recognition by the applicant that the arrangement was likely to raise questions about his credibility and the credibility of his witnesses.
2397 The applicant made a number of submissions about the subject of the payment of the legal fees of Persons 5, 11 and 35. A number of the submissions addressed inessential or peripheral aspects of the respondents' submissions.
2398 The applicant submits that an essential part of the argument advanced by the respondents is that there was something untoward in Person 5, Person 11 and Person 35 not availing themselves of legal representation provided by the Department of Defence. The applicant submits that this was a curious suggestion made by the respondents as it is a matter for any citizen to choose his or her lawyer. In my opinion, the applicant has misstated the essence of the respondents' argument. The essence of the respondents' argument is that the applicant was paying the legal fees of three of his key witnesses and that matter, with other circumstances, must be taken into account in assessing the credit of these witnesses. A related aspect of the respondents' argument also said to be relevant to the credit of Persons 5, 11 and 35 is their lack of knowledge of the arrangements for the payment of their legal fees.
2399 The applicant characterises the allegation made by the respondents as very serious. He submits that there is no suggestion that it was an implied or express condition of any assistance that Persons 5, 11 and 35 would provide false testimony to the IGADF Inquiry or in these proceedings. It is not entirely clear what the applicant means by this assertion. It is certainly true that there is no evidence of a document or conversation wherein Persons 5, 11 and 35 agreed to provide false testimony.
2400 The applicant submits that Persons 5, 11 and 35 were represented by senior lawyers and there can be no suggestion that these lawyers acted in some manner other than in accordance with their obligations to their clients. I assume that this submission is put forward by the applicant as some type of contextual matter, but it does not seem to meet the essence of the respondents' submissions.
​2401 The applicant submits that he is not responsible for the fees of the lawyers acting for Persons 5, 11 and 35. He submits that whilst the fees of Persons 5, 11 and 35 were added to his loan account with Seven Network at the time they were incurred, that was an error and that that error has now been reversed and the applicant is not financially responsible for their fees. It appears to be common ground that that situation has now been reversed. The fact is that until recently, Seven Network were paying for the legal fees of Persons 5, 11 and 35 and then adding those payments to the applicant's loan account with the result that the applicant was paying the legal fees of those persons.
2402 The applicant submits that the payment by a party of the legal expenses of a witness who is seeking independent legal representation is not unlawful. I do not think that the respondents suggested that the arrangement was unlawful. The applicant goes on to submit that a party paying the legal expenses of a witness who is seeking independent legal representation, without more, cannot be relevant to an assessment of the credit of a witness. There are two observations to be made about this submission. First, it needs to be clearly stated that the legal expenses of the witnesses related not only to their appearance in these proceedings, but also to matters relating to the IGADF Inquiry. Secondly, I do not accept that the matter without more cannot be relevant to an assessment of the credit of a witness. It seems to me clear that it is a matter to be taken into account even if, after doing so, the conclusion is reached that it does not adversely affect the credit of the witness.
2403 The applicant submits that it is "unfair and disingenuous" for the respondents in aid of their contention to suggest that there was something unusual in the applicant providing assistance to Persons 5, 11 and 35 to obtain legal representation, to assert that in the course of swearing an affidavit on 21 September 2021, he deliberately concealed that Addisons were representing Persons 5, 11 and 35. This is not quite the point. The point is that Addisons' fees were being paid by Seven Network and then added to the applicant's loan account. The applicant's submission is that his affidavit was prepared as part of a claim for privilege by him and Seven Network in relation to documents produced on subpoena by Cato & Clive Partners Pty Ltd and Mr Ross Coulthard. The claim for privilege was upheld by this Court and a description of the applicant's affidavit and the reasons for upholding the claim for privilege is set out in Roberts-Smith v Fairfax Media Publications Pty Limited (No 23) [2021] FCA 1460; (2021) 157 ACSR 438 (at [25]–[29] per Abraham J). The applicant's submission is that the claim for privilege had nothing to do with what legal fees, if any, were being paid in relation to lawyers acting for ​witnesses. That is correct. The question remains, however, whether the applicant dishonestly redacted the references in the loan account documents.
2404 It is clear to me that I do not have all the relevant evidence which it is within the power of the applicant to adduce as to whether there was an error in the payment arrangements and the circumstances in which that error arose and there is no explanation as to who made the redactions to the ledger of the applicant's loan account. There is no evidence either way as to why, if it was an error, it was not picked up at the time the redactions were done to the ledger for the applicant's loan account.
2405 A number of matters may be relevant to an assessment of a witness' honesty and reliability. They include the matters in fact raised by the respondents in the case of the applicant and his main witnesses, being friendship between the witnesses, the fact that a party is paying the legal fees of the witnesses or otherwise conferring a material benefit on the witnesses and the fact that the witnesses have discussed amongst themselves the events which are the subject of the proceedings.
2406 The applicant described Persons 5, 11, 29 and 35 as close personal friends. Person 5 described his relationship with the applicant as very good and said that he was also very good friends with Person 35 (and Persons 29 and 38). Person 11 described the applicant as a good friend over a long period of time. Person 29 described the applicant as one of his close friends and said that they spoke often. Person 35 described the applicant as a good mate and friend.
2407 As to the payment of legal fees, the critical question is the state of mind of the applicant and of Persons 5, 11 and 35 respectively. I find that Persons 5, 11 and 35 have not been frank and forthcoming about their knowledge concerning the payment of their legal fees. In large measure, the arrangements were made by the applicant. It seems that the appropriate inference is that Persons 5, 11 and 35 do not believe they will have to repay the fees. It is a benefit to them arranged by the applicant.
2408 I find that the applicant made the arrangements because he considered that these witnesses, among others, support his version of events. He was and is no doubt alive to the fact that whoever is paying, the witnesses will feel less inclined to change their mind and refuse to cooperate or to change an account previously given in circumstances in which the applicant has arranged for the payment of their legal fees. From the perspective of the witnesses, that is to say, Persons 5, 11 and 35, in addition to my conclusion that they were not frank and ​forthcoming about their knowledge as to the arrangements for the payment of their legal fees, they did know that the applicant had made arrangements for their legal fees to be paid by another and that gives rise to the potential that they will feel obliged to cooperate or maintain an account previously given or both (my emphasis).
2409 I have considered carefully whether the applicant dishonestly redacted the reference to Addisons in the ledger of the applicant's loan account. The issue is finely balanced. On the one hand, it is a serious allegation. On the other hand, it was clearly within the power of the applicant to adduce evidence on the matter. Having considered all of the evidence, I have decided that it could have been an innocent error and, in the circumstances, I am not prepared to draw the inference for which the respondents contend.
2410 I turn now to the contact, including conversations, the applicant had with his witnesses concerning the subject matters of these proceedings before the trial.
2411 On 8, 9 and 10 June 2018, the respondents published the Group 1 and Group 2 articles and they contained allegations concerning events at W108 in 2009 and Darwan in 2012.
2412 Shortly after reading these articles, the applicant contacted Persons 5, 11, 29 and 35 who, as I have said, were all close personal friends. He said in evidence-in-chief that he had not thought about the relevant missions for nearly a decade and he was trying to ascertain what was going on and why the things said in the articles were written. He said that his recollections were initially quite vague because he had not talked about it for a while. He said that he had an independent recollection of what he had personally done, but he did not have an independent recollection of the entire mission.
2413 It was put to the applicant that he has reconstructed his account of events at Darwan and W108 on the basis of reading documents and discussions with his friends. He did not agree with that proposition. He said that he had only reconstructed insofar as the scheme of manoeuvre and the external workings of the operations were concerned.
2414 Person 5 said that he spoke to the applicant about "everything that was in the media" and he said he went through the mission to W108 with the applicant "step-by-step". He likened the discussion to "any debrief or anything, we went through it again reminding ourselves of what happened on 108, because I had never given it a second thought in nearly 12 years or whatever it was". Person 5 also went through the mission to W108 step-by-step with Person 29 who is a good friend. He was asked whether he did the same thing with Person 35. He then qualified ​his evidence with respect to Person 29 and said that with respect to Person 29 and Person 35 "it was more about trying to work out where the hell this was coming from and why it was coming". He could not recall whether he had spoken to Person 52 about W108 in June or July 2018. It is possible that he discussed the mission to W108 with Person 38. He has spoken to Person 27 about W108, but not, according to him, in June or July 2018.
2415 Person 29 said that at times, he communicates with the applicant on a weekly basis and then at other times, every couple of weeks. During the period of their respective interviews by the IGADF Inquiry, they would have spoken to each other "within a reasonable timeframe of those interviews". Although he said he did not remember it, Person 29 drove up to Sydney from Nowra on 13 June 2018 which was the day of Person 11's further interview by the IGADF Inquiry. Persons 29, Person 11 and the applicant had dinner on the night of 13 June 2018.
2416 Person 35 spoke with the applicant at the time of the newspaper articles. The applicant visited Person 35 in New Zealand in August 2018.
2417 Person 11's interview with the IGADF Inquiry in June 2018 was initially scheduled to take place on 4 June 2018. As I have said, it was rescheduled to occur on 13 June 2018. On 9 June 2018, the applicant flew to Perth and met with Person 11. I should point out that as to this trip to Perth, the applicant submits that the "Respondents' witness, Ms Roberts, addressed the trip to Perth in her Outline of Evidence and described it as a pre-existing work commitment". The evidence said by the applicant to support this proposition does not do so. Paragraphs 9 to 12 inclusive of Ms Roberts' outline of evidence filed on 5 April 2019 were not tendered and there is nothing on page 1983 of the transcript which is to this effect. In any event, even if it was a pre-existing work commitment, the fact is that the applicant took the opportunity to meet with Person 11.
2418 On 12 June 2018, the applicant flew from Brisbane to Sydney because Person 11's interview by the IGADF Inquiry was rescheduled for the following day. The applicant said that he did not think he met with Person 11 in Sydney before his interview. Person 11 did not recall meeting with the applicant the night before his interview. In closed Court, Person 11 conceded that this evidence was incorrect and the applicant and Person 11 met in the former's hotel room in Sydney the night before Person 11's interview by the IGADF Inquiry. I refer to the closed Court reasons (at [227]–[228]). ​2419 The respondents ask the Court to infer that the purpose of this meeting on the evening of 12 June 2018 was to discuss Person 11's evidence at the IGADF Inquiry and that there is no other rational or innocent explanation as to why these two men met hours before an investigative interview in the unusual setting of a hotel room and in an interstate city. The applicant's suggestion that he came to Sydney to provide mental health support to Person 11 because he was in a "very bad state" ought not to be accepted. The respondents submit that the applicant had a personal interest in ensuring that Person 11 did not disclose the truth to the IGADF Inquiry as Person 11 was a key ally in defeating the murder allegations in relation to the events during the mission to Darwan.
2420 I find that the applicant and Person 11 met in a hotel room on 12 June 2018 which was the day before Person 11's interview with the IGADF Inquiry. The applicant had an interest in what Person 11 told the IGADF Inquiry insofar as it concerned him and the serious allegations against him. That concern was in the forefront of his mind. I find that they discussed the information that Person 11 was likely to provide to the IGADF Inquiry.
2421 On the evening of 13 June 2018, Persons 11, 29 and the applicant had dinner together in Sydney. They each denied discussing the contents of Person 11's interview with the IGADF Inquiry. Person 11 accepted that he did complain to the applicant and Person 29 about his treatment by the IGADF Inquiry on that day. I am prepared to accept that Person 11's wife travelled to Sydney with him and was present at the dinner on the evening of 13 June 2018. I do not consider that that meant that there was no discussion about Person 11's interview. Person 11 complained about his treatment at the interview and said enough to indicate to the applicant that he would be complaining about his treatment.
2422 On 15 June 2018, the applicant wrote to his solicitors by email. He attached the draft letter of complaint by Person 5. He also advised his solicitors that Person 11 would be writing a letter of complaint. The respondents submit that there was a discussion at the dinner on 13 June 2018 about Person 11's experience during the interview and how unhappy he was and that it is implausible that he complained about his treatment by the IGADF Inquiry without disclosing any matters of substance. I agree, as the respondents submit, that it is almost impossible to imagine how such a nuanced conversation could have occurred. In my opinion, the inference should be drawn that there was a discussion at some level about the subject matter of Person 11's interview at the dinner on the evening of 13 June 2018.
​2423 The applicant had flown to Perth on 9 June 2018 and to Sydney on 12 June 2018 to see Person 11 and at about the same time, he had made arrangements for the payment of Person 11's legal fees. Person 11 said that he knew little of those arrangements and, as I understand it, at that time the documents record that the applicant had undertaken to pay those fees. By this time, the applicant had taken steps to silence Person 6 and he had arranged to send the threatening letters to Person 18. The applicant was desperate at the time to discover who was revealing adverse information about him to the IGADF Inquiry and to the media. I draw the inference that matters of substance were discussed between the applicant and Person 11. I do not accept that he undertook a trip to and from Perth and then to and from Sydney within four or five days for the principal purpose of providing mental health support to Person 11.
2424 Person 5's statement of complaint which is titled "Statement about treatment under interrogation by the IGADF" is nearly three pages long and its subject matter is Person 5's interview by the IGADF Inquiry on 8 May 2018. By email dated 15 June 2018, Person 5 sent the statement to the applicant with a message which read "Have a read".
2425 On the same day, the applicant sent an email to his solicitors attaching the statement. He sent a copy of his email to his solicitors and Person 5's statement to Mr McWilliam at Seven Network. The applicant's email referred to Person 5's "draft letter of complaint" and suggested to his solicitor that it could be "formally staffed by yourself with the intent of being forward to IGADF …".
2426 Almost two weeks later, the applicant's solicitors wrote to the IGADF Inquiry raising a number of matters, including the fact that if SASR soldiers were giving information to Mr McKenzie about the Inquiry, then that was an offence under s 21(3) of the IGADF Regulation.
2427 I find that by the statement Person 5 was providing, and was intending to provide, details of his interview with the IGADF Inquiry to the applicant. I have had close regard to the statement and the way it is framed. I refer to the closed Court reasons in relation to the mission to W108.
2428 The applicant advanced two arguments in response.
2429 First, the applicant submits in the absence of knowledge of the information the applicant and Person 5 gave to the IGADF Inquiry and in the absence of an ability on the part of the applicant and Person 5 to disclose what they said at the IGADF Inquiry, it is not possible to conclude that they were attempting to "line-up their stories". To a point that is true, but the critical matter ​is that even on the applicant's own account, there were a couple of matters where he was seeking information (see [2413] above) and, more significantly, he was arming himself with the full details of Person 5's account of the mission to W108.
2430 Secondly, the applicant submits that Person 5 made no attempt to conceal the fact that he was providing information to the applicant. Again, to a point that is true, but it should not be overlooked that his statement of complaint went further than a statement merely about the process. Further, the applicant submits that there would have been no point in Person 5 providing information to the applicant. The applicant was not interviewed by the IGADF Inquiry until 28 and 29 November 2018 and by then, most of the allegations and rumours were in the public domain by reason of the respondents' conduct in publishing the matters complained of. That chronology is correct as a matter of fact, but the submission ignores the fact that the allegations and rumours are part of the picture, but not the whole picture. The content of what witnesses said to the IGADF Inquiry, particularly close personal friends, was valuable information.
2431 Person 5's statement refers to various topics raised with him during the course of his interview by the IGADF Inquiry and Person 5's responses to allegations put to him at the interview. Under s 21 of the IGADF Regulation, a direction may be given by the Inspector-General ADF, or an authorised inquiry officer, or an Assistant Inspector-General ADF not to discuss with or disclose to any person any information contained in the evidence that a person has given to an inquiry. A direction in those terms was given to Person 5 at the conclusion of his interview on 8 May 2018. It seems clear that viewed objectively, the provision of the statement by Person 5 to the applicant was in clear breach of the direction given at the conclusion of the interview.
2432 The applicant gave evidence that, at the time, he proceeded on the assumption that there was a legal obligation not to communicate the content of what had happened in the course of an interview at the IGADF Inquiry. At the time he received the email with the statement of complaint from Person 5, his view was that Person 5 had sent him a complaint letter and he did not form the opinion at that time that Person 5 had breached his obligations by sending him the letter. The applicant considered that Person 5 sent him the letter because they were friends and Person 5 was upset and probably wanted the applicant's view on what he had written or how he had framed it. Person 5 said that the statement was not meant for the applicant — it was meant to "go against the IGADF" — and that he did not care whether the applicant read the letter. The latter assertion is inconsistent with Person 5's request of the applicant in his email ​and is different from the applicant's understanding of the reason Person 5 sent him the statement. As I have said, I reject Person 5's denial that the purpose of the letter was to inform the applicant of the substance of the interview or at least some aspects thereof.
2433 There is another respect in which the respondents submit that Person 5's statement is relevant and that is in the context of concealment. The statement was not discovered by the applicant and only came to light when it was produced by Ms Roberts in response to a subpoena issued by the applicant on 20 May 2021. The respondents submit that, in the circumstances, the applicant's failure to produce the document was deliberate. I will return to this submission later in this Section.
2434 On 3 June 2018, and following a referral by the then Chief of the ADF, Air Chief Marshal Mark Binskin AC, the AFP commenced an investigation into the alleged murder of Ali Jan on 11 September 2012. Approximately one week later, the applicant received a text or telephone call from Mr Michael Keelty, the former AFP Commissioner. The applicant met Mr Keelty twice. The first meeting was on 15 June 2018. The second meeting was on 20 June 2018 and, on that occasion, Mr Keelty told the applicant that he could not speak to the applicant any more. The reason he gave was that there had been "referrals" made to the AFP.
2435 The Group 1 articles were published by the respondents on 9 June 2018 and, on the same day, the applicant asked Ms Roberts to ask Ms Scott to purchase two pre-paid iPhones, including SIM cards. The applicant reimbursed Ms Scott in relation to the purchase of the two pre-paid iPhones. They were registered on or about 5 July 2018. The applicant and Ms Scott referred to the two iPhones as "handbag 1" and "handbag 2" and, from time to time, the applicant would ask Ms Scott to top up the iPhones. One iPhone was in Ms Scott's name and the other was in her husband's name. Soon after the iPhones were activated, a number of encrypted messaging applications were installed on the iPhones. The applicant said that he used the encrypted apps to talk to everyone and that included Persons 5, 11, 29 and 35.
2436 The applicant gave evidence that the purpose of using these pre-paid iPhones was to avoid being compromised by the media and it was not part of his purpose in using the pre-paid iPhones to avoid detection by any law enforcement agency or to avoid his conversations coming to the attention of the IGADF Inquiry. The respondents submit that the applicant's primary purpose in communicating with Persons 5, 11, 29 and 35 using encrypted apps on burner phones was to speak without being intercepted by law enforcement agencies, including the AFP and the IGADF Inquiry . By the time the burner phones were activated on or about ​5 July 2018, the applicant knew that the IGADF Inquiry was focussed on him and by 20 June 2018, he knew of the referrals to the AFP.
2437 With respect to the referrals made to the AFP, the applicant denied knowing on 20 June 2018 of an investigation into him particularly. I consider that denial was false. The applicant knew that the AFP referrals concerned him through his contacts with Mr Keelty.
2438 The respondents submit that I should not accept the applicant's evidence denying that the purpose of using encrypted apps or burner phones was to avoid detection by the law enforcement agencies or the IGADF Inquiry. The applicant admitted that he said to people that not even the intelligence agencies can access encrypted apps.
2439 The applicant submits that on the topic of the purchase of the pre-paid phones, I should infer that Ms Scott's evidence would not have assisted the respondents' case. The respondents filed and served an outline of evidence of Ms Scott, but she was not called to give evidence. I do not accept the applicant's submission. The issue concerns the applicant's state of mind. The position is not changed by the fact that counsel for the respondents put a question to the applicant in cross-examination about something he is alleged to have said to Ms Scott in connection with the purchase of the pre-paid phones and which he denied.
2440 The applicant knew in May 2018 that he was one of the subjects of the IGADF Inquiry. He knew by 20 June 2018, that there had been a referral to the AFP which had the effect that Mr Keelty could no longer speak to him. The question is whether I should reject his evidence that it was no part of his purpose in purchasing pre-paid telephones and using encrypted apps to avoid detection by law enforcement authorities. I do not accept the applicant's evidence. I consider that he wanted to avoid any interception of his telephone conversations whether it be an interception by the media, the IGADF Inquiry or the AFP.
2441 On 3 November 2018, Person 29 sent an email to the applicant with three aerial photographs of the area in which W108 and W109 were thought to be located. The email read as follows:
   Mate,
   I don't know whether this is totally correct but I think it matches up.…
   108 and 109 sorts of look different but close.….
   Thoughts
​2442 The aerial photographs contained red markings by Person 29 of the VDOP of W108 and W109 and the route from the VDOP to W108. The applicant agreed that Person 29 had got it completely wrong.
2443 The applicant said that, at that point in time, he was trying to work out the directions of the buildings and that had some purpose in terms of these proceedings. As I have said, a Defence in each of the three proceedings was filed on 9 October 2018. The applicant agreed that the respondents' outlines of evidence were not filed until 31 May 2019 and that his evidence in reply was not filed until 12 July 2019. On the other hand, his interview by the IGADF Inquiry was due to proceed, and did proceed, in late November 2018.
2444 The applicant did not agree that he was talking to Person 29 in early November 2018 about W108 for the purposes of preparing for his interview by the IGADF Inquiry. He said that he and Person 29 were just trying to work out what was going on with W108 and that it was to work out what actually happened. As I understand it, the applicant's evidence was that he was communicating with Person 29 for the purposes of understanding what was going on and being able to convey that to his lawyers in connection with these proceedings as Defences had only recently been filed. The respondents on the other hand, ask me to reject this evidence and find that the discussions with Person 29 were part of a plan by them to synchronise their evidence for the purposes of the IGADF Inquiry.
2445 Person 29, when asked about the photographs attached to his email to the applicant of 3 November 2018, said that the applicant had asked him for his recollections of the mission set. Person 29 admitted that on the facts as he now knew them, most of the locations were wrong. The respondents submit that this process of discussion between Person 29 and the applicant, even if innocent, contaminated both of their recollections of the mission.
2446 Exhibit R187 are charts of data usage on both pre-paid iPhones and indicates a spike in usage on 7 and 8 November 2018. The respondents' case is that this is about the time the applicant received a notice requiring him to attend before the IGADF Inquiry. The applicant said in his evidence that the spike in data usage means he could have been talking to anybody at that time and not just Persons 5, 11, 29 and 35 because he was concerned about the fact that he was going to be interviewed by the IGADF Inquiry.
2447 The respondents submit that the applicant offered no positive alternative as to the persons to whom he was speaking and as to the subjects he was speaking to them about. The applicant ​submits that: (1) there are spikes in usage shown for other months such as July, August, October, November and December 2018; (2) the measuring tool is data usage and that is not equivalent to telephone calls or texts, let alone telephone calls or texts involving the applicant and Persons 5, 11, 29 and 35.
2448 I consider that some of the increase in data usage is because of conversations between the applicant on the one hand, and one or more of Persons 5, 11, 29 or 35 on the other, and that this related to the applicant's upcoming interview by the IGADF Inquiry. It is not possible on the evidence to be any more precise than that.
2449 The applicant was interviewed by the IGADF Inquiry on 28–29 November 2018. Shortly after his interview by the IGADF Inquiry, the applicant asked Ms Scott to purchase two new pre-paid SIM cards for him and those SIM cards were activated on 3 December 2018. There was a significant spike in data usage on the SIM cards on 5–6 December 2018. The applicant said that he would routinely swap over his SIM cards. The respondents submit, and I accept, that the proper inference is that the applicant wanted new SIM cards to minimise the possibility of his communications being intercepted.
2450 The respondents' outlines of evidence were filed and served on 31 May 2019. Those outlines of evidence addressed matters relevant to the respondents' defence of substantial truth and contextual truth. The applicant was due to file and serve his outlines of evidence in reply by 12 July 2019.
2451 On 29 June 2019, the applicant shared with Person 29 a video of a bomb being dropped on W108 on 12 April 2009. The applicant obtained the footage from one of the USBs that was sent to him in the mail. The applicant could not recall any particular reason he was emailing this video to Person 29 at this time. He agreed that it was most likely that he communicated with Person 29 about the video. By contrast, Person 29 did not know for certain why the applicant sent him the video, although he proffered the suggestion that it was in order to refresh his memory because there was still "a whole lot of doubt and misunderstanding and – about where Whiskey 108 was and the nature of the mission on 108".
2452 On 3 July 2019, the applicant forwarded to Person 29 an aerial photograph of W108 with markings on it. The markings show the cardinal points, an entry point, a breach point, field walls, a tunnel entrance and the location of a dead insurgent. The metadata to this document indicates that the author of the document was Person 5 and that the document was marked by ​the applicant. The date, 3 July 2019, was a little over a week before the applicant's outlines of evidence in reply were due to be filed.
2453 The applicant's recollection was that he put the markings on the photograph. He does not recall whether Person 5 or Person 29 or Person 35 put markings on the document. He said that he would not have been surprised if the document had been shared with Person 35.
2454 As I understand it, the applicant's submission is that these acts of himself and Persons 5 and 29 in sharing with each other photographs, a video and other information are really no more than the acts of colleagues in the face of serious allegations being raised in the media.
2455 Person 29 visited the applicant's home on 7 July 2019. Ms Roberts recalled the occasion. She recalled that the applicant and Person 29 were in the office in the home looking at documents on the applicant's laptop computer. She recalled seeing an image of a white building that was an aerial shot, and that they were describing what was going on around the building. I accept this evidence and infer that the photograph the applicant and Person 29 were looking at was the aerial image of W108. The applicant initially said that he did not have the images of W108 when he did his outline. He said that he was sure of it because "we had trouble working it out". He said that that was the whole point, "we didn't have the images". The email with the aerial photograph of W108 was put to him. He seemed to imply that he had a difficulty remembering when his outline had been filed. He agreed that he had images of W108 at the time he prepared his outline of evidence in reply.
2456 The applicant drew a distinction between something they were talking about on the one hand, and talking about their evidence on the other. I will come back to this so-called distinction after I have finished my description of the contact between the applicant and his witnesses.
2457 As I have said at the outset, the respondents' case on collusion between witnesses includes the collusion between the applicant and Persons 35, 32, 27 and 39 to the effect that Person 12 was not present at Chinartu on 12 October 2012 because he was removed months earlier after shooting a dog and injuring an Australian patrol commander. That matter has already been addressed in Section 5 of this Part which deals with the mission to Chinartu.
2458 The applicant had a second interview with the IGADF Inquiry on 2–4 December 2019. Ms Roberts gave evidence that the applicant asked her in December 2019 to telephone Person 29 from her telephone and just give him an address and a time that he was to meet the applicant and not ask any questions. The address was of a hotel in Sydney. The applicant told ​Ms Roberts that he had had dinner with Person 29 and Ms Monica Allen and that he had given Person 29 a copy of his notes from the IGADF Inquiry. Person 29 denied being given any notes by the applicant. This alleged handing over of notes was not put to the applicant and it is unclear whether it was relied on by the respondents in their closing submissions.
2459 The applicant accepted that on 4 December 2019, he had dinner with Person 29 and Ms Allen. He said that he arranged to have dinner with Person 29 because he had not seen him for a long time due to the fact that he had been posted from Perth to New South Wales. The applicant said that he did not discuss his interview with Person 29. Person 29 recalled the dinner, but, as I have said, denied that the applicant gave him notes of his interview. Shortly after, Person 29 received a notice to attend a second interview by the IGADF Inquiry in January 2020.
2460 As I have indicated previously, I accept Ms Roberts' evidence and I accept her evidence about the arrangements for the dinner and the content of what the applicant told her about the dinner.
2461 On 6 December 2019, the applicant flew to New Zealand with his family. He said that he was on holidays. He met Person 35 in New Zealand. Person 35 said that the applicant had come to visit him for Person 35's birthday. After that, the applicant went to the United States to ski with his family and he saw Person 5 and his family at that time. The applicant said that the holidays to New Zealand and the United States were booked before he became aware of the dates of his second interview with the IGADF Inquiry and that he did not discuss his interview with either Person 5 or Person 35. On 27 December 2019, and after the applicant had returned from the United States, Person 29 visited the applicant's home on the Sunshine Coast. Early in January 2020, the applicant flew to Perth to meet Person 11. The applicant denied discussing the contents of his interview with either Person 29 or Person 35.
2462 On 16 December 2019, The Sydney Morning Herald published an article which stated that the AFP had launched a second war crimes investigation into the applicant and that the investigation was examining allegations that the applicant was implicated in the summary execution of a man at a compound in southern Afghanistan in April 2009. Person 5 said that he would have discussed the article with the applicant.
2463 The respondents submit that in the four weeks following his second interview by the IGADF Inquiry on 2–4 December 2019, the applicant crossed the globe to meet with his four key witnesses in this case and that that cannot have been a coincidence. The respondents ask the Court to draw the inference that he chose to visit these four men because they were cornerstones ​of his defence to the allegations in the IGADF Inquiry and the allegations in this case. The respondents submit that whether or not some, or all, of those trips were initially organised for a different purpose, the fact is that within a short time of his second interview by the IGADF Inquiry, the applicant had met in person with those four key witnesses and discussed the allegations with them. The applicant submits that there was nothing wrong with him meeting friends and, in the case of Person 11, providing support to him.
2464 In response to a subpoena issued by the applicant on 20 May 2021, Ms Roberts produced several documents, including Person 5's statement about his interview by the IGADF Inquiry and the marked up copy of the aerial photograph of W108 sent by the applicant to Person 29 on 3 July 2019.
2465 The applicant submits first, that there is no basis in the evidence for concluding that the applicant and Persons 5, 11, 29 and 35 colluded about the evidence they, or some of them, would give to the IGADF Inquiry in the absence of their evidence before the Inquiry, and secondly, that no adverse inference should be drawn from the fact that ex-work mates or colleagues have discussed aspects of their service in circumstances in which articles are being published which allege the commission of the most serious of war crimes.
2466 I am satisfied that the applicant and Persons 5, 11, 29 and 35 discussed their respective recollections of the missions in which they were involved, including the missions to W108, Darwan, Chinartu and Fasil and that they discussed their recollections in detail. On the one hand, it is difficult to make a finding of collusion in the sense of lining up their stories for the purpose of the IGADF Inquiry in the absence of evidence of what each of them said to the Inquiry. On the other hand, I do not accept in the present context the distinction the applicant sought to draw between talking about something and talking about their "evidence" which I assume means the statements made to the IGADF Inquiry. The applicant put the matter in various ways — trying to work out what was going on and what actually happened and no more than the acts of ex-work mates or colleagues discussing matters in the face of serious allegations being raised in the media — but however it is put, the same conclusion is reached. The fact is these witnesses were talking in detail about relevant missions and events and their respective recollections of the same and even if they were not trying to "line-up" their stories, there is a significant risk that that would be the result of the process.
​2467 The discussions between the applicant and his witnesses, as outlined above, is a matter, which like the strong ties of friendship and the arrangements with respect to the payment of legal fees, is to be borne in mind when assessing the evidence of the relevant witnesses.
Concealment of Relevant Evidence and Material
Introduction and background
2468 In their closing written submissions, the respondents submitted that there were various acts of concealment by the applicant which amount to admissions against interest or circumstantial evidence permitting an inference to be drawn of a consciousness of guilt on the part of the applicant. As I have said, in their closing oral submissions, the respondents narrowed their submissions. They submit that all acts of concealment are relevant to credit, but they accept that only one category of the documents concealed, being two documents relating to the allegation of domestic violence, give rise to an inference of a consciousness of guilt.
2469 The alleged acts of concealment related to a failure by the applicant to make proper discovery of documents in accordance with orders made by the Court.
2470 On 24 September 2019, the solicitors for the respective parties agreed to discovery by the applicant by reference to 37 categories of documents.
2471 The applicant subsequently filed and served four affidavits of discovery on 23 October 2019, 13 July 2020, 12 August 2020 and 23 December 2020 respectively, that is, affidavits updating discovery and verifying that the obligations to make proper discovery had been complied with.
2472 The applicant's failures to make proper discovery said by the respondents to be sufficient in the circumstances to support a finding of deliberate or reckless concealment on his part relate to documents which fall into the following three categories of documents:
    (1) a number of USBs which the applicant had received in the mail and which contained photographs, videos and other mission-related documents;
    (2) aerial photographs and video of W108 and Person 5's email and statement of complaint; and
    (3) material, including photographs, and a text message relating to the alleged assault by the applicant of Person 17.
2473 There are two aspects to the respondents' submissions with respect to the USBs. The first aspect relates only to credit and is whether the USBs were buried by the applicant in the ​backyard of the matrimonial property as alleged by the respondents or kept by him in a drawer of a desk in the study in the matrimonial home as alleged by the applicant. The resolution of this issue is significant in terms of the credit of the applicant and of Ms Roberts. The second aspect of the respondents' submission with respect to the USBs is whether, irrespective of whether they were buried in the backyard of the matrimonial home or kept in the drawer, they were deliberately concealed by the applicant. As I have said, initially in their closing written submissions, the respondents advanced the non-disclosure of the USBs as evidence of an implied admission. In their closing oral submissions, the respondents indicated that they no longer pressed that argument. They accept that in the absence of a "dispositively relevant document" and evidence that the applicant was aware of such a document, they cannot advance the non-disclosure of the USBs as evidence of a consciousness of guilt, although they submit that it is evidence giving rise to "a very serious negative credit finding against the applicant".
2474 On 17 August 2018, two days after the applicant commenced these proceedings, Ms Roberts sent to Ms Scott photographs of Person 17's Valium medication and diary notes taken by the applicant on the night of the alleged assault and a screenshot of a text message from Person 17 to the applicant sent on 6 April 2018. The photograph showing Person 17's Valium medication shows an unopened blister pack. The screenshot of the text message from Person 17 to the applicant on 6 April 2018 has been set out previously, but is repeated here for convenience:
   No. It most certainly is not blackmail. I'm not asking for or expecting anything from you.
   Please don't waste your time with intimidation or payback either. The benefit of seeing what you were capable of a few weeks back & knowing the threats you've made to me since is that I immediately put in place "insurance" in the event that anything should happen to me or my family. I know you will blame me but I hope you'll also remember that we're in this positon because of what we've BOTH done
   What I did today wasn't planned & it's not something I ever thought I would do but I believe I made the right decision. I know you're angry but I did it for your own good …
There is a dispute between the parties as to how Ms Roberts obtained these documents.
2475 Ms Roberts said that the applicant sent the documents to her and that he told her he did so because he wanted her to keep them in case "we ever needed them". The applicant said that he did not recall sending the email to his wife, but that he did know that his wife found these images. The applicant agreed that the photograph was on his computer. The applicant said he did not recall sending the photograph to his wife and he referred to the fact that his wife had access to his accounts. The applicant said, in response to a suggestion that he sent the ​photograph of the blister pack to his wife for safe keeping, that his wife would routinely take photographs of his deleted items and send them to her friend, Ms Scott.
2476 The respondents submit that the notion that Ms Roberts secretly accessed the applicant's emails, searched through his deleted items and decided to preserve particular images that the applicant had taken of Person 17's belongings is fanciful. The respondents ask the Court to infer that shortly after commencing these proceedings, the applicant sought to preserve material that he considered might be valuable to use against Person 17, but did not want to discover. That explains, they submit, the fact that he annexed photographs of Person 17's diary notes to his outline of evidence in reply filed and served on 12 July 2019. The photographs of Person 17's diary contain, on any view, extremely personal and private information and have no relevance to the case. The respondents ask the Court to infer that the applicant disclosed them at that point to embarrass Person 17. The applicant's evidence in reply did not attach the screenshot of a text message sent by Person 17 on 6 April 2018, or the photograph of the Valium medication.
The process of discovery begins
2477 As I have said, on 24 September 2019, the respondents and the applicant agreed on the categories of documents to be discovered by the applicant and, on 23 October 2019, the applicant served an affidavit setting out a list of documents. He discovered 63 documents in his control.
2478 On 6 November 2019, the respondents' solicitors wrote to the applicant's solicitors in the following terms:
   Your client's discovered material also fails [to] disclose a single piece of correspondence relating to these proceedings and its related matters. It is plainly absurd to suggest, for example, that your client does not have in his possession any correspondence with individuals upon whose behalf he filed Outlines of Evidence in this proceeding relating to the matters referred to in those Outlines …
   We invite your client to attend to his discovery obligations as soon as possible and look forward to your response as to what is proposed to remedy its present deficiency.
2479 On 11 November 2019, the applicant's solicitors responded in the following terms:
   2. Correspondence between the Applicant and individuals upon whose behalf he filed Outlines of Evidence in this proceeding relating to the matters referred to in those Outlines. As noted in our client's initial Outline of Evidence dated 5 April 2019, our client does not retain messages sent or received by him. However, to avoid any unnecessary argument, our client will serve a Supplementary List of Documents noting that to the extent he received ​or sent any communications relevant to an agreed category for discovery to any of the individuals upon whose behalf Outlines of Evidence have been filed, those communications are no longer in his possession and have been deleted in the usual course.
2480 The respondents submit, correctly, as at 23 October 2019 and 6 November 2019, the applicant had in his possession the following documents:
    (1) USBs the applicant had received in the mail which included hundreds of discoverable photographs, videos and other mission-related documents;
    (2) Person 5's email and statement of complaint;
    (3) the email and three aerial photographs sent by Person 29 to the applicant on 3 November 2018;
    (4) the video shared by the applicant with Person 29 on 29 June 2019; and
    (5) the email from the applicant to Person 29 dated 3 July 2019 with the marked up copy of the aerial photograph of W108. This document was created by Person 5.
2481 The applicant said that from mid-2019 to January 2021, he received a number of USBs in the mail. He estimated that he received in the vicinity of four or five USBs. He did not know who sent him the USBs. He looked at the USBs when they came in. The applicant said that the USBs primarily contained photographs of SASR operators in Afghanistan and photographs of the Fat Lady's Arms and a number of parties. In addition, there was imagery of W108 and a post-operation report and ScanEagle footage.
2482 In the context of the USBs, the applicant explained his failure to make proper discovery on the basis that he did not understand his obligations how "it was ongoing" and "how detailed it was". The applicant said in his evidence-in-chief that he used the aerial images to explain to the lawyers how W108 looked and that he used a couple of the pictures "when talking to some of the guys to explain how we went into the building and who was where". He had not seen the building for 10 years and it made sense to talk about who was where. The applicant said, in relation to the images on the USB, that with respect to W108 it was about, "from my perspective, dealing with the defo, these proceedings, so I thought that I was entitled to leave it with the lawyers and I didn't have to do that, but clearly, that wasn't the case". The respondents submit that no explanation was provided by the applicant or his lawyers as to why obviously relevant material was not discovered despite being used by them to prepare for the case. Material which should have been discovered by the applicant was, in the result, obtained by the respondents from third parties. For example, Person 5's statement and the ​communications between the applicant and Person 29 about W108 were all produced by Ms Roberts in response to a subpoena issued by the applicant on 20 May 2021.
Where did the applicant keep the USBs?
2483 As I have said, there was a dispute about whether the USBs were at one stage buried in the backyard of the matrimonial home.
2484 The applicant and Ms Roberts ceased living together as a married couple on 20 January 2020. Ms Roberts said that in the lead up to her separation from the applicant, she had noticed the applicant withdrawing cash on a regular basis and she thought that he must be keeping that cash somewhere. Ms Scott was at Ms Roberts' home in early 2020 and Ms Roberts had a discussion with her about the applicant being outside and burying things in the garden. Ms Roberts and Ms Scott went to the location where Ms Roberts used to see the applicant in the garden. There was a rock under the hose reel. Ms Roberts moved the rock and the hose reel and dug into the ground, approximately 30 centimetres. She found one of her daughter's lunchboxes. The lunchbox was clear and had pink tabs on it. Ms Roberts picked it up and opened it. Inside the lunchbox there was several USBs, double bagged in snap lock bags. Ms Roberts recalled four or five USBs. She gave the USBs to Ms Scott who downloaded them on her computer. After that, the USBs were put back in the snap lock bags, and they were put back in the lunchbox which was then reburied.
2485 The applicant submits that Ms Roberts' account of finding the USBs buried in the garden is implausible and should be rejected. Ms Roberts said that she dug up the USBs in or around 16 March 2020. The applicant submits that the following explanations proffered by Ms Roberts are not plausible:
    (1) Ms Roberts' explanation for not trying to search for the cash earlier was that she had forgotten about it;
    (2) Ms Roberts' explanation that she had noticed withdrawals from their bank account every time the applicant went to Sydney is implausible because it makes no sense that the applicant would bring cash home from Sydney and bury it in his garden in Queensland;
    (3) Ms Roberts' explanation of going to the particular spot she did and digging down 30 centimetres; and
    (4) Ms Roberts' explanation for not taking a photograph of the lunchbox that she and Ms Scott were disturbed by Ms Scott's son is implausible.
2486 In addition to these matters, the applicant points to the following: (1) Ms Scott was not called as a witness despite an outline of evidence of Ms Scott being filed and, in the circumstances, it should be inferred that her evidence would not have assisted the respondents' case; and (2) there is no mention of the discovery of the USBs in any of the many text messages that passed between Ms Roberts and Ms Scott.
2487 These submissions must be assessed in a context which includes: (1) the evidence as a whole; (2) other credit issues affecting the evidence of the applicant and Ms Roberts, including the evidence concerning the alleged separation; and (3) the fact that there is no dispute that the USBs were at the family property at the relevant time and were either in a Tupperware container in the desk or in a child's lunchbox buried in the ground.
2488 In early June 2020, the applicant asked Ms Roberts whether he could have access to the matrimonial property in order to retrieve material for their Family Court matter. Ms Roberts said that the applicant could have access to the property in the afternoon and that she would make sure he had access to the property at 2.30 pm. She went on to say the following:
   I have packed most of your personal belongings (all bar files in the cabinet) from the office and placed most of it in the garage as the girls needed the space for homeschooling. You will see the packing boxes in there.
2489 Ms Roberts spoke to Ms Scott on the telephone and said that the applicant was on the way to the family home. She said that he was coming to pick up some files. Ms Scott asked Ms Roberts whether she thought they were the "file files", being a reference, according to Ms Roberts, to the USB files. That caused Ms Roberts to go out and photograph the area around the hose reel. This showed the hose reel with the rock in the centre of the wire base. The time stamp on the photograph is 2.06 pm. After the applicant had been to the property, the rock was in a different position, as was a conduit sitting on top of an adjacent air conditioning unit. The time stamp of this photograph is 2.32 pm.
2490 The applicant denies that he buried the USBs in a lunchbox in the backyard. He said that he kept the USBs in a Tupperware container in his desk in his study at his former matrimonial home. He retrieved them in June 2020 and it is clear that it was on 5 June 2020.
2491 The respondents submit that the applicant's account should be rejected for the following reasons.
​2492 First, the applicant could not have retrieved the USBs from the desk drawer in his study because Ms Roberts had packed most of his personal belongings (except for files in the cabinet) from the office and placed most of it in the garage as the applicant's daughters needed the space for home schooling (see [2488] above). On 23 February 2020 and on 10 March 2020, Ms Roberts took several photographs of the contents of the desk drawers and there are no USBs visible in the photographs of the desk drawers. The contents of the desk drawers were put in a box and the box was placed in the garage.
2493 Secondly, shortly after the applicant had left the property, Ms Roberts sent the photographs she had taken to Ms Scott and then she sent a text to Ms Scott saying it has to be the photos, which was a reference to the photos that Ms Scott had downloaded onto her laptop in March that year. Later that evening, Ms Roberts sent a text message to Ms Scott which was as follows:
   Maybe he is going to sydney and knew he had to get the lunch box
2494 Thirdly, the applicant knew that he was the subject of an IGADF Inquiry at that point and, on the respondents' case, an investigation by the AFP (see what is said earlier about the investigation/referral distinction). It is consistent with the precautions of using burner phones and encrypted apps to bury the USBs in a lunchbox, rather than leaving highly sensitive and classified operational material in an accessible desk drawer.
2495 The applicant submits that the photographs of the desk drawers taken by Ms Roberts on 23 February 2020 and 10 March 2020 are not conclusive because the photographs do not show all the items in the drawers and, in any event, Ms Roberts had photographed what she wanted to photograph.
2496 The applicant advanced a number of matters in support of the contention that the Court should reject Ms Roberts' account of the events of that day.
2497 First, the photographs taken by Ms Roberts on 5 June 2020 were not accompanied by the metadata which would verify or otherwise the time stamps. Ms Roberts gave the iPhone to her mother who later disposed of it.
2498 Secondly, Ms Roberts claimed she sent the two photographs to Ms Scott, but Ms Scott did not produce the photographs in response to a subpoena. The four photographs produced by Ms Scott on subpoena were sent by Ms Roberts to Ms Scott at 15.02 on 5 June 2020. They do not have the time stamps of 2.06 pm and 2.32 pm. The full chain of messages passing between Ms Roberts and Ms Scott were tendered (Exhibit A261). The applicant's explanation of the ​message from Ms Roberts to Ms Scott at 20.57 on 5 June 2020 about the applicant going to Sydney and retrieving the lunchbox is a reference to him retrieving the USBs from the desk and not as a message corroborating the "burial story".
2499 Thirdly, the applicant submits that Ms Roberts' denial that she knew Ms Scott had provided the photographs to the respondents was not credible in light of their frequent exchange of messages. It is an agreed fact that in the period from 5 January 2020 to 26 February 2021, Ms Roberts and Ms Scott exchanged thousands of WhatsApp messages, often many per day, about a wide range of topics. It is simply not plausible, so the argument goes, that Ms Scott would give the photographs to the respondents without telling Ms Roberts.
2500 Fourthly, it is likely, given the state of acrimony between the parties, that the applicant would not have arrived before the time he specified of 2.30 pm and, therefore, he could not have been responsible for the disturbance of soil shown in the photograph which is time stamped 2.32 pm. The applicant's time of arrival was linked to the fact that he had picked the girls up from school should be accepted and Ms Roberts' explanation that she picked the children up from school that day and had to make up an excuse of going to the bathroom as a reason not to follow him out so that she could take an "after photograph" of the area where the USBs had been buried, should be rejected.
2501 Fifthly, the applicant submits that the "bathroom" excuse was implausible as Ms Roberts hardly needed an excuse "to stay a few extra minutes in her own house".
2502 Finally, the applicant submits that the whole story of USBs being buried in the garden is predicated on an equally, if not more improbable, version of events on 16 March 2020.
2503 The applicant again relies on the respondents' failure to call Ms Scott and submitted that there is no-one to verify that Ms Roberts sent the two photographs with the 2.06 pm and 2.36 pm time stamps. Ms Scott cannot corroborate the alleged conversation with Ms Roberts.
2504 I do not accept that Ms Roberts' explanation for not trying to search for the cash earlier to the effect that she had forgotten about it, is implausible. The applicant and Ms Roberts had separated on 20 January 2020. Ms Roberts said that they had recently separated and were "in conversations about cash in [their] divorce". She went looking for the cash on 16 March 2020 because it had come up in the course of a conversation between her and Ms Scott.
2505 I do not accept that Ms Roberts' explanation that she had noticed withdrawals from their bank account every time the applicant went to Sydney is implausible because it makes no sense that ​the applicant would bring cash home from Sydney and bury it in his garden in Queensland. This explanation is not implausible when considered with Ms Roberts' evidence about finding cash in the applicant's briefcase in October 2019 and her recollection of seeing the applicant burying things in the garden.
2506 I do not accept that Ms Roberts' explanation of going to the particular spot she did and digging down 30 centimetres is implausible. As to the particular spot, Ms Roberts knew the location of where she used to see the applicant in the garden. Ms Roberts gave an indication in her evidence about how far down she dug. Her evidence-in-chief proceeded as follows:
   I moved the garden reel that had no hose, just a reel. And we dug down about that deep, and then ---
   Just – you're indicating about – what was that, 30 centimetres-ish?---It was not deep, yes.
2507 I do not accept that Ms Roberts' explanation for not taking a photograph of the lunchbox that she and Ms Scott were disturbed by Ms Scott's son is implausible.
2508 It is not obvious that a photograph would be taken as the focus was the contents of the lunchbox, not the fact that it had been buried. Ms Roberts knew that Ms Scott downloaded the content of the USBs onto a laptop. At one point in her evidence in cross-examination she said that she had not "even thought about taking photos". Ms Roberts also said that if she had known the content of the USBs, she would have taken a photograph in order to protect herself. The general effect of Ms Roberts' evidence is that it did not occur to her to take photographs of the lunchbox.
2509 I accept the applicant's submission that the photographs of the desk drawers taken by Ms Roberts on 23 February 2020 and 10 March 2020 are not conclusive because the photographs do not show all the items in the drawers. In any event, as the applicant submits, Ms Roberts photographed what she considered she ought to photograph. However, the photographs of the drawer must be considered with other evidence in the case, including Ms Roberts' contemporaneous statement that most of the applicant's personal belongings from the office were placed in packing boxes in the garage as their daughters needed the space for home schooling. The other matter that needs to be considered is that the applicant appears to be very security conscious and that points strongly away from the USBs being stored in drawers whilst the applicant was not living at the family home.
​2510 It is true, as the applicant submits, that the photographs taken by Ms Roberts on 5 June 2020 were not accompanied by the metadata which would verify or otherwise the time-stamps. Ms Roberts said that she gave the i-Phone to her mother who later disposed of it.
2511 The times shown on the photographs are 2.06 pm and 2.32 pm on 5 June 2020. It was put to Ms Roberts in cross-examination that it is possible to change the date and time settings on the i-Phone so that it produces a different time from the time when the photograph was actually taken. Ms Roberts said that she did not know how to do that, "if that is even possible". It was put to Ms Roberts in cross-examination that the metadata could not be manipulated and she said that she did not know the answer to that.
2512 The explanation given by Ms Roberts was she had sent the photographs to Ms Scott to keep. She gave her mother her phone in May 2021. In my opinion, it is most unlikely that Ms Roberts planned and altered her telephone settings so that a screenshot of the photographs show them being taken at 2.06 pm and 2.32 pm to hide the true time that they were taken.
2513 The applicant seeks to make something of the point that Ms Roberts claimed that she sent the two photographs to Ms Scott, but Ms Scott did not produce the photographs in response to a subpoena. The four photographs produced by Ms Scott on subpoena were sent by Ms Roberts to Ms Scott at 15.02 on 5 June 2020 and they do not have the time-stamps of 2.06 pm and 2.32 pm. The exchange of text messages at 15.02 on 5 June 2020 is as follows:
   15:30 ERS: It's got to be the photos
   15:32 ERS: I think he doesn't think I'm smart enough to go and dig for it
   20:51 ERS: I know what brs did with his treasure
   20:57 ERS: Maybe he is going to sydney and knew that he had to get the lunch box
2514 I note the applicant's submission that Ms Roberts' denial that she knew Ms Scott had provided the photographs to the respondents was not credible in light of their frequent exchange of messages. As I have said, it is an agreed fact that in the period from 5 January 2020 to 26 February 2021, Ms Roberts and Ms Scott exchanged thousands of WhatsApp messages, often many per day about a wide range of topics. That does seem somewhat unlikely. However, it is not impossible and it is a matter that I must and do take into account.
2515 I do not accept the applicant's submission that he would not have arrived before the specified time of 2.30 pm given the state of acrimony between the parties and, therefore, he could not ​have been responsible for the disturbance of soil shown in the photograph with a time-stamp of 2.23 pm. The acrimony between the parties may have led the applicant to arrive early and an arrival time of 5 to 10 minutes before that planned would not interfere significantly with either party's arrangements. Ms Roberts said that the applicant was at the property for no more than 10 minutes.
2516 Ms Roberts gave evidence that she picked up the couple's daughters from school that day. There is a difficulty with this evidence. There is a message from the applicant to Ms Roberts on 5 June 2020 at 7.53 am which begins as follows:
   As agreed I will picking the girls up from the sen school drop off today at 3:10pm.
2517 Finally, with respect to the applicant's submission that the "bathroom" excuse was implausible as Ms Roberts hardly needed any excuse to stay a few extra minutes in her own home, I do not consider this submission to carry any significant weight. Ms Roberts said that she was about to pick up the girls from school and the applicant asked if she would follow him out and she said that she was going to the bathroom and that she would let him out. She did this because she wanted to go back and take the photograph. Given the applicant asked Ms Roberts a direct question, it is not surprising that she may have felt it necessary to justify her answer.
2518 In my opinion, it is unlikely that the USBs would have been kept in the desk drawer in the study in circumstances in which Ms Roberts had packed most of the applicant's personal belongings into packing cases and placed them in the garage. One adds to this circumstance, the photographs of the contents of the desk drawers and the fact that there are no USBs visible in those photographs. Ms Roberts' account is also supported by her text message to Ms Scott saying that it had to be the "photos" and her text message later that evening to Ms Scott saying that maybe the applicant was going to Sydney and knew that he had to get the lunchbox. Finally, and significantly, the conduct of burying the USBs in the garden is consistent with the precautions taken by the applicant in using burner phones and encrypted apps. It would not be consistent with that conduct to leave the USBs in a desk drawer. At the time he retrieved the USBs, the applicant knew that he was an important subject of the IGADF Inquiry. Any small inconsistencies or uncertainties in Ms Roberts' evidence, such as who was picking up the children from school, do not cause me to doubt the substance of Ms Roberts' evidence.
2519 I find that the USBs were buried in the garden of the matrimonial property.
​2520 In reaching these conclusions particularly based on the evidence of Ms Roberts, I have taken into account the following additional matters which the applicant submits indicates that Ms Roberts is not a credible witness.
2521 First, the divorce of the applicant and Ms Roberts was a very bitter one. In an exchange of text messages in 2020 with Ms Scott, Ms Roberts spoke of the applicant in most uncomplimentary terms. She was undoubtedly very angry. She said in cross-examination that she did not loathe the applicant, but that she was very angry. She said that she did not hate the applicant, but she was "very frustrated in a very, very bitter divorce". I accept that evidence. I bear in mind that on her own account she was prepared to throw the applicant's uniforms in the skip bin after he had been to the home and collected what he wanted.
2522 Secondly, Ms Scott sent Ms Roberts images of soldiers obtained from the USBs Ms Scott had copied on 16 March 2020. Some images show soldiers drinking from the prosthetic leg and some of the men shown in the photograph are circled. Ms Roberts denied that the purpose of circling the men was so that information could be passed on to Mr McKenzie and other media representatives. This leads into a further point made by the applicant. Ms Roberts was motivated to cause him harm. She waited until the financial agreement had been signed and then at a meeting at her home in late March 2021, she with Ms Scott met Mr McKenzie and representatives of MinterEllison (the respondents' solicitors) and provided the USBs to them and details of the alleged burial of the USBs in the backyard of the former matrimonial home. That information formed the basis of the 60 Minutes program broadcast on 11 April 2021. Ms Roberts' cross-examination on this topic gave rise to claims of legal professional privilege. I overruled a number of objections, but even so, the picture that emerges is not entirely clear. Having regard to the whole of Ms Roberts' evidence and the extent to which it is supported by other evidence, I do not accept the applicant's submission that she alone, or with Ms Scott, provided the USBs and relevant information to Mr McKenzie for the purpose of inflicting maximum revenge on the applicant. I accept Ms Roberts' evidence which means that it was, in fact, Ms Scott who was the person performing the active role in terms of the USBs and the associated information.
2523 Thirdly, the applicant submits that Ms Roberts' evidence about whether she accessed the applicant's RS Group email account was unsatisfactory and indicates that she is not a credible witness. The applicant and Ms Roberts separated on 20 January 2020. She said that, subject to two qualifications, she had not accessed the applicant's RS Group email account after that ​date. She had to correct that evidence in cross-examination in relation to a private matter. She said that she misunderstood the original question. This leads to a larger issue about the circumstances as understood by Ms Roberts in which Ms Scott accessed the applicant's RS Group email account in 2020 and 2021.
2524 Ms Roberts said that the applicant provided Ms Scott with, among other things, the password to the RS Group email account as part of a joint decision by Ms Roberts and the applicant to use Ms Scott as their representative in dealings with Person 17. The plan changed and it was decided Ms Scott would communicate by using a private email account she (Ms Scott) was to set up. I do not think that it is "utterly implausible", as the applicant put it, that the applicant would provide Ms Scott with the password to the RS Group email account. The relevant persons had good relationships at the time, Ms Scott was being used as the representative of the applicant and Ms Roberts and the plans were evolving. I find that the applicant did provide the password to Ms Scott. Ms Roberts agreed in cross-examination that she had no basis for thinking the applicant had authorised access to the RS Group email account beyond the purpose of communicating with Person 17. The fact is that Ms Scott accessed the RS Group email account over 100 times between January 2020 and April 2021. Initially, Ms Roberts said that she did not know this until the proceedings before another judge of this Court in 2021. Later in cross-examination, she admitted she knew Ms Scott had access and that Ms Scott told her that she was checking from time to time. Eventually, she agreed that she had asked Ms Scott to check from time to time. Ms Roberts' evidence was as follows:
   You see, I also want to just ask you a couple more questions. When was the first time that Danielle Scott told you that she was accessing my client's email account?---I don't recall the date.
   Could you give me an approximate date? 2020? 2021? When?---2020.
   And did she say why – did she tell you why she was doing that?---I had asked her to.
   You asked her to do it?---Yes.
   You had asked her to access my client's email account - - -?---Yes.
   - - - knowing that he hadn't given permission for that, didn't you?---He gave her the password.
   He gave her the password - - -?---Yes.
   - - - to deal with Person 17, didn't he?---Yes.
   And the access that you're talking about had nothing to do with Person 17, did it?---No, it did not.
   You knew that you were asking her to do something that he had not authorised, didn't ​you?---Yes.
   It was sneaky and dishonest, wasn't it?---No. She was helping me in a very difficult time.
   It was a sneaky and dishonest thing to give access to private information by a person – whether he's your ex-husband or anyone – that he hadn't given permission for. That was a sneaky and dishonest thing to do, wasn't it, Ms Roberts?---I don't believe so, no.
   MR McCLINTOCK: I will repeat my question. I think I can remember it. When was the last time that Danielle Scott told you she had been accessing my client's email account?---I don't remember the exact date, but it was in 2021. Mid-2021.
   In fact, you know that she continued doing it until April last year, don't you?---Yes.
   And, indeed, after you – to a time after you and her had – you and she had both agreed to give evidence on behalf of the respondents in these proceedings. That's correct, isn't it?---Yes, we had.
   Yes. So at a time that you knew that you had, in effect, changed sides and were helping the respondents by giving evidence, to your knowledge, Danielle Scott was still accessing my client's email address?---Correct.
   Yes. And telling you about it?---No.
   I see. Now, I – did you ask Danielle after the Bromwich proceedings were commenced – I withdraw that. Discourteous to his Honour. After the proceedings before Bromwich J were commenced, did you ask Danielle whether she was accessing the account?---No.
   Did you ask her when she had last done so?---No.
   No reference to it at all?---No.
2525 Ms Roberts' affidavits in the other proceedings involving the applicant, Ms Roberts and RS Group Australia Pty Ltd (NSD 511 of 2021), although not strictly inaccurate, do not present the full picture. These matters lead me to conclude that Ms Roberts' evidence should be approached with caution, but as I have said elsewhere, considered as a whole and having regard to the other evidence, I accept the substance of her evidence.
The concealment of the USBs
2526 The respondents submit that irrespective whether the USBs were buried in the backyard of the family home or kept in the desk drawer, they have been in the applicant's custody or control since late in 2018 or 2019. He plainly knew of them, having both asked for them and collected them on 5 June 2020. They were in his physical possession on and from 5 June 2020. None of the discoverable material on those USBs was disclosed when it ought to have been. The respondents ask the Court to draw an inference of deliberate concealment by the applicant.
​2527 The applicant filed an affidavit of discovery on 13 July 2020 and an affidavit of discovery on 12 August 2020. In each case, he said on oath that he had made reasonable inquiries as to the existence and location of the documents specified in the order. The applicant had not, in fact, disclosed any of the documents previously referred to or any discoverable documents contained on the USBs that he retrieved from the matrimonial home on 5 June 2020. It is to be recalled that the applicant said that he now understood, that is, at the time he gave evidence, he had hundreds of documents in his possession which were responsive to the categories of discovery. He said that at the time he was going through a difficult divorce and he was not focussed on the USBs. They were put in a trunk or somewhere with the rest of his storage material while he was trying to work out where he was going to live and what he was actually going to do. The respondents submit that the applicant's explanation ought not to be accepted. The applicant had left the matrimonial home six months earlier. In addition, he had lawyers to assist him to comply with his obligations. The respondents ask the Court to draw the inference that the applicant deliberately or recklessly concealed the material on the USBs to deprive the respondents of any advantage that they might obtain from having access to it.
2528 On 23 December 2020, the applicant filed a further affidavit of discovery. This was his fourth List of Documents. Again, he swore that he had made reasonable inquiries as to the existence and location of the documents specified in the order for discovery. In his List of Documents describing documents in his control, he added documents of and concerning the IGADF Inquiry. Nevertheless, he did not discover the documents identified in [2480] above or any other discoverable material on the USBs. The applicant gave evidence that sometime around late 2020, he had moved the contents of the USBs onto his laptop and he had then deleted the contents of the USBs. He retained a complete copy of the material on the USBs on his laptop.
2529 On 11 April 2021, an episode of 60 Minutes was telecast and in that program it was asserted that the applicant had buried USBs in his backyard. On 12 April 2021, the respondents' solicitors wrote to the applicant's solicitors saying that they had a copy of the material contained on the USBs and that that material was relevant and discoverable material. They said that the circumstances described in the outline of evidence of Ms Scott gave rise to a serious concern about the applicant's compliance with his discovery obligations and whether he has engaged in a deliberate attempt to conceal relevant evidence in the proceedings. The respondents' solicitors suggested to the applicant that he should preserve each of the six USB sticks and any communications between him and other witnesses in relation to the USB sticks and their contents. The applicant copied what was on his laptop onto a USB stick and gave it ​to his lawyers. About a week later, the applicant was trading in his laptop and he erased the hard drive on his laptop. The applicant agreed that after he had received the letter from the respondents' solicitors saying that he should retain any copies of the USBs, he decided to erase the hard drive on his computer. He said that he believed that there was already a copy that was held by the respondents and that he had his copy on the drive. He did not save a copy of the material to the cloud, save for the RS Group documents. The respondents submit that the applicant's failure to disclose documents previously identified is to be considered in circumstances where he had moved the contents of the USBs onto his laptop in or around late 2020.
2530 The respondents issued a Notice to produce dated 16 April 2021 requiring the production on 28 April 2021 of the following documents:
   1. All USB drives which were taken by the Applicant from his former home in Ilkley Road, Ilkley, Queensland, on or around 5 June 2020.
   2. Any copies of the contents of the USB drives which were taken by the Applicant from his former home in Ilkey Road, Ilkley, Queensland, on or around 5 June 2020.
2531 I have already referred to the actions of the applicant on or about 17 April 2021, when he copied the contents of the USBs contained on his laptop onto a new USB and gave it to his solicitors (see [2529] above).
2532 The applicant asserted through his solicitors that, in accordance with his usual practice and the recommendation of Apple when trading in electronic equipment, he erased the hard drive on his laptop on or about 17 April 2021. The recommendation of Apple, in terms of erasure, is that the best way to restore "your Mac" to factory settings is to erase the hard drive and reinstall macOS. The applicant did not reinstall macOS. An expert examined the applicant's old laptop which he had retained. The applicant had used a method of wiping the hard drive called zero filling or zero wiping. The applicant agreed that this was not the way it would be done if Apple's ordinary instructions are followed to restore the Mac to factory settings.
2533 The respondents submit that there are only two reasonable explanations for the applicant's conduct and they are as follows: (1) the laptop contained additional material he did not want to discover; or (2) the laptop would reveal the metadata of the material on the USBs, including who sent them to him. The respondents submit that both inferences are consistent with a deliberate attempt by the applicant to conceal relevant (or likely to be relevant) information.
​2534 The explanation for the failure to discover the documents provided by the applicant's solicitors on 30 April 2021 again referred to inadvertence, although not as previously specifically said to be the inadvertence of the applicant's solicitors. The letter states:
   4. We are instructed to respond as follows:
       h. Since receiving your letter of 12 April 2021, our client has undertaken a further review of material in his possession. At the time of preparing his List of Documents on 23 December 2020 our client did not turn his mind to the discovery of the material that was the USBs.
       i. As a result of that review, the Applicant has prepared a Supplementary List of Documents, which is enclosed with his letter.
       j. As is apparent, the explanation for the failure to include the supplementary material as part of our client's initial list of documents is inadvertence.
2535 As the respondents point out, this is the second claim of inadvertence by the applicant through his solicitors made on 30 April 2021. By contrast, the applicant himself seemed to provide a different explanation. He seemed to suggest that the documents were for the use of those on his side and not for the use of those on the other side. The respondents submit that how and why this material was not disclosed in a timely manner despite the applicant and his lawyers knowing about it has never been adequately explained.
2536 The next step in the chronology is that on 13 May 2021, the respondents issued a Notice to produce seeking, among other things, the applicant's laptop and a copy of the metadata for each of the documents that had been itemised in the applicant's List of Documents dated 30 April 2021, i.e., the Supplementary List. The respondents also sought an explanation as to various matters concerning the USBs and how they had been dealt with by the applicant.
2537 The applicant's solicitors responded to this letter by letter dated 21 May 2021. The applicant's solicitors state that their client accepts that:
   … a (relatively small) proportion of the documents ought to have been discovered …
That statement appears to be an understatement and the applicant accepted as much in his evidence.
2538 The applicant also asserted through his solicitors that none of the documents were adverse to his interests and nor could it be said that it is likely they will have any material impact on the ​Court's determination on the issues raised in the defence of justification. The respondents disputed this assertion and they identified the following important documents that would not otherwise have been available to them:
    (1) photograph of Epic 1's patrol room door in 2020 with the words "rookie fuck" on the door;
    (2) photograph of the applicant and Person 12 on 5 October 2012;
    (3) photograph of Chinartu taken from a helicopter on 12 October 2012;
    (4) photograph of Person 35 and Person 123 taken in August 2012; and
    (5) photograph of the applicant's patrol on 17 October 2012.
2539 The explanation for the non-disclosure given by the applicant's solicitors in the letter dated 21 May 2021 is simple inadvertence and that the applicant reviewed the contents of the USBs when he received them and he considered that the material was either irrelevant or of peripheral relevance to the issues in the litigation. The respondents submit that this cannot be true because several documents had "W108" in their file name and the applicant sought out this imagery because he needed to try and demonstrate to the legal team what it was like in Afghanistan and what they were doing over there.
2540 The respondents submit that the "USB saga" did not end at this point because the respondents had still not received the USB material as at the first day of trial due to the fact the applicant had not moved as he should have to ensure compliance with the NSI Act.
2541 I do not accept the applicant's case that the failure to discover the USBs was due to inadvertence. The applicant lied about not burying the USBs in the backyard of the matrimonial home. He must have known they were relevant. He had sworn three affidavits of discovery and each time has not discovered them. I find that he decided not to discover them.
The documents relating to the alleged assault of Person 17
2542 On 15 December 2020, the respondents issued a Notice to produce requiring the applicant to produce the following documents:
   1. All photographs taken by the Applicant in the hotel room at the Hotel Realm Canberra on or around 28 March 2018, including those referred to in paragraph 201 of the Applicant's Outline of Evidence filed in Reply filed on 12 July 2019, with such documents to be produced in native electronic format.
   2. Any video or videos taken of Person 17 on or around 6 March 2018, with such videos to be produced in native electronic format.
​2543 The Notice to produce required the production of the documents on 3 February 2021. On 4 February 2021, the applicant's solicitors sent to the respondents' solicitors two screenshots of Person 17 asleep in bed in the hotel room on 28 March 2018. No other documents were produced in response to the Notice to produce. The respondents point out that the applicant did not at that time produce the video of Person 17 outside Greenslopes Private Hospital on 6 March 2018. That video was on the USB which the applicant retrieved from the matrimonial property on 5 June 2020 and which he consolidated onto his laptop in late 2020.
2544 The applicant did not produce the photograph of the Valium medication in response to the respondents' Notice to produce dated 15 December 2020.
2545 On 12 April 2021, the respondents served the outline of evidence of Ms Scott and that document annexed copies of the emails sent by the applicant to Ms Roberts on 17 August 2018.
2546 On 30 April 2021, the applicant produced photographs of belongings in Person 17's handbag on the night of 28 March 2018 and the video of Person 17 at Greenslopes Private Hospital. In a letter from the applicant's solicitors to the respondents' solicitors dated 30 April 2021, the former said:
   2. In response to that Notice, the Applicant produced two screenshots or photos showing Person 17. The omission to produce a copy of the JPG files of additional images described in paragraph 201 of the Applicant's Outline of Evidence in Reply dated 12 July 2019 was an inadvertent error on the part of this firm. The Applicant was not responsible for this omission. We enclose copies of those additional JPG files.
2547 The respondents submit that no details of the explanation were provided and that the suggested explanation must be viewed in light of the fact that the applicant sent the photograph to his wife's email address two days after commencing proceedings in an obvious attempt to conceal them and the fact that they showed that no tablets had been removed from the packet which is contrary to what the applicant said in his outline of evidence.
2548 I have carefully considered this explanation. On the one hand, I do not accept the applicant's explanation for going through Person 17's handbag and taking photographs of the contents. I refer to [2215] in Section 11 and the finding I make in that context. Furthermore, I reject the applicant's denial of knowledge of sending documents to Ms Roberts two days after he commenced these proceedings. Despite these strong credit findings against the applicant, I cannot reach the point of concluding that he deliberately concealed the documents in light of the fact that para 201 of the outline referred to in the solicitors' letter does seem to envisage ​that all copies of the photographs taken in the room would be annexed to the outline, leaving the possibility of an error, at least as to the photograph of the blister pack and the screenshot of the text message. One complication is that while the solicitors' letter was tendered, para 201 of the outline was not. I will treat the last sentence of the paragraph as incorporated in the tender.
2549 With respect to the video of Person 17 at the Greenslopes Private Hospital, the explanation provided by the applicant's solicitors in a letter dated 30 April 2021 is as follows:
   4. We refer to paragraph 15 of Ms Scott's Outline of Evidence and the copy of a video of Person 17 in October 2018 that is referred to therein. A copy of that video was not produced in response to the Notice because the Applicant was unaware, until after he received the Outline of Ms Scott served on 12 April 2021, that he was in possession of this video (in that the video was apparently stored in a folder of financial records on one of the six USBs that he subsequently consolidation in/or about August or September 2020). A copy of the video is enclosed.
2550 The respondents submit that this explanation should not be accepted. The respondents ask the Court to infer that the video was concealed because it reflected poorly on the applicant in that it showed he had used a private investigator to follow Person 17 and determine whether she had an abortion. The non-disclosure is consistent with the applicant's pattern of withholding any documents that he perceived did not assist his case. As I have indicated in [2033]–[2034] and [2214] of Section 11, I do not accept the applicant's explanation for failing to disclose the video of Person 17 taken by Mr McLeod.
Person 5's statement of complaint and other documents
2551 On 3 June 2021, Person 5's statement of complaint and the marked up copy of the image of the W108 compound that the applicant sent to Person 29 in July 2019 came to the attention of the respondents by reason of a subpoena issued by the applicant and directed to Ms Roberts.
2552 The respondents submit that the Person 5 statement of complaint was within categories 14, 15 and 16 of the agreed categories of documents. Those categories are as follows:
   14. All documents referring to or concerning the practice of "blooding" in the sense described in particular of truth (44) of the Defence in these proceedings.
   15. All documents referring to or concerning the mission in relation to Whiskey 108 on or about 12 April 2009, including, but not limited to all documents referring to or concerning any allegation about the Applicant's conduct in connection with that mission.
   16. All documents referring to or concerning the prosthetic leg retrieved from around Whiskey 108, including but not limited to all photographs and videos ​depicting the prosthetic leg.
2553 There is simply no satisfactory explanation for the failure to disclose this document or the marked-up aerial photograph.
Lies and deliberately giving False Evidence
2554 The respondents submit that the applicant told deliberate lies on material facts as follows:
    (1) Person 6's patrol was located on the southern side of W108;
    (2) no Afghan males came out of the tunnel at W108;
    (3) EKIA56 and EKIA57 at W108 were killed while armed and moving outside the north-east corner of the W108 compound;
    (4) the applicant is unaware of the identity of the SASR soldier who killed EKIA56;
    (5) the applicant dragged the body of EKIA57 from out in the open to the location in which it was photographed;
    (6) the applicant's change of evidence concerning whether the body of EKIA56 was moved;
    (7) the body of EKIA6 was located outside the W108 compound;
    (8) at Darwan, the applicant kicked the body of an insurgent down an embankment on the other side of the Helmand River;
    (9) there were no Afghan fighting age males found in the end compound at Darwan;
    (10) Person 56 was not present at the end compound in Darwan, having been sent back earlier with the interpreter;
    (11) there was no interpreter, no Person 47 and no military working dog in the end compound at Darwan;
    (12) EKIA4 at Darwan was a spotter engaged in the cornfield;
    (13) the Person 12 lie;
    (14) the applicant did not make a false complaint against Person 6 in late 2017 for the purpose of "scaring" Person 6 and "others";
    (15) the applicant did not send threatening letters to Person 18 in June 2018;
    (16) the applicant's evidence that he did not speak with Person 11 about the substance of Person 11's interview by the IGADF Inquiry in September 2017 or June 2018; and
    (17) the applicant did not speak with Person 5 about the substance of Person 5's interview by the IGADF Inquiry on 8 May 2018.
2555 The respondents submit that each lie identified above was deliberate and related to a material fact and, in the circumstances, the Court should draw an inference that, in each case, the applicant's motive for the lie is the realisation of guilt and a fear of the truth and that is the appropriate inference when all the falsehoods are considered collectively. The respondents rely on this conduct as admissions against interest which prove the truth of the respondents' allegations concerning W108 and Darwan.
2556 I have decided that the respondents' case in relation to the two alleged murders at W108, the alleged murder at Darwan and the alleged murder at Chinartu should be accepted. It is not strictly necessary, therefore, to consider the respondents' case that the applicant's lies are evidence of a consciousness of guilt. That is one reason not to enter the field. In addition, I refer to my discussion earlier about the complexities of this area of the law (see Section 1 of this Part).
2557 Although I received very considerable assistance in this case on most matters, the respondents' case on lies as showing a consciousness of guilt was not developed in any detail. When the list of lies is considered, the Person 12 lie (13) is addressed elsewhere and may be put to one side. The denial of making a false complaint against Person 6 (14) and of sending the threatening letters to Person 18 (15) face the same difficulties as relying on the conduct of making a false complaint against Person 6 and sending the threatening letters to Person 18. At first blush, the denials of the applicant of speaking to Person 11 (16) and Person 5 (17) about their respective interviews by the IGADF Inquiry would not reach the level necessary to support an inference of a consciousness of guilt. As to the remaining matters, other than perhaps the location of Person 6's patrol (1), the issue would appear to be the extent to which the lie is established only upon acceptance of the respondents' case. Another matter involving complex issues is the extent lies in relation to W108 can be used as implied admissions in relation to Darwan.
2558 I am not rejecting the respondents' case on lies. I am simply declining to deal with it in circumstances where it is not necessary to do so and submissions have been limited.
​The Separation
2559 The applicant gave evidence that he and Ms Roberts were separated from about late September 2017 to April 2018. He met Person 17 in early to mid-October 2017 and commenced a relationship with her. Ms Roberts gave evidence that she and the applicant were not separated.
2560 This issue is relevant, and only relevant, to the assessment of the credit of the applicant and of the credit of Ms Roberts. The genesis of this issue is as follows. The Group 3 articles which were published on 10 and 11 August 2018 referred to an alleged act of domestic violence and intimidation and to the woman involved (i.e., Person 17) as the applicant's "mistress" and to the applicant's relationship with her as an "affair" and as an "extramarital relationship". The applicant subsequently gave an interview to The Australian newspaper in which he said that during the period in question, he was separated from his wife. That appeared in an article in The Australian newspaper over the weekend of 11 and 12 August 2018. A photograph of the applicant and Ms Roberts together appeared in the article. The applicant has made the statement that he was separated from Ms Roberts for approximately six months from in or about September 2017 in the following documents: (1) an affidavit affirmed on 2 September 2020; (2) sworn answers to interrogatories; and (3) his evidence before this Court.
2561 The applicant's evidence was that his separation from Ms Roberts for approximately six months between about late September 2017 and April 2018 was part of an amicable arrangement. On occasion, the applicant would stay in the matrimonial home itself or in a granny flat or in separate quarters in the home. On other occasions, he would stay at Mr Jed Wheeler's house in Brisbane or in Mr Neil Mooney's house on the Sunshine Coast. Mr Mooney was a former general manager of Seven Queensland. He had retired and been replaced by the applicant.
2562 The applicant said that at most he would have stayed in the matrimonial home on average maybe two to three nights a week.
2563 The applicant said that during the period, Ms Roberts continued to help coordinate some of the administration in the applicant's public speaking business.
2564 The applicant and Ms Roberts and their children went on a holiday to Singapore in January 2018. The applicant described the purpose of the trip as being to ascertain whether he and Ms Roberts were going to maintain their relationship. The applicant told Ms Roberts about the relationship with Person 17. The applicant said that he did not specifically tell Ms Roberts ​about Person 17, but rather he told her that he was seeing another woman. Whether the applicant did tell Ms Roberts that he was seeing another woman is denied by Ms Roberts and is an area of factual dispute between the parties.
2565 The applicant said that after the trip to Singapore, the separation continued and that he and Ms Roberts wanted to have the opportunity to try and see where the relationship could go in terms of staying together. The applicant denied threatening or pressuring Ms Roberts to lie about the separation.
2566 The applicant said he did not recall whether, when he was staying at the matrimonial home, he slept in the same bed as Ms Roberts, although he may have. He possibly had sex with his wife on at least one occasion.
2567 Ms Roberts gave evidence that she and the applicant were not separated between October 2017 and April 2018. The applicant was living in the family home on the Sunshine Coast in Queensland and he was sleeping in the same bed as Ms Roberts. The house included a spare bedroom or granny flat or separate living quarters. The applicant did not sleep in the spare room or separate living quarters between October 2017 and April 2018. The spare room or separate living quarters was a self-contained apartment on the lower level of the family home. Ms Roberts said that between October and up to December 2017, her parents slept in the self-contained apartment. Ms Roberts said that they were there "pretty much full time" as she had just had foot surgery and her mother was helping her look after the children.
2568 Ms Roberts said that she knows Mr Wheeler and that he is a friend of the applicant. She said that between October 2017 and April 2018, the applicant stayed overnight at Mr Wheeler's house and that he did that every couple of weeks while he was working in Brisbane. On those occasions, he would stay for one night before returning back to the Sunshine Coast.
2569 Ms Roberts said that Mr Mooney was the applicant's superior at Seven Queensland and that, to her knowledge, the applicant did not stay at Mr Mooney's house between October 2017 and April 2018.
2570 Ms Roberts said that during that period, she and the applicant attended events together as a couple or as a family. For example, Ms Roberts and the applicant attended the wedding of Mr McLeod's daughter in December 2017. The family went on a holiday to Singapore in January 2018 for 10 days. During the period October 2017 and April 2018, the applicant and Ms Roberts attended marriage counselling on four occasions. Ms Roberts gave evidence that ​their wedding anniversary was on 6 December 2017. The applicant and Ms Roberts went out to dinner and bought each other gifts.
2571 Ms Roberts said that she did not know the applicant was having an affair before 6 April 2018, although she had her suspicions. The applicant did not tell her in January 2018 that he was having an affair with another woman during the holiday in Singapore.
2572 The applicant suggested to Ms Roberts that they say that they were separated. She said that on the occasion they were discussing the matter, he pointed to the children in the lounge room and said to Ms Roberts that if she did not lie, she would lose the children.
2573 The applicant filed an outline of evidence of Ms Roberts on or about 5 April 2019. Paragraph 20 was in the following terms:
   Ben and I had difficulty coping with what had been written. We had previously separated, with Ben having moved out of our home in about October 2017 to about April 2018, when we reconciled and he moved back in. I was aware that Ben had a relationship with another woman. The article had brought back the issues that led to our separation which we had been working on, and it was emotional, stressful and hurtful for us both.
2574 The applicant filed a further outline of evidence of Ms Roberts on 11 July 2019. Paragraph 3 of that affidavit was in the following terms:
   In October 2017, Ben and I separated. I knew from conversations that I had had with Ben since we separated that he had been seeing someone by that name. Although Ben had moved out of the house during our separation, I continued to manage his public speaking engagements, he regularly came for dinner to see the girls and he would sometimes stay over at the house in the spare room. We also went on a family holiday to Singapore together in January 2018.
2575 Ms Roberts said that the information in para 20 of the first outline was information she provided to the applicant's lawyers. The information is not true. The applicant asked her to lie. He did that on the occasion that he pointed to the children and referred to her losing them.
2576 Ms Roberts agreed that she provided the information to the applicant's lawyers set out in para 3 of the second outline. The information was not true. Ms Roberts said that she provided the untrue information because she was scared.
2577 The applicant submits that his account should be accepted and the account of Ms Roberts should be rejected. In support of his argument, he points to the following matters.
2578 First, the applicant refers to an exchange of text messages between Ms Roberts and Ms Scott on 28 December 2017 as follows:
   | Ms Roberts: | "Yeh I'm trying to be conscious of that, it's just new and raw at the moment. I'm still trying to come to terms with it all." |
   | Ms Scott: | "Totally understand but keep that in the back of your mind. He fell in love with you because you were strong and wonderful and proud be that person now." |
   | Ms Roberts: | "Do you think he's made his mind up?" |
   | Ms Scott: | "Doesn't make sense that he has otherwise he would not want holiday etc" |
2579 The applicant submits that the clear import of the exchange is that Ms Roberts and Ms Scott believed that the applicant at this time was in the process of deciding whether he wanted to continue in the marriage. Ms Roberts agreed that the question she raised as to whether the applicant had made his mind up was a reference to whether he had mind up to leave her permanently. It is not clear that this supports either party's case. On the applicant's case, the parties had been separated for about three months at the time of this exchange and the "new and raw" matter was in all probability a recent discussion about the future of the relationship.
2580 Secondly, the applicant points to a message from Ms Roberts to Ms Scott on 13 January 2018 which reads as follows:
   How is he ever going to tell Kerry we are separated??
   I honestly think things like that is on his mind??
2581 Ms Roberts agreed that the reference to "Kerry" is a reference to Mr Stokes, the Chairman of the Seven Network. In cross-examination, Ms Roberts said that she cannot recall what she meant by asking this question. The applicant submits that her evidence should not be accepted and that the plain meaning of what she said is clear, that is to say, they were separated and how the applicant was going to tell Mr Stokes. The respondents' submission about this matter is that the question is a hypothetical one in the sense that it had not actually happened, but was something that may happen. This is in circumstances (so the argument goes) that the applicant has told Ms Roberts that he does not love her anymore and the previous message was "Do you think he's made his mind up?". This seems to me to raise a doubt about the meaning of the message and that doubt is to be resolved by reference to context and other relevant matters.
2582 Thirdly, the applicant points to the fact that on 17 August 2018, and shortly after the publication of the Group 3 articles, Ms Roberts sent a message to three friends, Snazzy, Jodes and Missy, who she was scheduled to go on a holiday with. The message included the following:
   … I wanted to touch base with you all before I see you tomorrow and in particular talk to you about a deeply personal issue. Last year Ben and I separated for a short while. ​We kept this extremely private. It's now being made very public … In that time Ben saw someone else who has leaked damaging, false and slanderous allegations to the press. …
Ms Roberts said in her evidence that she was told to lie by the applicant and that is why she lied in the message to her friends. The applicant submits that this answer reflects poorly on her credit because this was a personal message she had crafted herself and, in the circumstances, she was under no obligation to lie. I consider this factor to be neutral. Some might have taken the risk of informing close friends and others would not.
2583 Fourthly, the applicant submits that his account of the separation is, to some extent, corroborated by the text messages sent by Person 17. On 22 January 2018, which was two days after the applicant had returned from Singapore, he wrote to Person 17 saying that he saw no future in the relationship and Person 17 agreed that from this time, she had the impression that the applicant had decided to stay with his wife. On the same day, Person 17 sent a text message to the applicant which included the following:
   … You've spent the last year away for work all the time & barely home with your kids because you were so unhappy in your marriage.
2584 I do not consider that these general statements made by Person 17 assist in resolving the issue.
2585 Fifthly, with respect to the related question of whether the applicant told Ms Roberts in January 2018 that he was seeing another woman, the applicant relies on a second message sent by Ms Scott to Ms Roberts on 13 January 2018 in support of the proposition that Ms Roberts plainly knew at that time that the applicant was having an affair. The messages are as follows:
   | Ms Scott: | "And personally, I wouldn't want to be married to some s***mother who didn't want to spend time with the kids anyway." |
   | Ms Roberts: | "Seriously…he might want to upgrade, but he will always wonder if shes there for the right reasons." |
Ms Roberts said that her reference to a "she" reflected the fact that she suspected the applicant was having an affair. She denied that she was actually referring to a real person, being Person 17. The respondents submit that the reference to "some s*** mother" is a reference to "mother-fucker" and means the applicant, whereas the applicant submits Ms Roberts gave no evidence to support this theory and there is no hint of a misspelled word or an error. Ms Roberts had previously used this description of the applicant without apparent difficulty. I have difficulty in seeing the significance of this dispute. It is a comment made by Ms Scott, not Ms Roberts. In my opinion, the message is an insufficient basis to form a conclusion either way.
​2586 The applicant submits that the cumulative effect of these contemporaneous documents broadly supports the applicant's evidence that a separation in fact occurred and that Ms Roberts is not telling the truth.
2587 Sixthly, and again with respect to the related question of whether the applicant told Ms Roberts in January 2018 that he was seeing another woman, the applicant points to the fact that in family law affidavits sworn on 30 September 2020, Ms Roberts deposed to events in a way which suggested that she became aware of the applicant's affair with Person 17 in December 2017. Ms Roberts said that that was not correct and that the statement was a mistake. The respondents submit that Ms Roberts' explanation of the statement being a mistake is supported by the applicant's evidence that he did not tell her about the affair until later in January 2018. The applicant's response to that is that the message between Ms Scott and Ms Roberts on 13 January 2018 clearly indicates that Ms Roberts had acquired knowledge of the applicant's relationship one way or the other. He submits that this matter materially affects the credit of Ms Roberts and that if she was prepared to tell untruths on oath in identifying the time about which she became aware of the applicant's affair, her evidence as to the separation is also suspect.
2588 The respondents accept that Ms Roberts' evidence should be approached with caution because of the fact that she lied in relation to her outlines of evidence. As it happens, I consider that there is strong evidence that the parties were not separated and the applicant did not tell Ms Roberts in January 2018 that he was seeing another woman.
2589 I find that the separation story is false. The parties were not separated as claimed by the applicant. The applicant asked Ms Roberts to lie about being separated. He threatened her with the loss of the children. The applicant did not tell Ms Roberts in January 2018 that he was seeing another woman. My reasons for reaching these conclusions are as follows.
2590 First, it is significant that the applicant and Ms Roberts undertook marriage counselling in January and February 2018 and at that time, neither of them advised the marriage counsellor that they were separated or that the applicant was seeing another woman. There were four sessions with the counsellor and the counsellor's notes are more consistent with the parties being together than separated. In the final session, the report is that the parties are "going well" and "both are in good space" and the file was closed after "successful ending of therapy".
2591 The applicant said that neither he nor Ms Roberts wanted the fact of separation written down because the applicant had a public profile and they did not want it to come out. They had been ​keeping up appearances for many years. The applicant did not dispute the entries which suggested that the relationship was improving. In fact, he agreed that that was the case. The applicant's response to this is to submit that a relationship which improves during the course of counselling is not inconsistent with a couple being separated at the time the counselling occurs.
2592 Secondly, the applicant saw medical practitioners during the period and made no mention of being separated in circumstances in which one would have expected him to do so if it had, in fact, been the case. Those medical practitioners were a general practitioner from whom he sought a reference to a psychiatrist, and that psychiatrist. The general practitioner was Dr Gogna who was a friend and a person he trusted to treat information disclosed to him with the utmost confidence. The psychiatrist was Dr Bruce Lawford who the applicant understood was required to treat information disclosed to him in complete confidence. Such comments as the applicant made to these doctors about his marital relationship suggested that there were no difficulties to the point of the applicant telling Dr Lawford that he had a good relationship at home.
2593 The applicant agreed that he did not tell either Dr Lawford or Dr Gogna about the separation. He did not consider that they needed to know that. The applicant submits it is in no way contrary to human nature that the applicant may take this approach.
2594 The applicant's submissions with respect to the first two matters might have some force in other circumstances, but I do not accept the explanations when all of the circumstances of this case are considered together.
2595 Thirdly, the respondents rely on a message from Ms Roberts to Ms Scott on 27 April 2018. Ms Roberts says the following:
   BRS thinks if it hits the press I say we were separated …
Ms Scott asked her whether she was okay with that and, in response, Ms Roberts said:
   Not really
   He thinks that will stop a story lingering
The respondents submit, correctly in my view, that this message is not consistent with a separation having actually occurred.
​2596 Fourthly, the respondents rely on various text messages in December 2017 and January 2018 passing between the applicant and Ms Roberts, or the applicant and Person 17, as supporting its case that the parties were not separated as alleged by the applicant. I will identify the text messages without going through each and every one of them. They are text messages passing between the applicant and Ms Roberts in December 2017 (exhibit R43 Tab 6), text messages passing between the applicant and Person 17 in December 2017 (exhibit R64), text messages passing between the applicant and Person 17 on 23 December 2017 (exhibit R65), text messages passing between the applicant and Person 17 on 26 December 2017 (exhibit R66), text messages passing between the applicant and Person 17 on 30 December 2017 (exhibit R67), two photographs of the applicant and Ms Roberts on 31 December 2017 (exhibit R59), text messages passing between the applicant and Person 17 on 9 January 2018 (exhibit R68) and text messages passing between Ms Roberts and Ms Scott on 17 January 2018 (exhibit R106). I highlight the following matters:
    (1) the exchange of messages in December 2017 (exhibit R43 Tab 6) are in affectionate terms with the parties saying that they miss each other;
    (2) in the exchange of text messages on 6 December 2017, the applicant states that he thinks Ms Roberts has "bought the story";
    (3) in the exchange of text messages on 23 December 2017, the applicant states that Ms Roberts asked him on the previous evening whether he was seeing someone else and he said that he was not;
    (4) in the exchange of text messages on 26 December 2017, the applicant states that Ms Roberts is feeling his lack of affection;
    (5) in the exchange of text messages on 30 December 2017, the applicant tells Person 17 that he has slept with Ms Roberts during the previous week;
    (6) the photographs taken on 31 December 2017 show the applicant and Ms Roberts in affectionate poses on New Year's Eve 2017;
    (7) in the exchange of text messages between the applicant and Person 17 on 9 January 2018, the applicant advises Person 17 that Ms Roberts has received a sexual manual in the mail;
    (8) in the exchange of text messages between Ms Roberts and Ms Scott on 17 January 2018, Ms Roberts states the following:
   Still not back from the gym … gone 2 hrs
​2597 In my opinion, these reasons support the conclusion that the applicant and Ms Roberts were not separated as alleged by the applicant. I reject the applicant's evidence to the contrary. In the circumstances, I do not need to deal with the respondents' submission that I should infer that the evidence of Mr Neil Mooney, Mr Jed Wheeler, Ms Diane Young (all of whom were on the applicant's witness list, but not ultimately called) and Person 29 would not have assisted the applicant's case had it been adduced.
2598 I accept Ms Roberts' evidence that the applicant did not advise her in January 2018 that he was seeing another woman. His reactions on 6 April 2018 and Ms Roberts' transfer of money to her parents and the fact that the affair continued and was not disclosed to the marriage counsellor all support Ms Roberts' account. I reject the applicant's evidence to the contrary.