# Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA)/Part 3/Section 10

​Section 10 — The Blue-on-Blue and the Alleged Threat to Person 10
Introduction
1914 Imputation 13 is in the following terms:
   The Applicant threatened to report Trooper J to the International Criminal Court for firing at civilians, unless he provided an account of a friendly fire incident that was consistent with the Applicant's.
1915 The respondents contend that this imputation is substantially true. The Particulars of Truth advanced by the respondents in support of the substantial truth of the imputation are as follows:
   (70) Rotation 12 was Person 10's first deployment. At the commencement of the rotation Person 10 was a member of the Applicant's patrol.
   (71) On about 15 July 2012 the Applicant and the troop of which he was a member conducted a mission in the Chora Valley. The mission was planned by the Applicant.
   (72) The mission involved the Applicant's patrol (Gothic 2) and another patrol (Gothic 3) [set out in the Confidential Annexure to the Defence].
   (73) On the way to the ambush positions on or about 14 July 2012 Person 10's radio failed such that Person 10 had no communications for the remainder of the mission. When the Applicant's patrol moved into their positions at the ambush position the Applicant positioned Person 10 in a position pointed towards an aqueduct. Prior to the mission the troop had been informed of intelligence to the effect that the Taliban use the aqueduct system to move around.
   (74) Gothic 3 were located near the aqueduct in the direction (from Gothic 2) in which the Applicant had pointed Person 10.
   (75) At about 6:05am on about the morning of 15 July 2012, a member of Gothic 3 (positioned near the aqueduct) engaged an armed fighting aged male, that is, fired his weapon. The shot from Gothic 3 impacted near a member of Gothic 2. Person 10 believed the shots came from an enemy insurgent using the aqueduct and shot two short bursts of two to three shots each from his weapon in accordance with standard training. The Applicant yelled out "check fire" and Person 10 stopped firing.
   (76) As the shots fired by the member of Gothic 3 and Person 10 were fired in the direction of another patrol the incidents were "blue on blue incidents" (that is, an attack by one's own side that has the potential to harm one's own forces). Nobody was injured or harmed as a result of the blue on blue incidents.
   (77) Shortly after Person 10 stopped firing a woman and child walked into the vicinity of the ambush positions at a distance of about 200-300 metres.
   (78) The mission was deemed a failed mission.
   (79) As the patrol commander responsible for planning the mission, the fact that the mission failed and that it involved a blue on blue incident reflected poorly on the Applicant.
   (80) After the troop returned to base, the Applicant called his patrol into the patrol room. The Applicant came into the patrol room and shut the door behind him. Person 10 was sitting on a chair. The Applicant directed Person 10 to stand up, which he did. After Person 10 stood up the Applicant punched Person 10 hard in the face, belittled him and verbally abused him in front of the patrol. After assaulting Person 10, the Applicant said to him in substance "not a word of this [referring to the assault that had just occurred in the room] is to leave this room".
   ​(81) In debriefing meetings and in an investigation into the blue on blue incident the Applicant falsely alleged, in substance, that Person 10 was overwhelmed in the situation and fired shots in an uncontrolled manner whilst ignoring commands from the Applicant.
   (82) As a result of the Applicant's claims in relation to Person 10, Person 10 was placed on administrative duties and was restricted from going outside the wire (that is, outside of the base on operational missions).
   (83) On or about 14 February 2013 the Applicant threatened Person 10, in substance, that if he reported the assault or did not support the Applicant's version of the blue on blue incidents the Applicant would (falsely) report Person 10 to the Hague for war crimes for firing at women and children.
   (84) The Applicant's conduct in respect of Person 10 constituted bullying.
   (85) It may be inferred that the Applicant's conduct in respect of Person 10 was to detract attention from the Applicant's own responsibility for planning a tactically flawed mission which contributed toward the blue on blue incident.
For completeness, the balance of paragraph (72) is set out in the closed Court reasons (at [222]).
1916 The reference to Trooper J is a reference to Person 10. In their Defence, the respondents also relied on these Particulars, among other Particulars, in support of the truth of Imputation 3 to the effect that the applicant disgraced his country Australia and the Australian Army by his conduct as a member of the SASR in Afghanistan. That is no longer pursued by the respondents. They rely on these Particulars in relation to the substantial truth of Imputation 13.
1917 In 2012, the applicant was a patrol commander and in early July 2012, the members of his patrol were Person 4 as 2IC and Persons 11, 22 and 10. Each of those soldiers, except for Person 22, has been referred to in earlier Sections in this Part of the reasons and, in one case, will be referred to again. I reiterate what I have said on a number of occasions, that is, that in assessing a witness' evidence, I take into account the whole of the witness' evidence.
The Mission
1918 On 15 July 2012, the troop, including the applicant's patrol, conducted a mission in the Chora Valley. The mission was a special reconnaissance mission. There was a tactical planning group which consisted of all patrol commanders, including the applicant. The applicant was the lead planner for phase 1 of the mission.
1919 The mission was to be conducted in two phases. The first phase involved the applicant's patrol (Gothic 2) and Person 55's patrol (Gothic 3). Those two patrols were to proceed to the target area by foot and take up blocking positions. A blocking position relative to the target area is designed to prevent squirters from leaving the target area. The assault force comprising the ​patrols of Persons 7, 31 and 57 were to insert by helicopter near the compound of interest. The compound of interest was known to the Coalition Force as the Hilton. As I understand the applicant's evidence, phase 1 of the mission ended and phase 2 commenced on the landing of the helicopters.
1920 The applicant and his patrol and Person 55 and his patrol took up positions previously agreed between the applicant and Person 55. The applicant sent over Persons 4 and 10 to Person 55's location. They signalled to the other patrol and received a response. That meant that each patrol knew where the other patrol was. Person 55's patrol was to the south of the applicant's patrol. It then became a matter of waiting until the morning. The applicant's patrol were in a disused building. They were to wait there until the helicopters with the assault teams were inbound. They would then shake out to take up their blocking position. The assault force left Tarin Kowt for the objective at 0558DE on 15 July 2012. At about this time, the applicant's patrol shook out to form its blocking position.
1921 Person 10 said that he could hear the helicopters come in. He was with Person 22 and they were no more than five metres apart. Three shots were fired in quick succession and Person 10 saw a three round splash, just above Person 22's head, a distance of no more than 30 cms. Persons 10 and 22 were unable to identify the exact location of where the shots had come from. Person 10 considered that they had definitely come from the south, southwest. Person 22 said that the shots had come from the direction of the patrol that was to the southwest, that is, Person 55's patrol. The applicant said that he did not know what had taken place at that point and all he knew was that Person 22 had told him over the radio that he had received incoming fire.
1922 The applicant said that he could remember having a radio communication with Person 55 who said something about having seen a fighting age male in the vicinity of the area south of his location.
1923 There appears to be a factual issue as to whether Person 22 and possibly the applicant were aware that the shots had come from Person 55's patrol. The applicant does not appear to suggest that he knew that at that particular point in time, or that Person 55 had advised him during the radio call, that the shots had come from his patrol. Person 22, on the other hand, said that it was only for a short period of time that he thought that they were receiving fire from a Taliban source. After the mission, it was ascertained that these shots had, in fact, been fired by Person 55.
​1924 The applicant accepted that there was likely to be an investigation, but he denied that he was concerned that there was a possibility that such an investigation may conclude that there had been poor tactical planning in placing blocking forces opposite each other. He said that possibility did not even come into his mind. The applicant denied that he determined to make a false report that the initiating factor of the blue-on-blue were the shots fired by Person 10 and to make Person 10 a scapegoat for the failed mission.
1925 After receiving the incoming fire from an unknown source, the applicant, Persons 10 and 22 moved east of their current location across what was effectively an open field. Person 10 said that that was done to marry up with Person 55's patrol. Person 22 said that the quick battle orders concerned the means whereby the applicant's patrol were going to clear the ground between themselves and the other patrol to the south. The applicant said that they still thought that they were in contact or did not know what had happened other than that somebody had shot at the patrol.
1926 Person 10 took cover behind a mound to give covering fire should it be necessary. Person 10 said that out of his peripheral vision, he saw a movement like a "snap exposure" moving into the wadi (i.e., a riverbed with steep banks) which he perceived to be a threat. He said that he thought that there were two insurgents, one of whom was carrying a medium calibre machine-gun or a PKM where they hold the handle. He started "Drake shooting" in the area to the southwest. Person 10 described Drake shooting as a method employed to fire at likely enemy positions. It is firing at perceived threats and it is to stop the enemy from getting a firing position or manoeuvring. It involves firing at an area, not at an identified individual.
1927 Person 10 was firing the Minimi and he had a number of stoppages. He considered that he discharged no more than five bursts and then he heard the applicant say "Ceasefire. Ceasefire. Ceasefire" and he stopped firing.
1928 Shortly after Person 10 ceased firing, Person 55's patrol threw blue smoke to indicate their position. That position was approximately 50 metres east of the area where Person 10 was Drake shooting. Person 10 said that at that point, a woman and child emerged from the wadi and the woman was holding a birdcage.
1929 There is a factual dispute as to whether Person 10 was giving target indications while shooting. Person 10 said that he was giving target indications and that involved stating the number of ​enemy (two) and a rough distance and direction. Person 10 said that the engagement would have been no more than 100 metres.
1930 The applicant said he was yelling out for target indications, but Person 10 did not respond. When he had stopped firing, Person 10 looked visibly shaken. Person 22 said both he and the applicant were yelling at Person 10 asking him what he was firing at. He said that Person 10 did not respond.
1931 The respondents ask the Court to find that the most likely explanation for the difference in evidence is that Person 10's responses were unheard over the sound of the machine-gun. It is not in dispute that upon being told to cease fire, Person 10 did so. The resolution of this factual issue is not directly relevant to any major factual issue in this case. I am disposed to accept the evidence of Person 22 on this point. He was a straightforward witness with no apparent interest in the outcome.
1932 The first serious event on the mission was Person 55 shooting in the vicinity of the applicant's patrol. The second was Person 10 discharging his weapon. It is not suggested that Person 10 deliberately shot in the direction of a woman and child. Person 10 prepared a statement about the incident on 30 July 2012. In that statement, he admitted that he made an error in not positively identifying the target.
1933 Person 10 said that when he was on cordon security waiting on the helicopters for extraction, the applicant came to him and said that he wanted Person 10 to tell him who he was shooting at and whether it was a woman and child or the Taliban. The applicant also said that he did not have to tell him then and he then walked away. Person 10 said that the applicant came around again before they extracted and Person 10 told the applicant that he had shot at a woman and child. The applicant said that he had a conversation with Person 55 at the extraction point when Person 55 said to him "those first shots were mine".
The Assault
1934 After returning to Tarin Kowt, the patrol other than the applicant went into the patrol room. The applicant came into the room and shut the door behind him. He told Person 10 to stand up. After Person 10 had stood up, the applicant punched him on the left of his jaw. Person 10 said that he was standing up from a couch. The applicant punched him, forcing him "back to stop my fall". Person 10 said that the punch rattled him a bit. He said that the applicant was shouting at him. He can recall the applicant saying at the end the following:
   As far as I'm concerned, that's it. And, you know, nothing leaves this room.
1935 The respondents submit that the applicant's conduct in assaulting a subordinate was inexcusable. It seems clear that the conduct constituted an offence under ss 33 and 34 of the Defence Force Discipline Act. The respondents submit that it also constituted bullying and a gross failure of leadership. The applicant admitted the assault and he agreed in cross-examination that it was not appropriate leadership or mentorship to assault a subordinate no matter what that person had done. He did not accept that the conduct was bullying.
1936 The applicant said that before he punched Person 10, he asked the following question:
   What were you doing?
Person 10 responded with a giggle and the applicant interpreted this as an indication that Person 10 thought it was a joke.
1937 Person 22 said that everybody in the room was in a sombre mood except for Person 10 who was in a jovial mood. Person 10 denied that he giggled at the applicant or chuckled. Person 22 conceded that he did not see Person 10 laugh. He said that Person 10 was giggling. Having considered the evidence, I think it likely that Person 10 was in a jovial mood (perhaps due to embarrassment) and did not appear to grasp the seriousness of the situation.
1938 Person 22 recalled the applicant striking Person 10, but nothing further.
1939 The applicant said that he reported his assault to the troop commander and the troop sergeant. He went to them and said that he had just punched Person 10. No action was taken as a result of the report. I do not accept that evidence of the applicant. I accept Person 10's evidence that the applicant said that nothing was to leave the room and I do not consider that the applicant went and reported the assault.
1940 There is no record of a report and no action was taken as a result of an alleged report and the troop sergeant did not speak to Person 10 after the assault. The notion that the applicant reported the assault and admitted the assault, but that no action was taken is inconsistent with Person 100's evidence that when Person 10 reported the assault to him in 2013, Person 100 said he would investigate it and asked Person 10 if he would appear as a witness if the matter was taken further. If the applicant had already admitted the assault, then there would be no need for Person 10 to appear as a witness. As will be seen, the applicant threatened Person 10 in connection with the later report of the assault. That conduct is inconsistent with the applicant self-reporting the assault.
​The Debrief
1941 Person 7 said that there were whispers coming through that there had been a blue-on-blue, that is, Australian troops shooting at fellow troops. At the debrief in the troop office, the troop commander said that they had heard some things about a possible blue-on-blue. He asked the applicant and Person 55 to explain what had happened. Person 55 explained that he had seen movement and that he and one other engaged the individual that he saw moving. The troop commander then asked the applicant what his recollection was and Person 7 gave the following evidence as to what the applicant said:
   RS straightaway started finger-pointing on the table and saying, "That cunt — that cunt, I fucking gave him an opportunity. He's gone and let me down", and he was talking about — so at that point in time, the troop commander said, "What happened?" And he said, "His eyes rolled in the back of his head and he was blazing away uncontrollably with his Minimi rifle.
Person 7 said that the applicant was referring to Person 10 and he had used his name.
1942 The applicant said that in the troop debrief, which included the troop commander, the troop sergeant and every patrol that was on the mission, Person 55 accepted his mistake and said that he had initiated the blue-on-blue. He said to those present that if they did not want to work with him, he was happy to go home.
1943 I do not accept the applicant's evidence. It is inconsistent with Person 7's evidence which I accept. There would not have been two meetings. Person 31 said he had no recollection of Person 55 saying anything in the debrief. He did not recall anything being said about a blue-on-blue. He recalls the applicant being notably angry about Person 10's performance.
Person 10 is disciplined
1944 Person 10 then went to bed. He was woken up by Person 4 who said that he was to go into the Tactical Operations Centre. The applicant, Person 26, who was the troop sergeant, and Person 58, who was the troop commander, were present. A number of performance issues were raised. The blue-on-blue was raised, that is, the accusation that Person 10 fired at his patrol. Person 10 could not remember who raised it. After the meeting, Person 10 went back to bed. The following day, he was brought into the SSM's office and told that the blue-on-blue meant that he would be going home. Person 10 said that he was not actually sent home. He was moved into another patrol. Person 31 was the patrol commander. He said that it was perceived that it was a blue-on-blue and other patrol commanders raised concerns surrounding what ​actually happened on the ground. Person 10 was given a formal warning and not allowed to go outside the wire.
Contemporaneous Reporting
1945 The respondents submit that the most compelling evidence that the applicant conflated the two incidents and used Person 10 as the scapegoat for the blue-on-blue initiated by Person 55 is the contemporaneous reporting and the action, or lack of action, taken after the mission. That evidence consists of the following.
1946 First, the OPSUM for the mission makes no reference to Person 55 firing shots near members of the applicant's patrol. It does refer to a suspected insurgent being engaged.
1947 Secondly, an assessment called a quick assessment was carried out into Person 10's weapon incident which was described as "the unauthorised discharge of [redaction] TPR Person 10 weapon". No quick assessment was conducted in relation to Person 55's discharge of his weapon in the direction of friendly fire. The quick assessment relied on (among other sources of information) statements from the applicant and Person 55. There is no reference at all to the blue-on-blue having been initiated by Person 55. The initial engagement is referred to as follows:
   At 150605DE July 2012, shots were heard to the left flank of G2 and, after an initial investigation, the G2 Patrol Commander, CPL Roberts-Smith, assessed that his patrol had come under fire.
1948 There is then a reference to Person 10's engagement without any reference to the woman and child. The following then appears:
   At this time blue smoke could be seen IVO G3's location. CPL Roberts-Smith informed TPR Person 10 that he had probably seen elements of G3, as there was no sign of the FAM in the area of ground between G2 and G3.
1949 Thirdly, the applicant's statement dated July 2012 for the purposes of the quick assessment also contains an account of the initial shots fired which excludes any reference to Person 55 having fired the shots; no reference to Person 10 having shot in the direction of a woman and child; and a statement that at the same time as Person 10's engagement, "G3 had thrown a blue smoke grenade to mark their location which at that point was around 150 meters to our West South West. Subsequently I then impressed upon G23 that he had probably seen G3 patrol members as there were no other FAM's between G3 and our callsign".
​1950 In his evidence-in-chief, the applicant was asked to read his statement dated July 2012. He was asked whether it was accurate. He said that it was accurate other than the fact that the sighting of the woman and child is omitted. He said that there was no particular reason for that omission "other than the fact that the point of the document was about him [i.e., Person 10] losing control more so than I thought he was firing at woman and children". There were women and children in Person 10's arc, but the applicant explained that the issue he had with Person 10 was that he lost his situational awareness and behaved in a manner that could have become a danger to himself and others. In cross-examination, the applicant agreed that there was nothing in his statement about Person 55 firing the shots that impacted near his patrol and initiated the blue-on-blue. He agreed that there was nothing in his statement about Person 10 having fired at women and children. The applicant said that the latter was irrelevant and that he had no interest in trying to make Person 10 look bad. As far as he was concerned, Person 10 lost control and fired randomly across open ground and he could have hit anybody. The applicant said that everybody acknowledged that there women and children there and that he, the applicant, had never said that Person 10 shot at them deliberately, but he certainly put them in danger.
1951 It is perhaps understandable that the applicant did not mention that Person 10 was firing in the direction of women and children in order to protect him, but in not mentioning what he said he knew which was that Person 55 had fired the initial shots and in suggesting that Person 10 had seen members of Person 55's patrol, he was suggesting that if there was a blue-on-blue, then Person 10 was responsible.
Person 10 prepares his Statement
1952 It was in this context that Person 10 came to prepare his statement and, on the respondents' case, the applicant made the threat referred to in the imputation. Person 10 had trouble as indicated in the General Comments Sheet dated 20 July 2012 (exhibit R159) in understanding why he had been punished. He said in evidence he had trouble understanding why he had been punished because he had fired at a perceived threat which was in line with his ROE and OFOF (orders for opening fire), in protection of a call sign that were moving in the open. The accusation that he was firing at a friendly call sign was simply false.
1953 At the time he prepared his statement, Person 10 did not have an understanding as to where the shots had been fired from.
​1954 The applicant helped Person 10 prepare his statement because he (Person 10) had not done anything like that before in terms of getting "the timings correct". He said that during the preparation of the statements, there were differences in them. He said that he and the applicant were in the Tactical Operations Centre where there were computers. The applicant said to Person 10 that he could go to The Hague if he put in his statement that he was firing at women and children. Person 10 said that he did not finish the statement and that he went to the legal officer in country. He decided to keep to his original statement. He said that the applicant told him not to say that he was firing at a woman and child. Person 10 identified his statement.
1955 The imputation concerns a threat by the applicant. The precise words used are important. In his evidence-in-chief, Person 10 said:
   And do you have any recollection of anything in particular that Mr Roberts-Smith told you while you were preparing that statement?---Yes. Mr Roberts-Smith, in relation to the actual – the firing, was compelling me.
   Do you remember the words that he used? As best you can, what he said to you?---Yes. Yes. He said I could go to The Hague if I put that I was firing at a woman and child.
   Okay. And when he told you that you could go to The Hague if you were firing at a woman and child, did you do anything in response to that comment or say anything?---Yes. I didn't finish the statement, and I went to the legal officer in country.
   Okay. Now, don't – just excuse me for one moment. Sorry. Okay. Now, I don't want to know what the legal officer told you. But, after you spoke to the legal officer, what did you do?---I – I kept my original statement.
   Okay. Now, do you have a recollection of anything else? So you said Mr Roberts-Smith told you not to mention – not to say that you were firing at a woman and child. Do you remember anything else that he told you while you were in the same room writing the statements?---No.
1956 His statement dated 30 July 2012 relevantly reads:
   7. Shots were fired from the South West of our position. I turned towards the West knowing that G25 had taken up a fire position on the North Western corner. I saw the splash of rounds against the building as he moved behind it for cover. He indicated that the rounds came from the South. At this stage I thought we were in contact. I didn't have ptl communications so I had no way of knowing otherwise.
   8. … I checked their position in preparation to push up to them when I noticed what I thought to be two FAMs manoeuvring keeping a low profile and holding what I thought to be a weapon. They moved into the wadi to our West from where we had received fire. I immediately opened fire as G21 and G25 were in relatively open ground and the FAMs direction of movement indicated to me that they were going to set up a fire position from the wadi. I fired two bursts of 2-3 rounds from the lying prone position in an attempt to suppress and fix them.
   ​9. Through my sight picture I could see compound C4684B behind the engagement area and a South-West running aquaduct to the north of the compound. After firing I had a stoppage so I went through the IA and attempted to refire resulting in another stoppage. At this stage I heard G21 yell out for a target indication which I yelled back West, 100m bridge two enemy. I put a new belt of link on as I was sure the link had tangled on the last belt and fired two more bursts into the wadi. He asked what I was shooting at and what they were wearing he also said that there were friendly callsigns in a blocking formation to the South which I had previously ID. I told him I was shooting at two Insurgents in the wadi, and at that point a woman wearing a yellow burkah and holding a bird cage and her son came out of the wadi moving East. I hadn't seen them previously, it was the first time I'd seen them. I didn't know where they had come from. …
   11. I honestly believed I was engaging FAMs. At no stage did I engage friendly call-signs as I was aware of their position relative to the engagement area. Post engagement, it occurred to me that I may have fired at LN's mistaking them for enemy. However I thought given the open ground and exposure of G21 and G25 I would initiate. I now understand that I should have gained PID first and I admit my error.
It is important to understand that Person 10 is admitting to a particular error. It is not firing on a friendly force. It is firing in an area without a positive identification where it transpired there was an Afghan woman and a child.
1957 In cross-examination, Person 10 denied that the applicant did not threaten to report him to the International Criminal Court for firing at a woman and child and he said that he had threatened him. He said that the applicant had threatened to report him to The Hague if he did not write a statement that was conducive to his. Person 10 did not see any inconsistency between that evidence and the evidence he gave in chief. Person 10 maintained his position that the applicant threatened to report him to The Hague if he did not put in a report that was conducive to his statement. It was put to Person 10 that that was not what he told the Court in his evidence-in-chief. The evidence which Person 10 gave in cross-examination was as follows:
   Mr Roberts-Smith did not threaten to report you to the International Criminal Court for firing at the woman and child; correct?---He threatened me, yes.
   I'm sorry?---He did threaten me, yes.
   Mr Roberts-Smith – put this proposition. He did not threaten to report you to the International Criminal Court for firing at civilians unless you provided an account that was consistent with his version?---Sorry, Mr Moses. Can you please say that one more time.
   Mr Roberts-Smith did not threaten to report you to the International Criminal Court for firing at civilians unless you provided an account that was consistent with his version. Do you accept that?---Just one more time, Mr Moses, please.
   Mr Roberts-Smith did not threaten to report you to the International Criminal Court for firing at civilians unless you provided an account that was consistent with his ​version. Do you accept that?---Mr Moses, he threatened to report me to the Hague if I did not write a statement that was conducive to his.
   That was – sorry?---Conducive.
   That was conducive to his?---Correct.
   You told the court that what Mr Roberts-Smith said to you was that you could go to the Hague if you put that you were firing at a woman and child. Wasn't that your evidence to his Honour yesterday?---That is correct.
   He did not threaten to report you to the International Criminal Court for firing at civilians unless you provided an account that was consistent with his; correct?---He threatened to report me to the Hague if I did not state that I was firing at the other patrol, essentially the blue on blue.
   But that was not your evidence yesterday?---It was.
   You did not say yesterday that Mr Roberts-Smith was threatening to report you to the Hague. That wasn't your evidence yesterday?---Mr Moses, you could go to the Hague if I do not – if I didn't write a statement conducive to his. That's a – that's a threat.
   No, what you – apologise. Please finish. I interrupted you. I am sorry?---That's okay. I've finished, Mr Moses.
   Okay. What you told his Honour was that:
      Mr Roberts-Smith said I could go to the Hague if you put that you were firing at a woman and child.
   ?---That's correct.
   And that's why you went to seek legal advice about how you should draft your statement; correct? Correct?---Not about how I should draft my statement. It was to fact-check that statement.
   To seek legal advice?---Correct.
   Yes. But do you accept my proposition that Mr Roberts-Smith did not threaten to report you to the International Criminal Court for firing at civilians unless you provided an account that was consistent with his version. Do you accept that?---Can you please say that one more, time, Mr Moses, and - - -
   That's okay. Do you accept that Mr Roberts-Smith did not threaten to report you to the International Criminal Court for firing at civilians unless you provided an account that was consistent with Mr Roberts-Smith's version? Do you accept that?---He threatened to report me to the Hague if I said – if – if I didn't put in a report that was conducive to his, Mr Moses.
   That's not what you told the court yesterday. Do you accept that?---Threat – yes.
   So the evidence that you gave yesterday – I just want to be clear upon this. Is the evidence that you gave yesterday still correct?---Yes, it is, Mr Moses.
   Is what you just told the court, to be fair to you – is that what you believe was the effect of what Mr Roberts-Smith was saying to you?---Yes, I believe so.
   Rather than what he said to you, correct?---Just for your Honour, when we did the statements, I had down that I fired at a woman and child, and he said that if I don't put it basically to align with his, I could go to the Hague. That's the crux of it, your Honour.
   ​Yes. Now, what – your Honour, could the witness be shown exhibit R160, which is an open court document, your Honour.
   If you go to paragraph 9, it's the last line there on page 2 of the document:
      I told him I was shooting at two insurgents in a wadi, and at that point, a woman wearing a yellow burqa and holding a birdcage and her son came out of the wadi, moving east. I hadn't seen them previously. It was the first time I had seen them. I didn't know where they had come from.
   Do you see that?---Yes.
   Now, was that what you were referring to earlier in terms of part of your statement that you say was a reference to your conversation with Mr Roberts-Smith?---I just need five minutes, your Honour, to read.
   Sorry?---I just need five minutes, please.
   Of course. Your Honour, could I just resume my seat for a moment?
   HIS HONOUR: Yes.
   THE WITNESS: Mr Moses, I'm ready.
   MR MOSES: You've read that?---Yes.
   Thank you. Is that what you were referring to?---I believe so, Mr Moses, yes.
   When you say you believe so, do you have a recollection?---Yes, that's what I'm referring to.
   And your evidence is that you did not – I just want to understand your evidence. Your evidence is that after you spoke to the legal officer, that you made no changes to the statement; is that right?---I – I can't recall, Mr Moses.
   Because the fact is, isn't it, that you didn't finish the statement before you went to see the legal officer in country, correct?---I can't recall, Mr Moses.
   And just to be clear, your evidence is that Mr Roberts-Smith said to you that you could go to the Hague if you put in your statement that you were firing at a woman and child, correct?---That's correct.
Subsequent Events
1958 Person 19 gave evidence that he had a telephone conversation with the applicant during which he told the applicant that Person 10 was intending to make a formal complaint against the applicant for punching him at which stage the applicant said words to the following effect:
   You tell that cunt, he'd better not say anything, otherwise, I'll get him charged for war crimes.
1959 Person 19 said that he told Person 10 about his conversation with the applicant and what the applicant had said. I accept Person 19's evidence.
1960 Person 10 described his performance as a solider in Echo Troop as poor. He subsequently received a notice to show cause. He gave evidence that he received a telephone call from the ​applicant in February 2013. The crux of the conversation was that the applicant said to Person 10 the following:
   If you threaten me or my family, I will fuck you up.
Person 10 understood that to mean that if he referred to the assault in connection with his notice to show cause, then there would be consequences. Person 10 was subsequently removed from the regiment. I accept Person 10's evidence on these matters.
Findings and Conclusions
1961 As I have said, I do not accept the applicant's evidence that he reported his assault of Person 10 to his superiors and I do not accept his evidence that Person 55 disclosed the fact that he initiated the blue-on-blue to a troop meeting. I consider that the applicant was aware that if the whole incident could be attributed to the uncontrolled actions of a soldier who, to use the applicant's words, "did not understand what he was doing", then that lessened the likelihood of his role in planning the first phase of the mission being investigated. I cannot accept that the fact the helicopters had landed meant the position of the blocking forces would not be investigated if that was considered appropriate.
1962 The applicant submits that proof of the applicant's responsibility for the blue-on-blue is an essential aspect of the respondents' case and is not established. I reject that submission. I think avoiding an investigation would have been a sufficient motive for the applicant.
1963 The difficulty with the respondents' case comes down to whether the evidence of the threat referred to in the imputation is sufficiently clear. A statement that you could go to The Hague if you put in your statement that you were firing at a woman and a child is not a threat and, in any event, it is not the threat in the imputation.
1964 I have considered the evidence carefully, including the passages set out above. Whilst I do not consider Person 10 to be dishonest, I do not think the evidence is sufficiently clear to support a threat of the type advanced by the respondents.
1965 The respondents have not established the substantial truth of Imputation 13.
1966 I have found that the Group 3 articles convey Imputations 9, 10, 11 and 14. It follows that they also convey as contextual imputations, Imputations 2 and 3. I have found that the murders at W108, Darwan and Chinartu occurred and, therefore, Imputations 2 and 3 have been shown by the respondents to be substantially true. In my opinion, Imputation 13 does not further harm ​the applicant's reputation because of the substantial truth of Imputations 2 and 3. The respondents have a defence under s 26 of the Defamation Act to the publication of the defamatory matter giving rise to Imputation 13.
1967 Before leaving this section, I record the following. Insofar as it was submitted by the applicant that his assault of Person 10, although wrong, was evidence of, or motivated by, his concern for the welfare of Afghan civilians, I firmly reject that submission. As will be clear, I do not accept the applicant's evidence. His concern was the potential embarrassment to himself and his patrol.