# Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA)/Part 3/Section 9

​Section 9 — Alleged Unlawful Assaults on PUCs
Introduction
1849 There are three imputations which are relevant to the alleged unlawful assaults on PUCs and they are Imputations 10, 11 and 14. These imputations are as follows:
   10. The Applicant during the course of his 2010 deployment to Afghanistan, bashed an unarmed Afghan in the face with his fists and in the stomach with his knee and in so doing alarmed two patrol commanders to the extent that they ordered him to back off.
   11. The Applicant as patrol commander in 2012 authorised the assault of an unarmed Afghan, who was being held in custody and posed no threat.
   14. The Applicant assaulted an unarmed Afghan in 2012.
1850 The respondents' case is that Imputation 10 is substantially true and that is established by the assault of an Afghan male by the applicant on 15 March 2010 during a mission in an area known as Deh Rafshan. The Particulars of Truth in relation to the alleged assault at Deh Rafshan are as follows:
   (56) During rotation 12 the Applicant held the position within his patrol of Second in Command.
   (57) On or about 15 March 2010 the Applicant and the troop of which he was a member conducted a mission in an area named Deh Rafshan targeting a medium value Taliban leader.
   (58) The target fled from the compound as the helicopters were landing.
   (59) As they were clearing the target compound Person 7 and Person 8 came across an Afghan male (who was not the target) (Afghan Male 3). Afghan Male 3 was sitting cross-legged in a carpeted room in the compound and was not armed. It was the intention of Person 7 and Person 8 to "PUC" (meaning arrest; "PUC" meaning "person under control") Afghan Male 3 for questioning. After Person 7 and Person 8 directed Afghan Male 3 to stand up and put his hands behind his back, Afghan Male 3 moved himself into the foetal position and made a whimpering sound. Afghan Male 3 was not exhibiting any threatening conduct but rather was exhibiting signs of fear.
   (60) Person 7 and Person 8 attempted to place Afghan Male 3's hands behind his back so that they could be handcuffed (with plastic cables), however, exhibiting signs of fear, Afghan Male 3's body was stiff and he remained in the foetal position. Person 7 and Person 8 let go of Afghan Male 3 in the hope that he would relax his body and then after a period of time repeated the ​attempt.
   (61) As Person 7 and Person 8 were attempting to arrest Afghan Male 3 in the manner described in the preceding paragraph the Applicant entered the room wearing Kevlar gloves. The Applicant walked up to where Person 7 and Person 8 were attempting to arrest Afghan Male 3, got down on one knee and drove several punches hard into Afghan Male 3's face around his cheek bone and eye. A lump/swelling appeared in the area around Afghan Male 3's cheek bone and eye socket almost instantly. The Applicant then drove his knee into Afghan Male 3's abdominal area two to four times. As the Applicant did this Afghan Male 3 made a sound as though the wind had been knocked out of him. Person 7 said to the Applicant words in substance "Whoa, whoa, whoa what are you doing? Get out of here we are looking after this!" The Applicant then left the room.
   (62) In the circumstances, by his conduct with respect to Afghan Male 3, the Applicant breached Common Article 3 in that his conduct constituted violence to the person and/or cruel treatment.
       (a) [deleted]
       (b) [deleted]
   (63) In the circumstances, the Applicant's conduct with respect to Afghan Male 3 constituted an unlawful assault.
1851 The respondents' case is that Imputation 11 is substantially true and that is established by the following:
    (1) the killing of EKIA56 by Person 4 at W108 on 12 April 2009;
    (2) the killing of Ali Jan by Person 11 at Darwan on 11 September 2012;
    (3) the killing of an Afghan male by a member of the partner force at Chinartu on 12 October 2012.
1852 I have found that the applicant was complicit in and responsible for the murder of EKIA56 at W108 in 2009 and the murder of Ali Jan at Darwan on 11 September 2012 and the murder of the Afghan male at Chinartu on 12 October 2012. I accept the respondents' submission that for the purposes of the defence of substantial truth in a defamation action, murder may be considered an extreme form of assault. Any one of these findings therefore proves the substantial truth of Imputation 11 and certainly, if contrary to my view that the date is not part of the sting of the imputation, the findings in relation to the killings in 2012 prove the substantial truth of Imputation 11.
1853 The respondents' case is that Imputation 14 is substantially true and that is established by the following matters:
    (1) the killing of EKIA57 at W108 on 12 April 2009;
    (2) the assault of an Afghan male in Deh Rafshan on 15 March 2010;
    (3) kicking Ali Jan off the cliff at Darwan on 11 September 2012;
    (4) the assault of an Afghan male in a village in the northwest of the Oruzgan Province in late August to early September 2012.
1854 The matters in (1) and (3) were considered in Sections 2 and 4 of this Part. I have found that both have been established. Either matter proves the substantial truth of Imputation 14. Again, if contrary to my view that the date is not part of the sting of the imputation, the substantial truth of Imputation 14 is established by the act of kicking Ali Jan off the cliff on 11 September 2012.
1855 Nevertheless, I will consider the allegation that the applicant assaulted an Afghan male in a village in the northwest of the Oruzgan Province in late August to early September 2012.
1856 The Particulars of Truth in relation to the assault of an Afghan male in late August to early September 2012 are as follows:
   (86) On about 29 August 2012 a member of the Afghan Army, Sergeant Hekmatullah (Hekmatullah), opened fire at Patrol Base Wahab killing three Australian soldiers and injuring two others.
   (87) In about the period 29 August 2012 to early September 2012 the Applicant and the troop of which he was a member conducted a mission in a village in the north-west of the Oruzgan province in search of Hekmatullah.
   (88) [Set out in the Confidential Annexure to the Defence].
   (89) [Set out in the Confidential Annexure to the Defence].
   (90) One of the detainees (Afghan Male 4) was a civilian who had a young girl with him. The Applicant asked Afghan Male 4 in substance if the girl was his daughter and what her name was. Afghan Male 4 responded in substance that the girl was his daughter but hesitated in giving her name. The Applicant then grabbed Afghan Male 4 by the front of his clothing, picked him up and forcefully pushed his head into the mud wall of the compound one or two times.
   (91) In the circumstances, by his conduct with respect to Afghan Male 4, the Applicant breached Common Article 3 in that his conduct constituted violence to the person and/or cruel treatment.
   (a) [deleted]
   (b) [deleted]
   (92) In the circumstances, the Applicant's conduct with respect to Afghan Male 4 constituted an unlawful assault.
For completeness, paras (88) and (89) are set out in the closed Court reasons.
​The Assault of an Afghan Male in Deh Rafshan on 15 March 2010
1857 The alleged assault by the applicant occurred in the room of a compound in the area known as Deh Rafshan on 15 March 2010. Shortly prior to the assault, a fighting aged Afghan male was present in the room with Persons 7 and 8. The respondents' case is that the applicant entered the room and committed the assault. The key witness for the respondents is Person 7. Person 8 did not give evidence in the trial. The applicant denied assaulting the Afghan male.
1858 Person 7 commenced his evidence at the beginning of the day on 16 March 2022 and his evidence-in-chief took half a day. He was cross-examined for the rest of that day and then on 17 March, 18 March, 21 March and on the morning of 22 March 2022. The cross-examination of Person 7 is set out in over 450 pages of transcript, including closed Court transcript. There was a very substantial attack by the applicant on Person 7's honesty. In broad terms, it was put to Person 7 that he was carrying out a vendetta against the applicant and that he hated the applicant and was jealous of his military achievements. As I will explain, I reject that attack and I accept that Person 7 was an honest and reliable witness.
1859 Person 7 is a member of the SASR. His current rank is Warrant Officer Class 2. He joined the ADF in 1994 and became a member of the SASR in 2001. He has been deployed overseas as a member of the SASR on 18 occasions and 11 of these deployments have been to Afghanistan.
1860 Person 7 was deployed to Afghanistan in 2010 and his rank was sergeant. He was a patrol commander and the members of his patrol were Persons 27 (2IC), 38, 52 and 53.
1861 Person 7 was deployed to Afghanistan in 2012. He held the same rank and positon as he did in 2010 and the members of his patrol were Persons 48 (2IC), 1, 38 and 90.
1862 On 15 March 2010, Person 7's patrol was part of a mission to the village of Deh Rafshan in search of a medium value Taliban leader. The patrols were inserted by helicopter. A number of Afghan males were detained by the troop in the course of its clearance of the compounds. Persons 7 and 8 were involved in clearing the compounds and they entered a room which was rectangular in shape and had carpet on the floor. It looked like a dining room, except that there was no table. There were chai cups on the carpet and what looked to be a cooker or a heater at the back of the room. There was one Afghan male in the room. He was at the far end of the room and he was sitting with his legs crossed. Person 7 formed the view that the Afghan male posed no threat "whatsoever". Persons 7 and 8 approached the Afghan male in order to detain him. As they did so, the Afghan male rolled onto his right side and he began making a ​whimpering sound. The Afghan male was very tense and in a foetal position and Person 7 considered that he was seriously afraid. Person 7 could not stand the Afghan male up so that he could detain him. Person 7 decided to let go of the Afghan male to see if he relaxed. He considered that the Afghan male posed no threat. Person 7 said to Person 8, words to the effect of "Jeez, this bloke; he's shitting himself. We will give him a moment and then we will attempt to detain him again. Hopefully – see if he settles down".
1863 At that point in time, the applicant entered the room. He walked past Persons 7 and 8 without saying anything and went to the Afghan male. The applicant was on one knee and he punched the Afghan male in the head three or four times with what Person 7 described as quick-fire punches. He then kneed the Afghan male twice in the chest and stomach area. At this point, Person 7 said words to the effect of "Whoa, whoa, whoa. What are you doing? We're looking after this. Get out of here". The applicant got up and without saying a word left the room.
1864 Person 7 said that the Afghan male was not in a good way, but he was eventually brought to his feet and detained. The Afghan male had been punched on the left side of the face and by the time Persons 7 and 8 had taken him outside, he had significant swelling on the left side of his face and around his nose.
1865 Person 7 said the applicant had his rifle and his body armour on, including Kevlar gloves which are gloves with hard protection over the knuckles.
1866 Person 7 said that he then went to find his patrol. He said that it was not unusual for different members to move into different rooms.
1867 Person 7 considered the use of force by the applicant to be "completely and utterly unnecessary" as the Afghan male posed no threat "whatsoever".
1868 The Department of Defence produced photographs of an Afghan male with some injuries to his face and apparently detained on 15 March 2010 (exhibit R82). Person 7 identified the male shown in the photographs as the Afghan male assaulted by the applicant on 15 March 2010.
The Assault of an Afghan Male in late August to early September 2012
1869 In late August 2012, the troop carried out a mission in search of Hekmatullah to a village on the Uruzgan-Helmand border. As I have previously said, Hekmatullah was a member of the Afghan National Army who had murdered three Australian soldiers and a number of missions ​were conducted with a view to apprehending him. The village in question consisted of approximately 50 compounds and there were a number of fighting age males in the village.
1870 The applicant's patrol was initially an assault patrol, but became a PUC-handling patrol as the number of PUCs increased. Person 7's patrol was also an assault patrol and he and his patrol continued to clear compounds and collect PUCs. Person 7 and his patrol then returned to the centralised PUC-handling area with the PUCs they had collected. Person 7 left his patrol and went to see if he could find the troop sergeant. He came across an area which he described as a relaxation area and in the area there were 15 to 20 PUCs and the applicant and his patrol.
1871 As Person 7 entered the area, he saw that the applicant had an Afghan male by the shirt and up against a wall and he punched him four times "like a football punch". In other words, the fist delivering the punches is at the same time also holding the shirt. In the vicinity of the applicant and the Afghan male was a young girl approximately three to four years of age who was sitting and another Afghan male who was comforting the young girl while squatting next to her. The young girl was looking at the Afghan male the applicant had against the wall.
1872 As Person 7 approached, the applicant let go of the Afghan male he had against the wall and that Afghan male picked up the young girl as she ran to him and he went to squat next to the Afghan male who had been comforting the young girl.
1873 Person 7 had the following conversation with the applicant:
   Person 7: "What's going on here, RS?"
   Applicant: "He's a fucking bad cunt".
   Person 7: "Okay. What's the – What's going on?".
   Applicant: "When I was questioning him I asked him if that was his daughter. He said 'Yes', and then I asked him what her name was. He hesitated."
   Person 7: "Yes, and?".
   Applicant: "Well, I've got two daughters and I know what their names are".
   Person 7: "RS, you ragged on this bloke, you've just gone and asked him what this girl's name is, of course he's going to be – you know, why do you think he's hesitating?".
1874 Person 7 looked at the applicant, shook his head and walked off. Person 7 said in his evidence-in-chief that he could not remember seeing the interpreter, "so I couldn't tell you where he was". He said that he did not see the applicant communicate with any of the PUCs through an interpreter and that the applicant did not speak Pashto.
​The Applicant's Account
1875 At the very beginning of his cross-examination, the applicant was asked about, and gave evidence of, his understanding of how PUCs were to be treated. He understood that it was never permissible to assault a PUC irrespective of the role they played prior to being PUC'd and irrespective of the role they might play if freed. Nor was it permissible to order or direct or encourage another person to assault or kill a PUC. The applicant said that he considered that it was permissible to use such force as was "necessary and required to effect the arrest of a PUC".
1876 The applicant denied assaulting the Afghan male in 2010. The allegation in para (61) of the Particulars of Truth was put to him in the course of his evidence-in-chief and he said that no part of what was read to him had happened. Further, he denied in his evidence-in-chief that he had authorised the assault of an unarmed Afghan who was held in custody and posed no threat in 2012. Under cross-examination, he denied the alleged assault in 2010. Under cross-examination, the applicant denied the alleged assault of an Afghan male against a wall in 2012 and he denied that he had a conversation with Person 7 immediately after the alleged assault. He said "the scenario" made no sense because he and the alleged victim did not speak the same language.
1877 The applicant submits that the respondents' case with respect to the alleged assaults should be rejected on the basis that they have not discharged the onus of proof which they bear, having regard to a limited number of key considerations in relation to each assault.
1878 In relation to the alleged assault in 2010, the onus has not been discharged by the respondents having regard to the following considerations:
    (1) as to whether the assault occurred, it is Person 7's word against that of the applicant. It is unlikely Person 7 would remember the assault of a PUC as long ago as 2010;
    (2) Person 8 did not give evidence in the trial. In any event, he was a member of Person 5's patrol at the time and it is unlikely he would have been assisting Person 7 in the clearance of a compound;
    (3) there was no contemporaneous report by Person 7 of the alleged assault. Person 7's evidence that he reported the alleged assault should be rejected; and
    (4) there is no documentary evidence which corroborates the alleged assault. The photographs of the Afghan male which became exhibit R82 show an injury not ​consistent with the Particulars of Truth and which could have been caused in any number of ways.
1879 In relation to the alleged assault in 2012, the onus has not been discharged by the respondents having regard to the following considerations:
    (1) as to whether the assault occurred, it is Person 7's word against that of the applicant;
    (2) there was no contemporaneous report by Person 7 of the alleged assault;
    (3) the alleged conversation between the applicant and Person 7 immediately after the alleged assault could not have taken place. The applicant could not have related a conversation with the alleged victim in circumstances in which the applicant does not speak Pashto; and
    (4) Person 7 said that the applicant's patrol, or at least some members of the patrol, were in the relaxation area, but the respondents did not ask any questions of Persons 4, 11 and 56 about the alleged incident.
1880 I will come back to analyse these matters later in these reasons.
Person 7
1881 It is convenient to outline the factual basis of the applicant's challenge to Person 7's honesty and reliability. That factual basis related to Person 7's contact with the media, his views about whether the applicant deserved the Victoria Cross, his complaints or lack of complaints about the applicant and other matters.
1882 With the protection of a certificate under s 128 of the Evidence Act, Person 7 gave evidence of the contact he had with Mr McKenzie and Mr Masters. That contact may be summarised as follows:
    (1) a telephone call from Mr Masters in late 2015 when Mr Masters told him he was writing a book which was ultimately called "No Front Line". Person 7 contacted the media section of the Department of Defence and he was told that he could speak to Mr Masters, but he was not to reveal any classified information;
    (2) a meeting between Person 7 and Mr Masters in Canberra in late 2015 which went for six to six and-a-half hours;
    (3) a couple of telephone calls in January 2016 when Mr Masters was chasing up further information;
    (4) a meeting in Melbourne in about March 2016 when Mr McKenzie and Mr Roy Masters were present which went for approximately one hour. Mr McKenzie left the meeting not long after it had commenced;
    (5) a telephone call from Mr McKenzie in very late 2018 or very early 2019 when Mr McKenzie asked Person 7 whether he would be interested in appearing on a "60 Minutes" program Mr McKenzie was preparing. Person 7 initially said no, but then reflected on it and decided to appear on the program. He explained that he did so because he had seen a number of soldiers adversely affected by the applicant's conduct and because he saw that the applicant was conducting an aggressive intimidation and threatening campaign against those speaking out. He said he saw himself as a voice from within. He understood that he was breaching the policy of the Department of Defence in participating in the program.
1883 Typewritten notes of Mr Masters were tendered in evidence and became exhibit A142. They comprise over 21 pages of details and have a date on p 10 of 16 February 2016. Two sets of notes of Mr McKenzie were also tendered in evidence and they became exhibits A143 and A144 respectively.
1884 The applicant submits that it is "telling" that there is no firm evidence that Person 7 told anyone of the alleged assaults until shortly prior to the allegations appearing in the Group 3 articles in 2018.
1885 Mr Masters' notes of his discussion or discussions with Person 7 must relate to discussions had in late 2015 and early 2016. The notes contain no reference to the alleged assaults. Person 7 said that he did tell Mr Masters in 2015 or 2016 about the alleged assaults. The applicant submits that Person 7's evidence that he told Mr Masters about the assaults is implausible when regard is had to what Mr Masters recorded in his notes. In other words, Person 7's level of detail in his criticism of the applicant as recorded in Mr Masters' notes is such that it is in the highest degree improbable (so the submission goes) that had the alleged assaults occurred, Person 7 would not have mentioned them and Mr Masters would not have recorded them in his notes.
1886 The following matters appear in Mr Master's notes:
   (a) that an old lady from Perth had said that Mr Roberts-Smith was a bastard of a kid;
   (b) that on an occasion Mr Roberts-Smith and his wife split up, she moved in with ​a friend, and was saying that he bullies her but she puts up with it for the sake of a good life;
   (c) that Mr Roberts-Smith bullied people when he was in 3RAR;
   (d) that Mr Roberts-Smith bashed someone in Malaysia;
   (e) that Mr Roberts-Smith was not a "bright bloke";
   (f) that Mr Roberts-Smith was flat out writing a report for his soldiers and now he's supposed to be running Channel 7 in Queensland. Person 7 could not imagine him writing an annual report;
   (g) that Mr Roberts-Smith's father had resigned from an inquiry for personal reasons not long after Person 10 put his bullying complaint in;
   (h) that before he was awarded the Victoria Cross Mr Roberts-Smith "did not give a shit about charities";
   (i) that Mr Roberts-Smith was known as bully from his school days;
   (j) that Mr Roberts-Smith had only been to one football match and function held annually in memory of his friend the late Sergeant Locke;
   (k) that on rotation 9 he Mr Roberts-Smith "snotted Person 3" because Person 3 had "put the bounce on his wife";
   (l) that Mr Roberts-Smith was an average soldier and out of his depth as a patrol commander;
   (m) that in 2012 Mr Roberts-Smith shot a dead body and claimed he killed him;
   (n) that the Victoria Cross citation was "lies and embellishment"; and
   (o) that Mr Roberts-Smith told his wife not to speak to Person 44's wife again.
1887 On 26 January 2014, the applicant was awarded a Commendation for Distinguished Service for his performance of duty in warlike operations as a patrol commander with the Special Operations Task Group on Operation Slipper from June to November 2012. The citation highlights a number of qualities shown by the applicant during Rotation 18, including leadership, mentoring of more junior soldiers, skill in planning operations and courage, resourcefulness and endurance.
1888 Person 6 wrote a letter of complaint about the applicant receiving the award which Person 7 signed.
1889 The letter of complaint which was tendered and became exhibit A51 describes the citation as for the most part a "work of fiction" and "an act of fraud" and takes 12 passages in it as subheadings and comments on each of them. Having considered the letter of complaint carefully, I do not accept the applicant's submission that it is "difficult to conceive of how such a letter could miss the alleged assault of a prisoner in 2012 – unless that is, such an allegation ​had not yet been invented". I accept Person 7's explanation for the fact that the assault is not mentioned in it being that the letter of complaint was written "based on the citation" and that the matters referred to in the letter were "to counter what was written in the citation". Person 6 had written the letter based on "What was written. The citation".
1890 Person 7 said that he did not report the assault in 2010 because he considered that what he said as a sergeant and a senior NCO to the applicant as a corporal and junior NCO was sufficient. He said that the incident did come up as part of the complaint of bullying by the applicant in the meeting involving Person 7 and other patrol commanders with the RSM, Person 100, in 2013. Person 7 said that the alleged assault in 2012 was raised with the RSM, Person 100, in the same meeting in 2013 and as part of the allegation of bullying.
1891 The applicant points out that it was not put to Person 100 by the respondents that the alleged assaults had been raised with him during the meeting in 2013. This is not a Browne v Dunn point because Person 100 gave his evidence after Person 7 and the applicant knew what Person 7 had said. I have referred to the meeting between the sergeants and Person 100 in 2013 in the context of my discussion of the mission to Darwan. I have indicated that I do not accept Person 100's evidence in one respect. Person 7 said that the assaults were raised as part of the bullying complaint. It seems to me that the assaults would have been low on the list of matters to be raised. After all, Person 7 considered that his comments in 2010 after the assault were sufficient warning without a formal report. I consider that they would have been mentioned, but very much in passing.
1892 The applicant spent a good deal of time in both the cross-examination of Person 7 and in his closing written submissions referring to Person 7's attitude to the applicant being awarded the Victoria Cross and his contact with the media. The applicant submits that Person 7 had an obsession with the applicant's Victoria Cross "which substantially diminishes his credibility as an accuser" of the applicant (Applicant's Closing Written Submissions Section IX para 42). He further submits that he only took steps to make his allegations of war crimes after he had failed in his efforts to attack the applicant's awards. His appearance on the "60 Minutes" program was "to further his vendetta" against the applicant (Applicant's Closing Written Submissions Section IX para 43(b)).
1893 Person 100 said that in his meeting with the sergeants, including Person 7, in 2013, Person 7 said that he had concerns about whether the applicant was a fit and proper person to be awarded the Victoria Cross and that he was not entitled to the award. Person 100 said that Person 7 had ​said at the meeting that he had engineered a reason to go back and visit the battleground at Tizak and he had measured the distance referred to in the citation as 80 metres at 50 metres and "the awarding of the Victoria Cross wasn't in accordance with the citation". Person 7 said that they wanted the award of the Victoria Cross to the applicant rescinded. The applicant contends that this part of Person 100's evidence was not challenged by the respondents. I do not consider that there is any particular significance in that fact alone. Person 7 agreed in cross-examination that he had gone back to the village of Tizak and had compared the citation to the terrain and had formed the opinion that the citation was not correct. He did make it clear that he went back to Tizak as part of a mission and he had no say in whether his patrol went back to Tizak.
1894 Person 7 said that he considered that the applicant did not deserve the Victoria Cross. He denied that he felt angry and frustrated that the applicant is the only person whose name is mentioned in relation to the Battle of Tizak. The applicant submits that I should not accept this evidence in view of a statement at the end of Mr Masters' notes as follow: "Weight of evidence re Tizak. Anger and frustration when mention one bloke's name incredible" and the fact that Mr Masters did not give evidence. I reject this submission. Person 7 agreed that back in those days, he was angry and frustrated, but he said, and I accept, that he was more referring to the feeling at the time within the squadron "at varying levels".
1895 The applicant submits that I should not accept Person 7's evidence that he did not consider that he personally deserved recognition for his role at Tizak. That was said to be in some way contradicted by his obsession — described as paranoia by the applicant — with the award of the Victoria Cross to the applicant. There might be force in that submission if Person 7 was motivated by self-interest, but I do not consider he was motivated by self-interest.
1896 The applicant submits that there is an inconsistency between Person 7's opinion that Person 5's patrol acted bravely at Tizak and his opinion that the Victoria Cross citation for the applicant contained "lies and embellishments". I am unable to see any material inconsistency in this respect.
1897 I refer to the closed Court reasons for a matter that the applicant relies on as bearing on Person 7's credit (at [221]). This is a matter which I take into account.
​1898 The applicant submits that Person 7's appearance on the "60 Minutes" program was "entirely gratuitous" and was part of Person 7's vendetta against the applicant. That is the proper conclusion in light of the following:
    (1) whilst Person 7 said that his purpose was to let the public know about the allegations and that he wanted the applicant to be held accountable, he knew an investigation by the IGADF was underway — he had appeared before the Inquiry in June 2017 and again in October 2018 — and the allegation of kicking a man off a cliff was part of the Inquiry. He also said that he wanted "to reaffirm that allegation so it was kept – so that the Australian people understood it and certainly knew about it and took it seriously". At another point, he said that "pushed the allegation" about the kick off the cliff "to ensure that that allegation was taken seriously";
    (2) the allegations had already been widely circulated in 2018 in the matters complained of; and
    (3) on the program, Person 7 spoke about the kicking off the cliff allegation, but he was not a witness to the incident.
1899 I have considered Person 7's evidence carefully. Person 7 said that he disliked the applicant, but he denied that he hated him. Person 7 feels strongly that the applicant does not deserve the Victoria Cross and has bullied Person 1 and that the allegation about the applicant kicking a PUC off a cliff needed to be investigated. As the foregoing illustrates, he has certainly been prepared to go to some length to have these views accepted, including, but not limited to, breaching the policy of the Department of Defence in relation to his dealings with Mr McKenzie. However, I found his answers throughout a long cross-examination to be frank and straightforward. He might be obsessive to some degree in his pursuit of what he believes to be right, but I did not detect in his answers to questions any propensity to fabricate evidence.
Findings and Conclusions
1900 As to the particular points raised by the applicant, my conclusions are as follows.
1901 With respect to the alleged assault in 2010, it is true that it is Person 7's word as against the applicant's word as to whether the assault occurred. It is also true that I must bear in mind that Person 7's evidence related to an assault alleged to have happened as long ago as 2010. The Department of Defence photographs (exhibit R82) were produced well after the Particulars of Truth had been filed and well after Person 7's outline of evidence was filed. In those ​circumstances, they are an independent piece of evidence which corroborates Person 7's account of an assault occurring. The photographs show injuries to the PUC's nose and that corroborates Person 7's evidence. The extent they show swelling to his face is less clear, but there is nothing in the photographs to lessen their effect as corroborative evidence.
1902 It is true that Person 8 did not give evidence at the trial and that he was a member of Person 5's patrol. I reject the applicant's submission that it was unlikely that Person 8 would be assisting Person 7 in the clearance of a compound. Certainly, it can be said that Person 8 is likely to spend more time with his patrol than others, but mixing with other patrols was not at all uncommon and the events in the tunnel area at W108 is but one example of this.
1903 It is also true that there was no contemporaneous report of the assault by Person 7. That was because of Person 7's view that he had adequately dealt with the matter, perhaps indicating that the assault was at the lower end of seriousness. None of that detracts from what Person 7 saw. I have already indicated that I find that Person 7 mentioned the assaults, probably generally and as part of a bullying allegation at the meeting with Person 100.
1904 The final matter relates to the absence of documentary evidence. Clearly that is relevant, but not decisive. I have already addressed the effect of the photographs.
1905 I find that the applicant assaulted an Afghan male on 15 March 2010, although it was not regarded as particularly serious. It involved the unnecessary application of physical force and was an unlawful assault. Imputation 10 is substantially true.
1906 In any event, in view of my findings in relation to the mission to W108, the mission to Darwan and the mission to Chinartu, there is a defence of contextual truth to Imputation 10.
1907 For reasons already given, Imputation 11 is substantially true.
1908 I turn to Imputation 14.
1909 As with the assault in 2010, the applicant contends that it is his word against Person 7's word in relation to the assault in 2012. That is true, but I accept Person 7's evidence and not the applicant's evidence. It is also true that Person 7 did not make a contemporaneous report of the alleged assault. In my opinion, that was because it was considered relatively minor in light of the killings and daily stresses of the war in Afghanistan.
1910 The applicant makes a forceful submission that the conversation with Person 7 could not have taken place because the applicant could not have said anything in a conversation with the PUC ​because they did not speak the same language and Person 7 said he could not see an interpreter. There is benefit in examining how Person 7 put the matter in his evidence-in-chief:
   Did you say anything to Mr Roberts-Smith about what you had just seen - - -?---I walked up to him and he was standing there glaring at the Afghan that was now with the little girl. And I said – because of this scene, I said, "What's going on here, RS?" And he was looking at him, and he just said, "He's a fucking bad cunt". And I said, "Okay. What's the – what's going on?" And he said, "When I was questioning him I asked him if that was his daughter. He said, 'Yes', and then I asked him what her name was". And he said that he hesitated. RS said that the Afghan hesitated. I said, "Yes, and?" He goes, "Well, I've got two daughters and I know what their names are". So I looked at him. We looked at each other for a couple of seconds and I said, "RS, you ragged on this bloke, you've just gone and asked him what this girl's name is, of course he's going to be – you know, why do you think he's hesitating?" So from that I looked at him, shook my head and then walked off.
   Okay. Now, did you observe Mr Roberts-Smith communicating with any of the PUCs?---No, not – not – certainly not through a interpreter, no.
   Did you see him talking to them other than through an interpreter?---Well, he can't speak Pashto, as I understand, I don't think many of us could. So it was pretty much just the aggressive shirt-punching up against the wall.
   Right. Did you see whether or not an interpreter was present at this point?---I can't remember seeing the interpreter, so I couldn't tell you where he was.
1911 Person 7's evidence is not that an interpreter was not present or was not present shortly before he arrived. It is that he cannot recall seeing the interpreter. The applicant's case is that Person 7 was dishonest and fabricated his evidence. It has to be that or he is telling the truth about the incident. It is difficult to see how he could have a false memory about the incident. If the dishonesty is driven by professional jealously and intense personal dislike of the applicant, it is difficult to see why Person 7 would not fabricate a more serious allegation without involving an interpreter or one that "built in" the presence of an interpreter. In any event, as I have said, I accept Person 7 as an honest and straightforward witness.
1912 I find that the applicant assaulted an Afghan male in late August or early September 2012. It was a fairly minor assault, but an assault nonetheless.
1913 Imputation 14 is substantially true by reason of the above or the other incidents relied on by the respondents. In the alternative, there is a defence of contextual truth having regard to my findings in relation to the mission to W108, the mission to Darwan and the mission to Chinartu.