# Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA)/Part 3/Section 4

​Section 4 — Darwan
Introduction
933 The Particulars of Truth with respect to the mission to Darwan on 11 September 2012 are as follows:
   Darwan mission – 11 September 2012
   (93) On or about 11 September 2012 intelligence had been received to the effect that Hekmatullah was in, or had been at, a village named Darwan.
   (94) On or about 11 September 2012 the Applicant and the troop of which he was a member conducted a mission in Darwan in search of Hekmatullah (the Darwan mission).
   (95) Shortly after the commencement of the Darwan mission a member of the overwatch patrol, being a patrol stationed at a higher position to keep a watch over the mission, sent a message over the radio to the effect "We've got a squirter, he just ran out of the green and crossed the river and we can't see him anymore, he is on the other side to us." The message did not indicate that the 'squirter' was armed or (explicitly or impliedly by its terms or tone) that he was a threat. A 'squirter' is a person who leaves the scene of the mission when soldiers approach.
   (96) The Applicant responded to that message, in substance "Roger that, I'll look after it".
   (97) At some time after that radio communication the Applicant crossed the Helmand River in search of the 'squirter'. The Applicant located an Afghan ​male (Afghan Male 5) hiding amongst the rocks on the other side of the Helmand River, stood over him and shot him in the head from close range. At the time the Applicant shot Afghan Male 5 he was standing so close to Afghan Male 5 that the Applicant was splattered with his brain matter and some of it entered the Applicant's mouth.
   (98) [Deleted]
   (99) [Deleted]
   (100) [Deleted]
   (101) [Deleted]
   Murder of Ali Jan
   (102) [Set out in the Confidential Annexure to the Defence].
   (102A) Towards the end of the mission the Applicant and a number of soldiers including members of the Applicant's patrol were clearing compounds at the South-East end of the village. In one compound they located and detained (placed under control) three fighting aged males. The detention of these males rendered each of them hors de combat. One of them was an Afghan male named Ali Jan (Ali Jan). The other two were Person 62 and Person 63. The three Afghan men, including Ali Jan, were handcuffed and questioned. The Applicant questioned Ali Jan and Person 62.
   (103) Once the mission was complete a request for extraction (helicopters) was communicated.
   (104) [Set out in the Confidential Annexure to the Defence].
   (105) [Set out in the Confidential Annexure to the Defence].
   (106) [Set out in the Confidential Annexure to the Defence].
   (107) Towards the end of the interrogation referred to in (102A) above the Applicant moved Ali Jan, who was still handcuffed, to outside the compound. The Applicant caused Ali Jan to be placed at the edge of a small rocky cliff which was greater than 10m high, and forced him into a kneeling position. The Applicant then took a number of steps back before he moved back towards Ali Jan and kicked him hard in the midriff/abdomen causing him to fall back over the cliff and land in the dry creek bed below. The impact of the fall to the dry creek below was so significant that it knocked Ali Jan's teeth out of his mouth.
   (107A) It may be inferred from the Applicant's conduct in placing Ali Jan at the edge of the cliff and in kicking him off the cliff as particularised at paragraph 107 above, that the Applicant:
       (a) intended to kill Ali Jan; and/or
       (b) acted with reckless indifference to Ali Jan's life.
   (107B) After Ali Jan had fallen the full height of the cliff down to the dry creek bed he was moved by two soldiers whose identity the Respondents do not know to the other side of the creek bed where there was vegetation. After he had been moved to that location Ali Jan was shot multiple times in the presence of the Applicant and Person 11. The shots were fired by either the Applicant or Person 11 (a soldier under the Applicant's command), or alternatively by both ​the Applicant and Person 11.
   (107C) Ali Jan died as a result of injuries sustained from the cliff fall particularised at paragraph 107, or the gunshot wounds particularised at paragraph 107B, or both.
   (108) The shooting of Ali Jan was a result of an understanding or arrangement, amounting to an agreement between the Applicant and Person 11, to ensure that Ali Jan was dead following the cliff kick. The existence of the agreement between the Applicant and Person 11 to kill Ali Jan may be inferred from all of the facts and circumstances, including:
       (a) Person 11, as a member of the Applicant's patrol, was stationed near the cliff before, during and after the kick particularised at paragraph 107, and was in a position to see any or all of the following:
          (i) Ali Jan being placed in a kneeling position at the top of the cliff;
          (ii) the Applicant kicking Ali Jan off the cliff;
          (iii) Ali Jan falling down the cliff; and/or
          (iv) Ali Jan's body resting at the base of the cliff;
       (b) after Ali Jan had fallen the full height of the cliff down to the dry creek bed, the Applicant and Person 11 walked down the cliff and conferred. The Respondents do not know the contents of the conversation;
       (c) the Applicant and Person 11 both observed Ali Jan's body after the cliff kick and were in a position to see the serious injuries Ali Jan had sustained including that his teeth had been knocked out as particularised at paragraph 107;
       (d) the Applicant and Person 11 both knew that Ali Jan was hors de combat at the time of the cliff kick particularised at paragraph 107, by reason of the matters particularised at paragraph 102A;
       (e) the Applicant and Person 11 were both present when Ali Jan was shot as particularised at paragraph 107B; and
       (f) the Applicant and Person 11's conduct in covering up the killing of Ali Jan as particularised in paragraphs 109 to 110A below.
   (108A) The shooting of Ali Jan particularised in paragraph 107B was carried out pursuant to a joint criminal enterprise, being the understanding or arrangement amounting to an agreement between the Applicant and Person 11 to kill Ali Jan as particularised in paragraph 108 above.
   (108B) The shooting of Ali Jan was carried out in furtherance of the Applicant's intention that was formed as set out in paragraph 107A above.
   (108C) Further or alternatively to paragraphs 107A and 108B, the Applicant's intention to kill Ali Jan may be inferred from the Applicant's presence and/or conduct particularised in paragraph 107B and the agreement, knowledge and conduct referred to in paragraph 108 above.
   (109) Person 4, a soldier under the Applicant's command and in Person 11's patrol, performed SSE (sensitive site examination), that is, took photos of Ali Jan's ​body, before he and the Applicant returned to their patrol's helicopter landing zone for extraction. During the process of SSE Ali Jan's handcuffs were cut off him and a throw-down ICOM radio was placed next to Ali Jan for the purpose of the photographs, in an attempt to make it appear that Ali Jan was a spotter who was killed legitimately.
   (110) The Applicant sent a signal over the radio, in substance, "11, this is 211, we've just engaged a spotter, that is 1 EKIA" (enemy killed in action).
   (110A) The Applicant, Person 4 and Person 11 covered up the unlawful killing of Ali Jan by falsely alleging that Ali Jan was a spotter. The Applicant falsely alleged that Ali Jan was a spotter on at least the following occasions, relying upon the ICOM radio he knew had been placed next to Ali Jan as particularised in paragraph 109 above as the basis for his allegation that Ali Jan was a spotter:
       (a) in the radio communication referred to in paragraph 110 above;
       (b) in post mission de-briefs and reports; and
       (c) in his outline of evidence in reply in these proceedings (filed 12 July 2019).
   (110B) It may be inferred from the Applicant's conduct in falsely alleging that Ali Jan was a spotter that he was conscious that the killing of Ali Jan was unlawful.
   (111) It may be inferred that Ali Jan was not a spotter in circumstances where:
       (a) he had been located by the Applicant and his patrol in a compound and then detained and handcuffed by the Applicant or a solider in his patrol, and consequently was hors de combat, and had been questioned by the Applicant;
       (b) his hands were hand-cuffed when he was retrieved from the holding compound and kicked off the cliff;
       (c) he was not seen to be using any mobile telephone or radio (which is a common feature identifying a spotter);
       (d) no spotter was seen by the Apache helicopter or overwatch patrol;
       (e) prior to Ali Jan's death the Applicant did not send any message to the effect that a spotter had been located so that the extraction could be aborted until it was safe;
       (f) in his radio communication sent after Ali Jan was killed the Applicant did not indicate any concern for who Ali Jan may have passed a message to (which is the threat a spotter poses) or give any indication that there was a threat such that the extraction should be aborted until it was safe;
       (g) the mission was complete and it was unlikely a spotter would have approached the village or the compounds, which were under the control of Australian SAS soldiers, at that time;
       (h) it was unlikely a spotter would have come within such a short distance of the village such that he was able to be killed in the manner he was (spotters ordinarily operate from several hundred (500-1000) metres away);
       (i) it was unlikely a spotter would have come within such a short distance of the village such that the Applicant or any member of his patrol could get to his body to perform SSE and return to his patrol's helicopter landing zone within three minutes.
   (112) Further, whilst it is permissible to kill a spotter under the ROE, it is not permissible to kill any spotter in an inhumane manner such as kicking them off a cliff.
   (113) Further, whilst it is permissible to kill a spotter under the ROE, it is not permissible to kill the spotter if the spotter is detained, hand-cuffed, unarmed and poses no threat or danger.
   (114) In the circumstances, by his conduct with respect to Ali Jan, the Applicant breached Common Article 3 in that his conduct constituted violence, cruel treatment and murder.
   (115) [deleted]
   (116) In the circumstances, the Applicant's conduct with respect to Ali Jan constituted murder.
   (117) Alternatively, by his conduct with respect to Ali Jan the Applicant was complicit in and responsible for murder.
934 The Particulars which are set out in the Confidential Annexure to the Defence relate to the PUCing of fighting age males and the surveillance of areas adjacent to extraction zones.
935 The applicant alluded to an argument that in some way the respondents had altered their case from the case identified in the Particulars by "now" alleging that Person 11 had shot Ali Jan. This argument was not developed by the applicant and, in any event, must fail because there is a clear plea in para (107B) of the Particulars of Truth that Ali Jan was shot by either the applicant or Person 11.
936 The point of substance made by the applicant seemed to be that there is no evidence of an alleged agreement between the applicant and Person 11 that Person 11 shoot Ali Jan. The understanding or arrangement said to constitute the joint criminal enterprise as pleaded was between the applicant and Person 11 and was to ensure Ali Jan was dead following the cliff kick (para (108) of the Particulars of Truth).
937 Although the respondents pointed out that this is different to an agreement that Person 11 shoot Ali Jan, their principal submission is that the matter is to be judged through the eyes of the ordinary reasonable reader and not by having regard to the technicalities of the criminal law. In other words, the question is judged by reference to the ordinary reasonable reader's understanding of "murder" and not by reference to the statutory definitions of the offence.
​938 The respondents submit that, in any event, the result is the same because the facts establish a joint criminal enterprise. The respondents referred to R v Tangye (1997) 92 A Crim R 545 in which Hunt CJ at CL identified four directions which should be given to a jury in the case of a straightforward joint criminal enterprise. Two of these directions are as follows (at 556–557):
   (2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.
   (3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.
(See also the section which describes the offence of conspiracy: s 11.5 of the Criminal Code.)
939 In their closing oral submissions, the respondents pointed to the following matters as establishing a joint criminal enterprise between the applicant and Person 11:
    (1) Person 11 was holding Ali Jan by the shoulder when the applicant kicked him off the cliff. Ali Jan was handcuffed at the time and clearly in a state of hors de combat;
    (2) The applicant and Person 11 walked down to the creek bed together and arrived at the point where the injured and handcuffed Ali Jan lay;
    (3) The applicant directed Person 11 and Person 4 to drag Ali Jan's body across the creek bed into the green area and Person 11 (and Person 4) did that while Ali Jan was injured and still handcuffed;
    (4) The applicant and Person 11 had a short conversation and it may be inferred that that conversation was about the fate of Ali Jan;
    (5) Person 11 shot Ali Jan who was standing and still handcuffed. The applicant was only four or five metres away at that point. The handcuffs were not removed until the SSE process was carried out;
    (6) The applicant or Person 11 placed an ICOM radio on the body before it was photographed and that was done to create the impression that the engagement was a lawful one; and
    (7) The applicant falsely reported over the radio a lawful engagement of a spotter as he also did in the Patrol Debrief. He also told his patrol at the base that the story would be that a spotter had been engaged.
940 It is clear that those findings, if made, establish a joint criminal enterprise within s 11.2A of the Criminal Code or aiding, abetting, counselling or procuring by the applicant within s 11.2 of the Criminal Code.
941 The respondents bear the onus of proof and I must bear in mind the matters set out in Section 1 of this Part. I remind myself that mere rejection of the applicant's case does not establish the respondents' case and that it is open to me to reject both cases.
942 For the reasons which follow, the respondents have established their case. I reject the applicant's case.
943 The approach I will adopt is to summarise the evidence of the various witnesses by reference to events set out in chronological order during the mission to Darwan and thereafter. To the extent the evidence permits, I will identify the time at which various events took place. Having done that, I will address the challenges made to the evidence of each witness. I will then set out my findings of fact. I repeat the point I made in my discussion of the mission to W108 about the approach to a sequence of events.
Background
944 I start with a number of general matters.
945 The principal witnesses called by the respondents with respect to the mission to Darwan were two members of the applicant's patrol on 11 September 2012, Persons 4 and 56, both of whom appeared to give evidence pursuant to a Subpoena to give evidence, and three Afghan farmers who lived in the village of Darwan in September 2012. None of the Afghan farmers could read or write.
946 The principal witness called by the applicant other than himself was a member of his patrol, Person 11. Person 35 was also on the mission and he was called by the applicant.
​947 There are other witnesses who have given evidence which is relevant to the events at Darwan on 11 September 2012 and I will address their evidence in the course of these reasons. Each party also relied on documents and some of those documents are Sensitive Documents. They are addressed in the closed Court reasons.
948 As with the mission to W108, some of the witnesses who have given evidence which is relevant to the events at Darwan on 11 September 2012 have also given evidence which is relevant to other missions and acts which are relevant in these proceedings. As I made clear in my reasons dealing with the mission to W108, it is necessary to consider the whole of the evidence of each relevant witness while at the same time recognising that the witness may be correct as to one matter and mistaken as to another, or truthful as to one matter and dishonest as to another.
949 There is no dispute that Person 11 shot an Afghan male in or about a cornfield opposite Afghan compounds in the village of Darwan on 11 September 2012. There is a dispute as to the circumstance in which that man was shot. There is also a dispute as to whether the man who was shot was a man known as Ali Jan.
950 Darwan is in the District of Shahid-E-Hasas in the Province of Uruzgan, Afghanistan. The cornfield and a number of trees abutted what was at that time of the year a dry creek bed. On the other side of the creek bed on an elevated area were a number of Afghan compounds which were part of the village of Darwan. Two compounds approximately opposite the cornfield and on the other side of the dry creek bed were owned or at least occupied, in one case, by Shahzada Fatih and in the other, by Mangul Rahmi. Shahzada Fatih's eldest son is Mohammed Hanifa Fatih. These three men gave evidence at the trial. I will refer to them, when referring to them as a group, as the Afghan witnesses.
951 The compounds were positioned in a line that ran (approximately) in a north to south direction and the farming areas for each compound were on the other side of the dry creek bed. There were photographs of the relevant compounds taken on the day by an overwatch team located some distance to the east of the dry creek bed and looking to the west. Those photographs were shown to a number of witnesses who were asked to identify physical features and mark the place where, on their evidence, various events occurred. As I did with the mission to W108, I annex to these reasons an unmarked copy of two of the photographs for the assistance of the reader (Annexure H). One photograph shows the compounds and the other shows the middle set of compounds. The second photograph also shows numbers assigned by the Coalition Forces to each compound in the middle set.
​952 Mangul Rahmi's compound is the southernmost compound and Shahzada Fatih's compound is the compound immediately to the north. They both form part of a group of compounds which were referred to in the evidence as the southern set of compounds because as one moves from north to south, which is the direction in which the SASR assault patrols moved, there is a gap or open area between a middle set of compounds and the southern set of compounds. The precise height of the "small rocky cliff" referred to in the Particulars of Truth was not established by the evidence. The applicant's evidence was that it was in the order of seven to 10 metres.
953 There was no challenge by the applicant to the evidence that Mangul Rahmi ordinarily occupies the compound he identified and farms the property on the other side of the dry creek bed. The same may be said of Shahzada Fatih and Mohammed Hanifa and the compound and property they identified. In any event, I accept the evidence of these witnesses to this effect.
954 There is a dispute as to whether there were any fighting age males in the compounds at the time they were cleared by the applicant's patrol.
955 2 Squadron carried out the mission to Darwan on 11 September 2012. The objective or person of interest for the mission was codenamed "Objective Jungle Effect". That person was a person known as Sergeant Hekmatullah who had been a member of the Afghan army. Hekmatullah had opened fire at the patrol base at Wahab on 29 August 2012 and killed three Australian soldiers and injured two others.
956 2 Squadron consisted of G Troop and E Troop. G Troop consisted of tactical headquarters and four patrols known as Gothic 1, Gothic 2, Gothic 3 and Gothic 4. The patrol commanders of these patrols were Person 7, the applicant, Person 55 and Person 57 respectively. The troop sergeant of G Troop was Person 26.
957 The troop commander of E Troop was Person 6 and the troop consisted of an NDS mentoring team operating as three patrols. NDS are Afghan Partner Force soldiers also known at the time as Wakunish or Wakas. The patrol commanders of the three patrols operating as part of E Troop were Person 6, Person 31 and Person 35 respectively.
The Background of the Afghan Witnesses
958 The Afghan witnesses gave evidence from Kabul by audio-visual link in the circumstances foreshadowed in an interlocutory ruling I delivered in the proceedings (Roberts-Smith v Fairfax Media Publications Pty Limited (No 10) [2021] FCA 317; (2021) 151 ACSR 79). The evidence ​was given in the Pashto language and interpretation from English to Pashto and Pashto to English was performed by Mr Shehzad who was in Ontario, Canada.
959 The personal circumstances of the Afghan witnesses and their relationships were described by them in the following way.
960 Mohammed Hanifa was born in the village of Darwan on 29 April 1983. He lived in Darwan from the date of his birth to 2021. He worked cultivating wheat, corn, kidney beans and tomatoes.
961 Mohammed Hanifa's father is Shahzada Fatih. His mother is Bibi Jan. His father has another wife and her name is Bibi. Ali Jan Faqir is his stepmother's brother. Mohammed Hanifa has six sisters and 12 brothers, one of whom had passed away.
962 Mohammed Hanifa said that he grew up with Ali Jan and they used to visit each other. Ali Jan and his family lived in the Baag village which was a three hour walk (approximately) from Darwan.
963 Mohammed Hanifa said that Ali Jan cultivated crops, had some cattle and also sold wood. He said that Ali Jan was not connected to Taliban in anyway. Ali Jan was married and had two or three children.
964 Mohammed Hanifa lived with his family in his father's house. All but three of his brothers were living there.
965 Mangul Rahmi's compound is on the southern side of the compound in which Shahzada Fatih and Mohammed Hanifa live and Koko Aka lives in the compound on the northern side. Shahzada Fatih and Mohammed Hanifa share a guesthouse with Mangul Rahmi.
966 In 2012, there was a mill in the village and it was owned by Haji Wali Jan. There is a graveyard in the village and near it is the compound of Haji Muhammad Gul. Shahzada Fatih's fields for cultivation are on the opposite side of the creek bed.
967 Mangul Rahmi is 40 years old. As I have said, he owns the compound at the southernmost end of the southern set of compounds and his neighbour to the north is Shahzada Fatih and Mohammed Hanifa lives in that compound.
968 Mangul Rahmi was born in Darwan and, prior to 2021, he had lived in Darwan for all of his life. He worked cultivating crops, including corn, wheat, tomatoes and potatoes and, as he put ​it, any crops of value. He travelled to Kandahar in the spring of 2021 and he stayed there for a time. He moved to Kabul approximately three months before he gave evidence.
969 Mangul Rahmi said that he knew Ali Jan. He said that Ali Jan was from his region. Ali Jan lived in a village called Baag. He said that Ali Jan had lived in Baag all his life and that Ali Jan was married and had children. Mangul Rahmi knows Ali Jan's brothers and his father. Ali Jan kept animals and he would collect wood to sell. Mangul Rahmi said that he was not a relative of Ali Jan, but "there is something we call like a distant cousin".
970 Ali Jan was killed at the time of the corn crop. Mangul Rahmi said that Ali Jan was not connected to the Taliban.
971 Mangul Rahmi knew the names of Mohammed Hanifa's brothers, including Mohammad Shah.
972 Mangul Rahmi identified the location of his fields opposite his compound. He knew Haji Muhammad Gul who is from Darwan. He was able to identify the location of Haji Muhammad Gul's compound and the location of Haji Wali Jan's mosque.
973 Shahzada Fatih said that his age "could be 60, 70 years. 70 years". He was born in Darwan and he has lived in Darwan all his life except for about a year before he gave evidence. He went to Kandahar and then from Kandahar to Kabul. At Darwan, he worked the land. He had two wives, but one had passed away. He has 11 sons and Mohammed Hanifa is his oldest son. He has five daughters. He said that his house in Darwan was in the middle of Darwan. His neighbours are Mangul Rahmi and Amir Jan Aka.
974 Shahzada Fatih knew Ali Jan who was his brother-in-law. Ali Jan was the brother of the wife to whom he was first engaged. Ali Jan was married and he had one son and two daughters. His father's name was Jamal Sha Alka. Ali Jan lived in the mountains in a place called Bagh. Ali Jan collected wood and kept goats and animals. He would bring what he had down to the village and sell it. Shahzada Fatih said that Ali Jan "got martyred". There was a raid by soldiers and he got martyred. The raid took place in summer time when they had cultivated crops. Prior to Ali Jan's death, Shahzada Fatih would see Ali Jan every 20 days or once a month. Ali Jan had no link to the Taliban.
​Events in Darwan on 10 September 2012
975 Mohammed Hanifa said that in the days before the soldiers came to Darwan, the foreign forces distributed letters which said that a reward would be given to anyone who provided information about Hekmatullah. He did not know Hekmatullah.
976 Mohammed Hanifa saw Ali Jan the day before the raid on Darwan. Ali Jan told him that he (Ali Jan) had brought wheat which he wanted to mill and that he wanted to go to the mountain tomorrow. Mohammed Hanifa said to Ali Jan that he would go with him. Mohammed Hanifa wanted to bring his stepmother Bibi back to Darwan. Ali Jan did not tell Mohammed Hanifa where he was intending to spend the night.
977 The day before the raid, Shahzada Fatih saw Ali Jan at the riverbed near his house. Ali Jan had come to Darwan to mill wheat and Shahzada Fatih asked him whether he was going to the mountain tomorrow in the morning and Ali Jan said that he would be going to the mountain. Shahzada Fatih said to Ali Jan that Mohammed Hanifa would go with him so that he can bring his mother back to the village. His wife, Mohammed Hanifa's mother, was Ali Jan's sister and she was up in the mountain. Her name was Bibi Jan.
978 Mangul Rahmi was asked in cross-examination whether he had been told by Ali Jan where Ali Jan had spent the previous evening. His initial answer was Haji Muhammad Gul's house and then he said that Ali Jan had said that he had spent the night at Haji Wali Jan's house and that he brought wheat to mill it in his mill.
Insertion into Darwan by the Task Force on 11 September 2012
979 The Task Force travelled by helicopter from the main base at Tarin Kowt to Darwan. There were two turns involving four Black Hawk helicopters accompanied by two Apache helicopters. The Task Force consisted of 42 Australian soldiers and 18 NDS or Partner Force members.
980 During the mission, the ground force was supported by two manned ISR aircraft and an unmanned aerial vehicle, being a Heron drone. The Sametime chat record and the OPSUM for the mission shows that Turn 1 of the Task Force was wheels-up at Tarin Kowt at 0532DE and wheels-down at Darwan at 0547DE. Turn 2 was wheels-up at Tarin Kowt at 0608DE and wheels-down at Darwan at 0623DE. One way, the flight time was approximately 15 minutes and the round trip was approximately 30 minutes. The SASR soldiers were part of Turn 1 for insertion and the commandos were part of Turn 2.
​981 Person 7, whose evidence on these matters I accept, said that the helicopter he was on which included the applicant's patrol (this was the evidence of both Person 7 and other witnesses) landed at a location i.e., Helicopter Landing Zone (HLZ) designated as "Stream 2" which was some distance to the northwest of the respective compounds of Shahzada Fatih and Mangul Rahmi. This landing location was not far from a particular compound of interest (COI 31). Two other helicopters landed in the vicinity of "Stark 5", "System 5" or "Stark 7". These HLZs seem to be reasonably close to COI 31. The overwatch team comprising Troop Alpha (i.e., the headquarters element) landed in a position designated as "Bottle 3". The respondents are correct in asserting that by reference to the scale on the map, exhibit R1, the overwatch team was no more than approximately 450 metres from the compounds of Mangul Rahmi and Shahzada Fatih respectively.
The Activities of the Afghan Witnesses before and at the time of the Insertion of the Task Force
982 On the morning of 11 September 2012, Mohammed Hanifa started the day by doing his prayers. He said that he heard vehicles honking. He opened his door and he saw helicopters with lights flashing. He said that he saw two helicopters with four others following those two helicopters. This evidence contains a significant detail, namely, the number of helicopters on each turn. The helicopters passed by their houses and then three of them landed when they got to Mohammed Gul's house. The other stayed in the air before returning to a location near his cousin's house.
983 Mohammed Hanifa went towards the house and he saw Mangul Rahmi coming towards him. He said to Mangul Rahmi that there was a raid. He went to the house. Mangul Rahmi went back to his house.
984 On the morning of 11 September 2012, Mangul Rahmi, after his morning ablution, went to the mosque and prayed. He then went to irrigate some land that he was leasing. At that point, helicopters landed and so he went back to his house. He said that he had heard on the radio that when there is a raid and foreigners arrive, people should not leave their houses. On arriving at his house, Mohammed Hanifa said to him "This is a raid". Mangul Rahmi said to Mohammed Hanifa that he should just go home. He went to his house and Mohammed Hanifa called him and they went to the guesthouse. They went to the front of the guesthouse and sat there.
​985 On the day of the raid, Shahzada Fatih began his day by offering prayer at the mosque of Haji Amir Jan Aka. Shahzada Fatih was asked whether his other wife was in the compound that day and he said that she was in the house. Shahzada Fatih gave the names of the sons who were living with him on the day of the raid. Shahzada Fatih said that after he had offered prayer at the mosque, he started going towards his house when the "planes" appeared. He saw three planes coming towards his house and one plane went towards the mountain. He went to his house and sat there and he noticed dust rising from the ground when they landed and one plane landed at the mountain.
The Engagements in and around COI 31
986 COI 31 was Haji Mohammed Gul's compound.
987 Person 35's patrol, which consisted of Person 32 and three or four NDS members and accompanied on occasion by an interpreter, Person 13, cleared compounds and engaged two insurgents in the room which was referred to in the evidence as the almond room which I understood to mean a room where almonds were stored. This occurred at approximately 0610DE and resulted in two deaths which were designated as EKIA1 and 2.
988 The evidence of the Afghan witnesses, Mohammed Hanifa and Mangul Rahmi, was that the names of EKIA1 and 2 were Haji Nazar Gul and Yaro Mama Faqir respectively. Four fighting age males were located in a second compound in the vicinity and they were PUC'd. Person 35 said that they were taken under the control of his patrol and searched and handcuffed. They accompanied his patrol on its movement subsequent to the clearing of the compounds.
The Afghan Witnesses encounter Ali Jan
989 Mohammed Hanifa said that he was standing where the new guesthouse is and he saw Ali Jan coming with two donkeys. Ali Jan was holding the rope of one of the donkeys and the other one was in front of him. He left Mangul Rahmi and went towards Ali Jan beside the creek or the hillside. He took one of the donkeys from him:
   … thinking that we will look like nomads, and then the foreign soldiers will all – the foreign soldiers will think that we are nomads.
990 The two of them moved off together, but shortly after that, two shots were fired at them and they returned back with the donkeys and stopped at the guesthouse. They went to the old guesthouse (i.e., the guesthouse as it was at the time) near Mangul Rahmi's house.
​991 Mohammed Hanifa said that the shots were fired from the overwatch position. He and Ali Jan went to the guesthouse and started eating melon and drinking tea. Then, four other helicopters passed by and they landed in the forest or the jungle. This evidence suggests that these events occurred before 0623DE because that was the time of wheels-down for Turn 2.
992 Mohammed Hanifa said that the soldiers were going through the houses and they also came from Haji Muhammad Gul's house side. He could see them on the rooftops.
993 Mangul Rahmi said that he and Mohammed Hanifa were talking to each other about the raid when they saw Ali Jan with three of his donkeys. He was coming along the riverbed. He was coming towards their house and he passed Haji Wali Jan's house. Mohammed Hanifa called out to Ali Jan saying that he should wait because Mohammed Hanifa wanted to go with him. Mohammed Hanifa then joined him and started walking with Ali Jan and Mangul Rahmi could not see them anymore. At that point, two shots were fired and he could see some soldiers. He could see the soldiers from his guesthouse. Mohammed Hanifa and Ali Jan and the donkeys came back towards Mangul Rahmi's house. The three of them were together and they were drinking tea and talking to each other. They also ate melon. At that point, the sun came up and the weather was hot. They could see the soldiers.
994 Shahzada Fatih said that the soldiers came towards his house. Mohammad Shah had gone to the fields so he had only his children and his daughters in the house with him. Mohammed Hanifa was down at the river with Ali Jan. He was going with Ali Jan to bring back his mother. He said that they were down there when the planes came. He said that he saw Ali Jan and Mohammed Hanifa down in the riverbed walking towards the valley. Shots were fired at them and they returned. He saw the shots hit in front of them and he said that that meant "that they should not go". They returned and went to Mangul Rahmi's house.
The Engagement by the Applicant in the area adjacent to the Helmand River at approximately 0805DE
995 At approximately 0805DE, the applicant engaged and killed an insurgent near the Helmand River. This person was designated EKIA3. He is referred to in the Particulars of Truth as Afghan Male 5. It was previously alleged by the respondents that this engagement was unlawful, but that allegation is no longer pursued.
​996 The applicant's patrol, Gothic 2, consisted of Person 4 (2IC), Person 56, Person 11 and Person 47. Person 47 was a military working dog handler. All the members of the applicant's patrol gave evidence other than Person 47.
997 Except for two matters, there did not appear to be any issues in dispute concerning the engagement by the applicant of EKIA3 in the area adjacent to the Helmand River.
998 The two matters are first, whether the applicant used his foot to roll the body of EKIA3 down a slope adjacent to the Helmand River and, if he did, the significance of that fact and secondly, whether an ICOM radio was recovered from EKIA3 and, if so, what became of the ICOM radio.
999 The background to the first issue is that in the opening of counsel for the applicant, he addressed the engagement and, in the course of describing its aftermath, he described the applicant as having dragged the body down to the river. After a short adjournment on the same day, counsel for the applicant sought to clarify what he said about moving the body of the insurgent. Counsel said:
   MR McCLINTOCK: Could I clarify two matters, your Honour, that I dealt with this morning. The first is the – relates to what occurred across the Helmand River after my client killed the insurgent there. I said he dragged him down – or I may have said that he dragged – in fact, he kicked him down. It's a more complex situation than that reveals, actually, your Honour. My client will deal with it in evidence. The insurgent was in a cleft in the rocks and there were difficulties getting him out of their pathway because of the nature of moving a literally dead weight. I won't detract from the force of my client's evidence by actually going – explaining what happened, but the culmination of it was that he did roll the insurgent down the slope, where he ultimately sat him up – and he did say, by kicking him with his boot or pushing him with his boot. Whether that had a knock-on effect to other events that day or perceptions of other vents that day is a matter that can wait till later.
I will return to the two answers I have identified.
1000 I turn now to the evidence dealing with the engagement. I start with the evidence of the applicant. He was the first to give evidence on this issue at the trial.
1001 The applicant said the role of his patrol was to act as, or to conduct, a blocking force to the north of the assault force. The applicant's patrol needed to move down towards the Helmand River in order to cut off any potential squirters from crossing the river in that location. The applicant's patrol went into the green belt which was thick near the river. The patrol pushed forward through the green belt until it arrived at a point where it could see across the river. The applicant said that Person 11 identified an insurgent across the other side of the river on what ​looked to be a foot track or a foot pad running along the base of a cliff. The applicant described the "cliff" by saying that on the other side of the river, the terrain was very steep and there was a road cut into the side with a large monee drain on the river side. The applicant saw an insurgent with a weapon slung on his back and both he and Person 11 began to engage the insurgent. The insurgent disappeared behind some large boulders. The applicant's patrol engaged in enfilade fire and the applicant and Person 11 moved up the river. The applicant decided to swim across the river.
1002 The applicant described a monee drain as an irrigation ditch that typically runs either through fields or alongside of rivers. It is used by the local nationals to irrigate their fields. They are often next to rivers. The river water will overflow into the monee drain and then it is farmed out into the rest of their fields. They can be reasonably deep and up to knee level. The applicant found the insurgent and engaged him from a distance of approximately two metres. The insurgent was killed instantly. The applicant dragged the insurgent out into the irrigation ditch that he had walked through initially and held him up on the bank. He discovered that the insurgent had an AK variant rifle and the rifle itself had a bullet hole at the top of the rifle. There were magazines within a dark coloured shawl and a small box of detonators wrapped in plastic. They were, in the applicant's opinion, high end detonators having regard to what was typically seen in Afghanistan.
1003 The applicant decided that some photographs should be taken of the dead insurgent in case the insurgent was Objective Jungle Effect. The applicant said that he took the body to the side of the monee drain and dragged it over the drain to the top which was closest to the river. He put his foot in the back of the insurgent's body and pushed the body down the embankment so it rolled down to the base. The applicant's intention was to hold him up at the base and ask Person 4 to take photographs with a digital camera. That occurred and Person 4 took photographs. The applicant left the body at that point, gathered up the insurgent's equipment and swam back across the river. He and Person 11 moved back to the rest of his patrol and at that point, the role of the applicant's patrol as a blocking force had become redundant because the assault force had started to sweep through the village. The applicant's patrol then took on the role of a reserve assault team.
1004 Person 4 said that as the applicant's patrol moved towards the river, the patrol identified an individual on the opposite side of the river walking away from the target area. The applicant and Person 11 fired a number of shots at the individual. The patrol moved into an extended ​line. The individual took cover behind some rocks. The applicant decided to go and clear the individual and he and Person 11 went to find a crossing point. The applicant swam across the river. He engaged the individual. He lifted the individual up and Person 4 attempted to take a photograph of the individual. The photograph was of poor quality and ultimately deleted. Some items were recovered from the individual. There was an AK-47 rifle, a length of det cord and an ICOM radio. The applicant's patrol then moved up to meet up with an element of troop headquarters. The weapon was handed over to the troop sergeant. Person 4 thinks that the det cord was placed in an evidentiary bag which was handed over. In cross-examination, Person 4 said that he could not recall the applicant putting his foot in the back of the insurgent's body to roll it down the embankment, although he conceded that it was possible such an event had occurred. He said that it was not possible that the applicant's later statement that "I kicked the cunt off a cliff" was said in the context of the engagement at the Helmand River.
1005 Person 56 said that the initial role of the applicant's patrol after the patrol had been inserted by helicopter was to patrol the river. There was an engagement during that operation. The patrol went firm into all round security. The applicant crossed the river and engaged an individual on the opposite side of the river "throughout his clearance". Person 56 did not see the engagement. He became aware of it by reason of a radio communication and the subsequent activity of the patrol photographing an EKIA. The applicant and the EKIA were on one side of the river and the rest of the patrol, including Person 56, were on the other side of the river. Person 56 recalls the applicant bringing an AK variant which had been struck by a round when he recrossed the river. In cross-examination, Person 56 said that he did not see the applicant use his foot to roll the dead insurgent down the side of the drain close to the river's edge. He accepted that it was possible it happened and he did not see it.
1006 Person 11 said that he understood that the role of the applicant's patrol was to insert some distance away from the target and then to manoeuvre towards the target area through any area that may potentially allow for people to try and escape the cordons. The applicant's patrol set up a cordon from one area. Person 11 described the applicant's engagement of the squirter at the Helmand River. He said that the applicant held the body up for identification purposes and then "dropped the body where it lay". Person 11 did not give any evidence about the applicant using one of his feet to push the body of the insurgent down a slope. Nor did he give any evidence of an ICOM radio being recovered from the insurgent. His recollection was that a rifle which had been impacted and a half a dozen electric detonators which appeared to be of ​military grade were recovered. After the engagement at the Helmand River, the applicant's patrol rejoined the rest of the troop and commenced the clearance of the village.
1007 There is no evidence, apart from the evidence of the applicant, that he used his foot to push or roll the body of the dead insurgent down the slope. If that "act" was the source of the kicking off the cliff story, then one would assume that at least one of Persons 4, 56 or 11 would have recalled the event if it had occurred. In any event, I would not accept the applicant's evidence on the point without supporting evidence and there is none. There is no evidence from any witness that supports the notion that the incident was discussed among the troop and in some way later confused with the circumstances of the engagement which occurred just prior to the extraction of the applicant's patrol from Darwan.
1008 The applicant may have recognised these difficulties because he did not advance any submission in closing submissions based on the evidence he gave of having used his foot in the insurgent's back to push him down the embankment. I will refer to this evidence again in Section 12 of this Part. This is one of the lies by the applicant which the respondents claim reveals a consciousness of guilt.
1009 I have referred to the evidence of the various witnesses as to their respective recollections of the items recovered from EKIA3. As far as ADF records are concerned, both the "storyboard" (exhibit R1) and OPSUM for the mission (exhibit R10) record the recovery from the insurgent engaged near the Helmand River of an ICOM, as well as 1 Chicom Type 56 Assault Rifle and 1 PCD with 2 sim cards.
The Applicant's Patrol joins Other Patrols and is in the Middle Group of Compounds by 0906DE
1010 The applicant's patrol moved back to the compounds in the village and met up with Troop Bravo, that is, the troop sergeant. He is 2IC to the troop commander. The applicant gave Troop Bravo the dark coloured shawl containing the equipment and the rifle itself. The applicant said that the AK-47 variant was rendered inoperable because of the shot through the receiver and it was in the patrol room for a number of weeks. Finally, it was kept in the Fat Lady's Arms.
1011 According to the applicant, his patrol then had a break and other patrols were moving through. Some patrols were moving north while the rest of the force, including the applicant's patrol, headed up the dry creek bed that branched off the Helmand River. The various patrols ​effectively combined and the applicant described the process as "rolling through those initial compounds down closest to the river" and then working its way up.
1012 The applicant said that he understood his patrol had taken PUCs, although he had no independent recollection of this. The applicant's patrol reached a point that was effectively the end of one compound set before a large gap and the last compound set on the side of the river, that is, the southern compound set. He said that prior to reaching the big gap between the compounds, his patrol had been in a multitude of teams. He did not recall seeing the PUC holding area.
1013 Person 4 recalls that the applicant told his patrol that it was going to help with the assault.
1014 Person 56 said that after completing the task at the Helmand River, the applicant's patrol proceeded into the main village and began searching compounds. He does not recall encountering other patrols at that point. He has a recollection of finding people in the compounds he searched. The applicant's patrol was moving down one side of a creek bed "paralleling the creek bed".
1015 Person 11 said that on the way to the village from the Helmand River, they saw other patrols.
1016 Persons 35 and 16 also gave relevant evidence. Person 35 said after he had finished clearing COI 31, his patrol moved in a northerly direction towards Stark 1 and that he saw the applicant at Stark 1. He had a conversation with him about the engagement at the Helmand River. He noticed that the applicant was "all wet", "soaking". Person 16 said he saw the applicant when, as part of tactical headquarters, he was about two-thirds of the way through the compounds being cleared with a large PUC train and he saw the applicant was drenched from the waist down.
1017 There are a group of compounds in the middle set of compounds which from north to south (the direction in which the assault patrols were proceeding) are numbered 522, 37, 38, 40 and 41 (plus to the side another compound numbered 522) and 43.
1018 By 0906DE, the applicant's patrol had reached compound 40 and had several persons under control. Further relevant events took place at 0911DE and 0922DE. These events are described in the closed Court reasons (at [70]–[72]).
1019 Person 7, whose patrol was the PUC-handling team, said he saw the applicant at compound 43 and he was wet. He did not see the applicant or any member of his patrol after that point.
​1020 It is to be noted at this point that Mohammed Hanifa who was in front of the guesthouse gave evidence that he saw soldiers going through the houses and they also came from Haji Muhammad Gul's "house side". He could see the soldiers on the rooftops.
The Applicant's Patrol moves across the Gap into the Southern Set of Compounds
1021 Subject to what I have said about the issues concerning the engagement at the Helmand River, there is no significant dispute between the parties as to the events which occurred up until approximately this point. It is at approximately this point that the first major issue in dispute arises and that is whether the interpreter accompanied the applicant's patrol throughout the remaining clearance down to Mangul Rahmi's compound, or was at about this time, sent back to Troop Bravo accompanied by Person 56 following an order from Troop Bravo to the applicant to return the interpreter. The significance of the presence or otherwise of the interpreter arises because of the evidence of the respondents' witnesses and, in particular, the Afghan witnesses.
1022 The applicant said that during the clearance of the middle set of compounds, he can recall having an interpreter with his patrol in order to talk to local women and children. The applicant said that they rolled into the last building of that compound set and at that point he received a call from Troop Bravo saying that they wanted the interpreter back at the PUC holding area. The applicant gave orders to Person 56 to take the interpreter back to Troop Bravo because interpreters are unarmed and need to be protected. The applicant was irritated because he had only a four man patrol at that point because the dog handler himself was mixing in with the other teams. The applicant said that once they are not required on something like a block, dog handlers could and would float between teams wherever they are needed. He described Person 47 as "doing his own thing at that point". The applicant was unhappy that he only had three soldiers and there was a large gap between their position and the "last compound sets". The applicant's patrol crossed the gap and got to the last group of compounds which the applicant described as "reasonably run down". The compounds were on a very steep part of the terrain and he said that some of the compounds did not have buildings in them. They were just a compound fence with nothing inside. That was relevant because when that was the case, the clearance team did not need to go up and clear it. If the clearance team could see inside and there is no building, then there is no need to clear.
1023 At the point at which the applicant's patrol moved into the last set of compounds, that is the southern set of compounds, his patrol consisted of himself, Person 4 and Person 11.
​1024 Person 4 said that the applicant's patrol moved over the large gap between the compounds in the middle and the southern set of compounds and at that point, the patrol consisted of the applicant, himself and Persons 11, 56 and 47. Person 4 does not have a recollection of an interpreter being present at that point in time. At the beginning of the southern set of compounds, the applicant's patrol deconflicted with another patrol. Person 4 said that that meant they ascertained the limit of exploitation of that patrol and then continued on with their assault. The limit of exploitation of the other patrol was about a third of the way along (i.e., moving from north to south) the southern set of compounds. The applicant's patrol then moved south clearing compounds until it reached and cleared the southernmost compound (i.e., Mangul Rahmi's compound).
1025 Person 56 said that he was with the applicant's patrol down to the clearance of the last compound to the south which was the limit of exploitation. When he left the rest of the patrol, he did so on the order of the applicant or Person 4 and he took the interpreter with him.
1026 Person 11 said that the interpreter did not remain with the applicant's patrol to the end of the clearance of the compounds. The interpreter left the patrol before it had reached the limit of its exploitation to the south. The limit of exploitation was in or around the southernmost compound, being Mangul Rahmi's compound. Person 11's understanding was that the interpreter was required in a different location. He was escorted back by Person 56. The order to Person 56 was given by the applicant. Person 11 did not have a precise recollection of when Person 56 and the interpreter left, but it was in the vicinity of the southern set of compounds. Later, he marked the "vicinity" in which the interpreter left about a third to halfway down (moving from north to south) the southern set of compounds.
'Clearing the Compounds in the Southern Set of Compounds including Shahzada Fatih's Compound'
1027 The applicant said that his patrol started to clear the last set of compounds. There was nothing significant in the last set of compounds. The other patrols continued to clear with the applicant's patrol to a point approximately two-thirds of the way along the last set of compounds. The compounds were empty. There was no activity within the set of compounds. The other soldiers started to head back to join up with their patrols and the applicant and Persons 4 and 11 "ended up right at the very end of that compound set once it was cleared, effectively waiting for extraction to take place".
​1028 The applicant said that they waited at the last set of compounds for at least 10 minutes or more before receiving the call to extract. He then described what typically happened. The troop commander provides an extraction window which means that the soldiers have to be ready and at their designated HLZ by that particular time. There is a short period of time before the helicopters actually land.
1029 Person 11 said that he did not see any fighting age males in the group of compounds that the applicant's patrol cleared after the interpreter left with Person 56. He cannot recall whether they came across any women or children. Once the clearance was complete, the applicant's patrol waited for their orders for extraction. At that time, the applicant and Persons 11 and 4 were present.
1030 For reasons I will give, I do not accept the evidence of the applicant and Person 11 about the absence of Afghan males in the southern set of compounds.
1031 At or about this time, Shahzada Fatih said that he saw Mohammad Shah, who had been in the fields, with his hands tied up and positioned beside a wall. He said that the soldiers came to his compound and said "Show me the Taliban". Shahzada Fatih said that he did not know where the Taliban were. Shahzada Fatih was not touched by the soldiers and they did not tie his hands. They were talking to him in his language through an interpreter and he said that there was an interpreter there the whole time. He said that he saw many soldiers and he saw soldiers on the rooftop and also soldiers "down there". The soldiers had paint on their faces, on their cheeks, and there was one tall soldier with them. After he had been questioned, some of the soldiers went to Mangul Rahmi's house. They had the "big soldiers" with them.
1032 The other soldiers took Shahzada Fatih down to Amir Jan Aka's hut. The hut is near the river and the fields. Four of Amir Jan Aka's sons who had their hands tied up were there and they were made to sit with their heads down. Amir Jan Aka was there also, but his hands were not tied up.
1033 Person 4 had a recollection of encountering an individual in the second to last compound as the patrol moved south, that is to say, Shahzada Fatih's compound. Person 4 described the individual as "stout, relatively short, relatively heavy, standard dark beard". I agree with the respondents that this description is more likely to match Mohammad Shah rather than the older Shahzada Fatih. In cross-examination, he appeared to put the individual two compounds to the ​north of Shahzada Fatih's compound, but he made it clear that he did not have a recollection one way or the other as to whether there was an individual in Shahzada Fatih's compound.
Clearing the Last Compound, that of Mangul Rahmi
1034 I have already set out the evidence of the applicant and Person 11 and, in particular, their evidence that there were no fighting age males in the last compounds.
1035 Although it is not possible to be precise about the time of the clearance, it is likely to have occurred at approximately 0930DE. The Sametime chat record provides that at that time, "GFC", that is, the Ground Force Commander advised that clearances were nearing limits of exploitation and extraction details were being planned and that at 0949DE the extraction plan was briefed and crews moving to aircraft. As it happened, a mechanical issue with one of the aircraft meant that Turn 1 did not leave Darwan until 1052DE and Turn 2 did not leave Darwan until 1121DE.
1036 Mohammed Hanifa said that as the soldiers arrived, he told Mangul Rahmi to go and sit in his house. Then a dog came which had glasses and something on its neck. It was in front of the guesthouse. A soldier had a flashlight and pointed it at Mohammed Hanifa and said "Get up. Stand up". A soldier grabbed him by the neck. There is a small wall in front of Mangul Rahmi's house and the soldier took hold of Mohammed Hanifa's head and hit it against the wall.
1037 Mohammed Hanifa said that a soldier had the colour of paint on one side of their face and they had another colour of paint on the other side of their face. Mohammed Hanifa was covering his daughter and the soldiers came and tied his hands behind his back. He was near the small wall that was in front of the guesthouse and Ali Jan was also standing next to the wall. Mangul Rahmi was also tied up. Then they were taken to Mangul Rahmi's house and they sat in the middle of Mangul Rahmi's house. The soldiers were on the rooftops. Some were on the rooftop, some were in Mangul Rahmi's house.
1038 Ali Jan, Mohammed Hanifa and Mangul Rahmi were under a "balcony" in Mangul Rahmi's house. The soldiers went from one door from the room and they went from the other room, "from the other way to the room … to the room inside". The big soldier knelt down. He had "blue eyes, like, kind of brownish". Mohammed Hanifa said that his uniform was wet up to near his chest area. He did not have a rifle with him. Mohammed Hanifa, Ali Jan and Mangul Rahmi were taken to a place near a wall and made to face the wall.
​1039 Mangul Rahmi said that as the soldiers came closer, he, Mohammed Hanifa and Ali Jan went into the room in the guesthouse. Mangul Rahmi told Mohammed Hanifa and Ali Jan that he would go and get the children so that the foreigners did not fire at them. He took care of the children and then he heard a sound like shouting, but he did not understand the language. The soldiers were pointing guns at him and they unleashed the dog. The dog bit Mangul Rahmi on the right thigh. He said that he was near the hut and that the hut is in the house. The dog was a black dog. The soldiers started searching him. They said something to the dog and the dog went away. The soldiers tied Mangul Rahmi's hands behind his back. The soldiers took him by the back of his neck and he was lowered onto his knees. He lowered his head. The soldier took him towards the wall that was in front of the guesthouse. Mangul Rahmi saw Mohammed Hanifa and Ali Jan under the hut facing the cliff.
1040 The interpreter explained the meaning of "hut" as like an umbrella. There are no walls around it. If there were walls around it, he would translate the word as a "shade". Mangul Rahmi said that the interpreter in the compound on 11 September 2012 told him to tell the children to go to their rooms which Mangul Rahmi did. A soldier grabbed Mangul Rahmi from his neck and brought him to sit beside Mohammed Hanifa and Ali Jan.
1041 Person 4 said that an individual was located a short distance to the south of the southernmost compound. The individual had a donkey which had a distinct Afghani rug on it which Person 4 described as a "red designed rug". There were baskets on the donkey that were full of wood for them to use for cooking. Person 4 said that Person 47 was present at this point. The individual found in and about the last compound was PUC'd which Person 4 described as placing the person under control. It involved handcuffing the individual's hands behind his back. The individual was searched as was the donkey. Person 4 did not PUC this individual.
1042 Person 4 had no recollection of what happened to the individual encountered earlier on. He said that he would have been PUC'd, "absolutely".
1043 Person 56 marked on the overwatch photograph, the southernmost point of clearance by the applicant's patrol and that was a short distance south of Mangul Rahmi's compound. He said that he was involved in the clearance of the compound immediately to the right of that line (i.e., Mangul Rahmi's compound). He said that that was as far as the patrol extended and that the patrol was there "for some period of time towards the end of the task". He recalls that there were locals present at the last compound. He could not provide a number in relation to the locals present, but he can recall local nationals of both sexes and children in the compound. ​He said that there were fighting age males. He was asked whether he had a recollection of what, if anything, was done to the fighting age males. He said that he believed they would have been segregated from the women and children. He was not involved in dealing with the fighting age males. Other members of his patrol were involved with the fighting age males and that would include Person 4, who would sometimes collect equipment and take photographs, and the applicant, who at times would conduct questioning. However, he had no direct knowledge of these matters because he did not observe anyone questioning the fighting age males.
1044 Person 56 said that during and after the clearance of the final compound, he was searching rooms within the compound for anything that may have been of interest to the Task Force and he was then involved in providing security. He was asked what "providing security" involved and he gave an answer which indicated that he had no clear recollection of what was actually done. He said:
   Typically, we would post up at some location in or around a compound facing outwards, just to make sure – yes, to provide security for the patrol.
1045 Person 56 had no recollection at all of where he was standing or where he was looking at any point during the process of providing security. He said that he definitely remembered the applicant, Person 4, Person 11 and the interpreter being present. He said that the other operative who may have been present was the dog handler.
1046 Person 56 had no exact recollection of how long the patrol remained at the last compound. He estimated half an hour "perhaps".
Tactical Questioning in and around the Last Compound
1047 Person 4 said after the individual with the donkey had been PUC'd, the applicant directed Person 56 to move back towards troop headquarters and get the interpreter. Person 56 did that and tactical questioning then occurred. The applicant was the primary tactical questioner. Person 4 thinks that the other individual (i.e., the other local Afghan) was there, but he was not deemed to be a primary concern. Person 4 was not involved in the tactical questioning. Person 47 was not with the patrol at that point. He had left, it seems, at the same time that Person 56 went back to get the interpreter.
1048 Person 56 said that he left the compound when he was given an order by either the applicant or Person 4 to head to an area to select and/or provide security for a helicopter extraction site. ​He took the interpreter with him and his recollection was that at some point during that task, there was another member of the regiment with him also. He cannot remember that soldier's name. He said that he and the interpreter left the compound approximately 30 minutes before extraction by the helicopters. On reaching the HLZ, he waited there with the interpreter for approximately 30 minutes. He did not hear any engagements during this period or hear any radio reports of engagements. He met up with other members of his patrol on the extraction platform of the helicopter.
1049 Mohammed Hanifa said that after he had been taken to a position near a wall and made to face the wall, he was asked questions and the main effect of those questions was whether he was "Talib" and he was asked to disclose the whereabouts of Hekmatullah. This was done through an interpreter. Mohammed Hanifa said he was not Taliban. He was being interrogated by the interpreter who had a pistol and put it to his throat. It was suggested that he was Taliban. He was asked about the whereabouts of Hekmatullah. He was told that his father had been shot. Mohammed Hanifa said it was the interpreter who then slapped Mangul Rahmi and had hit Mohammed Hanifa. Mohammed Hanifa was then asked by the interpreter about his relationship with Mangul Rahmi. Mohammed Hanifa and Ali Jan were then brought outside while Mangul Rahmi was left in the house. Ali Jan was put towards the river or close to the river. Mohammed Hanifa was questioned by the big soldier through the interpreter and punched a number of times by the big soldier. He was also kicked in the upper abdomen area by the big soldier.
1050 Mangul Rahmi said that when he was sitting beside Mohammed Hanifa and Ali Jan, the interpreter was speaking in Pashto and the interpreter asked him whether he knew "this person". There were many soldiers around, some on the rooftop and some where the pathway is and some were sitting with Mangul Rahmi. The interpreter asked Mangul Rahmi whether he knew these people, pointing to Mohammed Hanifa and Ali Jan. Mangul Rahmi gave the names of those persons. The interpreter pulled out a pistol and he was holding the pistol at Mohammed Hanifa and asking "Where are the Taliban?". Mohammed Hanifa provided a response. The interpreter said that they had killed Shahzada Fatih and Mangul Rahmi asked them why they had done that. Mangul Rahmi was hit. A big soldier was sitting next to him and he hit Mangul Rahmi twice. The soldiers and the interpreter kept asking "Where are the Taliban?" and they were also asking where was Hekmatullah. After that, they did not ask Mangul Rahmi any more questions. They took Mohammed Hanifa and Ali Jan and made them stand in front of the guesthouse. The interpreter was holding a pistol to Mangul Rahmi's head asking whether ​Mohammed Hanifa and Ali Jan were Taliban. Mangul Rahmi said that they were not Taliban. Mangul Rahmi said he was sitting near the hut towards the cliff. He was on one side of the wall and they took Mohammed Hanifa and Ali Jan to the other side of the wall and he could not see them anymore. Mangul Rahmi was again asked whether they are Taliban and he said that they were not. He was told that he would now hear shots and that they were going to shoot them dead.
1051 At that point, there were soldiers on the rooftops and there were soldiers where the path was. Mangul Rahmi was told not to look around. He was asked in his evidence whether he saw the big soldier from this point and he said that he did not see him anymore. No soldiers were sitting with him. They were near the hut and the rooftop near the pathway. Mangul Rahmi could hear a conversation that was taking place between Mohammed Hanifa and Ali Jan and the soldiers, but he could not see them.
Events after Person 56 and the Interpreter leave the Southernmost Compound
1052 Mohammed Hanifa said that at a point after Ali Jan had been put towards the river or close to the river, the big soldier came and he said something to Ali Jan who then smiled. He said something further and at that point he kicked him really hard. Ali Jan fell on his back. At this point, Mohammed Hanifa was really scared and he lowered his head. Mohammed Hanifa noticed that at the time Ali Jan was kicked, he had his hands tied in the back. Mohammed Hanifa said that Ali Jan was kicked with the toes, not with the sole of the feet. Ali Jan was rolling down until he reached the river. The soldier was looking at him. Mohammed Hanifa could see Ali Jan in the beginning, but after that he could not see. The big soldier shouted. At this point, Mohammed Hanifa said the helicopters, they were firing, they were firing in some area, but:
   … we could not see exactly where they were firing at.
1053 Mohammed Hanifa then heard a shot. The big soldier shouted and then there was a shot that he heard, but after that, the big soldier disappeared. He said that they then dragged Ali Jan towards the berry tree. He said:
   … They were firing shots – the soldiers, they were firing. The helicopters, they were also firing shots.
1054 Mohammed Hanifa then described what he saw:
   They – two soldiers. They were holding Ali Jan from his shoulder area, and the witness was ​pointing to his shoulder area. They were dragging him, and the witness was gesturing as if Ali Jan was somehow on his back, and they were dragging him. They took him to the berry tree, and then there were shots everywhere, so after that, I don't know what happened.
1055 After that, Mohammed Hanifa lost sight of Ali Jan behind the berry trees. Then four "planes" came in and one landed even less than 50 metres from where Ali Jan was. After the "planes" landed, Mohammed Hanifa said that he saw "first the dog went there, and that the soldiers went there".
1056 Shahzada Fatih was asked about the location of the fields and Amir Jan Aka's hut. He was asked whether there was an embankment on the side of the dry creek bed which abutted the fields and he said that it was "not too high". He estimated a height in the following way:
   … from his elbow to the tips of his outstretched fingers.
1057 While sitting in Amir Jan Aka's hut, Shahzada Fatih saw soldiers near his house. He saw Ali Jan and Mohammed Hanifa. He saw that they had had their hands tied up and they had been made to sit near the wall in the corner there. This was near the wall in Mangul Rahmi's compound. He said the big soldier near their houses made Ali Jan stand up. There were no other soldiers with him, but they were on the rooftops and in the house. They were sitting there with them. He said that he saw that Ali Jan's hands were tied up and they made him stand up. He said that Ali Jan was facing the soldier and then the soldier kicked him and he went down. He fell down there and then he referred to the trees. He said "we didn't see him because the tree blocked him from us – from our sight".
1058 The next event recalled by Person 4 was the call for extraction which came over the troop net. The applicant directed Person 56 to take the interpreter back towards the troop headquarters element. Person 4 watched the interpreter leave and then moved down a rocky slope between some compounds. He got to the corner of a compound and as he did so, he saw Person 11 positioned with his back towards a large drop-off and holding the person under control. That was the person who had arrived with the donkey. The person under control had his back towards the large slope and Person 11 was holding him by the right shoulder. The applicant walked to a position three or four metres away and he turned around and walked forward and kicked the individual in the chest. The individual was catapulted backwards and fell down the slope. Person 4 saw the individual's face strike a large rock and sustain a serious injury. He said the individual had a number of his teeth knocked out, including his front teeth.
​1059 The applicant and Person 11 started to move down the track system that led to the creek bed. Person 4 was following them. He was in shock. He had never seen such an event before and it was conducted during extraction so there were quite a few elements manoeuvring.
1060 The individual was in the dry creek bed and was quite dusty and had sustained a serious facial injury. As the soldiers approached, he attempted to sit up and then fell back down again. The applicant directed Persons 4 and 11 to take hold of the man and drag him. They dragged him to a large tree directly across the riverbed. Person 4 had no recollection of an embankment that would have been quite high in the sense of something in the order of two metres. On placing the individual on the ground, Person 4 moved off a distance of four to five metres. He heard the applicant and Person 11 have a quick conversation. He was facing back towards the designated HLZ to try and identify where Person 56 was. He turned around and he saw that the PUC was standing and was still handcuffed. Person 4 then turned around again to see where Person 56 and the other call signs were and then a number of shots – two to three rounds – rang out. The shots were fired from an M4. The applicant and Person 11 were carrying M4s on that day. Person 4 turned around and he saw Person 11 with his rifle to his shoulder, that is, the butt in the shoulder and supported with the left hand. Person 4 said that he went back down towards where he was expecting Person 56 to be. He was then asked to provide the camera and the SSE process was conducted.
1061 Person 4 said that when he saw Person 11 with the rifle raised, the applicant was to the rear still located around the tree. He was within four or five metres and in the same location he had been in when he was having the conversation with Person 11 that Person 4 heard. The applicant said to Person 4 that he needed to grab the camera as they needed to take some photographs. Person 4 gave the camera to Person 11 and he saw Person 11 taking photographs. Person 4 noticed that there was an ICOM radio positioned next to the body. He does not know how the ICOM radio came to be placed next to the body. To Person 4's knowledge, the PUC kicked off the cliff and dragged across the river did not have an ICOM radio on his body. The ICOM radio was slightly wet. Water had penetrated into the screen and it was fogged up. It dawned on Person 4 that the ICOM radio had come from the individual across the river. Person 4 thinks that the handcuffs were removed whilst the SSE process was being conducted. He did not remove the handcuffs. After finishing the SSE process, the three of them moved to the extraction point. Person 56 joined them at that point.
​1062 As I have said, the evidence of the applicant and Person 11 was that the interpreter was not with the patrol when they were clearing the southernmost compounds and there were no fighting age males in those compounds.
1063 The applicant said that after his patrol had received the call that it was time to move to the HLZ, the applicant moved from the end of that building set down into the creek line itself and in single file, they moved across the creek line heading towards the large open area between the two sections of green. He said that they moved across the river (i.e., the dry creek bed) in single file and started to move up the embankment. The order of march was Person 11 followed by the applicant followed by Person 4. Person 11 made his way up. The applicant started to move up the embankment and he does not recall whether Person 4 yelled "we're definitely firing" which drew his attention and made him move up there to support him. It seems from all of the applicant's evidence that this reference to Person 4 is an error and that the correct reference is to Person 11. The applicant said that as he got there, Person 4 and the applicant started to engage an individual which was effectively going down or was down. The applicant fired three or five rounds in the vicinity of that into the individual as well. He saw dust and strike on the ground around him suggesting to the applicant that his bullets were hitting him or very close to him. The applicant said at that point the patrol had identified that the individual, or Person 11 had identified that the person, was a spotter. On searching the individual, they found an ICOM radio. They said that in addition, because of the tactics, techniques and procedures (TTPs) of the enemy at that time, the patrol knew that people, particularly at extraction, hiding in corn or moving around in cornfields or thick areas of vegetation were likely to be a threat. The applicant said that in 2012, spotters had stopped trying to hit the Force Element on insertion and had focussed on trying to hit them as they were leaving. The applicant further said, in addition, that it was not the normal pattern of life for local nationals to sit in the corn. He said that even if they were frightened, what they would typically do is come out and get on their haunches and sit on the edge of cornfields or somewhere where it is open. They did this to indicate that they were not Taliban or members of the enemy force. Local nationals do not run because they know the potential of what will happen if they do.
1064 The applicant said that once the engagement had taken place, he learnt that the helicopters were only three minutes away and he made a radio transmission to the Troop Commander (Alpha) saying that they had one EKIA and that they had engaged a spotter in the cornfield. He gave the troop commander a rough direction which he said he now understood was recorded on the mission chat. After that, "SSE was done on the body, collected the SSE bags, postured on the ​extraction point which was effectively this cleared space next to the thick green area" and the helicopter came in and that was it, they were extracted.
1065 The applicant identified the place in the green area next to the HLZ where the insurgent was engaged. In addition, he identified the photographs which show the insurgent with the evidence bag and the ICOM radio. The evidence bag and equipment was processed on the return of the Task Force to Tarin Kowt. The applicant made brief reference to the SSE process. He said that it was not about evidence gathering, but rather it involved intelligence gathering. Sometimes the body would be moved so that it was on its back and the face could be photographed. The applicant said that his patrol did not have any PUCs with them when he was in the last compound.
1066 The applicant elaborated on the engagement by saying that Person 11 engaged the spotter and that he then engaged the spotter. He supported the engagement by Person 11. He said that Person 11 was already firing which meant that "he had deemed that the ROE – or he was able to engage under the ROE". The applicant referred to atmospherics, one of which was that they had been receiving ICOM traffic all day. He said that there were real-time reports that identified that people on ICOMs were talking about the troops' dispositions. He also said that there had been spotters in that area previously and that intelligence had told them that they would be spotted coming in. He said the insurgent was behaving in a manner that was consistent with current enemy tactics, techniques and procedures by being in the corn. He said that a civilian pattern of life would not lead that person to be in the cornfield.
1067 The applicant denied having handcuffed a PUC in the last compound. The applicant said that he understood the Task Force had an ISR platform. Because the mission was in relation to Objective Jungle Effect, the applicant said his recollection is that there were "a lot of US assets" provided to the Task Force. That meant that the Task Force was really using predator or Global Hawk which is a significant unmanned drone. The applicant's understanding was that a drone of that sort was above them at Darwan. He said he was conscious that there was such a drone above them on 11 September 2012.
1068 Person 11 said that upon receiving the order for extraction, they came to the area from which they were going to be extracted, and as part of their movement, cleared some of the areas to make sure that the HLZ was secure. Person 11 maintained his role as scout. Person 11 said that the patrol moved to the dry creek bed. Once they had reached the dry creek bed, he led the patrol across into the vegetated areas. His purpose in doing so was to clear any of the ​potential threats at the HLZ. He said that was standard operating procedure for any extraction, that they would clear the area in the immediate vicinity of the HLZ.
1069 Person 11 entered the vegetated area. He said that shortly after coming out of the dry creek bed, he identified an individual amongst the corn and the rest of the fields. The individual was moving in a suspicious manner and carrying a radio. Person 11 assessed that he was a spotter. He assessed that he was a direct threat and so he engaged the person with his M4 which had its suppressor on. At that point, the applicant was not in Person 11's line of view. However, there was fire from another weapon coming from his rear right which he later understood to be that of the applicant. He could not see where Person 4 was at this point. The male was about 15 metres from Person 11. Person 11 cannot recall how many rounds he fired. The applicant's patrol then conducted "a hasty SSE". Person 4 had joined Person 11 and the applicant. Persons 11 and 4 searched the body. An evidence bag was used. It is Person 11's handwriting on the evidence bag. Person 11 said that during the search, they recovered the ICOM radio. The evidence bag included an eight figure grid reference to identify the location of where the search was conducted or items recovered.
1070 Person 11 said that the applicant's patrol then moved to the adjacent HLZ waiting for extraction. Person 56 rejoined the applicant's patrol at the HLZ. It was then only a matter of minutes before the helicopter arrived.
The Soldiers leave and the Body in the Cornfield is identified
1071 Mohammed Hanifa said that after he had seen the soldiers leave, he went to Mangul Rahmi's house and asked Mangul Rahmi's daughter to untie his hands. He came out and saw Mohammad Shah sitting with his hands tied near the well. They then went to where Ali Jan was. Mohammed Hanifa was with his sister and Mangul Rahmi. They followed a line of drops of blood. His father had come down a different way. He saw dust on Ali Jan's face on his beard and he cleaned him up. He could see that one of his hands was under his back. He was lying down on his back. Ali Jan's hands were not tied. One hand was on the side and the other was behind his back. Mohammed Hanifa noticed the following:
   … his right jaw, and he was hit in this area, and his tooth was also broken. And also, the witness pointed to the left side of his skull, and there was – he was shot in that area as well. And then the witness pointed to his belly area, and he was shot there as well. He was laying down on his back. One hand was underneath his body. And the left hand – the witness was gesturing his left hand – the left hand, some of the flesh was gone with the shooting, from his left hand.
​1072 He identified the photograph of the dead man in the cornfield as being Ali Jan. He said that he had never seen Ali Jan carry a radio.
1073 Mohammed Hanifa was taken to other photographs said to be the photographs of the EKIA in COI 31 and he identified the dead body shown on p 6 of exhibit R91 as Haji Nezurgon. He described that person as his father's paternal cousin. He said that he was from Helmand and not Taliban. He also identified the dead body shown on p 8 of exhibit R91 as Yaru from a placed called Sigatch. He is Ali Jan's father-in-law and he is not Taliban.
1074 Mohammed Hanifa said that the man killed on the other side of the river was Mula Gafur and he was Taliban.
1075 The three corpses (Ali Jan, Haji Nezurgon and Yaru) were buried together in the graveyard. Mula Gafur was not buried in the graveyard. He was from the other side of the river.
1076 Mangul Rahmi said that after a while, "the planes" came and there was fire from the plane and also from the ground. There was lots of dust. He clarified his evidence by saying that he could hear the firing from the plane and from the ground, but he could not see it. He said that he was under the shade of the hut and his wife and children were in the room. He then saw Mohammed Hanifa who came out of the room. Mangul Rahmi said to him "What are you doing? There are still, I can see, two soldiers. They might fire at you". Mangul Rahmi called for his daughter and she cut off the "wires or whatever" and did the same for Mohammed Hanifa. Mangul Rahmi asked Mohammed Hanifa "Where is Ali Jan?" and Mohammed Hanifa said that they had kicked him and he went down to the river. He elaborated further by adding that they dragged Ali Jan towards the trees. Mangul Rahmi went down from his house towards the river and Mohammed Hanifa started walking towards the guesthouse. Mangul Rahmi reached the riverbed and saw some blood. They went toward the cornfield. Mohammed Hanifa had his sister with him and she was crying a lot. Shahzada Fatih also arrived and they saw Ali Jan's body. He said that he met Mohammed Hanifa and his sister near the berry tree. When asked where he first met Shahzada Fatih, he said that:
   We all came together where the body was at that place. Everybody came together.
1077 Mangul Rahmi understood that Shahzada Fatih had come from Amir Jan's hut. He identified their location in the cornfield.
1078 Mangul Rahmi described the position of Ali Jan's body. He said that one hand was under his body and one hand was "a little bit extended". He said that Ali Jan was on his back. He had ​been shot to the right side of his jaw and to the left of the skull. He was also shot in the chest area. Mangul Rahmi said that they cleaned Ali Jan's face as there was a lot of dirt on his face. They brought him under the shade of the berry tree and put a shawl over his body. They sent someone to advise Ali Jan's brothers that Ali Jan had been killed. They then went to the graveyard and found out that Nazar Gul and Yaro had also been killed.
1079 Mangul Rahmi identified photographs of the dead man in the cornfield as Ali Jan. He said that the white bag and the wireless were not there when he saw the body. He said that Ali Jan did not know how to operate a watch. Mangul Rahmi said that even he does not know how to operate a wireless device.
1080 Mangul Rahmi said that he knows Haji Nazar Gul. He and Ali Jan were distant cousins. Haji Nazar Gul was not Taliban. He said that Yaro Mama Faqir was not from Darwan. He is Ali Jan's father-in-law. He is not Taliban. He lives in another place. He identified the photographs of Haji Naza Gul (or Naji Nazar Gul) and Yaro Mama Faqir.
1081 Mangul Rahmi knew that Mula Gafur of Ruyan had been killed on that day on the other side of the river. He found that out from other people. He said that Mula Gafur was Talib.
1082 Shahzada Fatih said that the big soldier came down a path through Mangul Rahmi's house and he said that after that he could not see him and that the soldier disappeared from him. He said that the soldier came down and then there was light firing. He said that it was not firing in the air and that it was light firing. He said that he could not see who was doing the firing because of the berry trees.
1083 The soldiers then came towards him and Amir Jan Aka. The big soldier came towards him and Amir Jan Aka. He said that the soldiers were sitting and only the big soldier came to him and Amir Jan Aka. The soldier told them the following:
   Until our planes come, none of you should move.
1084 Shahzada Fatih said that two of the planes passed by and one of the planes came towards Amir Jan Aka's land. It passed his land and then landed in Amir Jan Aka's land. He then corrected himself and said that it landed on his son's land, not Amir Jan Aka's land. The "plane" landed about 150 steps from the hut. The big soldiers got into the plane and the other soldiers got into the plane. The plane passed by the berry tree and then Shahzada Fatih got up and started going through the tree towards the "warehouse". He said "You know where Ali Jan had fell down". He clarified that and said he went towards his house, but into the creek, the river area. He went ​looking for Ali Jan and Mohammed Hanifa. His answer was further clarified. He said when he left the hut, he started going towards his house. He was looking for Ali Jan. He went towards where the creek is. Mohammed Hanifa and Shahzada Fatih's daughter and Shahzada Fatih were looking for Ali Jan. They went towards the berry trees and found Ali Jan's body in the cornfield. Shahzada Fatih said that Mangul Rahmi was also there and they found Ali Jan's body.
1085 He said that he first met Mohammed Hanifa where the river is. Ali Jan's body was near the berry tree. He described the position of Ali Jan's body. He said that he was lying down on his back and he had a bullet shot to the right side of his jaw. There was a bullet in his chest and also there were bullets or shards on his arm and some of the flesh had gone with the shots. One of his hands was behind his body. There was dust on his face and there were things in his beard. They took his body and placed it in a "little bit higher place". The body was moved approximately 10 steps. Ali Jan was taken to the graveyard. Shahzada Fatih identified the dead man in the cornfield as Ali Jan. He said that the wireless device shown in the photograph was not there when he saw the body. He has never seen Ali Jan with a wireless device.
On Return to Tarin Kowt
1086 Person 4 said that at Tarin Kowt, he, Persons 11 and 56 went to the ready room, while the applicant went to the troop debrief. When the applicant returned from the troop debrief, he said to Persons 4, 11 and 56 words to the effect that this is what the story is: we engaged a spotter whilst moving to our HLZ.
1087 Person 56 said that in the ready room at Tarin Kowt after the mission, either Person 4 or Person 11 said that an individual had been kicked off a cliff and subsequently shot. He never discussed the incident with the applicant.
1088 Person 11 denied that either of those conversations took place.
The Respondents' Witnesses
1089 The onus of proof is on the respondents. They must establish their case and it is not enough for them simply to show no more than that the applicant's case ought to be rejected.
Person 4
1090 Clearly, the evidence of Person 4 supports the respondents' case. The applicant submits that Person 4's evidence should not be accepted because he is not a reliable witness for a number of reasons. He submits that Person 4 was not being deliberately dishonest in giving his ​evidence. That submission is not easy to reconcile with some of the applicant's other submissions, but I will not pause on that because I will consider thoroughly Person 4's credibility, both in the sense of his honesty and his reliability as a witness.
1091 The first matter identified by the applicant as relevant to Person 4's reliability is his mental health and the effect that had and has on his ability to recall events in Afghanistan in 2012. I remind myself that Person 4 was giving evidence of events that had occurred 10 years earlier.
1092 In his evidence-in-chief, Person 4 gave evidence of his recollection of events on the mission to Darwan up to the point where he, as a member of the applicant's patrol, crossed the gap between the middle set of compounds and the southern set of compounds. A further question was asked and Person 4 objected to answering it on the basis that there were reasonable grounds for an objection on the basis of self-incrimination within s 128(1) and (2) of the Evidence Act. I upheld the objection and provided Person 4 with the information referred to in s 128(3). Person 4 indicated that he was willing to give the evidence with the benefit of a certificate. I granted a certificate and Person 4's evidence continued with respect to the Darwan mission.
1093 Later in his evidence-in-chief, Person 4 was asked a question about the mission to W108. Again, he objected on the basis of self-incrimination and I held that there were reasonable grounds for the objection. On this occasion, Person 4 was not willing to give the evidence even with the benefit of a certificate. There was then substantial argument before the Court about whether Person 4 should be required to give the evidence under s 128(4) of the Evidence Act. In the course of that argument, Person 4's counsel put forward evidence which was relevant to Person 4's mental health and a letter da ted 7 February 2022 from the respondents' solicitors to Person 4's solicitor stating the attitude the respondents would take to whether Person 4 should be required to give evidence under s 128(4) in relation to the mission to W108 in the circumstances set out in the letter. The letter dated 7 February 2022 is the second matter I will address. Of present relevance is the evidence relevant to Person 4's mental health. The applicant contends that that evidence, either alone or with the other matters I will identify, supports a conclusion that Person 4 is an unreliable witness.
1094 Medical reports relating to Person 4's mental health which were put forward on the argument relating to the issue arising under s 128(4) of the Evidence Act were tendered and ultimately became exhibits in the trial. Person 4 also gave evidence in cross-examination about his mental health. I made non-publication and non-disclosure orders under s 37AF(1)(a) and s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth) with respect to the ​description of four medical conditions from which Person 4 suffers and the medications taken by Person 4 for those conditions. The details of those matters are set out in the closed Court reasons (at [73]–[74]).
1095 Person 4 admitted that he has been diagnosed with a number of mental health conditions and that he was admitted to hospital in 2020 and 2021 in relation to those conditions. He took antipsychotic medication during his stay in hospital in early 2021 to deal with two of his conditions. He stopped taking antipsychotic medication because of the problems it caused, such as a lack of energy, clouding or a fog and difficulties concentrating. In this context, he gave the following evidence:
   Difficult recalling things?---Potentially. Yes.
   Memory loss?---Yes. I think the minutia of things was fading away.
   Okay?---Small detail. Large detail definitely not.
1096 Person 4 agreed that his psychiatrist had told him that the medications he takes for his mental health conditions impacts on his memory and he agreed that he suffers from a memory impairment.
1097 The applicant referred to the first question and answer in the following passage in Person 4's cross-examination. However, the whole passage is plainly relevant together with his evidence concerning any contact he had with a journalist, Mark Willacy:
   Thank you. Now, Person 4, you accept, don't you, that your memory is not good?---That is correct.
   Yes. And you've had a bad run of mental health issues?---That's correct.
   Yes. And you accept, don't you, in 2020, you were taking antipsychotic medication?---In late 2020, yes.
   And that caused your mind to fog, you told his Honour yesterday?---There is – yes. Yes. Caused you not to recall things?---That is correct, but - - -
   Caused – I apologise. I interrupted you.
   HIS HONOUR: Sorry. You finish your answer.
   MR MOSES: I apologise, your Honour.
   HIS HONOUR: Yes.
   THE WITNESS: Your Honour, just the – the – the minor elements to the incidences, but the major elements I can absolutely recall.
   MR MOSES: Okay. I will come back to that. Caused memory loss?---That's correct.
   Yes. Now, yesterday at transcript page 2769, line 1, I asked you whether you could ​recall contact with a Mark Willacy from the ABC?---That's correct.
   And you said no?---Absolutely not.
   And that is absolutely not, you had no contact from that person?---I've never contacted that individual.
   No, no, have you had contact from Mr Willacy? That was the question I asked you yesterday, Person 4?---No.
   Absolutely not?---Yes.
   Okay. Okay. I'm going to show you a document and ask you whether you want to change the evidence you've just given to his Honour. This is for his Honour, I apologise. Thank you.
   That record of conversation: is that your signature that appears on the page? Well, it has been redacted, but - - -?---Yes.
   Yes. And is that your handwriting?---That is my handwriting.
   Okay. And it says:
      Have you been contacted –
   this is the question:
      Have you been contacted by or communicated with any journalist or media representatives in the past 10 years?---Yes.
      If so, what was the nature of this engagement?---Unofficially contacted by Chris Masters, Nick McKenzie and Mark Willacy.
   Do you see that?---That is correct.
   Does that refresh your memory that what you told his Honour yesterday, "Absolutely not, no contact with Mr Willacy," and again this morning, is wrong?---Yes.
   Yes. And what I want to suggest to you is this, Person 4: is that when you told his Honour that moments ago, you were not deliberately lying to his Honour, correct?---Absolutely.
   No. And it's just that your memory is not as good as it should be sometimes, correct?---That's correct.
   Yes. And when you gave that evidence moments ago, you thought that you had had no contact from Mr Willacy, correct?---That is correct.
   Yes. Okay. Thank you. Now – I apologise. I'm interrupting you. You finish what you want to say?---Just, your Honour, I wasn't aware, or I – I did not remember that, but I've never spoken to the media.
   Yes. Could you just repeat what you said? And I apologise, I couldn't hear you?---Sorry.
   If you can keep your voice up?---I was just telling your Honour that I've never spoken to or – or made any form of communications with the media.
   No, I understand. Your evidence has been that they've contacted you, correct?---That's correct.
​1098 The applicant referred to other examples of Person 4's poor memory. First, Person 4 could not recall precisely when in the previous week he had a telephone consultation with his psychiatrist, although he said that it was probably towards the end of the week. Secondly, Person 4 was cross-examined about his conversation with his solicitor concerning the arrangement proposed by the respondents and, in the course of his answer, he said "if my memory serves me correct". He agreed that he said that because of the difficulty with his memory and that that was because of the memory impairment he has.
1099 Person 4 admitted that media reporting of events in Afghanistan triggered memories for him of his service in Afghanistan and caused him to ruminate about his service in Afghanistan and experience night terrors and severe anxiety with near panic episodes. Person 4 saw media reporting about the mission to Darwan and a "60 Minutes" television program containing a re-enactment of what is alleged to have occurred at Darwan and the latter caused him to have flashbacks and ruminate about the mission to Darwan.
1100 The applicant also raised a point which needs to be considered carefully and that concerns the point in time at which Person 4 raised the alleged cliff kick incident with Person 7 and separately with Person 18. Person 4 said he did that in 2016 with Person 7 and in 2019 with Person 18, whereas Person 18 said that Person 4 disclosed the incident to him in late 2012 and Person 7 said that Person 4 disclosed the incident to him in early 2013. This matter is addressed below.
1101 The applicant submits that the medical evidence and Person 4's own "candid" admissions of the effects of his conditions and the medications he takes for them have on his memory mean that he is an unreliable witness. The submission is that likelihood of error is compounded by reading and seeing media reports about events at Darwan and hearing the events in other forums.
1102 These matters must be taken into account. However, they are taken into account with the whole of his evidence. Clearly, I will have to return to this. At this point, I record that Person 4 was in the witness box over a number of days and I did not detect anything in his ability to comprehend the questions he was asked and the answers he gave or any suggestion that his mental health issues, including the medications he was taking, affected his ability to recount the substance of what he saw. Nor did I detect at any time an attempt by Person 4 to give deliberately false evidence. There is no medical evidence explaining how the memory problems Person 4 identified could result in his misremembering events at Darwan to the point ​of saying that the cliff kick incident occurred, the man was carried across the dry creek bed to the cornfield and subsequently shot. Nor is there any medical evidence to the effect that absent deliberate dishonesty (which is not present) Person 4's mental health condition could lead to him, based on what he had heard, to forget not only certain matters that occurred in the past, but to substitute in his own mind (without dishonesty) an elaborate and relatively intricate false account. It may be noted in this context that even on his own account he told Person 7 about the cliff kick incident in 2016 which was before any media reporting of the incident. For reasons I will give, I find that he is mistaken about that and I accept Person 18's evidence that Person 4 told him of the incident in late 2012 and Person 7's evidence that Person 4 told him of the incident in early 2013. Although I must take into account Person 4's mistake about that matter, the finding about when he told others of the cliff kick incident makes it most unlikely that a detailed false recollection was in some way implanted in Person 4's mind by what he had seen or heard or both.
1103 The second matter identified by the applicant as relevant to Person 4's honesty or reliability or both arises from the contents of the letter which the respondents' solicitors wrote to Person 4's solicitor on 7 February 2022.
1104 The background to this matter is as follows. The respondents filed an outline of evidence of Person 4 in May 2019. They did so without speaking to Person 4. The outline implicated him in the killing of an Afghan male at W108 and set out in broad outline the events at Darwan about which he gave evidence. On 7 February 2022, the respondents' solicitors wrote to Person 4's solicitor in the following terms:
   We refer to the above-mentioned proceedings.
   As you are aware, the Respondents filed an Outline of Evidence on behalf of Person 4 in May 2019.
   As set to out in the Outline of Evidence, we anticipate that your client can give relevant evidence in relation to two missions the subject of these proceedings: (a) a mission to Whiskey 108 on 12 April 2009 (Whiskey 108); and (b) a mission to Darwan on 11 September 2012 (Darwan).
   If your client agrees to willingly give evidence at trial in relation to Darwan, we undertake to adopt the following forensic positions under s 128 of the Evidence Act 1995 (Cth) in respect of his evidence.
   First, in relation to Darwan:
       1. we agree not to oppose a submission by your client under s 128(1)(a) that the evidence may tend to prove that he has committed an offence against or arising under Australian law; and
       2. we agree not to oppose a submission by your client under s 128(2) that there are reasonable grounds for the objection.
   If the Court determines that there are reasonable grounds for such an objection, then in accordance with the position outlined above, your client would then give the evidence willingly with the protection of a certificate issued under s 128(3)(b)(i).
   Secondly, in relation to Whiskey 108:
       1. we agree not to oppose a submission by your client under s 128(1)(a) that the evidence may tend to prove that he has committed an offence against or arising under Australian law;
       2. we agree not to oppose a submission by your client under s 128(2) that there are reasonable grounds for the objection; and
       3. if the Court determines that there are reasonable grounds for such an objection, and your client does not willingly give the evidence with the protection of a certificate issued under s 128(3)(b)(i), we agree not to ask the Court to require your client to give the evidence under s 128(4) of the Evidence Act.
   Please let us know if you would like to discuss any aspect of the above.
1105 I will refer to the proposal set out in this letter as an "arrangement". The applicant submits that the arrangement was an inducement to Person 4 to give evidence favourable to the respondents in relation to Darwan and the applicant submits again, without suggesting deliberate dishonesty, that it had that effect and means that Person 4 is an unreliable witness. It is not clear to me that the applicant was at all times putting his submission on the basis of not suggesting deliberate dishonesty because at one point in his written submissions, he submitted that the arrangement coloured "whether consciously or subconsciously" the evidence Person 4 gave about the Darwan mission. As I have said, I will consider the matter regardless of the applicant's approach and I will consider the effect of the letter on Person 4's evidence both from the point of view of the possibility of deliberate dishonesty and a state of mind not involving deliberate dishonesty.
1106 Person 4 said in cross-examination that he had not seen the letter before his counsel showed it to him. He also said that if there was an agreement, he was not completely aware of it and that nothing was confirmed. Later he appeared to say that he had been told by his counsel only days before giving evidence that there was an agreement that the questions would only be focussed on the Darwan matter, but he went on to say that he hoped he was not wrong and he still was not aware that there was an agreement. He did say he was given advice about self-protection which in the context of the evidence means the privilege against self-incrimination. At another point, Person 4 said that his solicitor had given him advice along the lines that if he gave evidence about the events in relation to Darwan, the respondents were not going to ask ​him any questions in relation to W108. He also said that although he was not sure, it is possible his counsel told him that upon him taking objection to answering questions about W108, the respondents would agree that he should not be required to answer the questions.
1107 The respondents made a number of submissions to the effect that the arrangement had no effect on the evidence Person 4 gave concerning the events at Darwan.
1108 First, the respondents submit that the terms of the letter did not relate to the content of his evidence in relation to Darwan, but only that he appear at Court and willingly give evidence in relation to Darwan. The respondents referred to the fourth paragraph of the letter to support that argument. That is correct having regard to the terms of the letter, but difficulties remain. Person 4 said that he never saw the letter and, even if he did, I consider it is unlikely he would have understood the complexities of the legal position and that he would most likely act and proceed on the basis of the advice of his legal advisers.
1109 Secondly, the respondents submit that they had not undertaken in the letter to avoid any questions on W108. In fact, the letter presupposed Person 4 would be asked questions about W108, that Person 4 would object to the questions and the respondents would not submit that there were not reasonable grounds for the objection. If the objection was upheld and Person 4 was not willing to give the evidence, then the respondents agreed that they would not submit that he should be required to give the evidence under s 128(4). Furthermore, there is nothing in the letter which indicates that the applicant would not attempt to ask questions about W108. Those submissions are correct having regard to the terms of the letter and assuming a clear understanding of what is a complex legal position. As I have said, Person 4 did not see the letter and, in any event, was likely relying on the advice he was being given. There is no clear evidence of all of the advice he was given or what he thought (if anything) of the prospect of the applicant asking questions about W108. In any event, even on a correct understanding of the letter, the recipient of such a letter may consider there is some benefit in at least knowing that one party would not press for an order under s 128(4).
1110 Thirdly, the respondents submit that the arrangement did not act as an inducement because Person 4 did not know whether an agreement had been reached. The difficulty with that submission, as with this topic generally, is that all the evidence is not before the Court, in particular, full details of the advice Person 4 received and his state of mind at particular points in time.
​1111 Having made those observations, it is also appropriate to bring to account the fact that Person 4 was at all times represented by an experienced solicitor and counsel. He had psychological and psychiatric advice about the effects on him of giving evidence at the trial. Although clearly not decisive, this is a relevant circumstance to be taken in account.
1112 In the same way as Person 4's mental health conditions are to be taken into account in assessing his honesty and reliability as a witness in the context of the whole of the evidence, so too are the contents of the letter from the respondents' solicitors dated 7 February 2022 to be taken into account.
1113 The applicant submits that Person 4's evidence contained "irreconcilable inconsistences" and was "hopelessly inconsistent" in certain respects.
1114 Person 4's account that after the operational debrief, the applicant came back to the patrol room and said words to the effect that the story is that we engaged a spotter whilst moving to our HLZ, and he agreed in cross-examination that what occurred in Darwan was to be a secret between the four of them (the applicant and Persons 4, 11 and 56) is said by the applicant to be irreconcilably inconsistent with the following:
    (1) the applicant telling a group of soldiers, including Person 32, that he had kicked someone off a cliff; and
    (2) Person 35 drawing on a whiteboard a winged penis kicking an individual off a cliff.
1115 The respondents ask me to accept Person 4's evidence in preference to that of Person 32 and find that there was a drawing of a winged penis kicking an individual off a cliff on the whiteboard drawn by Person 35 (if Person 35's denial is rejected) or by somebody else (if Person 35's denial is accepted).
1116 I do not consider it irreconcilably inconsistent for the applicant to be saying a certain account of the story for official reporting purposes and, at the same time, boasting of his account to a group he considered could be trusted not to take further action.
1117 The applicant submits that there is an inconsistency in Person 4's evidence about the ICOM radio shown in the photograph of the dead man in the cornfield. Person 4 said that various items had been recovered from the insurgent engaged at the Helmand River, including an AK-47 rifle, a length of det cord and an ICOM radio. When asked what was handed over at troop headquarters, his evidence was initially unclear, but when asked to clarify the items ​handed over in addition to the rifle, he said he thought it was the det cord. Person 4 said that the ICOM radio near the body was fogged up because the water had penetrated it and it "dawned" on Person 4 that it had come from the insurgent at the Helmand River. Person 4 discussed the mission to Darwan with Person 18 and in his description he said:
We closed to his position. We saw an AK-47, an ICOM radio and some other items, with one item being some – a piece of det cord. The – the items were bagged in an evidentiary bag by Person 11, and from there we proceeded to move up to the elements of tactical headquarters that was on the ground attached to the assault force. Once we married up with that element, the weapon was handed off, and items were handed off in that evidentiary bag to the troop sergeant.
1118 He later appeared to confirm that the items handed over to the troop sergeant included the ICOM radio. The applicant submits that this inconsistency is not capable of explanation.
1119 The respondents' response to this point is as follows. First, the respondents point to the fact that the OPSUM for the mission indicates that two ICOMs were recovered during the mission — one in connection with EKIA3 (the insurgent killed near the Helmand River) and the other in connection with EKIA4 (the man in the cornfield) — and yet only one ICOM radio was returned to Tarin Kowt. That supports the proposition that there was only ever one ICOM radio recovered on the mission. Secondly, the respondents submit that it is not an indispensable element of their case to prove that the ICOM on the body in the cornfield came from the insurgent killed near the Helmand River. One thing is clear, assuming the earlier aspects of the respondents' case are accepted, the man was detained, searched and handcuffed and that the ICOM radio was placed on the body. Both the statements are correct, but they do not quite answer the point that it is highly unlikely that the ICOM radio found with the insurgent killed near the Helmand River was both handed into troop headquarters and placed on the man killed in the cornfield. Person 4 must be mistaken about at least one of those matters and that is a matter I must take into account.
1120 The applicant submits that Person 4's evidence was inconsistent in two further respects.
1121 First, the applicant submits that Person 4's evidence as to whether he deserved the same award as the applicant for his actions at the Battle of Tizak was inconsistent. The applicant received the Victoria Cross on 23 January 2011 for his actions at the Battle of Tizak. Person 4 received the Medal of Gallantry, but not until 2013, a matter which caused him hurt and disappointment. Person 4 said that he thought the applicant deserved the Victoria Cross, but that the awards were politicised and that the authorities could have "accepted the fact that both of us did as ​much as each other that day" and that he believed that his actions were the same as the applicant's actions on that day.
1122 I reject the suggestion that that evidence contains an inconsistency. Person 4 has a grievance about the process and conflicting emotions of feelings of humility on the one hand, and the injustice of the process on the other, both of which I consider to be genuine. I do not consider his feelings were directed at the applicant and I reject entirely the submission by the applicant that Person 4's evidence was "coloured by his disappointment and feelings of jealously regarding the awarding of the Victoria Cross to Mr Roberts-Smith". Nor do I consider that, having regard to the unique circumstances under which two members of the SASR work together, there is any inconsistency relevant to honesty or reliability in Person 4 knowing that the applicant had kicked a restrained Afghan male off a cliff and, at the same time, saying that as far as he knew, the applicant was a good man and that he had seen "that individual perform heroic feats on the battlefield".
1123 Secondly, the applicant submits that the photographs of the man in the cornfield do not support Person 4's evidence that the individual was "quite dusty" or that the ICOM was "slightly wet" and because water had penetrated it, the ICOM had "fogged up". As the respondents correctly submit, "dusty" in an imprecise term and, in any event, there is a significant amount of dust and debris on the face of the man. Furthermore, the photographs do not show the man's back and it was said that he was dragged across the dry creek bed with his back to the ground. Insofar as the respondents submit that the fourth photograph of the body supports a conclusion that the ICOM radio was "fogged up", I do not think that I can draw a conclusion about the matter either way from the photograph.
1124 The applicant then states that he "does not contend that Person 4's evidence was deliberately false". I understand that submission insofar as it is contended that Person 4's mental health is relevant, but it is more difficult to understand insofar as the arrangement and professional jealously are said to be motives or reasons Person 4 gave the account he did. In any event, I have considered the submissions, both in the context of honesty and reliability.
1125 Finally, the applicant asks the Court to find that there was a substantial period of delay of "approximately a number of years" between the occurrence of the alleged event at Darwan and Person 4's first complaint about it to Person 7. The applicant submits that no more precise finding as to timing is open on the evidence. Although the applicant is not required to prove anything, he does seem to accept that Person 4 did complain about the incident. However, he ​submits that the delay in doing so without any explanation supports a conclusion that his evidence is unreliable.
1126 Person 18 said that in late 2012, Person 4 at the Gratwick Club on base told him that "something very bad happened on the last job" and that the applicant had kicked a detainee off a cliff while a team mate had hold of the detainee. The evidence set out below followed:
   Did he say – did he identify who that teammate was?---No.
   Did he say anything else to you in that conversation?---He said Ben Roberts-Smith then told him to go down and sort it out.
   What else did he say?---It was at this point where I – I stopped the conversation. This was another night where watching friends break down over things that happened in Afghanistan, and I had a – I was sick of it. I had had enough of it, and that was for me going, "I don't want to hear any more."
   Did you do something after that conversation, either that night or later?---This – this occurred late in 2012 right before we were going on the Christmas standdown period, so holidays. I don't recall having a conversation with anyone about this towards that end. In 2013 – early in 2013, I did speak to Person 6, Person 7 and – and my team commander at the time, who's not listed.
1127 Person 4 said that he had a conversation with Person 18 about the Darwan mission at Person 18's home in around 2019, probably in the second half of the year.
1128 Person 18 did recall inviting Person 4 to his home in 2019 and he did not recall ever asking Person 4 to tell him what happened on the mission to Darwan.
1129 As I understand the submission of the applicant, it is that the Court should not accept either account because Person 4's evidence does not support Person 18's evidence and Person 18's evidence does not support Person 4's evidence.
1130 Person 18 has given evidence in relation to events at W108. He was also the recipient of the threatening letters. As I have said previously, I must consider the whole of a witness' evidence while recognising that a witness may be wrong or even dishonest as to some matters and not others. In the case of Person 18, I consider that he was an honest and reliable witness.
1131 Person 7 said that he spoke to Person 4 in early 2013 about the Darwan mission and Person 4 told him about the cliff kick incident.
1132 On the other hand, Person 4 said that his conversation with Person 7 was a face-to-face conversation in 4 Squadron headquarters in 2016. In response to a question about this, Person 7 ​said that he was not in Australia in 2016. Again, the applicant's submission is that I should not accept either account.
1133 Person 31 was a patrol commander and his patrol was a member of E Troop on the mission to Darwan. He said that in Australia in late 2012 or early 2013, Person 7 told him that he had just heard from Person 4 that the applicant had (words to the effect of ) "kicked a – a PUC off the – off the cliff whilst we were on that job".
1134 Person 31 was a straightforward witness and his evidence provides clear corroboration of Person 7's evidence that Person 4 told him of the cliff kick incident in early 2013.
1135 Mr Andrew Hastie was a straightforward witness and he said that in the second half of 2014, Person 7 said at a meeting also involving the troop sergeant that the applicant had kicked a PUC off a cliff. This provides a level of indirect support for Person 7's account. Mr Hastie said, and I accept, that at about this time, that is, in the second half of 2014, he had already heard the story of the applicant kicking a PUC off a cliff from multiple people.
1136 Person 7 spoke to Mr Masters in late 2015 and early 2016. Mr Masters' extensive notes were produced. Mr Masters himself did not give evidence. There is reference in the notes to some fairly minor incidents involving the applicant, but nothing about the kick cliff incident.
1137 Person 7 spoke to Mr McKenzie in 2018. Mr McKenzie's notes were produced. Mr McKenzie himself did not give evidence. There is a reference to the kick cliff incident in the notes.
1138 Person 7 denied that there was no reference to the kick cliff incident in his conversation with Mr Masters in 2016. He said Mr Masters had, in fact, heard about it and he raised it with Person 7. Mr Masters asked Person 7 whether he had heard about the allegation and the latter said he had.
1139 The applicant submits that I should reject Person 7's evidence on this topic.
1140 I have considered Person 7's evidence on this topic. I have considered his evidence on other topics as well (and challenges to it by the applicant) such as pre-deployment training and the assaults on the PUCs. I consider him to be an honest and reliable witness.
1141 The applicant relies on the following matters in support of his contention that Person 4 did not mention the cliff kick incident until many years after the event:
    (1) the cliff kick incident was not raised at a meeting of sergeants in or about early 2013 involving Person 100 and Persons 7, 43, 44 and 51; or
    (2) at a meeting of corporals involving Person 100 and Persons 4, 14, 18 and one other also in 2013.
1142 Person 100 was the RSM in 2013. He was called by the applicant. He gave evidence that various complaints about the applicant relating to his Victoria Cross, bullying and claiming he killed various EKIA when others were responsible, were made at the sergeants' meeting and at the corporals' meeting, but no complaints were made about war crimes, either at W108 or involving a PUC being kicked off a cliff. I reject that evidence. I accept Person 7's evidence that he was told of the cliff kick allegation by Person 4 in 2012 and he raised the allegation at the sergeants' meeting. I have no doubt that if Person 7 knew about the allegation he would have raised it and I find that he did know of the allegation. It seemed to me that Person 100's memory of the meetings was not particularly good, including as to what was said and who was present and he had plainly reinforced his memory by discussions with Person 51. Whether Person 100 has had a genuine memory failure, perhaps aided by the allegation being a somewhat sensational one and one which he shut down quite quickly, or he was consciously covering up his own failure to act at the time because he did not want to create a scandal within the unit, or engender the animosity of the applicant's powerful friends and associates, as the respondents allege, is difficult to determine. One thing is clear and that is that the allegation was raised and I reject Person 100's evidence to the contrary. The applicant seemed to submit that Person 100 appeared impartial, but I did not find anything in his demeanour to be a reason to either accept or reject his evidence.
1143 A related point made by the applicant is that Person 7 could not have been told about the cliff kick incident when he said that he was otherwise it would have been mentioned in the letter of complaint prepared by Person 6 and signed by Person 6 and Person 7 in 2014 and it was not. I have considered this point carefully. I accept Person 7's explanation about this. The letter of complaint related to the applicant's Commendation for Distinguished Service and is prepared by reference to the statements in the Commendation. Furthermore, Person 7 had already raised the matter in the meeting with Person 100.
1144 It remains the case that Person 4's memory is faulty in terms of when he told Person 18 and Person 7 of the cliff kick incident and that is a matter I must take into account in assessing his evidence.
​Person 56
1145 The applicant submits that I should reject Person 56's evidence in two major respects: (1) there were no local nationals in the last or southernmost compound; and (2) the interpreter was not present in that compound. The applicant relies on two matters in support of that general submission. First, he submits Person 56's recollection of the mission to Darwan was poor. Secondly, he points out that Person 56 had initially entered into an arrangement with the respondents and, in Person 56's case, it involved the mission to Darwan and the mission to Fasil. He subsequently decided that he did not wish to proceed with the arrangement and he sought to be excused from giving evidence. He only gave a statement to the respondents, so the applicant submits, because he felt threatened by the respondents' solicitors.
1146 Before identifying the respects in which Person 56's recollection was said to poor, I should describe how the applicant structured his submissions. First, he sets out a summary of the evidence-in-chief of his witnesses, including himself. In the case of Darwan, that is himself and Person 11. He then summarises the documentary evidence. He then makes submissions about the credibility or reliability of the respondents' witnesses: in the case of Darwan, the reliability of Person 4 and Person 56 and the credibility of the Afghan witnesses. There is then a section which is largely devoted to reasons why certain findings proposed by the respondents should not be made. By way of conclusion, the applicant advances 12 reasons the respondents have not discharged the onus of proof.
1147 The applicant identifies a number of matters in respect of which he contends Person 56 had either a poor recollection or no recollection. First, Person 56 saw the applicant with an AK rifle, but cannot recall seeing him with other equipment. Secondly, Person 56 could not recall whether the applicant's patrol met up with troop headquarters after leaving the area near the Helmand River. Thirdly, Person 56's recollection that he did not PUC any fighting age males was wrong as was his recollection of where in the village his patrol located fighting age males. Person 56 accepted that he could be wrong in relation to both those matters. Fourthly, Person 56 accepted that he might be wrong about being directed to take the interpreter to the HLZ and that he may instead have been directed to take the interpreter back to the PUC holding area. Fifthly, Person 56 did not recall seeing an interpreter on the helicopter on the way back. He only recalls himself and the applicant and Persons 4 and 11. Sixthly, although Person 56 denied that his evidence that there were fighting age males, women and children at the last compound was wrong, he then agreed that it was possible he was thinking of a compound further to the north.
​1148 It is true that Person 56 did have a poor or no recollection on a number of matters and that is a matter which I must take into account. However, none of those matters is so striking that it suggests that the whole of Person 56's account should be rejected.
1149 The applicant also submits that Person 56's account as to what was said in the ready room after the mission to Darwan was not corroborated by Person 4. I do not find this remarkable. Person 4, who had witnessed the event, said Person 11 went into a "bit more description" of what happened, but could not remember the details, whereas Person 56, who had not witnessed the event, said that either Person 4 or Person 11 said that an individual had been kicked off a cliff and subsequently shot. Their respective recollections differ at a level of detail, but both remember the topic being raised.
1150 Secondly, the applicant submits that despite the termination of the arrangement between Person 56 and the respondents, Person 56 was clearly concerned about the risk that he would have to answer questions about the mission to Fasil and "that concern, whether consciously or unconsciously, coloured the evidence he gave about the Darwan mission 'to get the respondents off his back'" and ensure they did not ask him questions about the mission to Fasil. Person 56 did say that he considered the statement from the respondents' solicitors that if he did not agree to speak to them about what they need for their case against the applicant, they would subpoena him as a hostile witness and ask him questions about other matters, including Fasil, as a threat and it was the making of the statement that caused him to meet with the respondents' solicitors.
1151 As with Person 4, the applicant did not appear to challenge Person 56's honesty as distinct from his reliability. I say "did not appear" because in relation to the arrangement, the applicant's submission was that his evidence may have been coloured by the arrangement (presumably meaning influenced) "whether consciously or unconsciously".
1152 In giving his evidence, Person 56 was co-operative in the sense that he answered the questions he was asked.
1153 The circumstances surrounding the arrangement, Person 56 giving a statement to the respondents' solicitors and the subsequent applications to this Court, one by the respondents and the other by Person 56, are set out in my interlocutory rulings in Roberts-Smith v Fairfax Media Publications Pty Limited (No 30) [2022] FCA 266 (Roberts-Smith (No 30)) at [12]–[24], [32]–[33], [35] and [60]. Those reasons should be read with these reasons.
​1154 I should mention something about the order of closing written submissions. The respondents filed and served their written submissions on justification and contextual truth first and, in those circumstances, they anticipated the challenges that would be made by the applicant to Person 56's evidence based on, it seems, the cross-examination of Person 56 viz., (1) his vulnerability when approached to speak with the respondents; (2) the arrangement concerning his evidence; (3) alleged suggestibility; and (4) alleged memory issues. Some of these anticipated challenges did not materialise or were put in a different way to that anticipated by the respondents.
1155 The first anticipated challenge included reference to Person 56's mental health conditions. Details of those conditions are outlined in Roberts-Smith (No 30) at [57]–[58] and in some of the evidence given by Person 56 in cross-examination. Certain aspects of Person 56's mental health conditions are the subject of a non-disclosure order made pursuant to s 37AH of the Federal Court of Australia Act on 25 February 2022. Person 56's mental health conditions were not referred to in the applicant's closing submissions. In any event, leaving aside his poor or no recollection with respect to certain matters, I did not detect any effect on Person 56's evidence of his mental health conditions.
1156 The next anticipated challenge did materialise in the form the respondents anticipated. The issue is not the propriety of the arrangement or its effect, having regard to its terms. The issue is the effect on Person 56's state of mind. It may be accepted that but for the respondents' approach and offer, Person 56 would not have given a statement about the mission to Darwan. However, there is no indication that the content of the statement was influenced by the approach and offer. There was no suggestion at the time of Roberts-Smith (No 30) that the statement was inaccurate or the result of undue pressure or duress. By the time of trial, the arrangement had been dissolved and there was no evidence establishing the continuing existence of a causal link by Person 56 saying that having made the statement he felt obliged not to depart from it.
1157 As to alleged suggestibility, I accept the respondents' submission that Person 56's evidence was important in three major respects: (1) there were fighting age males, women and children in the southernmost compound; (2) he and the interpreter participated in the clearance of that compound and after a time there, he was sent away with an interpreter; and (3) there was a conversation in the ready room after the mission during which either Person 4 or Person 11 said that an individual had been kicked off a cliff and subsequently shot. None of those matters were the subject of media reports in the terms in which they were put by Person 56. It is true ​that Person 56 said in cross-examination that it is possible he is wrong about matters he had given evidence about in chief, including whether there were women, children and fighting age males at the last compound when he was with the applicant's patrol and that it may have been a compound further to the north, but I do not consider that that was anything more than a concession that his memory was not infallible. He did say he gave his statement to the best of his recollection.
1158 The respondents pointed to the fact that it was never put to Person 56 that the conversation in the ready room after the mission did not take place. Whether weight is put on a matter such as this depends on all the circumstances. Sometimes a witness' evidence is sufficiently challenged without challenges being put on every statement the witness had made. It all depends on the circumstances. The conversation in the ready room is important and that suggests that some weight should be given to the failure to challenge it. I can indicate that whether Person 56's evidence about the conversation was challenged or not, I accept it.
Mohammed Hanifa
1159 The applicant submits that Mohammed Hanifa was dishonest and unreliable. He relies on, among other things, a number of inconsistencies between information he had provided elsewhere and evidence he gave to this Court. There are two aspects to the challenges, although they both form part of an assessment of his honesty and reliability. The first is the identification of the dead man in the cornfield as Ali Jan and, insofar as that involves closed Court evidence, is dealt with in the closed Court reasons (at [92]–[104]). The second is more general and, insofar as that involves closed Court evidence, is dealt with in the closed Court reasons (at [105], [112]–[134]).
1160 In addition to those matters, the applicant submits that parts of Mohammed Hanifa's evidence are so improbable that they cast doubt on the reliability on anything said by him.
1161 First, the applicant relies on the fact that Mohammed Hanifa said that at the time he saw two soldiers dragging Ali Jan's body to the other side of the riverbed, there were three soldiers who were shooting in the air. It was put to him that he was lying about that matter. He denied that he was lying.
1162 The respondents submit that there was no evidence of where the three soldiers were or in what direction they were shooting and there was no soldier witness who confirmed one way or the other whether the events did or did not happen. The respondents submit that there is no ​evidentiary basis to conclude that the evidence is plausible or implausible and that the evidence is simply an uncorroborated detail that is entirely peripheral to the substance of the witness' evidence. To a point, I agree with that submission.
1163 I would not describe the matter as entirely peripheral. It is true that it is not central to the events that the respondents seek to prove. Nevertheless, it is a matter to be taken into account. At the same time, the situation must have been a very frightening and fast-moving one from Mohammed Hanifa's perspective.
1164 Secondly, the applicant submits that Mohammed Hanifa's evidence that he heard vehicles honking immediately before the arrival of the helicopters and that the purpose of the honking was for passengers that were supposed to go with the driver to Helmand rather than to warn of the commencement of the raid was highly improbable. The applicant submits that the timing makes this evidence highly improbable. The applicant put to Mohammed Hanifa in cross-examination that the purpose of the honking was to warn the villagers that there was a raid coming and he denied that. As I understand the applicant's submission, it is not that vehicles honking immediately prior to the arrival of the helicopters was highly improbable, but that it is highly improbable that that occurred because the person carrying out that activity wanted to pick up passengers rather than to warn of the commencement of a raid.
1165 The respondents submit that Mohammed Hanifa does not know what was in the mind of the person honking the horn. His evidence was not implausible.
1166 This is a peculiar detail. It is possible that someone was honking a horn to catch the attention of people wanting to leave the village because of the raid, or Mohammed Hanifa is simply mistaken as to the actor's purpose. Either way, I do not consider it a significant matter in terms of the assessment of his honesty and reliability.
1167 Thirdly, the applicant submits that Mohammed Hanifa's evidence that he observed and heard helicopters shooting at the ground at or about the time he heard the shots, is plainly wrong. It is not corroborated by any Australian witness and nor by the contemporaneous documents. Mohammed Hanifa gave evidence that he saw Ali Jan being dragged towards the berry tree and he then said the following:
   They were firing shots – the soldiers, they were firing. The helicopters, they were also firing shots.
​1168 The respondents submit that an obvious explanation for what Mohammed Hanifa heard was the Task Force's destruction of the caves at about the same time which may well have sounded like heavy aircraft fire.
1169 The respondents' explanation is a possible explanation. The evidence of Mohammed Hanifa, other than his evidence of seeing the man being kicked off the cliff, did not always distinguish between what he saw, what he heard and what he assumed.
1170 This is a matter I take into account.
1171 Fourthly, the applicant submits that the notion that Mohammed Hanifa and Ali Jan would set off on a journey in the middle of a raid and in circumstances in which Ali Jan had abandoned his flour, was improbable. To a point this is true, but it is also the case that Ali Jan had planned to return to his village on 11 September 2012 and Mohammed Hanifa had planned to go with him in order to bring back his stepmother. I also note the matter raised by the applicant and addressed in the closed Court reasons (at [135]).
1172 Fifthly, the applicant submits that it is implausible that Mohammed Hanifa could see soldiers in the overwatch position. I reject this submission. The documentary evidence indicates that the distance between Mangul Rahmi's compound and the overwatch position is in the order of approximately 450 metres and a human figure can be seen at that distance. Furthermore, the overwatch photographs themselves indicate that human figures at the compound, tiny though they be, can be seen from the overwatch position.
1173 Sixthly, the applicant submits that I should conclude from the manner in which Mohammed Hanifa gave his evidence (and the applicant referred in particular to passages in cross-examination) that he had attempted to learn and relay a story by rote, "and then became hopefully [sic hopelessly] confused under questioning, losing all sequence". I do not accept this submission. He was enthusiastic in relaying his account which he had no doubt been asked to recount on many occasions. However, I did not detect any sign that he was relaying a detailed false story having learnt to repeat it by rote.
1174 Finally, the applicant submits that Mohammed Hanifa's hatred of foreign soldiers gave him a motive to lie. Mohammed Hanifa admitted that the soldiers are called "infidels" and he does not like them. Persons killed by soldiers are called "martyrs". Nor, it may be said, would Mohammed Hanifa have liked the relatively frequent raids on Darwan that were occurring at about that time. It may be accepted that these matters gave him a potential motive to lie. ​However, I do not consider this, or indeed the other general motive to lie advanced by the applicant of the sustenance (food and transportation ) provided by the respondents through Dr Sharif, to be strong motives for Mohammed Hanifa to lie.
1175 On the other hand, there were a number of matters referred to by Mohammed Hanifa in his evidence that are consistent with his presence in Darwan during the raid. They are as follows:
    (1) in the early morning he saw two helicopters coming in, followed by four others. They passed by his compound and three landed near Mohammed Gul's compound and one came back and landed near the house of Mohammed Hanifa's cousin;
    (2) Mohammed Hanifa correctly described soldiers at the top of the mountain and to the east;
    (3) Mohammed Hanifa described four helicopters consistent with Turn 2;
    (4) Mohammed Hanifa correctly described the scheme of manoeuvre of the Task Force (i.e., how it was proceeding through the compounds);
    (5) Mohammed Hanifa correctly described the presence of a black dog, a "big soldier who was wet up to his chest area" and the presence of an interpreter;
    (6) Mohammed Hanifa marked the area to which Ali Jan's body was dragged and it is consistent with the area identified by Person 4; and
    (7) Mohammed Hanifa's description of the movement of the helicopters for extraction was consistent with the helicopter extraction plan in terms of where they landed and the direction from which they approached.
1176 For the reasons set out in the closed Court reasons and the reasons set out above, the evidence of Mohammed Hanifa must be scrutinised with care. However, as I will explain in more detail later in these reasons, I accept the key aspects of Mohammed Hanifa's evidence because it forms part of a strong, consistent and coherent body of evidence called by the respondents, including the other Afghan witnesses and Persons 4 and 56. Even if one discounts the consistency and coherence with the other Afghan witnesses on the basis that they have discussed their recollections with each other, the strong consistency and coherence with the evidence of Person 4 and, to a lesser extent, Person 56, is evident.
Mangul Rahmi
1177 As I understood it, the applicant submits that Mangul Rahmi was dishonest and unreliable. He relies on, among other things, a number of inconsistencies between information he has provided ​elsewhere and evidence he gave to this Court. Again, there are two aspects to the challenges, although they both form part of an assessment of his honesty and reliability. The first is the identification of the dead man in the cornfield as Ali Jan and, insofar as that involves closed Court evidence, is dealt with in the closed Court reasons (at [92]–[104]). The second is more general and, insofar as that involves closed Court evidence, is dealt with in the closed Court reasons (at [105]–[111]).
1178 In addition to those matters, the applicant submits that Mangul Rahmi's credit is materially damaged by the following matters.
1179 First, the applicant makes the same submission as he did in the case of Mohammed Hanifa to the effect that it is implausible that Ali Jan and Mohammed Hanifa would embark on a journey (with Ali Jan leaving his flour behind) in the middle of a raid when people were told to stay at home. Mangul Rahmi's evidence was that he heard on the radio that people were advised to stay at home during a raid. The applicant submits that either the event of Ali Jan and Mohammed Hanifa setting off on a journey did not happen or, if it did, the only plausible explanation is that Ali Jan and Mohammed Hanifa were Taliban. I take the same approach to this submission as I have in the case of the equivalent submission with respect to Mohammed Hanifa. I also note the matter raised by the applicant and addressed in the closed Court reasons (at [135]).
1180 Secondly, the applicant submits that Mangul Rahmi's evidence that Mohammad Shah was in Darwan on 11 September 2012 was wrong. I reject that submission for reasons given in the closed Court reasons (at [75]).
1181 Thirdly, the applicant submits that Mangul Rahmi's evidence that he heard firing from helicopters is implausible and not supported by the evidence or by contemporaneous documents. Mangul Rahmi did not see the firing from the "planes". He said it was from the "planes" because it was heavy fire, not light fire from the ground. The respondents offered an alternative explanation for the sound which Mangul Rahmi heard and that is the blowing up or destruction by the Task Force of two caves almost directly opposite Mangul Rahmi's compound at approximately 1100DE. Again, I take the same approach to this submission as I have in the case of the equivalent submission with respect to Mohammed Hanifa.
1182 Fourthly, the applicant submits that Mangul Rahmi's evidence is that he could see two soldiers and that he warned Mohammed Hanifa that they might shoot at him was implausible because ​the only soldiers were those in the overwatch position and they were too far away to be seen and to shoot at Mohammed Hanifa or Mangul Rahmi. Again, I take the same approach to this submission as I have in the case of the equivalent submission with respect to Mohammed Hanifa.
1183 Fifthly, the applicant submits that Mangul Rahmi's evidence about the high number of soldiers present is implausible. I reject that submission for reasons given in the closed Court reasons.
1184 Finally, the applicant submits that Mangul Rahmi's expressed hatred of foreign soldiers and his view that they were infidels and those that they killed were martyrs "unavoidably coloured" his evidence. I take this to mean that his feelings affected his evidence in a way adverse to Australian soldiers, including the applicant. He also said that he did not agree with the Taliban and they had done injustices to the villagers as well. He was asked about financial support provided by the respondents through Dr Sharif. This was limited to the costs of accommodation, food and transport. I make the same observations about these possible motives to lie as I did in relation to the equivalent submission in the case of Mohammed Hanifa.
1185 The starting point is that Mangul Rahmi is in, or in the vicinity of, his compound on the day of the raid early in the morning. That starting point is, in fact, confirmed by the evidence of Mohammed Hanifa, Shahzada Fatih and, in a general way, by Person 56.
1186 As with the evidence of Mohammed Hanifa, Mangul Rahmi gave evidence that could only have been given by someone present on the day or a person who had spoken to someone present on the day and memorised the details with respect to the following matters:
    (1) that helicopters passed by and one helicopter went to the hillside;
    (2) the location of the soldiers on the top of the mountain;
    (3) the presence of the interpreter, the dog and the big soldier;
    (4) that the soldiers in the overwatch position were picked up last. In this regard, I refer to the closed Court reasons (at [91]); and
    (5) that he correctly identified the location of the body in the cornfield.
1187 I have reached the same conclusion with respect to Mangul Rahmi's evidence as I have in relation to Mohammed Hanifa's evidence. In other words, it is to be scrutinised with care, but having done that, I accept the key aspects of his evidence.
​Shahzada Fatih
1188 In addition to the submission about this witness' demeanour (which is dealt with below), the applicant submits that Shahzada Fatih's evidence contained "serious inconsistencies" and "serial implausibilities".
1189 First, the applicant submits that Shahzada Fatih "shifted position" on whether the "big soldier" was firing shots as he came down from the mountain towards the hut. At one point in his evidence, the witness did say as to the "big soldier"
   … when he was coming down, the shot – he – he fired the shots.
1190 However, the passage of evidence is confusing and it was later clarified in cross-examination by Shahzada Fatih when he said that he did not see the soldier firing shots as he came down. It seems to me that the witness was confused and I do not consider that this was a change of position.
1191 Secondly, the applicant submits that Shahzada Fatih's evidence that the big soldier, that is, the applicant, said to him and others in Pashto words to the effect of "Do not move until the planes come here and leave" was plainly wrong. It is possible that something more basic was said by the applicant as there was evidence that some Australian soldiers, including the applicant, could speak some basic Pastho words. However, I do not think that this evidence can be strictly correct and this is a matter I take into account.
1192 Thirdly, the applicant submits that Shahzada Fatih's evidence that while in Amin Jan Aka's hut, he saw the big soldier kick Ali Jan and Ali Jan fell down should be rejected because Shahzada Fatih admitted that his eyesight was poor, the distance involved was in the order of 250 metres and there was a stand of trees between Shahzada Fatih's position and the place of the events at Mangul Rahmi's compound. In fact, although precision is not possible on the material, by reference to the documents, the distance seems to be in the order of 100 metres and by reference to the photographs, I reject the submission that it is clear Shahzada Fatih could not have seen what he claimed to have seen because of the vegetation. It is certainly likely that there were gaps in the vegetation as Shahzada Fatih claimed.
1193 Fourthly, the applicant submits that it was improbable that the high number of soldiers identified by Shahzada Fatih were present. The applicant referred to Shahzada Fatih's evidence that there were a number of soldiers up at the compounds and down on the side of the riverbed and near the hut. The evidence is not precise and there may be a degree of embellishment by ​the witness, but nothing to the point of suggesting that Shahzada Fatih has invented the whole account. The applicant did not deny that there would have been soldiers on the roof of compounds at various times and these are likely to have been members of the applicant's patrol.
1194 The respondents made three points in response to this submission: (1) it is likely there would have been another patrol at HLZ ready for extraction with the applicant's patrol; (2) the particular HLZ was used by the commandos on Turn 1 about a half an hour before; and (3) there were two helicopters which extracted from Stream 6, although in the end, I think the respondents accepted that is probably too far north to have played a part in Shahzada Fatih's assessment of the number of soldiers in the area. I accept the first two points.
1195 Fifthly, the applicant submits that the following evidence from Shahzada Fatih is improbable:
    (1) that shots were fired from the overwatch position or the plane earlier in the day given the distances and the fact that no document or soldier recorded engagements involving the helicopters;
    (2) that he had never seen photographs of Ali Jan's body; and
    (3) that he had never discussed the case with his son, Mohammed Hanifa.
The respondents address the first point and submit that there is a misconstruction of the evidence and that, properly construed, Shahzada Fatih was saying that the shots came from the soldiers on the mountain who came out of the helicopter. That does not seem to me to be clear and I think that the evidence is confusing. I take this matter into account. I also find it difficult to accept that he has never discussed the case with Mohammed Hanifa.
1196 Sixthly, the applicant's submission that Shahzada Fatih was wrong when he said that Mohammad Shah was present in Darwan on the day must be rejected for the reasons given in relation to Mohammed Hanifa and Mangul Rahmi and set out in the closed Court reasons (at [75]).
1197 Finally, I reject the submission that I should find that Shahzada Fatih's demeanour was erratic such that I should conclude that he was dishonest or hopelessly confused. I did not form that conclusion from the evidence of Shahzada Fatih. He appeared to me to be taciturn and not as articulate as Mohammed Hanifa and Mangul Rahmi.
​1198 In this connection, I bear in mind the observations of the New South Wales Court of Appeal in Goodrich Aerospace Propriety Limited v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 (at [21]–[22]):
   21 Another area where great care must be exercised in making demeanour findings is where a witness is from a different cultural and ethnic background to that with which the judge is familiar. That occurred in this case. Mr Arsic was born in Slovenia. The court was told that he came to Australia in about 1995. Mr Maslic was born in Bosnia and also came to Australia in 1995. Neither was fluent in English. Both had difficulty in expressing themselves. Mr Maslic, in particular, was said to have a strong accent.
   22 Sir Thomas Bingham (as he then was) illustrated the difficulties clearly when he said (in "The Judge as Juror", (1985) Current Legal Problems 1 at 10-11):
      [H]owever little insight a judge may gain from the demeanour of a witness of his own nationality when giving evidence, he must gain even less when … the witness belongs to some other nationality and is giving evidence either in English as his second or third language, or through an interpreter. Such matters as inflection become wholly irrelevant; delivery and hesitancy scarcely less so. … If a Turk shows signs of anger when accused of lying, is that to be interpreted as the bluster of a man caught out in a deceit or the reaction of an honest man to an insult? If a Greek, similarly challenged, becomes rhetorical and voluble and offers to swear to the truth of what he has said on the lives of his children, what (if any) significance should be attached to that? If a Japanese witness, accused of forging a document, becomes sullen, resentful and hostile, does this suggest that he has done so or that he has not? I can only ask these questions. I cannot answer them. And if the answer be given that it all depends on the impression made by the particular witness in the particular case that is in my view no answer. The enigma usually remains. To rely on demeanour is in most cases to attach importance to deviations from a norm when there is in truth no norm.
   See also SRA (NSW) v Earthline Constructions Pty Limited per Kirby J at 329.
1199 As with Mohammed Hanifa and Mangul Rahmi, Shahzada Fatih knew details of events he could only have known if he was there on the day and those events included the number and landing areas of the Black Hawk helicopters, the location of the overwatch team and the presence of the tall soldier and the interpreter during the clearance of the southern compounds.
1200 I approach Shahzada Fatih's evidence with considerable caution. Nevertheless, as I will explain, I accept the key aspects of his evidence for similar reasons that I accept the evidence of Mohammed Hanifa and Mangul Rahmi.
Documentary Material
1201 It is necessary to consider the contemporaneous or near contemporaneous documents.
​1202 The OPSUM or operational summary records that it was prepared at 1445DE on 11 September 2012. It contains a statement that there were four EKIAs and six detainees in connection with the mission. It also records the following:
    (1) Turn 1 left Tarin Kowt at 0532DE and arrived at Darwan at 0547DE.
    (2) At 0610DE, there was an engagement in a compound which resulted in two EKIAs.
    (3) Turn 2 left Tarin Kowt at 0608DE and arrived at Darwan at 0623DE. Clearance is recorded to have commenced at 0623DE.
    (4) The engagement by the applicant at the Helmand River is recorded as occurring at approximately 0805DE and the record provides that the insurgent was:
   TAKING A DIRECT PART IN HOSTILE ACTION BY MANOEUVRING INTO A FIRING POSITION FROM WHICH TO ENGAGE THE CLEARANCE FORCE.
    The document records that the Force Element engaged the insurgent resulting in:
   1 X EKIA. BDA RECOVERED 1 X CHICOM TYPE 56 ASSAULT RIFLE, 1 X ICOM AND 1 X PCD :(WITH 2 X SIM CARDS).
    (5) At 0806DE, there is a record of the identification and destruction of a motor cycle being used by the insurgents.
    (6) At 0907DE, there is a record of the clearance continuing to move south through the western and eastern compound series.
    (7) At 0930DE, there is a record that the clearance was nearing completion.
    (8) At 0945DE, there is a record to the effect that clearance KLE and SSE was complete and that the Force Element requested extraction.
    (9) At 1045DE, there is a reference to Force Element moving to extraction locations and adopting a "PZ posture". There is a record of six persons of interest being detained based on behaviour, association with the compound of interest and prevailing circumstances at the time of capture.
    (10) At 1052DE, Turn 1 leaves Darwan and at 1106DE arrives at Tarin Kowt.
    (11) There is a record that at approximately 1110DE, a Force Element member whilst waiting for extraction, observed an individual moving through a thickly vegetated cornfield and utilising an ICOM radio. The Force Element assessed that the individual was taking a direct part in hostile activity against the Force Element by reporting on Force Element movements and that it was likely that the individual was manoeuvring between tactical weapons caches. The Force Element called to the individual to stop ​and pursued him into the cornfield. The manner in which he manoeuvred (deliberate rapid movement followed by ignoring clear and repeated warnings from the Force Element) was consistent with the application of this insurgent's TTP. The Force Element assessed that they would not be able to apprehend the individual before he reached a potential weapons cache. A military working dog was not immediately available in order to effect detention. The Force Element engaged the individual resulting in 1 x EKIA. "BDA OF THE EKIA RECOVERED 1 X ICOM".
    (12) At 1121DE, Turn 2 left Darwan for Tarin Kowt with persons of interest and at 1137DE, Turn 2 arrived at Tarin Kowt.
    (13) Six persons of interest were handed over to the ISA at 1153DE.
1203 The OPSUM also records that a significant amount of accurate ICOM activity indicated a detailed understanding and awareness of "CF RW Patterns". In addition, the OPSUM records that historical fighting position located in the vicinity of high ground indicated insurgent activity in the area.
1204 The OPSUM records that one ICOM radio was recovered.
1205 The commanders' comments in the OPSUM are to the effect that the clearance was successful in confirming the presence of insurgents in the area.
1206 The applicant also referred to the Sametime chat record and, in particular, the following entries:
    (1) Turn 1 left Tarin Kowt at 0532DE and arrived in Darwan at 0547DE.
    (2) Turn 2 left Tarin Kowt at 0608DE and arrived in Darwan at 0623DE.
    (3) At 0653DE, the Force Element reports three EKIAs and the recovery of chest rig and weapons.
    (4) At 0744DE and again at 0907DE, the Ground Force Commander advised that clearance was ongoing and had progressed to certain identified compounds.
    (5) At 0930DE, the Ground Force Commander advised that clearances were nearing the limits of exploitation and extraction details were being planned. It is stated that the Force Element is "tracking 4 x POI likely to come off tgt ATT".
    (6) At 0949DE, the extraction plan had been briefed and crews were moving to aircraft. The removal of four persons of interest is planned for Turn 2. At 1008DE, a mechanical ​issue with one of the extraction aircraft is noted and that the likely wheels-up for Turn 1 extraction had been pushed to approximately 1040DE.
    (7) At 1038DE, there is a person of interest update. One person of interest is to be taken at Turn 1 and three are to be taken at Turn 2.
    (8) At 1052DE, Turn 1 leaves Darwan for Tarin Kowt. Turn 1 arrives at Tarin Kowt at 1106DE.
    (9) At 1106DE, it is noted that there will be an additional person of interest on Turn 2.
    (10) At 1109DE, it is noted that there is an additional EKIA.
    (11) At 1121DE, Turn 2 departs from Darwan and at 1137DE Turn 2 arrives at Tarin Kowt.
    (12) At 1153DE, six persons of interest are handed over to the ISA and the end of the mission is recorded.
    (13) At 1437DE, a "Post de-brief consolidation" is recorded. The various engagements are noted and in the case of the engagement at approximately 1110DE, the following is recorded:
   A SIGNIFICANT AMOUNT OF ICOM TRAFFIC INDICATED THAT INS WERE ATTEMPTING TO CO-ORDINATE AN ATTACK AGAINST THE FE. WHILST AWAITING RW EXTRACTION, AN FE MEMBER OBSERVED AN INDIVIDUAL.
    (14) At 1444DE, the OPSUM for the mission was sent.
1207 The applicant also referred to exhibit R1 which is a map showing the location of the persons of interest and the EKIAs from the mission to Darwan. The document shows that EKIA4 is close to compound 45. Exhibit R3 is a map indicating the HLZs at Darwan. Exhibit R21 is a photograph of the PUC train taken on Person 1's camera at 9.06 am. Exhibit R2 is what the applicant contends is a well-referenced photograph of Darwan taken from the overwatch position. The metadata associated with this photograph suggests it was taken at 12.26 pm on 11 September 2012, but the applicant submits that this cannot be correct as the photograph depicts at least one soldier standing outside the next to last set of structures on the left hand side, whereas the OPSUM and Sametime chat record indicates that Turn 2 had departed at 1120DE. Exhibit R13 contains a series of photographs of a body and there is no dispute between the parties that these photographs depict the person killed in the cornfield.
1208 This then is the documentary evidence. The applicant also relied on Sensitive Documents which are identified and discussed in the closed Court reasons. I refer to the closed Court reasons (at [136]–[147]).
​The Applicant's Witnesses
The applicant
1209 The applicant said that the objective of the mission to Darwan was to kill or capture Hekmatullah or, at the very least, to obtain intelligence relating to his whereabouts.
1210 The applicant said that he could not remember whether he found an ICOM on the body of the insurgent he engaged near the Helmand River. The applicant marked on one of the overwatch photographs (exhibit R2) with the letter "A", the position where his patrol inserted. He marked with the letter "B" the position where his patrol met up with Troop Bravo. He still had Person 47 with him at that stage. It was at that point that his patrol had a break. The applicant's patrol moved to the more central group of buildings which he marked with the letter "C".
1211 The applicant could not recall how many interpreters were with the troop on that day. The commandos were there clearing compounds on the other side of the river. The applicant confirmed that at the time he and at least one other patrol moved through the middle set of compounds, there was an interpreter present. His patrol did not have responsibility for the interpreter. The applicant recalls that at one point he needed an interpreter because there were women and children in a compound. The applicant said that Person 47 was assigned to his patrol for the blocking force. However, once the blocking force was complete and the applicant's patrol became a reserve assault patrol, Person 47 went back to troop headquarters as an asset for the troop. He was a dog handler. He was also used in the PUC areas. The applicant said that it was at or about the point he has marked "C" that he received a radio call from Troop Bravo asking for the interpreter. The substance of the radio call was that Troop Bravo needed an interpreter at his position.
1212 When asked why he regarded it as his responsibility to ensure that the interpreter was taken back to Troop Bravo, the applicant said:
   Because I must have just used him, or I was the patrol commander in the vicinity when that radio call came through.
1213 The applicant gave an order to Person 56 to escort the interpreter back to the troop sergeant. The understanding was that he, Person 56, would take the interpreter back and then move back to "our location". The applicant said that this occurred prior to his patrol moving across the gap between the middle set of compounds and the southern set of compounds. The applicant said that he does not know whether he had any further communications with Person 56 before extraction. He did not see Person 56 again. The applicant agreed that, as he understood it at ​the time, it was likely that Troop Bravo would have been located in the PUC consolidation area. The PUC consolidation area was the area he marked "B" on the photograph.
1214 The applicant said that he could not recall whether his patrol moved to the southern set of compounds with another patrol or by itself. He was asked about his previous evidence concerning the presence of another patrol at some stage during the clearance of the southern set of compounds. The applicant said he could not recall whether another patrol came with his patrol or not.
1215 The applicant said that there were other SASR operators who crossed the gap with his patrol. He cannot remember whether Person 47 was one of those SASR operators. The applicant said that when his patrol was by itself, they did not find any other people. The applicant said that at the point at which the other teams had left, the applicant's patrol did not find any other people. They did not find any women or children or old men or fighting age males. They did not PUC anyone. The applicant said that at the point at which other patrols left, Person 47 was not with his patrol.
1216 On one of the overwatch photographs (exhibit R2 p 3), the applicant marked with the letter "A" the point at which other patrols left his patrol. The compounds to the left or south of the letter "A" to the extent that they were assaulted and cleared, were assaulted and cleared by his patrol. No people were found in these compounds. The applicant marked with the letter "X" the compounds his patrol did not go into.
1217 The applicant confirmed that the time which elapsed between completing the clearance and the extraction call was in the vicinity of 10 minutes. The applicant, Person 4 and Person 11 began moving towards the extraction point. The applicant marked with the letter "B" the position where he was waiting for the 10 minute period. The applicant agreed that at some point he was effectively on the roof. Persons 4 and 11 were in the same general vicinity. The applicant did not have a recollection as to the arrangements he made to meet up with Person 56. The applicant marked the location of the HLZ with the letter "C". The applicant marked his route of travel from the place at which he waited for a period of in the vicinity of 10 minutes (i.e., the position marked with the letter "B") to the point at which he reached the dry creek bed. The applicant was asked to draw the same route on the blown up satellite image of the southern set of compounds (exhibit R3 p 2). The applicant said that there was an embankment of a metre and-a-half or more coming out of the creek line. The embankment extended most of the way up the creek line. The applicant was asked why he chose the route he did to reach the HLZ ​and, in particular, why he did not continue to walk up the dry creek bed until he reached the HLZ. He said that his patrol was walking in single file with Person 11 at the front, the applicant in the middle and Person 4 behind. Person 11 reached the top of the embankment and started engaging. The applicant said:
   … So all I recall is hearing shots, getting up, trying to get to a side of Person 11 so that I could engage as well, and by that time, the spotter was already down, effectively, or just hitting the ground, but it was very – it was already done.
1218 The applicant first saw the ICOM when the patrol were doing the SSE in relation to the EKIA. He remembers it being on the ground, "sort of underneath him", that is, the EKIA. Person 11 conducted the initial SSE and then Person 4 did the proper SSE. The applicant marked his route from the cornfield to the HLZ.
1219 The applicant was cross-examined as to why, having regard to the engagement, he did not suggest that the helicopter extraction in the immediate area be abandoned. The applicant identified a level area next to the area where he was waiting and a steep drop down to the dry creek bed of 7 to 10 metres. The applicant was asked about the entry in the Sametime chat record for Darwan (exhibit R10) on the second page at 0907DE. The entry is that the Ground Force Commander update advises that clearance has progressed to compound of interest 43 and compound of interest 45. Person 11 took a PUC in compound 43. Compound 43 was the last compound in the middle set of compounds. The entry for 0930DE is the Ground Force Commander update advises clearances nearing LOEs (limits of exploitation) and planning extraction details. The applicant disagreed that by approximately 9.30 in the morning, his patrol had finished clearing the southern set of compounds. The applicant was also taken to the OPSUM Report (exhibit R11) and the entry for 9.30 local time to the effect that the Force Element update advised that clearance was nearing completion. The entry for 9.45 local time was that clearance, KLE and SSE was complete and the Force Element requested extraction. The applicant agreed in cross-examination that there was no reason to think that this was not right. An entry in the Sametime chat record for 9.49 local time was to the effect that the extraction plan was briefed and crews were moving to aircraft. The earliest wheels-up at the main base in Tarin Kowt for extraction was 10.20 local time. The engagement in the cornfield happened shortly before 11.09 local time. Wheels-up at Darwan for the Turn 2 helicopters was 11.21 am. The engagement the applicant says happened in the cornfield happened shortly before extraction. The applicant agreed that it is possible that Person 56 would have been gone ​for over an hour-and-a half and close to two hours by the time the applicant's patrol left the last set of compounds. He gave the following evidence:
   Yes. So that's much longer than he should have been gone if he was taking an interpreter back to Bravo and returning to you; correct?---Well, as I said before, he could have been retasked. They could have told me that. I can't remember every single detail. You asked me that about the interpreter the other day. Things happen on the ground, and people are used. Missions change; things happen. If he wasn't there, he wasn't there.
   If Person 56 hadn't turned up for over an hour and a half, or nearly two hours, you would have radioed at some point, saying, "Where are you?" wouldn't you?---Possibly.
1220 The applicant denied that Person 56 had not been tasked to take the interpreter back at an earlier point. Person 56 and the interpreter accompanied the applicant's patrol to the southern set of compounds and Person 56 was not tasked to take the interpreter back until about 10.45 am. The applicant identified six compounds in the southern area.
1221 The applicant did not accept that Person 47 was present and that the military dog bit one of the PUCs in the southern set of compounds. He did accept that it is possible that Person 47 did come to at least some of those southern compounds.
1222 The applicant agreed that both sides of the valley had been cleared by large numbers of soldiers with the SASR on the western side and the commandos on the eastern side. All of those soldiers would have been looking very carefully for squirters or spotters.
1223 The applicant agreed that very comprehensive scans of the area around extraction HLZs are performed by airborne assets. He disagreed with the proposition that it was very unlikely an insurgent could have remained hidden in the cornfield, having regard to those assets, the observations made by those in the overwatch position and the activity of both the commandos, the SASR and the Partner Force. He did agree that it would have been more difficult for an insurgent to have entered the cornfield from another location at a time close to extraction. The applicant agreed that the insurgent was unarmed.
1224 Not only is the applicant's evidence about the point at which he sent the interpreter back to Troop Bravo and, for that matter, Person 11's evidence although he has the interpreter going back at a slightly later point, contradicted by the evidence of Mangul Rahmi, Mohammed Hanifa, Shahzada Fatih and Person 56 and, by inference Person 4, but in my opinion it is highly unlikely to be correct in light of the period it would mean that Person 56 was away from the applicant's patrol.
​1225 The applicant said that after sending the interpreter away accompanied by Person 56, he did not see Person 56 again until extraction. Person 11 gave a similar account in that he said that Person 56 went away with the interpreter and that the next time he saw Person 56 was at the HLZ just prior to extraction. The Sametime chat record reveals that the engagement in the cornfield was reported at 1109DE and that wheels-up for Turn 2 was at 1121DE. It is a relatively short distance from Mangul Rahmi's compound to the cornfield and it would only take a short time to traverse it.
1226 It would seem then that at sometime between 1109DE and 1121DE, Person 56 was reunited with his patrol at the HLZ.
1227 There is no evidence before the Court of the precise times the applicant's patrol engaged in particular activities. However, there is in the Sametime chat record and OPSUM for the mission, a reasonably clear indication of the progress of the assault through the compounds adjoining the dry creek bed.
1228 By 0907DE, the clearance had progressed to COI 43 which is the compound immediately to the north of the gap and by 0930DE, the clearances were nearing the limits of exploitation and extraction details were being prepared. Furthermore, by 0949DE, extraction plans had been briefed and crews were moving to aircraft at Tarin Kowt. There was a mechanical issue with one of the aircraft and Turn 1 were not extracted from Darwan until 1052DE.
1229 If one assumes (and in my opinion it is reasonable to do so) that it was about 0930DE at the point at which, on the applicant's account, he sent the interpreter back accompanied by Person 56, then Person 56 was on that account away from his patrol for a period of in the order of an hour and-a-half for a task, returning the interpreter to Troop Bravo, which should have taken no more than 10 minutes, even on the applicant's account.
1230 The applicant could not recall the reasons why, on the applicant's account, Person 56 was away for so long. He may have received an explanation from Troop Bravo or Person 56. He was unable to recall.
1231 I reject the applicant's account of events at Darwan on 11 September 2012 for the following reasons.
1232 First, the applicant's account of events is fundamentally inconsistent with the respondents' case which, for reasons I will give, I accept.
​1233 Secondly, there are a number of improbabilities in the applicant's account of events, including the following:
    (1) that Person 56 would be away from the applicant's patrol for one and-a-half hours or more;
    (2) that Person 47 and the military working dog would not be with the applicant's patrol during the clearance of the southern set of compounds; and
    (3) that a spotter either entered the cornfield during the mission and was not observed, or remained undetected in the cornfield for the duration of the mission which was a period of over five hours. In this regard, I refer, in particular, to the closed Court reasons (at [77]–[81] and [89]–[90]).
1234 Thirdly, the applicant's evidence as to the path he took from the compound to the creek bed was unsatisfactory and, in that regard, I refer to the closed Court reasons (at [82]–[88]). Further, I consider that he has lied about the height of any embankment on the side of the creek bed abutting the fields and he has lied about using his foot to move the insurgent near the Helmand River with a view to possibly explaining evidence from witnesses which might otherwise seem unfavourable to him.
1235 Fourthly, the irresistible inference is that he has discussed his evidence at length with Person 11. In this context, I refer to the analysis of the contact between the applicant and Person 11 over the years which is described in Section 12 of this Part.
1236 Finally, for the purposes of credit, I am entitled to take into account my adverse credit findings concerning the applicant set out in Section 12 of this Part. In fact, I am entitled to take into account on credit all the adverse credit findings in relation to the applicant in these reasons, but like W108, I strictly do not need to do so to reach the conclusions I have with respect to the events at Darwan.
1237 The other matter which emerges from these times and the sequence of events is that the applicant and his patrol spent a good deal longer in Mangul Rahmi's compound than the applicant's estimate of "in the vicinity of 10 minutes".
1238 A related point is the presence or otherwise of Person 47 and the military working dog in the last compound. It will be recalled that Mangul Rahmi said that he was bitten on the right thigh by the dog. A black dog is shown in one of the closed Court exhibits (exhibit R21). Person 47 ​was a dog handler and it is reasonable to assume that if he was present, so was the dog and vice versa.
1239 The evidence of Mohammed Hanifa and Mangul Rahmi is that the dog was present and Person 4's evidence was that Person 47 was present, although he went away at some point, perhaps with Person 56 and the interpreter. Person 56 said whilst at the southernmost compound with himself, the applicant, Person 4 and the interpreter and "other regiment members" with respect to whom he said he was unsure whether he was with them the whole time and who may have been the dog handler. I prefer this evidence to the evidence of the applicant and Person 11 which was that Person 47 was not present in the last compound (the applicant) or a dog was not present in the last compound (Person 11), particularly as there is good reason in military terms to have a dog when assaulting compounds.
Person 11
1240 Person 11 joined the ADF in 2002 and he was selected for the SASR in 2009. Between 2002 and 2009, he undertook deployments to Iraq and to Afghanistan. He received commendations with respect to his deployments to Iraq and to Afghanistan. He began his service with the SASR as a trooper. He was deployed to Afghanistan on three occasions, being 2011–2012, 2012 and 2013.
1241 Person 11 has left the SASR. At the time he did so, he held the rank of corporal.
1242 Person 11 first met the applicant in 2009. He said that he has a good relationship with the applicant and that he is a good friend and has been for a long time. He said that he spoke to the applicant on and off, perhaps every one to two weeks.
1243 The deployment in 2012 was for approximately four months. Person 11 was in G Troop. The troop commander was Person 58. Person 11's patrol commander was the applicant and the 2IC of the patrol was Person 4. Person 56 was also a member of the patrol and, on occasion, Person 27, Person 79 and Person 14.
1244 Person 11's role in the patrol was as a scout. He also was the patrol medic and the designated breacher. He was the designated sniper for the team should that be required. As the scout, Person 11's role was to pick the best routes in terms of the safest or most tactically sound routes.
​1245 Person 11 was part of approximately 77 missions during the deployment in 2012 and he had a number of engagements.
1246 Person 11 was medically discharged from the ADF in July 2020.
1247 There were five other patrols in G Troop in 2012 and the other patrol commanders that Person 11 could recall were Persons 7, 57 and 31. The troop sergeant was Person 26.
1248 Person 11 described a "spotter" as an individual who was taking an active part in hostilities:
   … Their main role was to observe and to report on coalition dispositions, movements and actions, to report those to other insurgent groups for the purposes of them being able to manoeuvre and to bring to bear fire upon us or any other kind of action upon us, essentially in a way to gain some kind of tactical advantage.
1249 Person 11 said that the troop's most vulnerable times were upon insertion and extraction. Person 11 said that after the mission to the Chora Valley in the vicinity of the Baluchi Pass on 15 July 2012, he saw the applicant hit Person 10. Person 11 was asked by the applicant to prepare a statement about the incident and he did so (exhibit A226). This incident is discussed in Section 10 of this Part.
1250 Person 11 explained his understanding of the purpose of the mission to Darwan on 11 September 2012 as being to track down and locate Sergeant Hekmatullah, a member of the Afghan National Army, who had on 29 August 2012, murdered three Australian soldiers. The mission was part of a Task Force operation with FE Bravo and FE Alpha. The Task Force had received intelligence to the effect that Hekmatullah was in the area, or had recently been in the area.
1251 The other members of the patrol were the applicant, Persons 4, 56 and 47. The other patrol commanders for the mission were Persons 7, 57, 31 and 55. Insertion was by helicopter. The other patrol on the helicopter carrying the applicant's patrol was Person 7's patrol.
1252 Person 11 could not recall whether Person 47, who was a specialist dog handler, or an interpreter was present when the applicant's patrol commenced clearing the compounds. He said at some point, the applicant's patrol had an interpreter. He agreed that there was a need for an interpreter to deal with the local population. He recalls coming across members of the local population, being a mix of fighting age males, women and children. He cannot recall detaining any PUCs. He cannot recall how many compounds the applicant's patrol cleared. The patrol moved generally from north to south and his estimate was that the clearance took a number of hours.
​1253 After Person 56 and the interpreter left, the patrol consisted of the applicant, Person 11 and Person 4.
1254 Person 11 denied that the injuries to the face of the man the respondents contend is Ali Jan were caused by his head hitting a rock after he had been kicked off a slope by the applicant.
1255 Person 11 was then asked about the respective missions to Chinartu, Char Chineh, Syahchow and Fasil.
1256 Person 11 was asked about the exercises performed during pre-deployment training. He said that he never heard the applicant speak about placing weapons or equipment on the bodies of deceased persons in order to give the appearance of legitimacy to what would otherwise be unlawful killings on the battlefield. Nor did he observe the applicant encourage members of the patrol to simulate the execution of PUCs.
1257 Person 11 said that he did not know who was paying the legal fees of the lawyers who were representing him as a witness in the proceedings.
1258 Person 11 was interviewed by the Assistant Inspector-General. He appeared on one occasion without representation. As a result of this experience, he contacted the applicant by telephone. The applicant said that he would make some inquiries about legal representation. The next thing that happened in this respect is that Ms Munsie from Addisons contacted Person 11.
1259 Person 11 became aware that the IGADF was conducting an Inquiry in relation to matters pertaining to the service of ADF members in Afghanistan in 2016. He became aware of that by reason of the fact that he was asked to attend an interview. There is confusion about the date and it is likely that the reference to 2016 should be a reference to 2017.
1260 Person 11 said that he did not speak to the applicant about his three interviews.
1261 Person 11 said that he first became aware of the allegation that he was involved in an unlawful killing during the Darwan mission in 2017.
1262 Person 11 said that Person 35 would draw winged penises at Tarin Kowt, but he never saw a drawing of a winged penis kicking a PUC off a cliff in 2012.
1263 Person 11 first met Person 4 in 2010. He served with Person 4 in Afghanistan on two deployments. Person 4 was Person 11's best man at his wedding. That was in 2015. However, Person 4 is no longer a friend of Person 11. Person 11 said that Person 4 never spoke to him ​between 2012 and 2015 about allegations that a person had been unlawfully killed during the 2012 mission. The last time he spoke to Person 4 was in 2018. Person 11 initiated the contact. Person 11 made it clear that their personal relationship was over.
1264 Person 11 identified an outline of evidence and a supplementary outline of evidence that had been prepared. The outline of evidence was prepared in 2019 and Person 11 has read it recently. Person 11 was directed to paras 26 and 27 and sought to make them clearer. I will return to this topic.
1265 There are 13 areas or topics in relation to which I either do not accept Person 11's evidence or his evidence should be noted in light of other evidence in the case. I should say that Person 11 gave evidence in relation to the missions to Chinartu and Fasil as well as Darwan and I have taken into account the whole of his evidence in the proceedings.
1266 First, Person 11 did not give evidence that there was an embankment on the side of the dry creek bed which abutted the fields and his position on approach to the dry creek bed does not suggest that there was an embankment of any real height. He said that he was in the front position and that he was in a patrol ready position which meant that his weapon was in his shoulder ready to react if need be. He was holding his weapon with both hands. He cannot recall if he removed a hand at any point in time as he moved from the dry creek bed into the fields. He was asked whether there was any reason he might need to remove his hand and he said that there may have been, but he could not recall.
1267 Secondly, Person 11 did not see an insurgent with a radio in his hand before he engaged the insurgent. I do not accept his evidence-in-chief to this effect. Paragraphs 26 and 27 of Person 11's outline of evidence, read as follows:
   26. Once we had completed clearing the compounds, we were then directed to move to our extraction point, which was located in a large dry riverbed. On route to our extraction point, our patrol engaged with a spotter on an "island" area in the riverbed. The island had trees and cornfields on it. It had become a tactic for the insurgents to target our forces at the extraction stage, when we were potentially vulnerable.
   27. I observed the individual to be a fighting age male who was manoeuvring suspiciously in a corn field on the island. His pattern of movement suggested that he posed a threat and that he was a spotter. He was engaged by me and the Applicant. In accordance with procedure, we conducted a SSE of his body and found a radio on him. We took photographs of the insurgent and the radio. The presence of a radio confirmed he was a spotter and therefore a legitimate target. The Applicant then said over the radio in substance: "Gothic 21. One EKIA. Cornfield. South East".
​1268 As I have said, Person 11 sought to correct this in his evidence-in-chief. He said it would have been clearer to mention earlier in the paragraphs that the ICOM radio was seen by him. He said that when the outline was prepared, the identification of a spotter implied that these items were present, and that "the assessment made of it being a spotter for the items that the person carried as well as their behaviour". Person 11 was cross-examined about this matter. I do not accept his explanation that the reference to the man being a spotter implied that he had a radio because I think that the outline is clear. The radio was found during the SSE process and the presence of a radio confirmed that the man was a spotter.
1269 Thirdly, Person 11 is wrong about the point in time (and place) Person 56 and the interpreter left the applicant's patrol. He is either mistaken or lying. Person 11 was taken through the sequence of events during the mission by reference to the Sametime chat record and the other ADF documents and it is apparent that on Person 11's account, Person 56 would have been away from the applicant's patrol for in the order of one to one and-a-half hours. I consider that to be most improbable. The relevant entries in the Sametime chat record for the Darwan mission are as follows:
   0532DE: Turn 1 W/U MNB-TK to OBJ
   0547DE: W/D OBJ
   0608DE: Turn 2 W/U MNB-TK for OBJ
   0653DE: FE update reports 3 x IKIA, chest rig and wpns recovered. NFI ATT
   0744DE: GFC [Ground Force Commander] update advises clearance ongoing–G Tp consolidated IVO [in the vicinity of] of COI [compound of interest] SC0027, N PL IVO COIs SC0018 and SC0020 ATT
   0907DE: GFC update advises clearance has progressed to COI SC0043 (G Tp) and COI SC0045 (N PL).
(Person 11 said that to the best of his recollection as the applicant's patrol moved from the middle set of compounds across the gap to the southern set of compounds, the applicant's patrol consisted of the applicant, Persons 11, 4, 56 and the interpreter. He could not recall Person 47 being present.)
   0930DE: GFC update advises clearances nearing LOEs [limit of exploitation] and planning extraction details. WNGO–FE is tracking 4 x POI likely to come off tgt ATT.
   0949DE: Extraction plan briefed and crews moving to acft ATT. Earliest W/U MNB-TK for extraction 1020DE. Turn 1 will be FE-B N Pl, no POI. Turn 2 will be G Tp, 4 x POI.
   ​1008DE: Mech issue with one of the extraction acft – likely W/U for turn 1 extraction pushed to approx. 1040DE.
   1035DE: W/U MNB-TK for extraction turn 1.
   1052DE: Turn 1 extraction W/U OBJ for MNB-TK with POI
   1109DE: FE reporting additional 1 x EKIA (now tracking total of 4 x EKIA)
This last entry relates to the alleged engagement in the cornfield.
1270 Person 11 agreed that the patrol left the limit of exploitation (the southernmost compound) very shortly before the engagement in the cornfield. The respondents put their case to Person 11 in cross-examination as follows:
   Now – and just to be clear in terms of timing, what I'm putting to you is that it was about 10.45 am that Person 56 and the interpreter were sent away by Mr Roberts-Smith?---I cannot – I cannot recall the time that they were re-tasked.
   So they were sent away, I put to you, about an hour after the last compound had been cleared, which occurred at about 9.45?---Mr Owens, I can't agree with you on that.
   Why can't you agree with me on that?---Well, because I cannot with certainty tell you what time that Person 56 was, you know, separated from the team and nor can I tell you how long it took for us to complete the clearance of those compounds.
1271 Fourthly, Person 11's evidence about going through a particular section of the cornfield to clear an area close to the HLZ was unconvincing. It was unconvincing in two respects, namely, conduct before the engagement and conduct after the engagement.
1272 With respect to conduct before the engagement, he said in his evidence-in-chief that it was a standard operating procedure. He resiled from this in cross-examination when he said that he would not say that it was a troop-wide standard operating procedure. Person 11 was probed about his evidence. Ultimately, he seemed to say that it came down to his judgment as to what areas were "checked out". He had the liberty to, as he put it, "step left or right of that to assess the ground and terrain".
1273 With respect to conduct after the engagement, there does not appear to have been a search conducted of the adjoining area, nor was the fact that the man engaged and killed was a spotter conveyed over the radio.
1274 Fifthly, Person 11 appeared to have a very poor recollection with respect to a number of matters. That in itself may not be suggestive. However, what is suggestive is that he appeared to have had a clear recollection in favour of his account of what occurred. He had a clear recollection (he said) that there were no fighting age males in the southernmost compound, no ​dog with Person 47, and the point at which Person 56 and the interpreter left the applicant's patrol.
1275 Sixthly, in fairness to Person 11, the matters the respondents rely on for the proposition that it is most unlikely a spotter could have remained undetected in the cornfield were put to him. He did not agree with those matters. They were as follows: (1) there had been a lengthy and detailed clearance of both sides of the village by the SASR on the one hand, and the commandos on the other, for a number of hours during the morning; (2) the overwatch position throughout the mission had a clear line of sight to the area in and around the engagement in the cornfield; (3) the location of the applicant's patrol near the cornfield in a defensive position and looking out for threats for a period of time before the orders for extraction; and (4) the likelihood that the areas adjacent to the HLZ would have been thoroughly scanned by a Heron drone and Apache helicopters less than half an hour before the engagement. I refer to the closed Court reasons (at [77]–[81] and also [89]–[90]).
1276 Seventhly, there is evidence to suggest that Person 11's recollection of where the engagement took place is incorrect. The satellite coordinates on the evidence bag and the Google map indicate that the alleged engagement took place at or about the trees which abut the dry creek bed. It was also suggested to Person 11 that the legs of the man were tucked up and that this is shown in the photographs. It was put to Person 11 if that was so, that was inconsistent with Person 11's evidence that a head to toe search of the man's body was undertaken. The photographs are exhibit R13. Person 11 said that he could not see the man's legs tucked up. It was also put to Person 11 that there was an absence of blood on the man's wrists which indicated that he had been tied up before he was shot. It was also put to him that the injuries to the man's left arm were consistent with the man having his hands tied behind his back at the time he was shot. That can be seen perhaps most clearly in photograph number 7. Person 11 denied these matters.
1277 Eighthly, on Person 11's account, the man engaged was a spotter adjacent to the HLZ. On his account, the report of the engagement did not make reference to the fact that the man was considered to be a spotter. In the ordinary course, one would expect there to be a reference to this fact in view of the real possibility of other insurgents being present and focussed on the HLZ. There is an element of implausibility in the suggestion that if, in fact, the man was a spotter, that fact was not reported.
​1278 Ninthly, Person 11 had three interviews with the Assistant Inspector-General and a fourth which was arranged, but which he did not attend. The interviews he attended and their location are as follows: (1) 1 March 2017 (Perth); (2) 21 September 2017 (Perth); and (3) 13 June 2018 (Sydney). The fourth interview from which Person 11 was excused from attending was due to take place on 29 January 2020. It seems that the following occurred between Person 11 and the applicant in and around these interviews:
    (1) Person 11 had a conversation with the applicant on 20 September 2017;
    (2) Person 11 met with the applicant at the Floreat Hotel in February 2018;
    (3) Person 11 contacted the applicant on 5 June 2018 and advised him that he had been called back for another interview before the Assistant Inspector-General;
    (4) Person 11 met with the applicant on 9 June 2018 when the latter had flown to Perth;
    (5) Person 11 flew to Sydney on 12 June 2018. The applicant flew to Sydney on 12 June 2018. Person 11 and the applicant met in the applicant's hotel room on the night of 12 June 2018; and
    (6) Person 11 had dinner with the applicant and Person 29 on the evening of 13 June 2018. Person 29 had driven up to Sydney from Nowra.
This is a summary of matters fully described in Section 12 of this Part.
1279 Tenthly, Person 11's evidence of and concerning his liability for legal fees was, in my opinion, improbable and I do not accept it. He said that he was not aware of "what any arrangement is for fees". He had no knowledge of the applicant paying the legal fees under an arrangement whereby the applicant had borrowed money. Person 11 gave the following evidence:
   Now, is this right, to this day you say you have no knowledge of who is paying for your lawyers?---I'm not aware of what any arrangement is for fees.
   Lawyers have done a lot of work for you over the last few years; correct?---Correct.
   And have you ever asked them, "Are you going to send a bill"?---No. I have not.
   Have they ever told you they're not going to send a bill?---They have not told me that either.
   Have you ever asked what they charge?---No. I have not.
   These are all questions that you would have wanted to ask; correct?---I was – had no need or desire to ask them.
   Why do you say you had no need to ask?---I just did not feel the need to ask them. I was just happy to have them as part of my team.
   Is that because you thought someone else was paying for your fees?---I have made no ​assumptions about how fee – what the deal is with any fees.
   You're not being honest, are you, Person 11? You must have had a concern that, at some point, you might be asked to pay for these lawyers?---I am not concerned that if, at some point, I am asked to pay, then I will pay.
   The reason I put to you that you are not concerned is because you know that someone else is paying; correct?---I do not know if anyone else is paying.
   You've never asked Ms Munsie, "Who's paying my fees"?---No.
   You've never asked her, "Do I have to pay the fees"?---No.
   The reason you haven't asked those questions is because Mr Roberts-Smith and you agreed that you wouldn't have to pay anything for the fees for the lawyers that he arranged back in June 2018; correct?---That is not correct.
1280 Eleventh, the Australian Federal Police (AFP) sought to interview Person 11 in December 2019. He was aware that the AFP wished to interview him. He said that he was not aware of an investigation. I found his evidence on this topic to be evasive.
1281 Twelfth, Person 11 prepared a brief statement at the applicant's request of the events involving Person 10. He did not refer in that statement to the applicant hitting Person 10. Person 11's suggestion that he did so by referring to the applicant having "sternly counselled" Person 10 was unconvincing.
1282 Thirteenth, Person 11's denial that he had harboured thoughts of violence against the IGADF interviewers was unconvincing in light of the statement made in the medical notes (exhibit R255):
   Person 11 disclosed ideation of violence against the interviewers.
1283 I reject Person 11's account of events at Darwan on 11 September 2012 for the reasons that I accept the respondents' case, the account of Person 11 gave involves a number of improbabilities of the type I have identified in relation to the applicant, and the remaining points set out above. The applicant submitted that Person 11's demeanour was impressive. I did not find anything in his demeanour to be a reason to either accept or reject his evidence. Generally, I do not accept him as an honest and reliable witness.
Person 35
1284 Person 35 was part of the mission to Darwan. His 2IC was Person 32 and the rest of his patrol comprised Person 13 who was an interpreter, and a number of NDS soldiers. Person 35 said that he communicated with the NDS soldiers (and they with him) through the interpreter, Person 13. Person 35 said that Person 13 was with him throughout the mission and that he was ​not asked to allocate Person 13 to any other patrol. Person 35 disagreed with the suggestion that Person 13 assisted other patrols.
1285 I do not accept Person 35's evidence, having regard to the cumulative effect of the following evidence:
    (1) Person 35 denied that many members of the Partner Force could speak a few words of English or that he could communicate with NDS members using basic words and phrases and/or through the use of hand signals. A number of NDS members could communicate in English. I refer to the closed Court reasons (at [76]);
    (2) Person 35 agreed that the interpreter was a troop asset and (normally he said) attached to Troop Bravo;
    (3) Person 35 could not explain how the necessary tactical questioning of PUCs could be performed by Troop Bravo if he did not have an interpreter;
    (4) The applicant said that he had an interpreter with his patrol as he was clearing some of the middle compounds and indeed, sent him back to Troop Bravo accompanied by Person 56 (as did Person 11).
1286 Person 13 would not have been with Person 35's patrol throughout the entire mission and Person 35's assertions that he was were deliberately false.
1287 Person 35 also gave evidence in relation to other missions, including W108 and he was a key figure in the "Person 12 lie" which is addressed at length in Section 5 of this Part. In assessing his honesty and reliability, I have had regard to the whole of his evidence. I do not accept him as an honest and reliable witness.
1288 It is appropriate to address, in this context, a submission by the applicant concerning Person 13.
1289 The applicant submits that it is appropriate for the Court to draw a Jones v Dunkel inference against the respondents in relation to their failure to call Person 13 to give evidence about whether he was, in fact, present at the last compound. The applicant submits that Persons 4 and 56 both said that an interpreter was present at the last compound but their evidence conflicted about how the interpreter came to arrive at the last compound and neither account was corroborated. Person 13 was the only interpreter on the mission to Darwan. The applicant submits that the inference is appropriate in circumstances where the respondents had initially notified that Person 13 would be called by them as a witness in relation to the events of Darwan, had served an outline of his anticipated evidence and did not satisfactorily explain their ​subsequent failure to call him as a witness. The applicants asks the Court to infer that nothing Person 13 could say would assist the respondents' case.
1290 The respondents submit that the grounds for a Jones v Dunkel inference are not made out in the case of Person 13 primarily because an adequate explanation for not calling him has been provided and can be found in Roberts-Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067 (Roberts-Smith (No 5)) at [47]–[49]. The explanation demonstrates that Person 13 was refusing to engage at all and was clearly engaged in misconduct, therefore, he could on no view be said to be in the respondents' camp. The respondents submit that an inference, even if drawn, would not have any practical effect as an inference that Person 13's evidence would not have assisted their case is not converted into positive evidence that it would have harmed their case or have helped the applicant's case.
1291 The respondents are correct in that I consider that there is an adequate explanation for them not calling Person 13. That explanation is described in Roberts-Smith (No 5).
Person 32
1292 Person 32, who was 2IC to Person 35, quite reasonably accepted that it was unlikely the interpreter remained with Person 35's patrol throughout the mission. He would have been needed elsewhere.
Matters advanced by the Applicant
1293 The applicant advanced a number of matters in support of his contention that the respondents have not discharged the burden of proof.
1294 First, the applicant submits that it is improbable that he would have assaulted and killed a civilian.
1295 The applicant submits that the only motive for the killing of the person said to be Ali Jan open to the respondents on the evidence is that Ali Jan smiled at the applicant. The applicant submits that it is not open to the respondents to ask the Court to infer that the applicant killed Ali Jan because he suspected him of being an insurgent by reason of the fact that he was not from the village of Darwan and the fact that he had been prevented from leaving the village from the shots fired by the overwatch position. The applicant submits that neither of those matters and the overall motive of suspecting Ali Jan to be an insurgent were put to the applicant in cross-examination and, in the circumstances, the rule in Browne v Dunn precludes the respondents ​from relying on the motive they now assert. If the only motive or reason the applicant is said to have killed Ali Jan is because he smiled at him, then the killing of Ali Jan by the applicant is even more improbable. He submits that such conduct is out of character and in this respect he relies on his record of courage and composure in the face of extreme danger (Section 1 of this Part) and the concern that he showed for the consequences to Person 10 and to the unit if innocent civilians were killed in his admonishment of Person 10. This indicates that killing a civilian for little or no reason is completely out of character for the applicant (Section 10 of this Part).
1296 The respondents advance three submissions in response to this. First, the respondents contend that the improbability of an event is, in the circumstances of this case, factored into the standard of proof dictated by's 140 of the Evidence Act and the relevant principles (Section 1 of this Part). Secondly, the respondents submit that they have no obligation to prove a motive and that they can succeed without proving a motive. Thirdly, the respondents submit that there is on the facts an explanation which the Court might adopt for the applicant's conduct and that is that bad people will be taken into another room and shot. This explanation is established by the pre-deployment training incidents at Bindoon and Lancelin.
1297 In my opinion, the correct analysis of these matters is as follows. The improbability of the applicant behaving in the way alleged by the respondents is clearly a matter to be taken into account and that is done as part of the Court's obligation to apply s 140 of the Evidence Act and the Briginshaw principle. The clearest modern statement to this effect is that made by the plurality in Neat Holdings at 450.
1298 The applicant's good character as described in Section 1 of this Part is an added factor to be taken into account. It adds to the improbability or unlikelihood of the applicant behaving in the manner alleged by the respondents.
1299 The respondents are correct in saying that they do not have to prove motive in order to succeed, but the absence of a proved motive is relevant to the degree of improbability or unlikelihood of the applicant behaving in the way the respondents allege.
1300 The respondents submit that it is open to infer a motive and that is that the applicant would execute or participate in the execution of persons he considered were Taliban or "bad guys". The findings I have made in relation to pre-deployment training in 2012 and the murders at W108 provide support for a conclusion that the applicant would execute persons he thought ​were Taliban or likely to be Taliban. This motive, if it be such, was not specifically put to the applicant in relation to the murder of Ali Jan, but the pre-deployment statements were put to him and the applicant must have appreciated that that was what was said to be his method of operation.
1301 Even if I am wrong and the respondents are precluded from advancing the "motive", their case is established in the absence of proof of motive.
1302 Secondly, the applicant submits that EKIA4 had an ICOM radio.
1303 The applicant submits that the appropriate finding is that EKIA4 (the man the respondents say was Ali Jan) had an ICOM radio. The photographs of the body show that. Neither the applicant nor Person 11 or Person 56 could recall the recovery of an ICOM radio from EKIA3, that is the man the applicant shot on the other side of the Helmand River. It is true that Person 4 referred to the recovery of an ICOM radio and the OPSUM for the mission refers to the recovery of an ICOM radio. However, it is reasonable to conclude that the OPSUM is in error in this respect. The applicant and Person 11 referred to the recovery of detonators and Person 4 referred to the recovery of a piece of det cord. There is no reference in the OPSUM to the recovery of a detonator cord. This is an illustration of the fact that the OPSUM can be in error in certain respects. Furthermore, a Sensitive Document makes no reference to the recovery of an ICOM radio (see exhibit A10 Tab 33 para 6).
1304 It is true that Person 4 considered that the ICOM radio on EKIA4 was waterlogged and was the ICOM radio recovered from EKIA3, but Person 4 gave evidence inconsistent with that possibility because he gave evidence that the ICOM radio, other items and a piece of det cord were placed in an evidentiary bag and with the weapon handed to the troop sergeant.
1305 The respondents' case is that the man killed was Ali Jan and he was not a spotter and did not have an ICOM radio. First, if the evidence of Mohammed Hanifa, Mangul Rahmi and Shahzada Fatih and Person 4 (and to a lesser extent Person 56) is accepted, then the man in the cornfield who was detained in the compounds at the southern end and then kicked off a cliff did not have an ICOM radio. Secondly, it would seem from the defence documents that two ICOMs were apparently recovered, but only one was returned to Tarin Kowt. Thirdly, the respondents refer to closed Court documents and they submit that if there was a Taliban spotter hiding in the cornfield with an ICOM radio, it is highly improbable that it was not activated at ​any time during the entire mission, notwithstanding multiple helicopter insertions and extractions.
1306 In my opinion, there is a good deal of force in the respondents' closed Court submissions. I refer to the closed Court reasons (at [89]–[90]). Further, the OPSUM for the mission does refer to two ICOM radios, one in connection with the engagement with EKIA3 and the other in connection with the engagement with EKIA4, but only one being recovered and returned to Tarin Kowt. The fact is that I am satisfied that the man in the cornfield was Ali Jan and that he was not a spotter and did not have an ICOM radio.
1307 Thirdly, the applicant submits that the overwatch photograph corroborates his case.
1308 The applicant submits that the photograph was clearly taken at a time when the applicant's patrol had reached their limit of exploitation towards the end of the mission and prior to their move to the extraction zone. The applicant submits that the photograph does not reveal the presence of any person in the vicinity of the compound other than one or two persons standing on the roof of the compound. It does not reveal the presence of one or more donkeys in the vicinity of the compound and that is inconsistent with the evidence of Mohammed Hanifa, Mangul Rahmi and Person 4. Person 11 gave evidence that he could not recall the presence of a donkey just outside the compound.
1309 The applicant submits that the photograph is important for another reason and that is that it shows that the overwatch team would have had a clear view of the area where it is alleged Ali Jan had been kicked off a cliff and a clear view of the creek bed at the base of the cliff where it is alleged that Person 4 and Person 11 dragged Ali Jan's body. There is no evidence, so the submission goes, that any member of the overwatch team observed any illegal activity conducted by any member of the applicant's patrol on 11 September 2012.
1310 The overwatch photograph appears to show one, possibly two persons, on the roof of the compound. The respondents submit that the photograph does not corroborate the applicant's case because it does not show what was going on inside the compound at the time the photographs were taken.
1311 Mohammed Hanifa said that Ali Jan's donkeys were tethered with Mangul Rahmi's cows. Mohammed Hanifa said that the soldiers took him and Ali Jan and Mangul Rahmi to Mangul Rahmi's house and at that time there was soldiers on the rooftops, that is, the rooftop of the guesthouse. They were made to sit in the middle of Mangul Rahmi's house. Some of the ​soldiers were on the rooftop and some were in Mangul Rahmi's house. The soldiers cut the leash of the donkeys and they came and stood beside Mohammed Hanifa, Ali Jan and Mangul Rahmi. The respondents submit that, in those circumstances, the photograph does not assist the applicant. In fact, it supports a detail in the evidence given by Mohammed Hanifa of soldiers being on the rooftop. That is a detail which could only be known by a person present on the day. The respondents submit that otherwise, the overwatch photograph is neutral. It is not known what time it was taken or who was looking where, when and what can be seen and what cannot be seen.
1312 I agree with the respondents' submissions. The overwatch photograph does support a detail of Mohammed Hanifa's evidence that there were soldiers on the rooftop, but is otherwise neutral in its effect.
1313 Fourthly, the applicant submits that the alleged assault would have been observed by others.
1314 The applicant submits that it is improbable that there is no other Australian military eyewitness to the alleged assault and execution other than Person 4. The respondents' case is that the applicant kicked a man off a small cliff and that the man was then dragged across an open creek bed. The applicant submits that if those activities had occurred, then they would have been observed by the overwatch team. The overwatch team was there to observe the mission and to provide fire support if required and, according to Person 7, was sufficiently attentive to have observed one squirter leaving the green and crossing the river before losing sight of him. The applicant submits that the distance from the Helmand River to the observation post is self-evidently greater than the distance between the southernmost compounds in the village and the observation post. That certainly appears to be the case from an examination of Exhibit R2.
1315 Furthermore, the incident would have been observed by any other Australian soldier who would have been in an elevated position, either adjacent to the creek bed or in the creek bed to the north of where the alleged execution occurred, including the hut in the creek bed adjacent to the HLZ. The applicant's submission is that at the time of the alleged execution which occurred in the minutes prior to the Turn 2 extraction, the FE Alpha teams would have been moving from the village into the HLZs located in the creek bed. Person 35 said that it was not safe to linger at the HLZ for an extended period of time so the movements of the patrols from the village to the HLZs in the creek bed would likely to have been conducted at about the time when the spotter was engaged, that is, a matter of minutes prior to the Turn 2 extraction. The Afghan witnesses said there were a large number of soldiers in the vicinity of the alleged assault ​and execution, a number far exceeding those who were actually members of the applicant's patrol. Person 56, who said he did not see or hear the engagement from his position in the hut in the creek bed, also said that there was another regiment member with him in the hut.
1316 The applicant also submits that it is improbable that the alleged assault and execution of Ali Jan was not observed by the aerial assets that were scanning the extraction zones for signs of a threat. The applicant submits that unlike the spotter concealed in the cornfield, the alleged cliff kick and dragging of Ali Jan were in the open and in full view of anyone who had a clear line of sight to that part of the village, including the overwatch team and the aerial assets. There is a high likelihood, so the submission goes, that if the alleged assault and execution had occurred, they would have been observed by either the aerial assets, the overwatch team or other soldiers on the ground.
1317 The respondents' answer to these submissions is that the fact that someone might have been in a position to observe the events does not mean that they were observing at the relevant time. The applicant has not sought to adduce any evidence from any member of the overwatch team that they were watching this area at the relevant time and that they did or did not see anything consistent with the case. Furthermore, the respondents submit that, as the applicant has properly conceded, the cliff kick occurred at a time when the SASR were moving to their extraction zones and it was to be expected that the attention of the soldiers was focussed elsewhere other than the very last compound of the village. The respondents submit that in the absence of any evidence that anyone was in fact looking towards the compound, the absence of that evidence means that the fact that it is possible that someone could have seen something really does not "shift the dial" in any way at all.
1318 With respect to the aerial assets, the respondents submit that it is unlikely that they were trained on or looking at the small cliff or steep slope near Mangul Rahmi's compound in circumstances where they had three different extraction sites to scan (Stream 8, Eudoros 1 and Bottle 3) and the scans they were required to make went out a significant distance from each extraction site. The respondents asked the Court to compare the likelihood or otherwise of the aerial assets being focussed on Mangul Rahmi's compound with the likelihood or otherwise that the aerial assets would have missed a spotter located in the cornfield next to a HLZ. There is no suggestion that that spotter took up a position in the cornfield shortly prior to the engagement.
1319 These points made by the applicant are matters that I must take into account.
​1320 At the same time, the point made by the respondents about the unlikelihood of a spotter remaining undetected in the cornfield for a number of hours is correct and is an important point.
1321 Fifthly, the applicant refers to what he described as the integrity of the documentary records.
1322 The applicant submits that enough persons outside of his patrol, including the members of the overwatch team, would have seen and/or heard sufficient of the relevant conduct alleged by the respondents for the patrol commanders at the meeting to know enough to immediately reject the applicant's account. The respondents submit that the difficulty with this submission is there is no evidence that any person did, in fact, see what had happened and even if they did, it does not follow at all that they would have been likely to say anything.
1323 The applicant's submission that there was a significant amount of ICOM traffic attempting to coordinate an attack against the Force Element is answered by the fact that there was no attack and that is inconceivable if there had been a Taliban spotter in the cornfield.
1324 The applicant submits that ICOM traffic, that is to say radio communications among insurgents reporting on the disposition of the Task Force, was recorded in the vicinity of Darwan during the mission and that this is consistent with the presence of spotters in and around the village that day. Aircrews reported observing a spotter with an ICOM radio during the transit back from Darwan to Tarin Kowt. The applicant submits that there is nothing remotely improbable about a spotter with an ICOM radio hiding in or close to the village that morning.
1325 The submission made by the respondents appears to me to be correct. If one looks at exhibit A10 Tab 33 at paras 14 and 17, it is not at all apparent that the ICOM traffic was detected in the vicinity of the cornfield. In fact, a particular place is identified as a source of the ICOM traffic.
1326 The applicant submits that Mullah Ghafur, a Taliban commander carrying a kalashnikov, had been killed by the applicant earlier in the morning and that the presence of the enemy in Darwan was clear and obvious. Person 4 referred to the general area as non-permissive, meaning that there is "quite a lot of enemy around there and a lot of spotting at work".
1327 Sixthly, the applicant submits that it is improbable that the applicant or Person 11 chose to keep a throwdown for later use.
1328 The applicant submits that it is implausible that either he or Person 11, when handing over the items recovered from EKIA3 to the troop sergeant for processing, opportunistically chose to ​retain one item of equipment on the chance that the applicant or someone in his patrol would need to conceal an unlawful execution of a civilian later in the mission. The applicant submits that this chain of reasoning, which the respondents urge the Court to accept, is inconsistent with the inherent probabilities of the situation. The objective was to capture or kill Objective Jungle Effect and he was the Joint Prioritised Effects List (JPEL).
1329 In the circumstances, a throwdown was not required. The applicant submits that just as members of society do not ordinarily engage in criminal conduct, members of the armed forces do not ordinarily deliberately kill innocent civilians and, therefore, do not require throwdowns to legitimise what are otherwise unlawful kills.
1330 The respondents submit that it is not implausible that an ICOM radio from the body across the river would be kept as a throwdown. It is consistent with the evidence given by Person 4 and the evidence given by the Afghan witnesses that Ali Jan did not have a radio. It is consistent with the OPSUM that, although there is a reference to two ICOM radios, only one was brought back. It is consistent with the evidence of Person 19 that he was instructed on the use of throwdowns in pre-deployment training. Furthermore, the fact that Hekmatullah was on the JPEL did not mean that it was unnecessary to have a throwdown if he had been captured and PUC'd and there was a wish to make any subsequent killing of him appear legitimate. The flaw in the applicant's submission is that it assumes the only possible cause for the use of a throwdown would be the discovery of Hekmatullah. The respondents submit that as the Ali Jan incident shows, it was possible that other people suspected of being Taliban insurgents, would have been discovered.
1331 In my opinion, the objective of the mission did not make it more improbable that the applicant or Person 11 would keep a throwdown for later use. That is established by one simple fact. On any view, there were four Afghan males killed during the mission and none of them was Objective Jungle Effect.
1332 Seventhly, the applicant submits that it is improbable that no-one else saw the applicant or Person 11 carry an ICOM radio as a throwdown.
1333 The applicant submits that ICOM radios are not inconspicuous because the antenna is protuberant. It is improbable that the ICOM radio would not have been observed by the troop sergeant when the other items were being handed over to him or another member of the troop as the applicant's patrol moved through the village and he met up with other patrols during the ​clearance phase. It is highly likely that if the applicant or another member of his patrol had carried an ICOM radio during the clearance of the village, some other member of the troop would have observed and commented upon this item of equipment. Person 7 said he saw the applicant and his patrol in the village after Person 7's patrol had finished clearing the compounds that were assigned to them and he said that the applicant was wet. Person 16 saw the applicant and saw that he was wet from the waist down. Person 35 also saw the applicant and his patrol after he had swum across the Helmand River. All of these witnesses observed that the applicant was wet or soaking wet from the waist down. Person 35 recalled that the applicant showed him the weapon that was recovered from the insurgent across the river. None of them said that they observed the applicant or Person 11 was carrying a Taliban issued ICOM radio as a throwdown. One might reasonably expect someone to have observed this had the applicant or Person 11 been carrying an ICOM radio.
1334 In addition, following the handing over of the equipment to the troop sergeant, it is improbable that no other member of the applicant's patrol, including Person 4, who was the 2IC, Person 56 or Person 47 noticed that the applicant or Person 11 had opportunistically retained an ICOM radio for the remainder of the mission and said nothing about it. Neither Person 4 nor Person 56 gave evidence that they saw the applicant or Person 11 carry a Taliban issued ICOM radio as a throwdown during the mission in Darwan. Again, one might reasonably expect (so the applicant argues) that Person 4 or Person 56 would have observed this had the applicant or Person 11 been carrying an ICOM radio.
1335 This is a matter to be taken into account, but so also are the following matters: (1) the evidence of the Afghan witnesses and Person 4 that Ali Jan did not have a radio; (2) the OPSUM referred to the recovery of two ICOM radios, but only one was returned to Tarin Kowt; and (3) the findings I have made in relation what was said during pre-deployment training.
1336 Eighthly, the applicant submits that the scanning capabilities of the aerial assets are not infallible.
1337 The applicant submits that the ability of aerial assets or an overwatch team to detect a spotter in the vicinity of an extraction point was not infallible, as is demonstrated by the fact that, according to the applicant, FE Alpha was attacked on extraction on four or five occasions during the deployment in 2012. Person 11 said that it was his experience that "we had been heavily engaged upon extraction" despite "best efforts to clear areas". The applicant said that on one occasion, the troop commander was shot and wounded during an extraction.
​1338 The applicant submits that anyone observing from the air would have had difficulty identifying a person wearing khaki green clothing among the vegetation. The applicant submits that it is improbable that the aerial assets or the overwatch team would have, on the one hand, detected a camouflaged spotter concealed in thick vegetation in the creek bed and, on the other, failed to observe a PUC being kicked off a cliff, dragged across an open creek bed and then executed. The problem with the submission made by the respondents to the effect that the overwatch team could have easily missed the alleged cliff kick, but would not have missed the spotter, is that the cliff kick took place in full view of their position. The spotter, by contrast, would have been attempting to conceal himself in the vegetation.
1339 The respondents accept that the scanning capabilities of the aerial assets are not infallible. They submit, however, that it is very unlikely that the technology used in both the Apache helicopters and the Heron drones, both of which were used in the scanning of the area surrounding the HLZs, would fail to detect a human presence. They submit that the scan is not merely a visual scan, but a highly capable technological set of scans. They submit that the improbability or implausibility of the scans missing something hiding in the cornfield arises because the scans were performed not once, but twice. The commandos were extracted shortly before the SASR and the scan was performed at the same HLZ in short succession. It is highly unlikely that even if the first scan might have missed someone, the second scan would also fail to detect someone hiding in the cornfield. The respondents submit that there is a difference between scans taking place over time over an area, including an area of the cornfield, and the cliff kick which is something that happens at a particular moment in time. The scan has to be focussed on the particular area at a particular point in time.
1340 This point is a responding point made by the applicant. Insofar as the respondents contend that an insurgent in a cornfield next to a HLZ would have been picked up by scans, the applicant submits that scans are not infallible. That is true, but there is a high probability, in my view, that if there had been a spotter in the cornfield next to the HLZ, he would have been picked up by the scans.
1341 Ninthly, the applicant submits that the alleged causes of the wounds on EKIA4 are speculative.
1342 The applicant submits that the Court is not in a position to make a finding based on the photographic imagery of EKIA4 about the likely cause or causes of the observable wounds to the person's face or to his body other than that he was shot. With respect to the wound to the face and the mouth, the wounds may be entry wounds caused by a bullet passing at an oblique ​angle to the face or they may be exit wounds caused by a bullet fragmenting after entering the body. Another alternative is that the person's mouth may have impacted on the ground as it fell in situ after being shot in the cornfield.
1343 With respect to the wound or wounds to the left arm, the level of trauma may depend on where the person's arms were when he was shot. The applicant expressed the opinion that the wound is totally possible. With respect to the partial absence of blood on the left wrist of the man, the partial absence of blood does not prove that he was wearing flexi cuffs. If he was wearing flexi cuffs, one would have expected to see an absence of blood around the entire area.
1344 The applicant submits that all reasonable hypotheses consistent with the non-existence of a fact do not need to be excluded before a fact can be found (Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 at [55]). Nevertheless, the probable cause of the wounds to the left arm and the partial absence of blood on the left wrist of the man can only be resolved by resort to conjecture.
1345 The respondents submit that they were not asking the Court to engage in any expert forensic exercise or draw any conclusion that would require some expertise. The respondents' submission is that the Court will evaluate the competing accounts of different witnesses by reference to what appears in the photographs. The submission is that the injuries shown in the photographs are more consistent with the respective accounts of the respondents' witnesses than they are with the respective accounts of the applicant and Person 11. The matters to which the respondents draw attention are the tight clustering of wounds around the man's heart, which the respondents submit is more consistent with the execution of a stationary target at close range; the strip of white skin and the absence of blood which the respondents submit is consistent with the hands having been bound; and the ragged wound on the arms of the man which are consistent with those wounds having been caused by the bullet exiting the man's body while his hands were tied behind his back.
1346 I have considered these matters carefully. The respondents have identified some features of the photographs. However, it would be dangerous to draw any firm conclusions from the photographs. There is nothing shown in the photographs which is inconsistent with the respondents' case.
1347 Tenthly, the applicant submits that EKIA4 was not dusty.
​1348 The applicant submits that the photographs show the deceased's man's face and clothing to be largely free of dust, sand and/or dirt and that the absence of a substantial amount of dust, sand and/or dirt corroborates the account of the applicant and of Person 11 that they encountered the man in the cornfield. The applicant submits that if the deceased man had been rolled down a cliff/dirt slope and dragged across a sandy creek bed as alleged, then it would be reasonable to expect that a substantial amount of dust, sand and/or dirt would have been collected on the man's clothing. He submits that if the man's face had struck a rock before he landed in the dry creek bed where he attempted to sit up and then fell down again, it would be reasonable to expect to see dust, sand and/or dirt from the creek bed mixed among the congealed blood on the person's mouth and face. Person 4 said that the man was quite dusty and each of the Afghan witnesses claim that Ali Jan had dirt/dust on his face.
1349 The respondents submit that the term "dusty" is capable of encompassing a wide spectrum of conditions from being caked in dirt or sand (and the respondents accept that the photographs do not show that) to someone who is clearly dirty and the respondents submit that that is shown in the photographs. Furthermore, Mohammed Hanifa said that Ali Jan was dragged across the creek bed on his back, so that there would be dust on his back. The photographs do not show his back. One other point is that there is a possibility that the condition of the body would have been different from the time the man was shot to the time that he was viewed by the Afghan witnesses because the body was in the vicinity of the helicopters which had taken off.
1350 In my opinion, there is too much imprecision about the term "dusty" and too many variables for conclusions to be drawn either way. This factor is effectively neutral.
1351 Eleventh, the applicant submits that if fighting age males had been found an hour before extraction, they would have been processed and moved to the PUC holding area.
1352 The applicant makes a number of submissions with respect to this topic. First, the applicant accepts that he may be wrong about the length of time that his patrol spent at the southernmost compound. He submits that that does not mean that his evidence was deliberately false. In his evidence-in-chief, the applicant said that his patrol "sat there for a while, actually. It would have been at least 10 minutes or more. And then, we got the call to extract". In cross-examination, the applicant was taken through the Sametime chat record and OPSUM insofar as they contain the timing of various events. He was asked whether he agreed that on any view, by 0945DE he would have finished clearing the southern compounds. He said that according to those documents, that would sound right and agreed when it was put to him that there was ​no reason to think that it is anything other than right. Such a conclusion would mean that he would have been waiting at the last compound for approximately an hour and 15 minutes before moving to the extraction zone.
1353 The applicant submits the fact that he and Person 11 did not recall being there for that long was a minor detail which is unsurprising. He submits that it does not make it more likely than not that they are lying about the events that occurred at that compound. In fact, he submits that if accepted, it makes it more likely that there was no fighting age males in the last compound.
1354 The applicant gave evidence that had he taken PUCs, he would have "back loaded them" back to the PUC holding area. He said that this was the troop practice and that Person 35 corroborated that in his evidence that the four persons PUC'd by his patrol were searched and handcuffed. They accompanied his patrol on their move from the compounds in which they had been found. They were taken to the place where Person 35's patrol met up with the rest of the troop. Person 32 confirmed that the PUCs he was involved with were dropped off. The applicant said that this practice was corroborated by Person 14 who said in the context of the mission to Chinartu, that he and Person 27 PUC'd various Afghan males and PUC "trained" them towards the "TQ/VRI" area.
1355 The applicant submits that had he encountered fighting age males in the southernmost compound of the village when there was more than an hour to go before extraction, there would have been no reason for him not to move them back to the PUC holding area as he said he would have done. In the context of this submission, the applicant accepts that it would have only taken a few minutes to walk from the southern end of the village back towards the PUC holding area.
1356 The applicant also relies on the fact that the practice was, in the case of persons being PUC'd, to photograph those persons and identify them by reference to the call sign of the member who had PUC'd them as well as by reference to the compound in which they were located. The applicant submits that if PUCs were taken in the last compound, it would be reasonable to expect that photographic evidence corroborating that fact exists. There is no such photographic evidence, "despite exhaustive production by the Department of Defence".
1357 This is a matter to take into account, although it is largely based on evidence of the applicant and Person 35 who are witnesses I do not accept.
1358 Finally, the applicant submits that the identification of Ali Jan was unreliable.
​1359 The applicant submits that the only evidence of the identification of the deceased man in the cornfield as Ali Jan is that given by the Afghan witnesses and that evidence should not be accepted for two reasons.
1360 First, the applicant submits that in-court identification evidence from a photograph is notoriously unreliable because it is usually performed in circumstances that strongly suggest the answer that is ultimately given. The applicant submits that that is what occurred in this case with the Afghan witnesses. He submits that in each case, the identification was made after the witness had just described the events surrounding Ali Jan's assault and execution. In those circumstances, the presentation of an image of a deceased Afghan male with bullet wounds lying in a cornfield strongly suggested the answers that were ultimately given. The applicant submits that although each of the witnesses claimed to know Ali Jan, which if accepted, would render their identification less prone to error, they had not seen him alive in nine years. A substantial portion of the deceased's man's face, mouth and right eye is obscured by blood. The applicant submits that even relatives can make mistakes of identification from photographs (Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 at [55] per Kirby J).
1361 The respondents' answers to these submissions are correct. The evidence of the Afghan witnesses that the body they saw in the cornfield was that of Ali Jan does not depend on the photographs. That is evidence that they gave as to their recollection of what they saw on the day. They went to the cornfield and they saw the body of Ali Jan. The submission made by the applicant confuses the two related concepts of recognition and identification (Trudgett v R [2008] NSWCCA 62; (2008) 70 NSWLR 696 at [23]–[31] and Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [68]–[69]). The Afghan witnesses knew Ali Jan from their lives in Darwan and they gave evidence that they recognise in the photographs the man that they know.
1362 As the respondents put it, the identification of the deceased person in the photographs does not "move the dial terribly much on this" because there is no dispute that the body in those photographs was in the cornfield. The real question is how he came to get there and in what circumstances did he die. The respondents submit that if the evidence of the Afghan witnesses and Persons 4 and 56 is otherwise accepted, then it follows that the deceased man was Ali Jan.
1363 I have taken the matters advanced by the applicant into account to the extent I have indicated.
​Conclusions including Key Findings of Fact
1364 Person 4 gave an eyewitness account of the man who had arrived with the donkey being held by Person 11 and being kicked off a large drop-off by the applicant. He described the injuries the man suffered. He described the subsequent movement of the man, the conversation between the applicant and Person 11 and the shooting of the man in the cornfield.
1365 Person 4 was an honest witness. I do not consider that any of his evidence was driven by ill-will or professional jealousy against the applicant. I accept his evidence, except in relation to those matters where I have found that his memory is faulty or he is mistaken.
1366 Person 56 said that there were local nationals of both sexes in the last compound. There were fighting age males. Person 56 recalled a conversation in the ready room after the mission when either Person 4 or Person 11 said that an individual had been kicked off a cliff and subsequently shot. Although a plainly reluctant witness, he was honest and I accept his evidence.
1367 Person 4's evidence is corroborated in material respects by the evidence of the Afghan witnesses, particularly Mohammed Hanifa. I have no doubt the Afghan witnesses were present in and around the compounds on 11 September 2012. There is no evidence of any communication between Person 4 and the Afghan witnesses or any suggestion that they had some form of common motive to fabricate a story to harm or injure the applicant. I accept the evidence of the Afghan witnesses.
1368 Based on the evidence I accept, I make the following findings:
    (1) The interpreter was not sent back before the southern set of compounds were cleared;
    (2) The applicant's patrol consisting of the applicant, Persons 4, 11, 56 and 47 and an interpreter cleared the last two compounds;
    (3) Shahzada Fatih was detained in his compound and later sent to the hut next to the HLZ;
    (4) The patrol found at least Ali Jan, Mohammed Hanifa and Mangul Rahmi in and around Mangul Rahmi's compound which is the southernmost compound;
    (5) Those three men were detained (handcuffed behind their back) and questioned by at least the applicant through an interpreter;
    (6) Individuals were asked whether they, or the people they were with, were Taliban and as to the whereabouts of Hekmatullah. Some physical force was applied to one or more of the three individuals. The precise details are unclear on the evidence and, in any ​event, the precise details are not essential to a conclusion upholding the respondents' case with respect to Darwan;
    (7) At a point in time, Person 56, the interpreter and Person 47 left the area in and about Mangul Rahmi's compound. Person 56 and the interpreter may have left at a different time than Person 47;
    (8) Shortly prior to the extraction from Darwan, Ali Jan, who was handcuffed at the time, was taken to a position near Mangul Rahmi's compound adjacent to a small cliff to the dry creek bed below or a steep slope to the dry creek bed below. He was held by the shoulder by Person 11 and facing the applicant. The applicant took some steps back and then moved forward and kicked Ali Jan off the small cliff or steep slope into the dry creek bed below;
    (9) Ali Jan injured his face and teeth in the course of his fall from the small cliff or steep slope;
    (10) At the applicant's direction or order, Persons 11 and 4 carried the injured and handcuffed Ali Jan from the position at which he had fallen to a cornfield on the opposite side of the dry creek bed;
    (11) Ali Jan was placed on the ground. The applicant and Person 11 conferred briefly. Person 11 shot Ali Jan who at that point was standing and still handcuffed. The applicant was only four or five metres away at that point. I infer that the applicant and Person 11 agreed that Ali Jan would be shot;
    (12) An SSE process was subsequently performed in relation to Ali Jan and, during that time, the handcuffs were removed and an ICOM radio was placed on Ali Jan's body by either the applicant or Person 11. That was done before photographs were taken;
    (13) The applicant falsely reported that Ali Jan was a spotter who had been engaged in the cornfield. The applicant continued to report falsely that Ali Jan was a spotter who had been engaged in the cornfield; and
    (14) After the troop debrief, the applicant advised Persons 4, 11 and 56 that the story was that they had engaged a spotter in the cornfield. In the absence of the applicant, but in the presence of Person 11, either Person 11 or Person 4 advised Person 56 that during the mission a man had been kicked off a cliff and subsequently shot.
1369 These findings and, in particular, those in paras (8)–(14) inclusive lead to the conclusion that the applicant murdered Ali Jan. They also lead to the conclusion that the applicant was party ​to an agreement with Person 11 to murder Ali Jan and Ali Jan was murdered in accordance with the agreement within ss 11.2A and 268.70 of the Criminal Code or that he aided, abetted, counselled or procured Person 11 in the murder of Ali Jan within ss 11.2 and 268.70 of the Criminal Code.
1370 The respondents have established that Imputations 1, 2 and 3 are substantially true based on the events in Darwan on 11 September 2012.