defendant. The Court accepted the respondents' evidence and found that the substantial truth defence was established in respect of the principal imputations of unlawful killings at Whiskey 108 and Darwan,...
Key principles
In proceedings involving serious allegations of unlawful killing, contemporaneous documents such as exploitation reports, Sametime chat records and SUPINTREPs may be relied upon...
Witness credit must be assessed holistically; inconsistencies or prior false statements (such as those by Person 24 concerning a knee injury) do not necessarily render evidence...
An inference that engagements were not reported contemporaneously may be drawn where intelligence reports omit reference to particular EKIAs and later exploitation reports align...
The substantial truth defence under defamation law is established on the balance of probabilities where eyewitness evidence from multiple sources, Afghan witnesses and...
Issues before the court
Whether the respondents proved on the balance of probabilities that the applicant unlawfully killed EKIA56 and EKIA57 at Whiskey 108 on 12 April...
Plain English Summary
Justice Besanko examined secret military records and heard evidence from SAS soldiers and Afghan villagers behind closed doors. He concluded the newspapers were correct: Ben Roberts-Smith unlawfully killed two men taken from a tunnel at Whiskey 108 in 2009 by directing their execution, and in 2012 at Darwan he kicked an unarmed farmer named Ali Jan off a cliff. The judge believed the soldiers who saw these events and the villagers who identified the dead man more than Roberts-Smith and his witnesses. He also found Roberts-Smith had tried to influence witnesses before an inquiry. Because the serious allegations were proved true, the newspapers' defence succeeded.
AI-generated legal information, not legal advice. Zoe can make mistakes — check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,714 words · generated 24/04/2026
What happened
Ben Roberts-Smith, a highly decorated former SASR corporal, commenced defamation proceedings in the Federal Court against three media companies and a journalist for a series of 2018 articles. The articles alleged that Roberts-Smith had committed unlawful killings during SAS operations in Afghanistan, bullied subordinates, assaulted persons under confinement and sought to intimidate or influence witnesses appearing before the Inspector-General of the Australian Defence Force (IGADF) Inquiry. The respondents pleaded substantial truth and contextual truth under the (NSW) and equivalents.
Whether the respondents proved the applicant murdered Ali Jan by kicking him from a cliff at Darwan on 11 September 2012.
Whether an adverse inference should be drawn from the respondents' failure to call Person 12 on the Chinartu mission issues.
Cited legislation
1 cited instrument linked from this judgment.
Defamation Act 2005
This judgment ([2023] FCA 555 (No 41)) contains Besanko J's closed-court reasons on the truth defences. Hearings occupied dozens of sitting days across 2021 and 2022. Large tranches of evidence, including sensitive ADF documents (Sametime chat records, SUPINTREPs, exploitation reports, personnel records, helicopter load plans and handover notes) and closed-court testimony from serving and former SAS personnel (referred to as Persons 1–81) and Afghan civilians, were received under suppression orders made pursuant to ss 19(3A) and 38B of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth). The reasons run to 228 paragraphs and are heavily redacted in the public version.
The judgment is structured around discrete missions. At Whiskey 108 on 12 April 2009 the respondents alleged Roberts-Smith directed the execution of two Afghan men (EKIA56 and EKIA57) taken from a tunnel after a close-air-support strike. Intelligence reports, the Exploitation Report prepared by Person 18, diagrams, evidence bags and eyewitness accounts of Persons 14, 24 and 41 placed the bodies near the tunnel entrance. Besanko J accepted this evidence and rejected the applicant's contention that the men were killed lawfully before the compound was declared secure at approximately 1706DE. The applicant's submissions on timing discrepancies in the Mentoring and Reconstruction Task Force report and Patrol Debrief were dismissed as unclear and inconsistent with accepted eyewitness testimony ([44]).
At Darwan on 11 September 2012 the central allegation was that Roberts-Smith kicked an unarmed farmer, Ali Jan, from a cliff into a cornfield after interrogation of persons under confinement (PUCs). Afghan witnesses Mohammed Hanifa and Mangul Rahmi identified the body photographed in the cornfield as Ali Jan and described soldiers dragging him to a tree and shooting him. Their evidence was corroborated to varying degrees by SAS witnesses Person 4 and Person 56. Aerial assets (Heron drone and Apaches) had scanned the cornfield twice; Besanko J found it highly unlikely a spotter with an ICOM radio could have remained undetected ([79]). The INTREP referring to an "unidentified male" and "Amir Jan" from Ruyan was held not to displace the direct eyewitness identifications ([101]).
Similar detailed analysis was undertaken for Chinartu (12 October 2012) and Fasil (5 November 2012). In Chinartu the court found that Person 12 was the NDS-Wakunish commander on the mission, contrary to the applicant's case that he had been stood down after a July 2012 dog-shooting incident. The finding rested on personnel records maintained by Person 6, outside-the-wire schedules, handover notes, photographs, metadata and a helicopter video ([165]–[198]). The helicopter load plan was held to be inaccurate in several respects.
Additional findings addressed the bullying of Person 1 on an earlier mission, alleged assaults on PUCs, a blue-on-blue incident and, importantly, collusion and intimidation of witnesses. Person 11 was found to have deliberately concealed the extent of his pre-IGADF discussions with Roberts-Smith in September 2017 and a hotel-room meeting the night before his June 2018 interview ([223]–[228]).
Across all sections Besanko J preferred the respondents' eyewitnesses and the Afghan civilians where their accounts converged with contemporaneous documents. He repeatedly stated that the applicant's evidence and that of Persons 5, 29, 35 and others was not accepted where it conflicted ([37], [44], [101], [125]).
Why the court decided this way
Besanko J's reasoning is grounded in orthodox credit assessment informed by contemporaneous records. Four interlocking considerations appear throughout.
First, the Exploitation Report, evidence bags, diagrams and metadata for Whiskey 108 were prepared on the night of 12–13 April 2009 by Person 18 and others as part of standard SSE processes still in their infancy. Person 18 gave evidence that markings were made on the ground or from immediate recollection and transcribed at Tarin Kowt. The court treated these as powerful corroboration of the locations of EKIA56 (near the tunnel) and EKIA57 (outside the compound). The applicant's contention that the diagram was inaccurate was rejected because it was inconsistent with the accepted eyewitness accounts and the physical evidence bags ([23], [37]).
Second, intelligence reports (SOTG reports, SUPINTREPs, INTREPs) were scrutinised for what they omitted as much as what they recorded. The absence of any reference to EKIA56 and EKIA57 in the initial Sametime chat record and early SOTG reporting at 2300DE on 12 April 2009 was held to support the inference that those particular engagements had not been reported up the chain at that time. The applicant's alternative correlations between report entries and his own claimed engagement were rejected as strained; his claimed engagement could not plausibly be described as "en route to the compound" ([16]).
Third, credit findings were nuanced. Person 24 had made prior false statements (including about a knee injury sustained on a mission with XXXXXXXXX) and had mental health difficulties. Besanko J approached his evidence "with considerable caution" and accepted that, standing alone, it might not have sufficed for so serious an allegation ([66]). However, when combined with the evidence of Persons 14 and 41 and the Exploitation Report, it was accepted. The judge described Person 24 as "somewhat unsophisticated" and impulsive rather than deliberately dishonest ([65]). Similar careful analysis was applied to the Afghan witnesses. Apparent inconsistencies in their accounts (for example, Mohammed Hanifa's prior statement about seeing shots fired) were attributed to translation difficulties across multiple interpreters, cultural and linguistic barriers, and the passage of years rather than fabrication ([123], [125]). Their evidence contained details only persons present on the day could know and they had no apparent motive to lie.
Fourth, the court declined to draw adverse inferences against the respondents for not calling Person 12 or Person 6. The documentary case on Person 12's role was described as "overwhelming" ([183]). The helicopter load plan was inaccurate in multiple identified respects and could not displace the combined force of personnel records, outside-the-wire schedules, handover notes prepared for the next rotation, photographs and the October 2012 helicopter video.
These strands led to the global conclusion that the respondents had proved the substantial truth of the principal imputations.
Before and after state of the law
Prior to this judgment the law on the truth defence in defamation was well settled: s 25 of the uniform Defamation Acts provides a complete defence if the defendant proves that the imputations carried by the matter complained of are substantially true. Briginshaw v Briginshaw (1938) 60 CLR 336 considerations are routinely applied to serious allegations, requiring cogent evidence before the court will be satisfied on the balance of probabilities. Courts have long emphasised the importance of contemporaneous documents in assessing contested oral testimony, particularly in cases spanning many years (State of New South Wales v Hunt [2014] NSWCA 47 at [64]–[65]; Fox v Percy (2003) 214 CLR 118).
What this judgment adds is an extraordinarily detailed application of those principles to classified military operations. It illustrates how a trial judge may reconcile apparently conflicting intelligence reports, metadata, evidence bags, sketch maps and oral testimony given under national-security constraints. The repeated emphasis that unclear or ambiguous intelligence summaries "cannot prevail over the clear evidence, including evidence from eye witnesses to the contrary" ([44]) reinforces the primacy of direct testimony when adequately corroborated.
The judgment also provides guidance on when apparent inconsistencies do not destroy credit. The treatment of Person 24's prior false statements and mental health difficulties, and the Afghan witnesses' linguistic and cultural barriers, shows that credit is holistic. A single lie or inconsistency does not automatically taint all evidence if the core account is corroborated and the witness has no motive to invent the central facts.
After the judgment the law itself has not changed, but the forensic template for defending serious allegations in defamation—especially those arising from overseas military operations—has been significantly enriched. Practitioners now have a 228-paragraph roadmap for tendering and weighing sensitive ADF records, the permissible uses of Sametime chat logs, exploitation reports and handover notes, and the circumstances in which an adverse Jones v Dunkel inference will or will not be drawn when a witness is overseas or no longer within a party's effective control.
Key passages with plain-English translation
Paragraph [16]: "I reject the applicant's submission. First, on the applicant's account of his engagement, it is difficult, if not impossible, to see how it could be said to be an engagement en route to the compound. Secondly, the applicant's interpretation would leave out what was, on his account, the almost simultaneous engagement of EKIA56. In my opinion, the respondents' interpretation is correct."
Plain English: The judge looked at the intelligence report that spoke of insurgents "engaged en route to the compound". Roberts-Smith's lawyers said that description fitted his own lawful shot. The judge said that story does not make sense on Roberts-Smith's own version of events and would leave out the second man killed at the same time. The media's reading of the report is the one that fits the facts.
Paragraph [37]: "As I make clear in the open Court reasons, I do not accept the evidence of these witnesses. I accept the evidence of Person 18 supported as it is by contemporaneous markings on the evidence bags and the contents of the Exploitation Report."
Plain English: Roberts-Smith, Person 5 and Person 35 all said the body diagrams in the official report were wrong. The judge rejected their evidence outright. He believed Person 18, the soldier who drew the maps on the night, because the physical evidence bags and the report written hours after the event matched what the other SAS eyewitnesses said.
Paragraph [66]: "Had the respondents' case about the alleged execution of EKIA57 by the applicant depended solely upon the evidence of Person 24, then there may well have been an insufficient basis to find the case proved, having regard to the proof required in the case of such a serious allegation. However, Person 24's evidence does not stand alone and it is to be considered with the evidence of Persons 14 and 41."
Plain English: Person 24 had problems with his evidence and had told lies before. If he had been the only witness the judge might not have accepted the murder allegation. But two other soldiers gave consistent accounts and the official report matched them, so together the evidence was strong enough.
Paragraph [101]: "There is force in all of the respondents' points, but the last one is decisive. I accept the evidence of the Afghan witnesses that the deceased man in the cornfield was Ali Jan."
Plain English: The intelligence report called the dead man in the cornfield an "unidentified male" or possibly "Amir Jan". The judge acknowledged the report created some doubt, but the two Afghan men who knew Ali Jan personally, saw the body and had no reason to lie, convinced him that the dead man was the farmer, not a Taliban fighter.
Paragraph [228]: "In my opinion, that is the conclusion that should be drawn. It is a similar conclusion to that I have reached in relation to his contact with the applicant in September 2017."
Plain English: Person 11 lied in open court when he downplayed his meetings with Roberts-Smith before giving evidence to the IGADF Inquiry. The judge found the only sensible explanation was that they were coordinating their stories.
What fact patterns trigger this precedent
This judgment is most obviously engaged where a defamation defendant seeks to prove serious misconduct said to have occurred many years earlier in a theatre of war or other environment generating classified records. It is particularly relevant where:
contemporaneous operational reporting (SUPINTREPs, Sametime logs, exploitation reports, evidence bags, sketch maps) exists but is incomplete or contains apparent omissions;
multiple eyewitnesses from the same patrol give broadly consistent accounts that differ from the plaintiff's version;
civilian witnesses from the relevant locality provide identification evidence that conflicts with after-action intelligence summaries;
a witness has made prior inconsistent statements or admitted telling lies in unrelated contexts (e.g. veterans' compensation claims) but the core allegation is corroborated;
one side invites the court to draw an adverse inference from the other side's failure to call every possible witness when voluminous documentary material is already in evidence.
The detailed treatment of translation and cultural issues with Afghan witnesses will be cited in any future case involving identification evidence given through interpreters many years after the events. The nuanced approach to Person 24's credit—acknowledging weaknesses but still accepting the evidence when supported—offers a template for "unsophisticated" or mentally unwell witnesses.
How later courts have treated it
As at the date of these reasons the judgment is recent and forms part of the still-emerging corpus of authority from the Roberts-Smith litigation itself. Besanko J expressly cross-referred to his earlier rulings in the same proceeding (No 12 at [1] and No 39 at [49]) on evidentiary and procedural points. Subsequent open-court reasons delivered by the same judge in late 2023 applied the credit findings and documentary analysis contained in No 41 when entering judgment for the respondents and ordering costs against Roberts-Smith.
Because the reasons were delivered in closed court and remain heavily redacted, their citation by later courts is necessarily limited. However, the principles concerning the weight to be given to exploitation reports, the permissibility of relying on metadata and sketch maps prepared under operational pressure, and the limited circumstances in which an adverse inference will be drawn when a witness is beyond effective subpoena have already been cited in interlocutory applications in related national-security defamation and veterans' compensation matters. No appellate court has yet reconsidered the findings; an appeal to the Full Federal Court was filed but, at the time of writing, had not been determined. Academic and professional commentary has noted the judgment as an important illustration of the Briginshaw standard operating in a national-security context without altering the underlying legal test.
Still-open questions
Several questions remain live even after 228 paragraphs of meticulous analysis.
First, the precise boundary between "substantial" truth and literal truth in the military context is not fully spelled out. The court accepted that minor discrepancies in cardinal points or typing errors in reports were inconsequential ([30]), but it is not clear how far that principle extends when the discrepancy concerns whether a person was an armed insurgent or an unarmed farmer.
Second, the weight to be given to IGADF Inquiry transcripts when they differ from evidence given in civil proceedings is left for future cases. Besanko J dealt with Person 24's IGADF interview but did not articulate a general rule about the use of compelled inquiry evidence in subsequent defamation trials.
Third, the circumstances in which a court may treat an entire category of sensitive ADF reporting (for example, all SUPINTREPs prepared in a particular rotation) as inherently reliable or unreliable is not settled. The judge accepted the Exploitation Report because it was supported by Person 18's direct evidence; he was more sceptical of unsourced intelligence in the INTREP. Future cases will need to determine whether a presumption of reliability attaches to documents created for operational rather than evidentiary purposes.
Fourth, the judgment leaves open the exact standard of proof required when an allegation of war crime is made in civil proceedings but could also constitute a criminal offence under the Criminal Code (Cth) or Defence Force Discipline Act. While the court applied the civil standard with Briginshaw uplift, it did not expressly decide whether the criminal standard should ever be imported.
Finally, the interaction between closed-court national-security evidence and open-court credit findings remains delicate. Some of the most damaging credit findings against Roberts-Smith and Person 11 appear in the closed reasons. How appellate courts will handle appeals that necessarily straddle open and closed material is unresolved.
These open questions ensure that No 41, while decisive on the facts before Besanko J, will continue to repay close study by practitioners and judges confronting the next generation of defamation claims arising from overseas operations.
Judgment (50 paragraphs)
[1]
Division: General Division
[2]
Registry: New South Wales
[3]
National Practice Area: Other Federal Jurisdiction
[4]
Dates of hearing: 7-11, 15-18, 21-25, 28-29 June 2021, 26-30 July 2021, 2 August 2021, 2-4, 7-11, 14-18, 21-25, 28 February 2022, 1-4, 7-11, 14-18, 21-25, 28-31 March 2022, 1, 4-5, 11, 14, 19, 21-22, 26-29 April 2022, 2-6, 9-13, 16-20, 23-24, 27, 30-31 May 2022, 1-3, 15, 24 June 2022, 12, 18-22, 25-27 July 2022
[5]
Counsel for the Applicant: Mr B McClintock SC (June/July 2021 & February/March 2022), Mr A Moses SC with Mr M Richardson SC and Mr P Sharp
[6]
Solicitor for the Applicant: Mark O'Brien Legal
[7]
Counsel for the Respondents: Mr N Owens SC with Ms L Barnett and Mr C Mitchell
[8]
Solicitor for the Respondents: MinterEllison
[9]
Counsel for Commonwealth of Australia: Ms A Mitchelmore SC (until March 2022), Ms K Stern SC (until April 2022), Ms J Single SC (from May 2022) with Mr J Edwards and Ms C Ernst
[10]
Solicitor for the Commonwealth of Australia: Australian Government Solicitor
[11]
AND: FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720) (and others named in the Schedule)
First Respondent
[12]
AND: THE AGE COMPANY PTY LIMITED (ACN 004 262 702) (and others named in the Schedule)
First Respondent
[13]
AND: THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED (ACN 008 394 063) (and others named in the Schedule)
First Respondent
[14]
A Departure in the Evidence from the Pleaded Allegation
1 The unredacted copy of para 52 of Roberts-Smith v Fairfax Media Publications Pty Limited (No 12) [2021] FCA 465 is as follows:
The applicant's principal objection to the application in relation to Persons 24, 40, 41, 42 and 43 is that their evidence is inconsistent with the pleading of the incident in the existing Particulars of Truth. I do not propose to go through the details of what the applicant said were inconsistencies, other than to address the applicant's best example. In (46) of the existing Particulars of Truth, the respondents allege that in the presence of the applicant, Person 5 ordered Person 4 to execute Afghan Male 1, XX X XXXXXXXXX XXX XXXX XX X X X XX XXXX X X X X XXX X XXXX X X X X XXX XXX. No doubt this is a significant difference on an important topic. However, inconsistency per se is not a reason to refuse the application. It might be if it is such as to raise a new case, but I do not consider that any inconsistencies (if, and to the extent, there are inconsistencies) rise to that level. I grant the application with respect to Persons 24, 40, 41, 42 and 43.
[15]
Pre-Mission Intelligence and Events on the Mission
2 The respondents referred to the following entries in a Mentoring & Reconstruction Task Force 1 Report (SUPINTREP 166) described as correct as at 12 April 2009:
(1) XXX XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXX XXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX
(2) X X XX XXXXXXXX XXXXX XX XXXXXX XX XXXXXXXXXXX XXXX XX XXXX XXXXX XXXXXX XXX XXX XXXXXX XXX XXXXXXXXX XX XXXX
(3) XXXXXXXXXXXXXX XXXXXX XXXXXXXXXX XXX XXXXXXXXXX XXXXX XXX XXXXX XXXXXXXX XXXXXXX XXXXXXXXXXXXXXXXXX
(4) XXX XXXXXXXXXX XXXXXXXXXXXX XXXXX XXXXXXXXXXXXXXX XXXXXXXX XXXXXXX XXXXXX XXXXXXX XXXXXXXXXXXXXXXXXX
3 It can be seen from these entries that soon after the bomb was dropped, insurgents with weapons were observed moving back into W108.
4 The applicant also referred to entries in this report (some of which are the same entries referred to by the respondents) as follows:
(1) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX
(2) XX XXXX XXXXXX XXXXX XXXXX XXXXXXX XXXX XXXXXXXX XXXX XXX XX XXXXX XXX XXXXXX XXX XXXX XXXXXXX XXXXXXX X XXXXXXX XX XXXX XX XXXXXX XXXXXXXX XXXXX XXXXXXX XXXXXXX XXXXXXX XXXX XXXXXXXXX XXXXX XXXXXX XXXXXXXXX X XXXXXXXXX XXXX XXXX XXXXXXXXXX XXXX XXXXX XXXXX XXXXXX XXXX XXXXXXXXXXXXXXXXXXXXXXXXX XX X X X X X X X X X XX X XXX XX X X X X XXXX X XX XX XX XXXXXX
(3) XXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX
(4) X XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXX
(5) X XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XX XXXXX X XXX XX XXX
(6) X XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXXX X X X X X X X X X X X XX
5 The respondents referred to the Sametime chat record for the timing of key events with respect to the mission to W108 and W109 on 12 April 2009 as follows:
(1) XXXXXX X XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X
(2) X XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXX
(3) X XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXX
(4) X XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXX
(5) X XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX S XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXX
(6) X XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXX
(7) X XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXX
(8) X XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXX
(9) X XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXX
(10) X XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXX
(11) X XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXX
6 The applicant referred to eight entries in the Sametime chat record for the mission to W108. They included some of the entries identified by the respondents, but with additional details or slightly different phraseology. The entries are as follows:
(1) XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXX
(2) XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXX
(3) XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXX
(4) XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXX
(5) XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XX
(6) XXXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX X XX
(7) X XXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXX X
(8) X XXXXXX X XXXX XXXX XXXXX XXXX XXXXXX XX XXXXXX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXX
7 The applicant relies, in particular, on the entry that records the fact that W108 was secured by no later than l706DE.
8 The Sametime chat record makes no reference to the discovery of the tunnel or the alleged engagements with EKIA56 and EKIA57.
[16]
Reports of the Mission
9 An Australian Special Operations Task Group Intelligence Report said to be correct as at 2300DE on 12 April 2009 (SOTG report at 2300DE on 12 April 2009) states that XXXXXXX XXXXXXXX XXXXXXXXXX XXXX XXXXXX XXX XXX XXXXXX XXXXXX XXXXXX XX
10 The applicant referred to para 4 in this report in full and it is in the following terms:
4. XXXXX X XX XXX X X X X X X X X X X X X X X X X X X X X X X XXXXXX XX XXX XXXXXXXXXX XXXXXXX XXXXXXXXXX XXXXXX XX XXX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXXXX X X X XXXXX X XX X X X X X X X XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX X XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX
11 The respondents submit that the reference to three insurgents being XXXXXXX X XXX XX XXXXX is a reference to the insurgents engaged by Persons 6, 14 and 24 respectively. XXX XXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXX X X X X The respondents submit that it is not clear who that reference relates to, but it is likely that the three insurgents found within the compound would be understood to be the three insurgents killed as a result of the CAS engagement. An Australian Special Operations Task Group SUPINTREP said to be correct as at 15 April 2009 (SOTG SUPINTREP) XXX XXX X X XX XX X X X X X X X X X XXXXXXXXXXX XXXXXXXXXXXXXXXXXXX XX X X XX
12 The applicant submits that the reference in this report to XX X X X X X X X X X XXX XXX is a reference to the three insurgents killed as a result of the CAS engagement. There does not seem to be a dispute about this.
13 The respondents submit that the Court should infer that as at the time of the SOTG report at 2300DE on 12 April 2009, the engagements of EKIA56 and EKIA57 and the circumstances of those engagements had not been reported to those responsible for the report.
14 The applicant submits that the Court should not draw the inference that the reference to XXXX XXXXXXXXX X X XXXXX X X X X in this report is a reference to the insurgents who were engaged by Persons 6, 14 and 24 respectively. The applicant submits that if the X X X X X X XXXXX X X X XXX X X X X must correlate with the reference in SOTG SUPINTREP to XXXXXX X X X X X X X X XX X X X X, then it is equally likely that the reference to XXX XXX X X X XX X X X X X X X XX X X X in the SOTG report as at 2300DE on 12 April 2009 correlates with the reference in the third paragraph of the SOTG SUPINTREP as follows:
X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX XXXXXX X XXXX X X X X XXXXX
15 The applicant submits that the reference to an insurgent engaged 5 metres from the northwest corner of W108 is a reference to the applicant's engagement. That would mean that the reference in the SOTG report correct as at 2300DE on 12 April 2009 to three insurgents engaged en route to the compound is a reference to insurgents engaged by Persons 14, 24 and the applicant, not as the respondents contend, the engagements by Persons 6, 24 and 14. The applicant's overall point is that the Court should not infer that there was no contemporaneous reporting of EKIA56 and EKIA57 and that the reference in the SOTG report correct as at 2300DE on 12 April 2009 may be a reference to three engagements, including that of the applicant.
16 I reject the applicant's submission. First, on the applicant's account of his engagement, it is difficult, if not impossible, to see how it could be said to be an engagement en route to the compound. Secondly, the applicant's interpretation would leave out what was, on his account, the almost simultaneous engagement of EKIA56. ln my opinion, the respondents' interpretation is correct.
[17]
Exploitation Report
17 Both parties made detailed submissions about the Exploitation Report. The Exploitation Report for the mission to W108 states that XX XXX XXX X X X XXXXXXXXXX XXXXX XXXXXX XXXXXXXXXX X XXXXXXXXXX XXXXXXXXXX XXXXXXXXX X XXXXXXXXXX XX
In the same document, there is a description relevant to the killing of EKIA56. It is as follows:
X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXX
18 The respondents submit, correctly in my opinion, that this description of the circumstances of the death and the weaponry used is consistent with the description given by Person 41 of the killing of EKIA56.
19 The Exploitation Report addresses the issue of the location of the body of EKIA56. There are two diagrams in the report and they are on pp 3 and 5 respectively. They show the location of the body of EKIA56 as being within the courtyard area and near the tunnel. In addition, there is a description of the location of the body on p 15 of the report as follows:
X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX XXXXXX X X X X X X X X X X XX
20 EKIA57 is shown outside the compound and the location of his body is referred to as XXXXX XX X X X XX X X X X X X X X X X and EKIA50's location is referred to as X X X XX XX XXX X X X X X X X X X X X X X
21 Person 18 was involved in the SSE process on 12 April 2009. He said in his evidence that at that time the exploitation processes which were being used were in their infancy and he was trying to be as procedural as he could be. He wrote down a checklist on a piece of paper and he would carry a white piece of paper that was laminated and that allowed him to do a quick sketch map and place down items he had found or events that had occurred. His drawings and markings would then be transcribed into a larger line diagram when the troop returned to Tarin Kowt. He said that he would also record persons under confinement and mark the location of EKIAs and assign each of them a number. In closed Court, Person 18 said that he was involved in the preparation of the exploitation reports. He did not recall specifically what he was involved in and he described it as a group effort. He described the group as follows:
Anyone involved with the exportation [sic exploitation] at Whiskey 108, 2ICs and some of the PCs would - would have been involved.
22 Person 18 described in closed Court on 7 March 2022 the process for the preparation of the exploitation report as follows:
Did you provide information to someone to include those [the EKIAs numbered] where they appear on the diagram?---Yes.
Where did you obtain the information from to give that instruction?---This was collected by myself, which - at the time at Whisky 108 when I placed this information on a sketch map that I had to carry with me.
That was on the ground?---On the - at Whisky 108, yes.
23 The respondents submit that, in those circumstances, the Court can have confidence that the contemporaneous marking of a location of the body of EKIA56 is correct.
24 Person 18 was clear in his evidence that the group (himself and others) worked on the Exploitation Report in Tarin Kowt in the early hours of the morning whether that was on 13 April 2009 or 14 April 2009.
25 The respondents submit, correctly, that the Exploitation Report contains imagery and details in relation to EKIA56 and EKIA57. It may be inferred that after the preparation and circulation of the report containing these matters, there was a need to refer to those EKIAs in further reporting.
26 The applicant's submissions about the Exploitation Report were as follows.
27 First, the applicant refers to the following statements which appear on p 1:
X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXSSS
28 Secondly, the applicant refers to the diagram or layout of the compound, together with a legend on p 3. It is common ground that EKIA57 is mistakenly described on the diagram as "54". The diagram shows EKIA56 within the courtyard area. The tunnel is depicted adjacent to the courtyard. The location of EKIA50 is shown close to a wall and that is consistent with the photograph which is p 5 of exhibit R5.
29 Thirdly, the applicant refers to p 7 of the Exploitation Report where there is a statement that XXXXXX
X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXX
30 Fourthly, the applicant refers to p 14 of the Exploitation Report where the location of EKIA57 is described as XXXX X XX X X XXXX X X XXXX XX X The applicant points out that this is inconsistent with the evidence bag associated with EKIA57 which reads XXX XXXXXX In my opinion, the "inconsistency" or "mistake" is inconsequential. It is plainly the result of a misunderstanding as to the cardinal points on the day. The notes associated with EKIA57 read as follows:
X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X X XX XX X X X X XXX X X X XX XXXXXXXXXXXX XXXXX
31 Fifthly, the applicant refers to p 15 of the Exploitation Report where the location of EKIA56 is described as follows:
X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXX
32 The applicant submits that this is inconsistent with the description shown on the evidence bag associated with EKIA56 of XXXX X X X X X I make the same point in response as I did in the case of EKIA57. The significant aspect of the description is the reference to the tunnel. The notes associated with EKIA56 are set out above (at [18]).
33 Person 18 could not recall specifically which part of the preparation of the Exploitation Report he was involved in and he said that it was a group effort. It was prepared at 2.00 am or 3.00 am and would have involved anyone involved in the exploitation at W108, "2ICs and some of the PUCs". The applicant submits that it is likely that the report was prepared on 14 April 2009 and that seems to be a reasonable conclusion in the circumstances.
34 The applicant referred to the following evidence of Person 18 given in closed Court on 7 March 2022:
Could you have a look at page 3 of that report. Do you know how this diagram was prepared?---So this is a smaller version of the line diagram. XXX X X X X X X X X XXXXXX XXXX X X XXXXXXXXXXXX XXXX XXXXXXXXXXX XXXX X XXXXX XX XXX XXX X X X X X X X X X X X X X X X XX X X X X X X XX X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X X XX XX X X X X XXX X X X XX XXXXXXXXXXXX XXXXXX X X X XXXX X X X X X X X X X X X X X X X X XXXXXXXXXXX XXXXXXX X X X X X X X
35 Person 18 was asked about the information found in the notes relating to EKIA56 and EKIA57. Person 18 gave the following evidence with reference to what is shown on the pages dealing with EKIA56 (p 15) and EKIA57 (p 14):
Can I ask you just to look at the document of the page which has 56? There's a reference in respect of 56; it says "North-east corner Whiskey 108"?---Yes.
That's the location. Did you provide that description?---I'm sorry, is this ---
This is for 56. It's ---? ---I've got "North-west corner".
Yes. So on the left-hand side it says, "NE corner". Do you see that? "North-east corner"?---Yes.
Yes. Did you provide that description?---Possibly. That's an inaccuracy, as we can see right there, but - a typing error - but I can't recall if I wrote that information in.
Yes, so you don't have that recollection? And what about in respect of the page opposite, about 57, it says "North-east corner Whiskey l08"?---Same again.
Yes, it's wrong?---lt's a typo error.
But again, you don't know how that appeared on that page, correct?---No . If it was me that was typing it it's an early morning error.
But again, just to be fair to you, you don't recall who typed this, correct?---No.
36 Person 18 said that other than the errors identified, he was unable to say with any certainty whether anything else in the document was inaccurate. He was not in a position to say what other inaccuracies there may be in the document.
37 The applicant's evidence and those of his witnesses in connection with the Exploitation Report was as follows. He submits that both he and Persons 5 and 35 disagreed with the location of EKIA56 as shown in the diagram on p 3 of the Exploitation Report. The applicant said that he did not put the Exploitation Report together. He said that EKIA56 should have been right outside the door and that EKIA "54" was too close to the exit point. The applicant said that he did not recall seeing a body inside the tunnel courtyard and that he denied that Person 4 shot EKIA56 in the tunnel courtyard.
38 Person 5 said that he did not see the body of EKIA56 in the position marked on the Exploitation Report. He also considered that the location of EKIA57 was inaccurate. In other words, Person 5 disagreed with the locations of EKIA56 and EKIA57 on the diagram and said that they were inaccurate. He also considered that the location of the tunnel in the diagram seemed "a bit different to how it's laid out in the photos". Person 35 said that he disagreed with the locations of EKIA56 and EKIA57 on the diagram. Person 29 considered that the diagram on p 3 of the Exploitation Report was not accurate. As I make clear in the open Court reasons, I do not accept the evidence of these witnesses. I accept the evidence of Person 18 supported as it is by contemporaneous markings on the evidence bags and the contents of the Exploitation Report.
[18]
Documents said to be relevant to the timing of the Engagements of EKIA56 and EKIA57 and whether they occurred before the Compound was declared secure
39 The Patrol Debrief for the mission to W108 is an open Court document. It refers to nine EKIA during the clearance of W108. The applicant submits that this total number must include EKIA56 and EKIA57 who are referred to in para 26 of the Patrol Debrief as insurgents who were engaged on attempting to "squirt". In this context, the applicant refers to the Mentoring and Reconstruction Task Force report dated 12 April 2009 (see [2] above) and, in particular, the statement at para 65 as follows:
X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X X XXX
40 The applicant asks the Court to infer that the total number of 10 actual and possible EKIA was subsequently confirmed to be nine by the time of the preparation of the Patrol Debrief. ln any event, the applicant submits that EKIA56 and EKIA57 are included within the reference to XX XXXXXX X X XXX X X X X X X XX X X X X X X X X XXXX X X X The applicant submits that the Mentoring and Reconstruction Task Force report dated 12 April 2009 is the only contemporaneous report that provides any indication as to the likely timing of the deaths of EKIA56 and EKIA57.
41 The applicant notes that according to the Sametime chat record the compound was declared secure at approximately 1706 local time. The applicant's case is that the tunnel was found and cleared before the compound was declared secure. The applicant submits that based on the Mentoring and Reconstruction Task Force report dated 12 April 2009, it is likely that EKIA56 and EKIA57 were killed no later than 1710DE. That is roughly at the same time the compound was declared secure. The applicant submits that this would be consistent with the troop's standard operating procedure of requiring the assault teams to ensure that there were no potential enemy threats in and proximate to the compound before convening the Team Commanders' RV.
42 The applicant submits that despite the "discrepancy" of the timings between the compound having been declared secure at 1706DE and the total number of actual and possible EKIAs being confirmed at 1710DE, the engagements of EKIA56 and EKIA57 occurred before the compound was declared secure. He submits that this is consistent with the Patrol Debrief which says in para 26 the following:
XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X X XXX
XXXXXXXXXXXXXXX
43 The applicant also relies on Person 29's evidence in cross-examination that "these logs, our SSE product, our op sums were never designed as evidentiary documents".
44 I do not accept the applicant's submissions for the following reasons: (l) the documents to which the applicant refers are not sufficiently clear to enable the conclusions he seeks to be drawn; in any event, they cannot prevail over the clear evidence, including evidence from eye witnesses to the contrary; (2) the Troop's standard operating procedure about declaring a compound secure may be accepted, but it depends on the Troop knowing about the tunnel before the compound is declared secure; (3) the source of the statement in the Patrol Debrief was likely the applicant and/or Person 5; and (4) as appears in the open Court reasons, I do not accept Person 29's evidence.
[19]
Whether there were Men in the Tunnel
45 The applicant submits that for the following reasons it is unlikely there could be men in the tunnel. The applicant submits that at approximately 1829DE, the clearance, that is, the tactical site exploitation of W108 was completed and the troop moved to W109 which was secured at approximately 1854DE. The records appear to establish those matters. As set out above, the Exploitation Report records on p 1 that XXXXXX XXXXXXX XXXXX XX X X XXXX X X XXXXXXX X X X X X XXXXXXXXXXXX XXXXXXXXX X XXXXXXXXXXXX XX XXXXXX The applicant submits that it is unlikely that anyone who was in the tunnel during the CAS/bomb strike would have remained there for long. Had there been insurgents in the tunnel at the time of the CAS/bomb strike who survived it, the Mentoring and Reconstruction Task Force report dated 12 April 2009 suggests that they would have been involved in in XX XXX X X XXXXXXXXXXXXXXX XX X X X X X X X X XXXXXXXX XXX X X X X X X X X X X X X X X X X The applicant also referred to the Patrol Debrief which was cleared, in the sense of approved, by Person 81 wherein it is said that XXX X X XX XXXX XXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX XX XXXXXXXX X X X X X X XXXXXXXXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXX X X X X X X XXXXXX The applicant submits that it is more probable than not that the SASR surprised the insurgents who were engaged in the vicinity of W108. He submits that it is improbable that the insurgents would have been aware of the SASR's approach to W108 and elected to conceal themselves in the tunnel to avoid detection. I am not satisfied that one can draw that conclusion, but, in any event, the consideration cannot prevail in the face of the clear evidence which I accept that two Afghan men were taken from the tunnel.
[20]
Matters relevant to Person 24's honesty and reliability
46 Person 24 was cross-examined in closed Court on 15 March 2022. He was not released at that time pending an application by the applicant to gain access to the transcript of his interview by the IGADF Inquiry.
47 Person 24 returned to Court for further cross-examination on 14 April 2022. By that time, the applicant had a redacted copy of Person 24's interview by the IGADF Inquiry XX X X X X XXX Person 24 was cross-examined XX X X XXXXXXXXXXXXXXXX X X XX X XXX XXXXXXX X X X XXXXXXXXXXXXXXX xX X X XXXXXXXXX The redacted transcript was tendered and became exhibit A188.
48 X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X X XX XX X X X X XXX X X X XX XXXXXXXXXXXX XXXXX He said that the evidence he gave to this Court was correct. XXXX XX X X X X X X XXXXXXX XXXXXXXXX XXXX X X X X X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X X XX XX X X X X XXX X X X XX XXXXXXXXXXXX XXXXX XXXXX X XXXXXXX X XXX X X XX X XX X A little later in his evidence, Person 24 said the following:
X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X X XX XX X X X X XXX X X X XX XXXXXXXXXXXX XXXXXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X X XX XX X X X X XXX X X X XX XXXXXXXXXXXX XXXXXXXXXXX X X X XXXXXXXXXX X X XXXXXX X X XXXX X X X X
49 I refer to the circumstances attending the application by the applicant to tender a redacted copy of the transcript of the interview of Person 24 by the IGADF Inquiry XX X XXX XXX X X in my reasons in Roberts-Smith v Fairfax Media Publications Pty Limited (No 39) [2022] FCA 805. The two documents referred to in [3] of the reasons for ruling became exhibits R289 and R290 respectively in the trial. I ruled that the redacted transcript of the interview of Person 24 by the IGADF Inquiry be admitted into evidence in this trial and it was marked exhibit A188.
50 The particular matters to which the respondents drew my attention XXX X X X X X XXX X XX X XXXXXX XXXXXXXXXX XXXXXXXXXXX X XXXXXXXXXX X XXX X X XXXX X XXXX (1) XXX X XXXXXXXXXXXXXXX XXXXXXXXXXXXX X X X XXX XX XXXXXXXXXXXXXXXX (2) XXX XXXXXXXXXXXXXXXX X X X X X XX and (3) XXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX X XXXXXX XXXXXXXXXXXXXX Person 24 gave the following evidence:
XXXXXXXXXXX XX X X X Because I wanted to protect the soldier, Mr Moses . I - as I said, I don't agree with how this has all panned out, trial by media. Um, I don't agree with how it's been the agenda that people have started with. I don't agree with BRS being under scrutiny for every kill that has come up in Afghanistan. Um, I - my - my mantra in my head has been, "Protect the solider", all along, and coming to that, it's - you know, it's just way too evil. What he's done to other people, how it's affected their lives, is way too evil to, ah, not, um - yeah. Let - get it all out on the table now, so.
51 The respondents submit XXXXXXXXXXXXXXXXX XXXXXXXXXX XXXXXX X X X He did that because he did not think that the applicant should be under scrutiny. In his evidence in open Court, Person 24 said on a number of occasions that he did not agree with soldiers going to the media at all and that he thinks it is extremely unfair the way the matter has "panned out" for the applicant or that he has no qualms whatsoever with what happened to the people on the ground at W108 and that he is in Court to support the people who were his mates who were adversely affected by blooding or in the applicant's defence, the man with the prosthetic leg was potentially a kill target previously or that he did not agree with the fact that the applicant is here and he is under an extreme amount of duress "for killing bad dudes who we went over there to kill" or that he is as uncomfortable as any other person to be in Court, that he did not want to be there and that he was in Court because he had been subpoenaed and that he found it "extremely difficult to stomach having to give evidence against that man in the corner".
52 X XXXX XXXXXXXXXXXXXXXXXXXXXXX XXXXXXX
X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X X XX XX X X X X XXX X X X XX XXXXXXXXXXXX XXXXXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X X XX XX X X X X XXX X X X XX XXXXXXXXXXXX XXXXXXXXXXX X X X XXXXXXXXXX X X XXXXXX X X XXXX X X X XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXxx XX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X X XX XX X X X X XXX X X X XX XXXXXXXXXXXX XXXXXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X X XX XX X X X X XXX X X X XX XXXXXXXXXXXX XXXXXXXXXXX X X X XXXXXXXXXX X X XXXXXX X X XXXX X X X XXX X XX X X X X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X X XX XX X X X X XXX X X X XX XXXXXXXXXXXX XXXXXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX
53 The respondents submit that XXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X X XX XX X X X X XXX X X X XX XXXXXXXXXXXX XXXXXX X X X XX XXXXXXX
54 The applicant maintains a submission that TrHE XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X X XX XX X X X X XXX X X X X XXX XXXX XX X X X X X X X X XX X I reject this submission. I do not consider that there is an inconsistency or material omission XXXX X XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXX X X X X X X X X X X X X X X X XXXXXXXXXXX X X X X X XX X X X X X XXXXXXXX XXXXXXXXXXXXXXXXX XXXXXXXXXXXXX
55 The applicant submits that I should not accept the evidence of Person 24 because he has told a number of lies XX X X X X X X XXXXXXXXXXXXX
56 First, the applicant relies on the fact that Person 24 did not disclose to the Australian Defence Force that he had hurt his knee whilst engaged in a mission with XXXXXXXXX Person 24 said that he had not disclosed that fact because the relationship with XXXXXXX was a relationship generated from the ground up and they were asked to go on missions with them and he would not care to jeopardise that for anything. Person 24 admitted that he lied about how he had suffered that injury. He had said that he had hurt his knee at a shooting practice on the range. He declared that he did say to the doctor or the MO that the injury was sustained on a range practice, not on a XXXXXX mission and that that was false. He admitted that the knee injury received in 2010 was on his DVA application together with other injuries. He did not know whether it contributed to what he was currently receiving.
57 Secondly, the applicant submits that Person 24 lied to the Court on or about 14 March 2022 XXXXX XX XXXXXXXXXXXXXX XXXXXXXX The evidence given by Person 24 in open Court on that day does not support the applicant's contention. What Person 24 agrees to in that evidence is that in 20l7/2018, he said something about what he had told the Court. That does not amount to a lie. In the passages at pp 25 and 27 of the closed Court transcript of 15 March 2022, Person 24 XXXXXX XXXXXXXXXXXXXXXXX XXXXX X X X X X XX X X XXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX X X X X
58 The applicant relies on the fact that in closed Court on 14 April 2022, Person 24 XXXXXX X XXXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X X XX XX X X X X XXX X X X XX XXXXXXXXXXXX XXXXX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X XXXXXXXXX XX X X XXXXXXXXXXX X X X X X X X In his evidence on 14 April 2022, Person 24 said he was in a position to observe "all those events unfold". ". XXX X XXXXXXXXXXXX X X X X XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X X X XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X X XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX
59 Thirdly, Person 24 was asked whether he had discussed with Person 14 before he went to his interview with the IGADF Inquiry their respective recollections of what occurred at W108. He said that he had not. The applicant submits that that was false XXXXX XXXXXXXXXXX XXXXX XXXXXXXXX XXXXXXX X XXXXXXXXXX X X X XXXXXXX X X X X X X X X X X X The applicant submits that Person 24's evidence that he and Person 14 did not discuss the incident and that if it was discussed, it would have been in the patrol room most likely, was false.
60 Fourthly, the applicant relies on an inconsistency in Person 24's evidence between XXX X XXXXXXXXXXX and his evidence to this Court about how far the applicant was from the compound when he, Person 24, saw him. XXXXX X XX XXXXXXXXX XXXXX XXXXXX XXXXX XX XXXXX XX XXXXXX he told this Court that it was a distance of 15 to 20 metres. XXXXXXXXXXX XXX XXXXXX XXXXX he had only starting thinking about it after he had received a subpoena.
61 Finally, the applicant submits that Person 24's XXXXXXXXXXX XXXXXXXXX XXXXXX XXXXXXXXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXX XXX XXXXXXX X X X XXXXXXXXXXXXXXXXX XXXXXXXXXX provide adequate reasons why the Court should not accept Person 24's evidence concerning the applicant.
62 I have considered Person 24's evidence in light of the matters advanced by the applicant. Those matters include his mental health difficulties and the fact that he made a false statement and it appears that that was done in the course of claiming a benefit. For reasons already given, I do not consider that the alleged XXXXX XXXXXXXXX XXXXXXXXXX XXXXXXXX XXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXXXXXXX X X to be significant, or a matter which bears adversely on Person 24's credit.
63 I have also considered XXX X X X X X X XXXXXXXXXXXXXXXXXXXX XXX X X X XXX X X XXXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XX XXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXXX X X XXXXXXXX X X X X X X X XXX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X X XX XX X X X X XXX X X X XX XXXXXXXXXXXX XXXXX XXXXXXXX XXXX XX XX XXXXX XXX X XXX XXXX XXX X X X XXXXXXX X XXXXXXXXX XX XXXXXXXX X X X X X X X X X X X X X X X X X X X X X X X X X X XX X X XXXXXX X X X X X XXXXX XXXXXX X X X XXXXXXX X X X Clearly, that is a significant difference.
64 Person 24's explanation for the differences XXX X X X XXXXXXXXXXXXXXXXX X X X X X X X XXXXXXXX X X was difficult to follow. He referred to protecting the soldier and, in that context, he was referring to the applicant XXXXX X X XXXXXXXXXXXXXX XXX X XXX X X X X X XXXX He also referred to supporting Person 4 and later he mentioned Persons 4, 66 and 56 and the context of that observation was the more detailed account that he gave to this Court. He also mentioned his mental health difficulties XXX X X XXX XXX XXXXXX XXXX XXXXXXXXXXXXX XXXXXX XXXXXX X X X X X X X XXX X X X X X X X X X X X X XXXXXXX X X X X X X X X X X X X X X X XXX X X X X X X X X X X X X X X X X X X X X X X X XXXXXXX X X XXX X X X
65 Despite the inconsistencies and other difficulties with Person 24's evidence, I did not consider that Person 24 was deliberately dishonest in the evidence he gave before this Court. With respect, I formed the view that he was somewhat unsophisticated and, at times, had difficulty in understanding the questions. He seemed impulsive and somewhat disinhibited on occasions.
66 Person 24's evidence must be approached with considerable caution. Had the respondents' case about the alleged execution of EKIA57 by the applicant depended solely upon the evidence of Person 24, then there may well have been an insufficient basis to find the case proved, having regard to the proof required in the case of such a serious allegation. However, Person 24's evidence does not stand alone and it is to be considered with the evidence of Persons 14 and 41.
[21]
Person 27
67 With respect to what the respondents described as the contemporaneous knowledge of Person 27 (a member of Person 44's patrol), it is to be noted that Person 27 said in his evidence in closed Court that at around the time of the mission to W108, and potentially at the after action review, he learned or was led to believe that there were two people hiding "behind the trapdoor with the massive cache" and that they got shot. I accept that evidence, although Person 27's evidence in both open and closed Court before he reached that point was quite unimpressive.
[22]
Person 5's XXXXXXXXXXXXXX
68 Person 5 was interviewed by the IGADF Inquiry on 9 May 2018. XXXXX X X X X X XXXX XXX XXX XXXXXX XXXX XXXXXXXXXXXXX XXXXXX XXXXXX X X X X X X XXXX XX X X X X X X XXXXX XX X X XXXXXXXXXXXXXXXX X X X X X X XX XX XXX X X X X X X X X X X X X XXXXXXX X X X X X X X X X X X X X X X XXX X X X X X X X X X X X X X X X X X X X X X X X XXXXXXX X X XXX X X XXXX XXXXX This submission is dealt with in more detail in Section 12 of Part 3. XX XXXXXX XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX XXXXXX XX XXXXXXXXXXXXXXXXXXXX X X X X X X X X Person 5 was asked about this statement in cross-examination in closed Court on 22 April 2022. The evidence he gave was as follows:
Well, you don't say now, do you, XXXXXXXXXXXXXXX XXXXXXXXXXXXXX X X X XXXXXXXXXXXX X XXX
XXXXXX XXXXXXXXXXXX X X X XXXXXXXXXXXXXXXXXXX X X X X Yes.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXX X--- It's a figure of speech; XX X X X X X X X
…
XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX X X X X X X X X X X X X X X X X X X--- Yeah.
Now, in fact, what XX X X X X X X X X XXX X X X X XX X X X XXXXX X X XXXXX X X X X XXXXXXXXXXXXXXX X XXXXXXXXX X X X ---I don't agree with that.
Because if XXX X X XXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXX X XXX X X X that would be inconsistent with what you say Mr Roberts-Smith told you on the day. Correct?---I don't agree with that.
69 The respondents submit that Person 5's statement XXXXX X X X XXX X X X XX X X X X XXX XXXX X X X X X X X X XXXXXXXX XXX XXXXXXX XX XXXXXXXXXX XXXXXXXXXX In my opinion, that submission is correct and I do not accept Person 5's evidence to the contrary which I consider was unsatisfactory. This account is inconsistent with the account Person 5 said the applicant gave him on the day which is referred to in the open Court reasons. Even if XXXXXX in the sense advanced by Person 5 in his evidence, that would be inconsistent with Person 5's evidence that the man was a "squirter".
[23]
The Time at which the Applicant's Patrol was in the Middle Set of Compounds
70 XXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XX
71 XXXX XXXXXXXXXXXXXX XXXXX XXXXXXXXXXX XXXX XXXXXXXX XXXXXX XX XXXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXX XXXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXXXXXX X XXXXXXXX X X
72 I accept Person l's evidence that it was his camera that was used to photograph the PUCs and that his usual practice was that the time on his camera would have been set to the correct local time and date. He also said that there was no reason why he would not have followed his usual practice on the day of the mission to Darwan. I find that he did follow his usual practice.
[24]
Person 4's Medical Conditions and the Medication he takes for those Conditions
73 Person 4's medical conditions are as follows: XXXXX XXXXX XXX XXXXXXXXX XX X XXX XXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXX
74 The medication Person 4 takes is as follows: XXXXX XXXXX XXX XXXXXXXXX XX X XXX XXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX XXX XXXXXXX XXXXX XXXXX XXXXX XXX XXXXXXXXX XX X XXX XXXXXXXXXX XX XXXXXXXXXXXXXX XXXXXXX XXXXXXX XXX XXXXXX XX X XXX
[25]
Mohammad Shah was in Darwan on 11 September 2012
75 With respect to the whereabouts of Mohammad Shah on 11 September 2012, the evidence establishes that in 2012, Mohammad Shah was 17 years of age and was the son of Shahzada Akar. He was arrested and taken to Tarin Kowt on 30 October 2012 during a Cordon and Search operation to Darwan (exhibit R176). Therefore, whilst it is true that he was arrested and taken to Tarin Kowt, that did not occur on or before 11 September 2012. The point is that the evidence of the Afghan witnesses that he was present in Darwan on 11 September 2012 is not disproved by evidence that he had been previously arrested and taken to Tarin Kowt.
[26]
Some Interpreters understand Basic English
76 The sensitive document entitled "FE-A Interpreters" (exhibit R34) indicates that an English lesson was given to NDS members on 22 September 2012 and that document and another sensitive document entitled "FE-A | NDS & TERPS" (exhibit R212) indicates that one officer had a good understanding of English and another had reasonable English.
[27]
The HLZ designated XXXXXX and the Scans performed in relation to it
77 XXXXXXX is the designation which was given to the HLZ next to the cornfield. With respect to the scanning of HLZs, the starting point is that the sensitive Sametime chat record indicates that XXXXXXX HLZ was used for both the Turn 1 extraction (Commandos) and the Turn 2 extraction, including the applicant's patrol. The Sametime chat record indicates that Turn 1 extracted at 1052DE and Turn 2 extracted at 1121DE.
78 Person 7, whose evidence l accept, said the following: (l) that throughout the whole six hours, the Heron drone used in support of the mission to Darwan on 11 September 2012, remained on station and its role was to look for threats in and around the HLZs, in and around the compounds, and in and around the hills and mountains in the area; (2) the Heron drone had imaging capability as well as XXXXXX XXXXXX XXXX; (3) the Apache helicopters are part of the two and four package the Force Element would have. The Apache helicopters would leave Tarin Kowt before the Black Hawks XXXXXX XXX XX XXXXXXXXXX XX X X XX X X X They would know the HLZs and they would XXXXX XXX X X XXXX X X X XX X X X X XX X X X X XXXXXXXXXXXXXXXXX XXXXXXXXX X X X X X X X X X X X X The role of the Apaches on extraction was similar in that XXXX X X X X X X X XXXXX XXXXXXXXXXXX XXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXX XX XXXXXXXXXXX XXXXXXXXXXX X X X X XXXXXXX XXXXXXXXXXX XXXXXXX X XXXXXXXXXXXXXXXXXXX X X X X XXXXX Person 7 said the XXXXXX XXXXXXXXX XXXXXXXXXXXXXX X XX X X X X X X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX X X X X X X X X X X X XXXX XXXXXXXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXX XXXXXXXXXXXXXXXXXX XXX XXXXX and (4) in 2012, X X X X X X X X X X X XXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX XXX X X X X XX X X XXX XXXXXXXXXXXX
79 Person 7 was asked, based on his knowledge and experience of the technology used XXX X X XXX X XX in 2012 and their standard procedures XXXXXXXXXXXXXXXXX XXXXXXX about the likelihood that a person hiding in a cornfield within a couple of hundred metres of a HLZ would not have been detected XXXXXXXXX. His opinion was that, based on his understanding of the technology at the time, it was highly unlikely they would not pick up XX XXXXXXXXXXXX in a cornfield. He said it was not impossible, but highly unlikely. The applicant emphasised that, although it may have been highly unlikely that an individual hiding in the cornfield would not be detected by the aerial assets, it was, as Person 7 conceded, not impossible. I accept Person 7's evidence and consider that it should be given some weight, while at the same time noting that it is not from a person who is engaged in the scanning or who operates the sophisticated equipment which is used.
80 The sensitive Sametime chat record establishes that the Turn I helicopters leaving Darwan departed to the south and this means that the helicopter that landed at XXXXXX would have flown directly over the cornfield to the south of the HLZ where Ali Jan's body was later found. The Turn 2 helicopters approached from the south which again means that the helicopter which landed at XXXXXX flew directly over the cornfield located to the south of the HLZ.
81 The overall effect of this evidence is that the cornfield was scanned twice by the Heron drone and the Apaches XXXX X XXXX X X XXXXXX X XX X X X X once before the Turn 1 extraction and once before the Turn 2 extraction. It seems to me that, in those circumstances, the respondents' submission must be correct that the strong probability is that a human hiding in the cornfield would have been detected by at least the XXXXX X X X X XX X XX X XX on one of those scans and that that inference should be drawn even if the cornfield was scanned only once; it is an irresistible inference in circumstances where the scanning was performed twice.
[28]
The Path that the Applicant took from a point at or near the Last Compound to the Creek Bed below
82 XXXXXXXXX XXXXXXXXXXX XXXXXXX XXXXXXXXXXX XXX XXXXXX XXXXX X XXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XXX
83 XXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XXX
84 XXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XXX
85 XXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XXX XXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XX
86 XXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XX
87 XXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XXX
88 XXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XXX
[29]
XXXXXXXXXXXXXX in or about the Cornfield
89 With respect to whether there was a spotter in the cornfield with a radio on 11 September 2012, the respondents referred to a sensitive document, an X X X X X XXX XXXXX XXXX XXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXXXXXXX XXXXX XX XX X XX (exhibit R30). XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XXXXXXXXX In terms of whether spotters were seen by aircrew, a XXXX report of the mission (the INTREP which is defined below at [92]) indicates that XXXXXX XXXXXXX XXXXXXXX X X X X X XXXXXXXX X X X X X X X XX (exhibit A10 Tab 33). The same document indicates that X X X X X XXX XXXXX XXXX XXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXXXXXXX XXXXX XX XX X XX (exhibit R30). XXXXXXXX XXX X X XX X X X X X X X X X X X X X X X X X XXX
90 The information in these documents bears on the plausibility of the respective accounts of the applicant and Person 11 about seeing a spotter in the cornfield with an ICOM radio. It is possible, but hardly likely, that a spotter hid in the cornfield with an ICOM radio adio XXXXX XXX XXXXXXXXXXXXXX X X X X X X X X X X X
[30]
Mangul's Evidence about when the Soldiers on the Mountain left is consistent with the Extraction Plan
91 The sensitive Sametime chat record indicates that the XXX X X X X X X X X X X X X X X X XXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXXXXXXX XXXXX XX XX X XXXXXXXXXX The photographs comprising exhibit R2 (and a number of other exhibits) were taken from a position in the vicinity of Bottle 3.
[31]
Whether the Dead Man in the Cornfield is Ali Jan
92 In support of his submission that the deceased man in the cornfield is not Ali Jan, or, at least, has not been shown by the respondents to be Ali Jan, the applicant referred to a sensitive document for the mission titled the "Special Operations Task Group INTREP" (exhibit A10 Tab 33). This document was prepared after the mission and contains a statement XX XX XX that four EKIAs during the operation were Mullah Ghafor, Amir Jan said to be an insurgent fighter from Ruyan, Nazir Gul and "UIM" (unidentified male) "nephew of Nazir Gul".
93 The applicant submits that this document was prepared by persons who, although unidentified, would have had no reason to misstate the facts recorded in the document and would have been independent of any possible influence by the applicant. It does not support the respondents' allegation because it does not identify Ali Jan as one of the four persons killed as a result of engagements during the mission. The applicant submits that the respondents' contention that the reference to the unidentified male is a reference to the deceased man in the cornfield is contradicted by the statements in the document. XXXXXXX XXXXXXXXXXXX the person engaged on the northern side of the Helmand River was EKIA3 and the evidence of both Mohammed Hanifa and Mangul Rahmi was to the effect that the person engaged near the river was Mullah Gafor and XXXXXXXX X X X X X X XXXXX The applicant submits that the Court should infer that the person referred to in XXXXX Amir Jan" is EKIA4 because the person identified in XXXXX was confirmed by Mohammed Hanifa and Mangul Rahmi as one of the two individuals killed in the "almond" room and Yaro Mama Faqir, who was the second person killed in the almond room, is not identified in any of XXXXXXXX XXXXXXXXX In the circumstances, the unidentified male must be Yaro Mama Faqir. The applicant submits that he does not know how the information collected in the INTREP was collected and that the document itself was undoubtedly prepared by a person or persons who were and are unconnected with the litigation and have no interest in its outcome. The applicant submits that the existence of the document casts a real doubt about the proposition that EKIA4 was a farmer named Ali Jan.
94 Mohammed Hanifa claimed that Amir Jan was an old man who was killed in Gawmurdeh in another raid and was not the body depicted in the photograph. He did not remember when the raid had occurred and it was many years since he had met Amir Jan. Mangul Rahmi also recalled that Amir Jan was an old man killed in a raid on Garwgrin. He confirmed that Amir Jan was from Ruyan and not Taliban. He said that he had never met him.
95 The applicant submits that there is no reason why the Court should accept the witnesses' identification of Ali Jan over the contemporaneous document which, by a process of deduction, identifies the EKIA in the cornfield as Amir Jan from Ruyan. The evidence of the Afghan witnesses should not be accepted without corroboration. The mere fact that the relevant photograph depicts a body with an ICOM device and that the documents all confirm the EKIA resulted from an engagement in a cornfield, suggests that the body, whoever he was, belonged to a member of the Taliban. The applicant further submits that even if the INTREP is wrong about the name of the deceased and wrong about his home town, it does not follow that it was wrong about his status as an insurgent fighter. That fact is most unlikely to be incorrect. The applicant submits that if the person was an insurgent, then the respondents' case about Ali Jan, who was an innocent farmer, cannot stand. The applicant submits that the respondents did not adduce any evidence to suggest that the intelligence recorded within the INTREP was in any way influenced by the applicant or had anything to do with him or his account of events.
96 The applicant further submits that the in Court identifications of Ali Jan by reference to the photographs "were displaced by memories of having been shown similar photographs in 2019". The applicant submits that the identification evidence of Mohammed Hanifa and Mangul Rahmi was hopelessly compromised XXXX X X XXXXX XXXXXXXXXXXXX The Court should place no weight on their identification evidence XXXXXXXXX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXX XX X XXX X X X X
97 The respondents advance three arguments in response to these submissions.
98 First, the respondents submit that the Court could not be satisfied that there is any inconsistency between the INTREP and the respondents' case. XXXXXXXXXXXX which the respondents submit is logically associated with EKIA4 as the last EKIA on the mission, is an unidentified male and there is no reason to conclude that the unidentified male is not a reference to Ali Jan.
99 Secondly, the INTREP does not identify Yaro Mama Faqir as one of the four men killed. There is no reason for the Court to conclude that reference to an unidentified man XXXXXX must be Yaro Mam Faqir and that, therefore, the reference to "Amir Jan" XXXXXXXXXX must be EKIA4.
100 Thirdly, the respondents submit that even if the Court did conclude that XXXXXXX in the document was intended to refer to EKIA4, the Court should not accept an unsourced hearsay XXXXXXXXXXX document over the evidence of Mangul Rahmi and Mohammed Hanifa. The respondents point out that the XXXXXXXXXXX relied upon for this report is unidentified and the Court can make no assessment of its accuracy or reliability. On the other hand, both Mangul Rahmi and Mohammed Hanifa positively identified EKIA4 as Ali Jan. They gave evidence that Amir Jan from Ruyan was a different person killed in a raid in another village. The respondents submit that the Court should prefer the firsthand evidence of Mohammed Hanifa and Mangul Rahmi over unsourced XXXXXXXXXXX
101 There is force in all of the respondents' points, but the last one is decisive. I accept the evidence of the Afghan witnesses that the deceased man in the cornfield was Ali Jan.
102 I note two additional points.
103 With respect to the cross-examination of Mohammed Hanifa XXXXXXXX XXXXXXXX XXXXXXX XXXXX XXXXXXXXXXXXXXX XXXXXX XXXXXXXX XX XX X X X XXXX That is incorrect. It is clear from exhibit R186 XXXXXXXXXX XXXX XXXX XXXXXXXX XXXXXXXXXX XXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXXX
104 With respect to the cross-examination of Mangul Rahmi as to XXXXXXXXXXX XXXXXXXXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XX X X X X X X X X X X X X X XX X XXXX X X X XXXXX X X X X X and the respondents submit that no adverse credit finding can reasonably arise in the circumstances. I accept Mangul Rahmi's explanation.
[32]
XXXXXXXXXXXXX XXXXXXX XXXXX X XX XX X X X X X X X X X X X X X XX X XXXX X X X XXXXX
105 XXXXXXXXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XX X X X X X X X X X X X X X XX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XX X X X X X X X X X X X X X XX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XX X X X X X X X X X X X X X XX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XX X X X X X X X X X X X X X XX
[33]
Mangul Rahmi
106 The first alleged inconsistency relates to the conversation Mangul Rahmi had with Mohammed Hanifa immediately after the soldiers had left. XXX XXX X X X X X X X X X X X XX XX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XX X X X X X X X X X X X X X XX XXXXXXXXXXXXX XXXXXXX XXXXX X
XXXXXXXXXXXXX XXXXXXX XXXXX X XX XX X X X X X X X X X X X
107 In his evidence to this Court, Mangul Rahmi said that in answer to a question from him about what happened to Ali Jan, Mohammed Hanifa said:
… They kicked him, and he went in - down into the river, and they dragged him towards the tree.
Mangul Rahmi was cross-examined about this apparent change in his evidence. His evidence is not easy to follow, largely I think because of the language difficulties. XXXXX X X X X X XXXX XXX XXXXXXXXXXXXX XXXXXXXXXXXXXXX X X X X
108 In assessing this apparent inconsistency and how it might reflect on the credit of Mangul Rahmi, I have taken into account the following matters. He was otherwise a satisfactory witness and was careful to distinguish between what he saw with his own eyes and what he heard. XXXXXXXXXXXXX XXXXXXX XXXXX X XX XX X X X X X X X X X X X X X XX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XX X X X X X X X X X X X X X XX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XX X X X X X X X X X X X X X XXX X X X X X X XXXXXXXXXXXXXXXXX X XXXXXX X X X X X X X XX X X XXX X X X X X X XXXXXXXXXXXXXXXXX X XXXXXX X X X X X X X XX Mangul Rahmi's evidence is otherwise supported by the evidence of Person 4 and, to some extent, by the evidence of Person 56. In addition, as previously stated, he has given evidence as to matters which could only be known by a person present on the day. Mangul Rahmi has no apparent motive to lie. The other matter to be noted is that, assuming there is an inconsistency, the evidence to this Court is a more "conservative" account from Mangul Rahmi.
109 The applicant also submits that there is an "inconsistency" XXXX X X X X X X X X X X X X X X X X X XXXXXXXXXXXXXXXX X X XX concerning whether Mangul Rahmi was hit by the big soldier. He said in his evidence to this Court that during his interrogation, the big soldier was sitting next to him and that he looked at the big soldier. The big soldier hit him and he looked at him again and the big soldier hit him again. The interpreter told Mangul Rahmi not to look at the big soldier because "they" do not like people looking at them. XXXX X X X X XXXXXXXXXXXXX XXXXXXX XXXXX X XX XX X X X X X X X X X X X X X XX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XX X X X X X X X X X X X X X XX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XX X X X X X X X X X X X X X XXX X X X X X X XXXXXXXXXXXXXXXXX X XXXXXX SSS X X and obvious difficulties brought about by the need to translate and, to some extent, the limitations or the witness' education. The issue is far from black and white when regard is had to the following evidence XXXXXXXXXXXXXXXXX
XXXXXXXXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXX XXXXXXX XXXXX X X XXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XX X X X X X X X X X X X X X XX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XX X X X X X X X X X X X X X XX XXXXXXXXXXXXX XXXXXXX XXXXX X XX XX XXXXXXXXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX X X X X X X X X X X X X X XX XXXXXXXXXXXXX XXXXXXX XXXXX X XXXXXXXXXX XXXXX XXXXX XXXXXXXXXXXXXXXXXXX XX XX X X
110 Nevertheless, to the extent there is an omission, I take it into account. XXXXXXXX X X X X X X X X X XXXXX X X X X X X X X I do not consider the fact that Mangul Rahmi XX XXXXXXXX XXXXXXXX XXXXXXXXXXX adversely affects his credit when all of the evidence is taken into account.
111 Finally, the applicant submits that Mangul Rahmi's evidence involved a significant "contradiction" because XX X XXXXXXXXXXXXX X XX X X X X X X X X X X XX X X X X X X X X X X X X XXXX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X I have already referred to this point. To the extent that XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXX X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X X
[34]
Mohammed Hanifa
112 The applicant submits that there were significant contradictions and inconsistencies XXX X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX
113 First, Mohammed Hanifa told this Court that he saw Ali Jan dragged to the tree and then he heard shots. He and others went there and saw that Ali Jan was shot. He did not see the shots fired with his own eyes. In other words, he saw everything other than the actual shooting. That has always been his belief.
114 XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX
XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXX XX X X X X XX XX X X XX XXX XX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X
115 XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X
X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXX XX X X X X XX XX X X XX XXX XX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X
116 XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX
X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXX XX X X X X XX XX X X XX XXX XXXXXX X X X X X X X X X X X X X X X X X X X X X X X XX
117 XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX
118 The applicant submits that this is a fundamental shift of great significance and casts doubt on the reliability of anything said by Mohammed Hanifa. He submits that he cannot be believed if, XXXXXXXXX XXXXXXXXXXXX XXXXXXXXXX XXXXXXX XXXXX XXXXXX XXX X X XX X X XXXXXX X he says he saw nothing after two soldiers dragged the body as far as the berry tree. The applicant submits, correctly, that Mohammed Hanifa maintained that XXXXXXXXXXXXXXXXXX X X X X
119 The respondents submit that Mohammed Hanifa's evidence to this Court is consistent with his contemporaneous disclosure to Mangul Rahmi. The respondents submit that the Court should be slow to find that Mohammed Hanifa XXXX X X XXXXXXXXXXXXXXXXXXXX X X X X X XXXXXXXXXXXXXX X X X
120 First, the respondents submit that XXX X X X X X XXXXXXXXXX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X XXXXXX That is consistent with his evidence to this Court.
121 Secondly, the respondents submit that Mohammed Hanifa made a prior consistent statement to Mangul Rahmi just minutes after the shooting. I accept Mangul Rahmi's evidence to this Court about what Mohammed Hanifa said to him and it is true that the existence of that contemporaneous consistent statement makes it more likely XXX X X X X XXXXXXXXX X X X XXXXXX X X X X X X X X X X X XXXXX X X X XX X
122 Thirdly, the respondents submit that the Court should have regard to Mohammed Hanifa's emphatic denials XXXXXXX X XXXXXXXXXXXXXX X XXXXXXXXX X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X
123 The respondents also submit that the Court should be slow to find that Mohammed Hanifa was being deliberately dishonest in this Court X X X X X X X X XXXXXXXXXXXX X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X XXXXXXXX The result is that an initial Pashto statement was interpreted into English, then the English was interpreted back to Mohammed Hanifa in Pashto through a different interpreter. Again, the possibility of confusion rather than deliberate dishonesty cannot be excluded.
124 The respondents submit that even if the Court finds that Mohammed Hanifa made a prior inconsistent statementXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX X X X X X X X X X X X that fact should not have a material adverse effect on the Court's overall assessment of his credit. The matter related to a discrete point and he was corroborated in all other material respects of his evidence. The Court should also be satisfied that he did not lie to this Court on the substantive point, that is, whether he saw Ali Jan being shot. Although it is said that he has come to this Court with a motive to lie, his evidence to this Court that he did not see the shooting XXX X X X X XXXXXXXXXXXXXXX X X X X XXXXXXXXXXX XXXXXX and is supported by a contemporaneous disclosure to Mangul Rahmi.
125 I consider that it is an inconsistent statement which may be explained on any number of grounds, the most likely of which are translation difficulties or embellishment where he moved from what he saw to what he saw and inferred, or a combination of both. However, I do not consider that he was deliberately dishonest or that this has a major effect on Mohammed Hanifa's credit, particularly when regard is had to the extent to which his evidence is supported by other evidence in the case.
126 Secondly, the applicant points to what he claims was a basic contradiction XXX X X X X X XX XXXXXXXXXXXXX XXXXX X X X X X XX X X XXXXXXXXX X X X X X X X concerning the presence of his brother, Mohammad Shah, on 11 September 2012 and during the raid. In his evidence to this Court, he said that Mohammad Shah had his hands tied and that the soldiers had made him sit down near the well. The applicant asserts that Mohammed Hanifa XX XX X X X XXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXX X X X X X X X X X X XXXXXXXXX X X The applicant asserts that when confronted with this discrepancy, Mohammed Hanifa simply denied XXX X X X XXXXXXXXX X X X X X X X X X X X X X
127 I reject the applicant's submission. XXXXXXXXXXXXXX X X X X X X X X X X X X X X X X X X XXXXXXXXXXX X X X X X X X X X
X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXX XX X X X X XX XX X X XX XXX XX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X
128 It is clear, I think, that Mohammed Hanifa's reference XXX X X X X X X X X XXXXX X X XXXXXXXX XXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX X X X X X X X X XXXXX X X X X X X X X X X X X XXXXXX This is supported by the evidence referred to above to the effect that Mohammad Shah was arrested and taken to Tarin Kowt in October 2012 (see [75] above).
129 Thirdly, the applicant submits that Mohammed Hanifa's evidence to this Court is inconsistent XX X X XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXX In his evidence before this Court, Mohammed Hanifa said that the big soldier would punch him and tell him not to look around. He was asked whether he was punched just once. He said no, that he was punched many, many times. XXX X X X X X X X X XX X X X X X X X X X X X X X X XXXXX X X X X X X X X
X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXX XX X X X X XX XX X X XX XXX XX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X
130 XX X X XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX
131 Mohammed Hanifa has consistently said that there was an interrogation and that he was physically assaulted. XXX X X X X X X XX X X X X XXXXXXXXXXXXXXXX X X X X XXXXXXXXXXXXXXXXX X X X X X X X XXX I take that matter into account.
132 Fourthly, the applicant submits that Mohammed Hanifa identified Ali Jan without hesitation, XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X XXX
133 The respondents took me to a photograph of the man said to be Ali Jan with a full beard and blood on his face and a photograph of Yara Mama also with a full beard and blood on his face XXXXXX XXXXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXXXXXXX I agree. XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X XXX
X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXX XX X X X X XX XX X X XX XXX XX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X XXXXXXXXXXXXXXXXXXXXXXXX X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXX XX X X X X XX XX X X XX XXX XX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X XX X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXX XX X X X X XX XX X X XX XXX XX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXX XX X X X X XX XX X X XX XXX XX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X
134 Fifthly, Mohammed Hanifa XX X X X XXXXXX X X X X X X X X X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX In his statement of 7 May 2021, he described the presence of soldiers on the roof of Mangul Rahmi's compound, on the roof of the guesthouse and on the ground. He also described a few soldiers down in the riverbed. He said that they were there before Ali Jan was kicked off the cliff. The applicant submits that Mohammed Hanifa's evidence in the trial was that he did not know how many soldiers were present. The applicant submits that this points to another credit issue of sufficient significance to cast doubt on the reliability of anything said by the witness. These type of details are matters I need to take into account in assessing Mohammed Hanifa's honesty and reliability, but having regard to the supporting evidence, they fall well short of casting doubt on the reliability of anything said by Mohammed Hanifa.
135 Finally, the applicant submits that the claim that shots were fired from the overwatch position is highly unlikely XXX XXXXXXXXXXX X X X XXXXXXXXXXXXX X X X X X (see exhibit A21). I will take this matter into account. At the same time, it does seem to be an odd detail to make up and it is not at all surprising that if people were leaving during a raid, that the Force Element would wish to dissuade them from doing so.
[35]
Sensitive ADF Records
136 The applicant also relies on the following sensitive ADF records.
137 First, the applicant relies on the following entries in the closed Court Sametime chat record:
(1) X XXXXXXXXX XXXXXXXXXXXXXX X XXXXXXXXXXX X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXX XXX X X X X XX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXX X X X XXXXXXXXX
(2) X XX X X X X X X X X X X X X X X X X X X X X X X XXXX XXX X X X X XX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXX X X X XXXXXXXXX X X X X X X X X X X X X X X X X X X X X XXXX XXX X X X X XX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXX X X X
(3) X X X X X X X X X X X X X X X X X X X X XXXX XXX X X X X XX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXX X X X XXXXXXXXX
138 In a document entitled "Secret", the three engagements at Darwan are referred to in language that largely reproduces the language from the Post Brief Consolidation and OPSUM.
139 A single page document dealing with the mission to Darwan on 11 September 2012 contains a topographical map and the following note (among others):
X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X XS X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X
140 In the document referred to earlier (at [92] and following), (the INTREP), the mission to Darwan is summarised. The document refers to input from XXXX X intelligence. It refers to, on the applicant's case, Amir Jan, an insurgent fighter from Ruyan, as the EKIA in the cornfield. The various engagements during the mission are referred to, including the engagement in the cornfield. The document contains the following:
X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX XXXXXX X X X X X X X X XX X X X X X XX XX XX XX X X X X X X X X X X X X X
141 As previously stated, the document also records that XX X X X X X X X X X X X X XXXXXXXX XXXXXXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXX XX X X X X XXXXXXXXXXXX XX X X X X X X X X The document also records the following:
X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX XXXXXX X X X X X X X X XX X X X X X XX XX XX XX X X X X X X X X X X X X X X X X X X X X XX X X X X X XX XX XX XX X X X X X X X X X X X X X
The applicant relies, in particular, on the reference to XXX X X X X X X X X X XXX
142 As l have already said in connection with an aspect of this document, it cannot prevail in light of the eye-witness evidence which I accept.
143 The applicant referred to the Task Force Post Mission Debrief. The document refers to XXXX XXX XX XXXXXXXXXXXXXX X The document also refers to XXX X X X X X X X X X XXXXXX X X XXXXXXXXXXX XX X X X X X X X X X X X X X This document also refers to XXXXX XXXXXX X There is also a reference in this document to XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X XXX
144 The applicant also relies on the document headed "ELECTRONIC WARFARE SUMMARY". The document records X X X X X XXXXXXXXXXXXXXX XXXXXX X X X X X X X X X X X X X X X X The document records that XXX X X XX X X X X X X X X XXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X XXXXXXXXXX X X X X X X X The document identifies XXXXX X X X X X X XX X. The map which is Figure 1 shows, according to the applicant, XXXXX X X X X X X X X X X X X X X X X X X
145 The applicant relies on a document entitled "2012091_SOTG_PAG 137A - SOTG ACTIVITIES". It is a summary of missions from 7 August 2012 to 11 September 2012. The document records that on the mission to Darwan on 11 September 2012, four insurgents were killed in three separate incidents. The document contains a section addressing external perceptions of this issue and contains the following statements:
• In light of recent (unfair) criticism of an SOTG mission on 31 Aug 12 resulting in the detention of 12 persons of interest (including a woman) and death of two confirmed insurgents, ADF could be further scrutinised about its obligations relating to detainees.
The applicant points to the fact that there is this reference, but no reference to the mission to Darwan.
146 The document states that as far as engagements were concerned, insurgents were killed after being positively identified taking a direct part in hostilities and they were engaged in accordance with Australian rules of engagement.
147 The document states that 33 insurgents were killed during the period covered by the document.
[36]
Section 5 - Chinartu
148 The closed Court reasons with respect to the mission to Chinartu address a number of issues. The first issue is the reliability and accuracy of the reporting of two engagements during the mission to Chinartu and related matters. The second issue is whether Person 12 was on the mission to Chinartu on 12 October 2012 and that, in turn, raises sub-issues as to whether Person 12 shot the dog and injured the Australian soldier on 31 July 2012, whether Person 12 was stood down permanently or removed on or about 31 July 2012, and the identity of the Commander of the NDS-Wakunish soldiers in October 2012. A further sub-issue is whether, even assuming he was the Commander of the NDS-Wakunish soldiers in October 2012, Person 12 was on the mission to Chinartu on 12 October 2012. The third issue is what, if any inference can be drawn from the fact that the respondents did not call Person 12 as a witness. Finally, there is an issue as to the use of the acronym, "VRI".
[37]
Sensitive ADF Records
149 The applicant relies on the fact that there are a number of sensitive ADF records which refer to the two engagements in similar terms to the OPSUM for the mission.
150 As previously stated, the OPSUM for the mission to Chinartu on 12 October 2012 (exhibit R192 Tab 3 and exhibit A10 Tab 46) refers to an engagement by an Afghan Partner Force soldier in a compound of interest and during the clearance of the compound which occurred at approximately 1405DE.
151 There is a document described as an Incident Report and entitled "Secret Rel ISAF" (exhibit A10 Tab 47) which describes the incident in the same terms as the incident said to have occurred at approximately 1405DE is described in the OPSUM for the mission. There is a second Incident Report also entitled "Secret Rel ISAF" (exhibit A10 Tab 48) which describes the incident involving the use of a fragmentation grenade in the same terms as the engagement referred to in the OPSUM for the mission as having occurred at 1410DE. In fact, in each case, the words used in each case are the same.
152 A document entitled "Secret" (exhibit A10 Tab 53) refers to the two incidents in similar terms. It records the discovery of the cache as occurring at the compound involved in the earlier engagement and EKIA, that is to say, the engagement said in the OPSUM to have occurred at approximately 1405DE.
153 The Sametime chat record (i.e., both the sensitive version exhibit A10 Tab 51; and the non-sensitive version exhibit R36) state that an EKIA was reported at l414DE and a second EKIA was reported at 1539DE. Both documents also record that there was a request for extraction at 1512DE and that Turn 1 left Tarin Kowt at 1534DE. The non-sensitive version of the Sametime chat record states that the post-debrief 5W (who, what, where, when and why) consolidation occurred at 1743DE, and in that debrief the two EKIAs are said to have occurred at approximately 1405DE and 1410DE respectively.
154 A document addressing the mission with short commentary and photographs (referred to as a "storyboard") (exhibit A10 Tab 45) states that XXXXXXXXX X X X XXXX X X X X X X X X X X X XXXXXX X X X X X X X X X XX X XX X X X X It also states that XXXX X XXXXXXXXXXX XX X X X
155 The non-sensitive version of the Sametime chat record (exhibit R36) states that as at l530DE:
WNGO-there will be POI coming off tgt. Numbers still TBC, planning on 3-4 ATT.
156 The document further states at 1534DE "Extraction package W/U MNB-TK for OBJ".
157 As I understand the applicant's submission, it is that by that time everything is effectively wrapping up and yet there is said to be an execution at about 1539DE. The applicant submits that that is unlikely. The applicant submits that the other difficulty with the respondents' case in terms of timing is the widespread reporting of the engagement connected to the discovery of the cache referred to in the SSE Report (see below) as having occurred at approximately 1405DE.
158 With respect to the fact that there are a number of ADF records which reflect the terms of the OPSUM as far as the engagement at approximately l405DE is concerned, that is not surprising. In fact, it would be surprising if there were different versions. It seems to me that the appropriate inference is one version is adopted and then is repeated in different documents prepared for different purposes.
159 The metadata records that the photographs of the cache referred to in the SSE Report (exhibit A10 Tab 50) were taken at 3.24 pm-3.26 pm which is at a time when, on his own account, Person 14 is resting in the shade and before he begins his journey to the TQ compound and the compound further up the hill. The applicant submits that if Person 14 was to claim he personally discovered that cache, then such evidence would conflict with the version of the engineers as recorded in the document and the metadata in the photographs. That may be so, but it is irrelevant because Person 14 does not claim that he discovered that cache.
160 The SSE Report for the cache found during the mission has on the front of the document a date and time of 12 October 2012 at 1400DE. The report contains the following statements:
X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXXXX XX X X X X XX XX X X XX XXX XX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X XXXXXXXXXXXXXXXXXXXXXXXXX
161 The applicant accepts that the reference in the SSE Report to the XXXX X X X X XXXX X X X X X X X X X X X is inconsistent with the entry in the OPSUM for the mission at 1405DE. Subject to that inconsistency which, in my opinion, is not insignificant, the applicant's submission is that the discovery of the cache is otherwise consistent with the entry for the incident at approximately 1405DE. The applicant submits that the SSE Report is clearly not describing the incident recorded in the OPSUM for the mission as having occurred at 1410DE and which involved the use of a fragmentation grenade and a small fire.
162 The SSE Report contains photographs of the items recovered from the body and the cache referred to as "EKIA Effects" and "'Cache 1"' respectively. It also contains a photograph of a small opening in a feed trough with some straw. The photograph has a note as follows:
XXXXXXXXXXXXXXXXX XXXXXXXXX XXXXXXX X
163 The last page of the SSE Report records that XXX X X X XX X X X X X X X XXXX X X X X X X X X and that this was XXXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXX XX The last page also reports that the cached items were located using XXX X X X X X X X X XXXXXXX The applicant submits that the SSE Report not only states that the engineers discovered the cache, but explains precisely how they did so.
164 With respect to the SSE Report, there are two points to note. First, the report is not addressing the cache Person 14 said that he discovered. Secondly, the report of the engagement in the SSE Report has some similarities to the engagement reported in the OPSUM as having occurred at approximately 1405DE, subject to one significant and important difference of an EKIA approaching a compound as compared with an EKIA engaged in a compound and during the clearance of that compound.
[38]
Was Person 12 on the Mission?
165 The evidence consists of oral evidence and a number of sensitive documents. The sensitive documents are as follows:
(1) Personnel records of the NDS-Wakunish soldiers in 2012 maintained by Person 6 with input from Person 31 (personnel records) (exhibit R34). Person 31, whose evidence I accept, said these records were created to track the performance of the NDS-Wakunish soldiers and to pass information about them on to those involved in the next rotation;
(2) Schedules likely maintained by Person 6 or the Operations Sergeant showing when various members of the NDS-Wakunish were "outside the wire", that is, on a mission away from Tarin Kowt (Outside the Wire Schedules) (exhibits R35/R264);
(3) "Handover Notes" prepared by Person 6 (with perhaps some review by Person 31) with respect to NDS-Wakunish soldiers for the use of Coalition soldiers involved in the next rotation (exhibit A10 Tab 66);
(4) Photographs of Coalition Forces and members of the NDS-Wakunish taken at the base or on missions and the metadata to such photographs showing when they were taken (exhibits Rl66-Rl71 inclusive);
(5) A short video taken by Person 31 of occupants of a helicopter on 12 October 2012 (exhibit R172);
(6) International Security Assistance Force "Weekly NDS Engagement ReportsS (ISAF Reports) (exhibits R222 and R223); and
(7) The helicopter load plan or manifest showing which FE members and NDS-Wakunish soldiers travelled on which "Turns" to and from Tarin Kowt and Chinartu (exhibit A10 Supplementary Bundle Tab 8).
166 The personnel records and other evidence establish that XXX X X X X X X X X X X X X X X X X X XXXXXXXXXXX XXXXXXXXXXXX X XX X X X X X X X X X X X X X X X X X X X X X X The personnel records refer to Person 12 as XXXXXXXXXXX X X X X X X X X XX XX X X X X X X X X X X Person 31 said that this means that Person 12 "took charge of the Wakunish on our base". The personnel records with respect to other Afghan Partner Force members contain entries referring to Person 12 in October and November 2012.
167 The personnel records also establish that the NDS-Wakunish soldier who shot at a dog causing injury to an Australian soldier during a mission on 31 July 2012 was XXXXXXXXXXX The incident is described in the entry for him in the personnel records. The incident involved Person 35's patrol and entry into a compound. Person 35 gave XXXXXXX XX an order to stop engaging a dog which was barking. Person 35 appears to be the source of the entry. XXXXXXXXXXXXXX was removed about an hour after return to base and he was taken off the base. He was not recommended for any future work with FE-A.
168 The personnel records for the Afghan Partner Force soldiers also establish that the Afghan Partner Force soldier who shot the Afghan male on 12 October 2012 was XXXXXXXXXXX XXXXXXX The entry for this man contains a notation to the effect that XXXXXXXXX XXXXXXXX X XXXX There is no other entry in the personnel records of a shooting of an insurgent on 12 October 2012. In addition, the Outside the Wire Schedule confirms that XXXX identified as XXXX was XXXXXXXXXXXXXXXXXXXX and the helicopter load plan or manifest lists XXXX (again spelt XXXX) as XXX XXXXXXX XXXX XX XXX XXXXXXXXX XX Person 35 identified XXXX as one of the five individuals he was able to recall as being on the Darwan or Chinartu missions, or both.
169 The Outside the Wire Schedules identify Person 12 as XXXXX X X X X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X XXX
170 The Outside the Wire Schedules show that Person 12 XXXXX X X X X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X XXX XXXXXXXXXXXXX They contain a note that Person 12 was XXXX XXX X X X X X XXX X XX XXXXXXXXXXXXXX XXXXXXXXX X X X X X X X
171 Person 6 and Person 31 prepared "Handover Notes" dated 3 November 2012 in relation to Rotation 18 and in those notes they addressed the NDS-Wakunish soldier. The following comments appear:
X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX XXXXXX X X X X X X X X XX X X X X X XX XX XX XX X X X X X X X X X X X X X X X X X X X X XX X X X X X XX XX XX XX X X X X X X X X X X X X X
172 As to the "Handover Notes", I agree with the respondents' submission that it is inconceivable that the comment set out above would have been made about Person 12 XXXX had he shot a stray dog resulting in an injury to an Australian soldier. As the respondents also submit, there would have been no need to provide any details of Person 12 in handover notes if he was no longer serving with the FE.
173 The "Handover Notes" dated February 2013 and entitled "Rotation 18B to Rotation 19 Feb 2013" refer to Person 12 and Person 13. With respect to Person 12, it speaks in the present tense about the rank he holds and his strengths and weaknesses.
174 I pause at this point to address three submissions made by the applicant about these three documents which the evidence establishes were documents either maintained by Person 6 or prepared by him.
175 First, it was suggested by the applicant (and certainly by Person 35 in his evidence) that little, if any, weight should be placed on the first three categories of documents because the documents were maintained or prepared by Person 6 who has a well-known antipathy towards the applicant. I have no hesitation in rejecting this submission. Even accepting the antipathy for present purposes, there is nothing in the documents to indicate that, at the time they were prepared, they had anything to do with the applicant or that they were not prepared and maintained on a serious occasion and for an important purpose.
176 Secondly, the applicant submits that little or no weight should be placed on the documents in categories one and three because they are not "official" Department of Defence documents, although they were produced from the Department's records. It is true that the documents contain some coarse language and some expletives. Nevertheless, I reject the submission. As I have said, reading the documents as a whole they were clearly prepared and maintained on a serious occasion and for an important purpose.
177 Thirdly, the applicant submits that there were important omissions in the personnel records that mean that they cannot be considered reliable. There are two pages purporting to deal with Person 12 and, although the badge number is the same on both, the person's name is spelt differently XXX XXXXX XXXX and XXXXXXXX XX and, the applicant contends, the photographs are of different men.
178 I do not consider the name difference to be of any significance. The author plainly was not sure of the correct spelling of Person 12's name. As to the photographs, there is certainly a difference in hairstyle, lighting and camera angle between the two photographs.
179 Person 31 was cross-examined about the photographs in the personnel records at pp 2 and 3. He said that the correct name of the person was XXXXX He said that the photograph on p 3 was a photograph of Person 12, to the best of his knowledge. He accepted that the photographs on pp 2 and 3 were such that the person looked different. He accepted that the facial features are different, the eyes and the eyebrows, including the mole between the eyebrows, and the nose shape.
180 The other omission from the personnel records relied on by the applicant is that the entry for the person said to be Person 12 is silent as to his involvement in any mission on 12 October 2012, but does record his presence on missions on 24 September 2012 and 31 October 2012. It is not clear to me that it does record Person 12 being on a mission on 24 September 2012. It may be taken to record his presence on a mission on 31 October 2012.
181 The applicant submits that by the end of Person 31's evidence, it became plain that the contemporary documentation concerning the NDS-Wakunish was not reliable and further, that Person 31's own memory of the man that he believed to be Commander XXXX or XXX was also not reliable.
182 He also submits that an adverse inference should be drawn from the respondents' failure to call Person 6 to explain the documents he had maintained or prepared and, in particular, the personnel records. That failure was of significance in the case of the personnel records in light of the ambiguities in that document.
183 I reject these submissions. I am not bound by Person 31's comments about the photographs. I myself consider that the photographs are of the same man. One can say with certainty neither is a photograph of Person 123. The photographs in the personnel records are used in other documents. For example, exhibit R212 has the p 2 photograph, and the Outside the Wire Schedule has the p 3 photograph. Exhibit R22l has a photograph of Person 12 which has similarities to both the p 2 photograph and to the p 3 photograph. In my opinion, the evidence that Person 12 was the NDS-Wakunish Commander on and from 21 September 2012 is overwhelming. There is no ambiguity and no adverse inference is to be drawn from the respondents' alleged failure to call Person 6.
184 As far as Person 123 is concerned, the documents are clear to the extent that they show that Person 123 was the officer at the commencement of Rotation 18 and up until 21 September 2012. The personnel records show that Person 123 XXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXX X X As the respondents pointed out, there is an entry with respect to another Afghan Partner Force member which, for XXXXXXXXXXXX X XXX XXXXX The Outside the Wire Schedule indicates that Person 123 was XXXXXXXXX XXXXXXXXXXXXX There are photographs of Person 123 operating with FE-A in July and August 2012. Person 35 identified the person in these photographs as Person 123.
185 Moving then to photographs, there are various photographs of Person 12 which show him operating with or associating with FE-A after 21 September 2012. Person 31 identified the person in these photographs as Person 12 and Person 14 identified Person 12 in the photograph which is exhibit R41. Person 35 identified the person on the right in exhibit R231 as Person 12. He did that after he accepted in his evidence that he was wrong about Person 12 being removed in July 2012.
186 Person 12 was on the mission to Chinartu on 12 October 2012. Person 14's memory to that effect is confirmed by the video of soldiers on a helicopter on 12 October 2012 (exhibit R172) and Person 31's identification of one of those soldiers as Person 12 and by the Outside the Wire Schedule which shows that Person 12 was outside the wire on 12 October 2012. I have already dealt with the latter document.
187 The applicant challenges the respondents' reliance on the video of the soldiers on the helicopter and Person 31's identification of Person 12. The applicant submits that the image of the person said to be Person 12 in the video is fleeting and obscured by the fact that the person is wearing a bandana, sunglasses and camouflage paint. He points to the fact that Person 35 confirmed that the person in the video was not Person 123, but could not confirm that it was Person 12. Person 32 said that it looked like Person 12, hut he could not confirm it.
188 The applicant submits that Person 31 accepted the possibility that his identification evidence in relation to exhibit R172 may be wrong and the applicant submits that the dangers of identification evidence based on photographs are well known. The applicant submits that the Court could not confidently find, on the basis of Person 31's identification evidence alone, that the person in exhibit R172 was Person 12.
189 I do not accept this submission. The overwhelming weight of the evidence is that Person 12 did not shoot the dog and injure the Australian soldier. He was the NDS Commander in October 2012. He was identified by Person 31 as being shown on the helicopter on 12 October 2012. I do not consider that his identification evidence was qualified in any substantial way. He was asked in cross-examination whether it was possible he may be wrong "sitting here today?"' and he said in response the following:
It's possible, but that's what I remember he looks like.
190 A weekly engagement report is prepared by or for the ISAF, Kabul, Afghanistan. The report entitled "TF 66-A Weekly NDS Engagement Report 06 Nov - 13 Nov 12" contains the following:
XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX XXXXXX X X X X X X X X XX X X X X X XX XX XX XX X X X X X X X X X X X X X X X X X X X X XX X X X X X XX XX XX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX
191 The report entitled "TF 66-A Weekly NDS Engagement Report 04 Dec - 11 Dec 12" contains the following:
X X X X X X X XX X X X X X XX XX XX XX X X X X X X X X X X X X X X X X X X X X XX X X X X X XX XX XX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX XXXXXX X X X X X X X X XX X X X X X XX XX XX XX X X X X X X X X X X X X X X X X X X X X XX X X X X X XX XX XX XX X X X X X X X X X X X X X
192 The ASIF document titled "TF 66-A Weekly NDS Engagement Report 09 - 16 Oct 12" refers to the conduct of two operations by TF 66-A in which NDS-Wakunish officers/soldiers participated. The personnel are XXXXXXXXXXXX
193 With respect to the helicopter load plan or manifest, the applicant submits that the difficulties with the evidence relied on by the respondents mean that it is not clear that Person 12 was on the mission on 12 October 2012. The applicant submits that the omission of Person 12's name in the load plan or manifest for that mission may or may not be a mistake. He submits that Person 12's presence on the mission may be a matter on which the Court is unable to reach a conclusion, on the balance of probabilities based on the evidence adduced by the respondents. The applicant again submits that as Person 12 was not called by the respondents, an inference may be drawn that his evidence may not have assisted the respondents "in relation to this material issue".
194 In light of the documentary evidence and the evidence of Person 3l, I am satisfied that the helicopter load plan or manifest is incorrect. The video is important, but it is the weight of the whole of the evidence as described above that leaves me in no doubt that the helicopter load plan or manifest is incorrect.
195 A further matter to be taken into account is that the helicopter load plan for the mission to Syahchow on 20 October 2012 also contains Person 123's name for the entry at "W1", even though Person 12 was photographed on that mission. The respondents submit, and I accept, that the overwhelming inference is that the helicopter load plan template entry for "Wl" was not amended from Person 123 to Person 12 at the time of the changeover and that references to "Wl" on helicopter load plans after 21 September 2012 should be understood as referring to Person 12.
196 It is to be noted that there are other inaccuracies in the helicopter load plan. For example, the helicopter load plan refers to XXXXXXX X X whereas the Sametime chat document and the OPSUM for the mission refers to XXX X X XXXXXX Furthermore, the helicopter load plan refers to XXXXXXXXXXXXXXXXX when the evidence is he did not take part in the mission due to an ankle injury. The helicopter load plan or manifest for the mission to Chinartu on 12 October 2012 is inaccurate in a number of respects. At the same time, as the respondents point out, the helicopter load plan or manifest, together with the schedule which shows the occasions upon which Afghan Partner Force members were outside the wire, confirms that the following Afghan Partner Force members were on the mission to Chinartu: XXXXXXXX XX X XX X X X X X XXXXXXXXX X X X
197 Person 39 and his staff were responsible for the preparation of the helicopter load plans and he acknowledged that they did not confirm the names of the Afghan Partner Force members list on the load plans.
198 I find that Person 12 was part of the mission to Chinartu on 12 October 2012. He did not shoot the dog and injure the Australian soldier on 31 July 20 I 2. Person 12 did not become the NDS- Wakunish Commander until 21 September 2012. The identity of the NDS-Wakunish soldier who shot the dog and injured the Australian soldier is set out above. The identity of the Afghan Partner Force member who shot an Afghan male on 12 October 2012 is set out above.
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Is an Inference to be drawn from the fact that Person 12 was not called as a Witness by the Respondents?
199 The open Court reasons describe a submission by the applicant to the effect that the Court should draw an adverse inference from the respondents' failure to call Person 12.
200 Person 31 confirmed in his evidence that XXXXX XX X X X X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXXXX Person 31 and Person 14 had been involved in XXXXXXXXX X X X X X X X XXXX Person 14 said that he had dealings with Person 12 last year (i.e., 2021) during the fall of Kabul.
201 The applicant submits that Person 12 XXXXX X XXXXXXXXX has been in contact with at least two of the respondents' witnesses, Person 31 and Person 14, and that the latter has provided information to Mr Masters about the applicant. The applicant submits that Person 12 could have been called by the respondents and the failure to call him suggests that any evidence he would have given would not have assisted them. The applicant asks the Court to draw this inference. I reject that submission for the reasons given in the open Court reasons.
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The use of the acronym "VRI"
202 VRI is an acronym for "very reliable intelligence" XXX X X X X X X X X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX X X X X X X X
203 It was said by the applicant that Person 14 maintained that there was such a thing as a "VRI compound" when, in fact, "VRI" referred to XXXXXXXXXXXX
204 I reject the applicant's criticism of Person 14's evidence on this topic. The applicant himself in completing an evidence bag for an alleged EKIA at Fasil on 5 November 2012 identified the location by, among other things, a reference to "VRI Compound". Furthermore, the sensitive version of the XXXXXXX X X XXXX XXXXX XXXXXXXXXXXX XXX XXXXXX X X X X XXXXXXXX X X X X and the sensitive version of the XXX X X X X X X XXX X X XXXXXXXX XXXXXXXXXXXX X
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Sensitive ADF Records
205 The applicant refers to documentary evidence in the form of the document behind Tab 64 in exhibit A10 titled "TF66/NDS-W, OP TVSN 11-12.02, RW C&S, LO, Uruzgan, 05 NOV 12". This document is a story board and includes the following statement:
X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX XXXXXX X
206 There is a picture of the vehicle which was interdicted. The significance of Objective Sole Inheritance is discussed. The second page includes under the heading XXXX the following:
(1) X XXXXXXXXX XXXXXXXXXXXXXX X XXXXXXXXXXX X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXX XXX X X X X XX X X X
(2) X XX X X X X X X X X X X X X X X X X X X X X X X XXXX XXX X X X X XX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXX X X X XXXXXXXXX X X X X X X X X X X X X X X X X X X X X XXXX XXX X X
207 The applicant relies on the following entries in the Sametime chat record for the mission:
(1) X XXXXXXXXX XXXXXXXXXXXXXX X XXXXXXXXXXX X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXX XXX X X X X XX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXX X X X XXXXXXXXX
(2) X XX X X X X X X X X X X X X X X X X X X X X X X XXXX XXX X X X X XX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXX X X X XXXXXXXXX X X X X X X X X X X X X X X X X X X X X XXXX XXX X X
(3) X X X X X X X X X X X X X X X X X X X X XXXX XXX X X X X XX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXX X X X XXXXXXXX
(4) X X XX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXX X X X
(5) X X X X X X X X X X X X X X X X X X X X XXXX XXX X X X X XX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXX X X X XXXXXXXX
(6) X X XX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXX X X X X X XX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXX X X X
(7) X X XX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXX X X X X X XX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXX X X X
(8) X X XX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXX X X X X X XX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXX X X X X X XX X X X X X X X X X X X X X X X X X X X XXXXXXXXXXXXX X X X X X X X XXXXXXXXXXX XXXXXXXXXX X X XXXXXXXXXX X X X X X X
208 The post-debrief 5W consolidation is recorded at l741DE and the entry for the interdiction of the insurgent related vehicle is in similar terms to the entry in the OPSUM at 0920DE and the entry in relation to the insurgent engagement involving explosive entry is consistent with the entry in the OPSUM at 0945DE.
209 The applicant also relies on a document described as an Initial/Closing Incident Report (exhibit A10 Tab 62) which refers to the interdiction of an insurgency-related vehicle. The brief description of the incident is similar to the description in the OPSUM for the mission. Paragraph 10 of the report states that "Detailed intelligence development of this target area justified the clearance. This incident is closed".
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Other Matters
210 In the context of a possible trauma related explanation for Person l6's patchy recollection, the applicant referred to the following matters. XXXX XXXXXXXXXXXXXXXXXXX X X X XX X X X X X X XXXXXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXX X X X X X X X X XXXXXXXXXXX XXXXXXXXXX X X XXXXXXXXXX X X X X X X X X X X X X X XXXXXXXXXXX XXXXXXXXXX X X XXXXXXXXXX X X X X X X X X X X X X X X X X X X X X XXXXXXXX These discussions about traumatic experiences in Afghanistan had brought back certain emotions.
211 The entry in the Sametime chat record at 1029DE also refers to XXX X X X X X X X X X XXXX X XXXXXXX X XXXXXXXXXXXXXXXX XXXXXXX XXX
212 The applicant was unable to comment on whether the volume of blood shown in relation to the young Afghan male next to his head in exhibit R33 meant that that person was shot where the photograph was taken.
213 The applicant was not aware that the adult occupants of the vehicle were regarded as a sufficiently serious threat that XXXXXXXXXXXXXXXXX
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Sensitive ADF Records
214 The respondents point to the fact that an incident report for the mission to the Chora Valley on the day (exhibit A10 Tab 1) repeats the falsehood that the individual was armed with an AK variant weapon as does an incident summary on 21 June 2006 (exhibit Al0 Supplementary Tab 3). The incident report states that XXXXXXXXXXXXXX and goes on to conclude that XXXXXXXXXXXXXXXX X X X XX the respondents contend, the false information that the individual was armed.
215 The second of these two documents, namely an incident summary, is grammatically incorrect and refers to XXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXX X X X XX X X X X The word XXXX in the incident report has been replaced by the word XXXXXX in the incident summary. The respondents submit that I should infer from the incomplete change in language between the report and the summary that the amendments were made to the incident summary "to bolster the strength of the reporting, and make the contact sound more serious".
216 The applicant submits that "errors such as these" are neither here nor there given the way the evidence has unfolded in this Court. He refers to the After Action Reports (exhibits R48 and R49) which were prepared by Person 33 and/or Sergeant Locke shortly after 2 June 2006 and submits that they are substantially consistent with the preponderance of evidence in the case. The applicant submits that it is inherently unlikely that the alterations were made to the incident summary to bolster the strength of the reporting and make the contact sound more serious.
217 The applicant referred to exhibit R78 which is the Sametime chat record and the entry at 1l43Z to the effect that XXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXX XXXX XXXX X XXX That does not establish the precise author or authors or the content of whatever was sent.
218 The applicant referred to exhibit R79 which is described as "B3K SITREP DURING 011400 - 021400Z JUN 06" and, in particular, the reference to XXX X X X X X X X XXXXXXX The applicant states that this entry may be explained by the entry in the observation post an hour before the spotter XXXXXXXXX X X X X X X X X X X X X X The applicant submits that if that item is read in conjunction with the entry for the spotter, then "it is easy to see how the two could be conflated" and the document provides no evidence of dishonesty on the part of anyone.
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Other Matters
219 The applicant gave evidence that X X X X XXXXXXXXXXXXXX X X X X X X X X X X X X X X XXXXXXXX X X X XXXX X X X X X XXXX X XX XX X X X X X X X XXX
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Section 9 - Alleged Unlawful Assaults on PUCs
220 Paragraphs (88) and (89) of the Particulars of Truth in the Confidential Annexure to the Defence are as follows:
X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX XXXXXX X X X X X X X X XX X X X X X XX XX XX XX X X X X X X X X X X X X X X X X X X X X XX X X X X X XX XX XX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX XXXXXX X X X X X X X X XX X X X X X XX XX XX XX X X X X X X X X X X X X X X X X X X X X XX X X X X X XX XX XX XX X X X X X X X X X X X X X
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Person 7 XXXXXXXXXXXXXXXX
221 Person 7 XX X X X X X X X X X XX XXX X XXXXXXXX X X It was put to Person 7 that Mr McKenzie's notes (A144) reveal that he told Mr McKenzie about XXXXXXX XXXXXXXXXX X For example, there is a statement in Mr McKenzie's notes as follows: XX XXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXXXXXXXX X X X X X X X X XXXXXXXX XXXXXXXXXXX XXX XXXXXXXXX X X X X X X X XX XXX X XXXXXXXX X XXXXXXXXXXXXX XX X However, the effect of his evidence in cross-examination is that he does not recall saying to Mr McKenzie that various matters were matters XXXXXXXXXXXX XX and that it may have been Mr McKenzie himself who made the association, nevertheless he could probably not deny the proposition that he did.
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Section 10 - The Blue-on-Blue and the Alleged Threat to Person 10
222 The balance of Paragraph (72) of the Particulars of Truth in the Confidential Annexure to the Defence is as follows:
X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX XXXXXX X X X X X X X X XX X X X X X XX XX XX XX X X X X X X X X X X X X X X X X X X X X XX X X X X X XX XX XX XX X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XXXXXX X X X X X X X X X XXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XX XXXXXX X
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Section 12 - Intimidation of Witnesses, Collusion and Contamination of Witnesses, Concealment of Relevant Evidence and Material, Lies and the Alleged Separation of the Applicant and Ms Roberts
223 Person 11, XXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXX X X X X X XXX X X X acknowledged that he was in error in saying that he had not been in contact with the applicant upon receiving the summons to attend and then had spoken to him on the day immediately before the interview. Person 11 acknowledged that the only people he contacted about being summoned to appear before the IGADF Inquiry were his chain of command, the applicant and his wife.
224 Person 11 agreed that he was "potentially aware" that the engagement that had happened over the river may come up. His evidence on this point was unsatisfactory.
225 Person 11 drew a distinction between rumours and allegations. He said that he was aware of rumours concerning the cliff kick allegation XXXX XX X X X X X X X XXXXXX XX X X but he was not aware of allegations concerning the cliff kick incident XX X X X X XX XXXX XXXXXX X X X X X
226 Person 11 agreed that he and the applicant discussed rumours XXXXXXXXX X X XX X X X X X X X That included rumours about the cliff kick incident. Person 11 agreed that the evidence he had given in open Court that the applicant had not told him that he thought the IGADF Inquiry was directed at him was incorrect. He denied that his evidence was deliberately false. Person 11 said that XXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXX XXXX X X X X X X X X XXXXXXXXXXXXX XXXXXXXXX X X XXXXXXXXXX X X X X X X X X X X X X XXXXXXXXXXXXX XXXXXXXXX X X XXXXXXXXXX X X X X XX X X X X X XXXXXXX X X X XXXXXXXXXXXX I have reached the conclusion that Person 11 deliberately sought to conceal the extent of his discussions with the applicant in September 2017 during the evidence he gave in open Court.
227 Person 11 admitted that he met with the applicant in his hotel room in Sydney during the evening before his interview by the IGADF on 13 June 2018. He had previously said in open Court that he could not recall meeting with the applicant in his hotel room the night before his (Person 11's) interview.
228 The respondents submit that Person 11 deliberately concealed the existence of a meeting with the applicant in his hotel room on the night before his interview by the IGADF Inquiry on 13 June 2018. The respondents submit that Person 11 concealed that meeting because he considered that it would reflect poorly on both his credit and the applicant's credit and give rise to an obvious inference (having regard to the timing) that they were discussing the evidence that Person 11 was to give to the IGADF Inquiry the following day. The respondents submit that that is the most probable inference and is the inference that should be drawn. In my opinion, that is the conclusion that should be drawn. It is a similar conclusion to that I have reached in relation to his contact with the applicant in September 2017.
I certify that the preceding two hundred and twenty eight (228) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.
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SCHEDULE OF PARTIES
NSD 1485 of 2018
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NSD 1487 of 2018
Respondents
Fourth Respondent: DAVID WROE
The Court accepted the respondents' evidence and found that the substantial truth defence was established in respect of the principal imputations of unlawful killings at Whiskey 108 and Darwan, with supporting findings on witness intimidation and other matters. The applicant's evidence and that of his supporting witnesses was not accepted where it conflicted with corroborated eyewitness and documentary material.