FEDERAL COURT OF AUSTRALIA

Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal)
[2025] FCAFC 67

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs.

3.    Pursuant to s 37AF of the of the Federal Court of Australia Act 1976 (Cth) and on the grounds referred to in s 37AG(1)(b) and (c) of that Act, there be no disclosure, by publication or otherwise, of the reasons for judgment delivered in open court (open court reasons) until either the Commonwealth notifies the Court and the parties that it has no objection to publication of the open court reasons or 4pm on 20 May 2025 (whichever is the earlier).

4.    Order 3 does not prevent disclosures of the open court reasons to and between Authorised Persons within the meaning of the orders made by his Honour Justice Besanko on 15 July 2020 (as most recently amended on 26 September 2023) under ss 19(3A) and 38B of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs.

3.    Pursuant to s 37AF of the of the Federal Court of Australia Act 1976 (Cth) and on the grounds referred to in s 37AG(1)(b) and (c) of that Act, there be no disclosure, by publication or otherwise, of the reasons for judgment delivered in open court (open court reasons) until either the Commonwealth notifies the Court and the parties that it has no objection to publication of the open court reasons or 4pm on 20 May 2025 (whichever is the earlier).

4.    Order 3 does not prevent disclosures of the open court reasons to and between Authorised Persons within the meaning of the orders made by his Honour Justice Besanko on 15 July 2020 (as most recently amended on 26 September 2023) under ss 19(3A) and 38B of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs.

3.    Pursuant to s 37AF of the of the Federal Court of Australia Act 1976 (Cth) and on the grounds referred to in s 37AG(1)(b) and (c) of that Act, there be no disclosure, by publication or otherwise, of the reasons for judgment delivered in open court (open court reasons) until either the Commonwealth notifies the Court and the parties that it has no objection to publication of the open court reasons or 4pm on 20 May 2025 (whichever is the earlier).

4.    Order 3 does not prevent disclosures of the open court reasons to and between Authorised Persons within the meaning of the orders made by his Honour Justice Besanko on 15 July 2020 (as most recently amended on 26 September 2023) under ss 19(3A) and 38B of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    In 2018 the respondents published a number of articles about the activities of Australian special forces soldiers during the war in Afghanistan. Among other things, the articles contained sensational allegations that war crimes had been committed by soldiers in the Special Air Service Regiment (SASR), raising serious questions about the culture and command structure of the regiment. Although he was not named in the articles, the appellant instituted three proceedings claiming he had been defamed in them. The respondents contended that the defamatory imputations were substantially true and also relied on the defence of contextual truth. Following a lengthy trial, while the primary judge found that the appellant was defamed in the articles, he also found that most of the imputations were substantially true and upheld the defence of contextual truth with respect to the rest. In particular, his Honour found that the respondents had proved to the requisite standard the truth of the imputations that the appellant had committed or was complicit in murder on three separate occasions in 2009 and 2012. In this appeal the appellant claims that those findings should not have been made. He argues that the evidence was not sufficiently cogent to satisfy the respondents’ burden of proof.

2    The imputations which were found to have been conveyed and to be substantially true were that:

(1)    the appellant, while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him;

(2)    the appellant broke the moral and legal rules of military engagement and is therefore a criminal;

(3)    the appellant disgraced his country, Australia, and the Australian Army by his conduct as a member of the SASR in Afghanistan;

(4)    the appellant, while a member of the SASR, committed murder by pressuring a newly deployed and inexperienced SASR soldier to execute an elderly, unarmed Afghan in order to “blood the rookie”;

(5)    the appellant, while a member of the SASR, committed murder by machine gunning a man with a prosthetic leg;

(6)    the appellant, having committed murder by machine gunning a man with a prosthetic leg, is so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel;

(7)    the appellant, as deputy commander of a 2009 SASR patrol, authorised the execution of an unarmed Afghan by a junior trooper in his patrol;

(8)    the appellant, during the course of his 2010 deployment to Afghanistan, bashed an unarmed Afghan in the face with his fists and in the stomach with his knee and in so doing alarmed two patrol commanders to the extent that they ordered him to back off;

(9)    the appellant as patrol commander in 2012 authorised the assault of an unarmed Afghan, who was being held in custody and posed no threat;

(10)    the appellant engaged in a campaign of bullying against a small and quiet soldier called Trooper M which included threats of violence; and

(11)    the appellant assaulted an unarmed Afghan in 2012.

See Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 (J) at J[11]–[13], J[2599]–[2600].

3    The appeal is concerned with the findings that the imputations set out in (1)–(7) and (9) above are substantially true. There is no challenge to the findings concerning the imputations set out in (8), (10) and (11).

4    Two of the killings occurred at the village of Kakarak on 12 April 2009 at a compound known as Whiskey 108 or just W108. The third occurred on 11 September 2012 during an operation to capture a particular enemy combatant at Darwan. The fourth occurred on 12 October 2012 during a mission at Chinartu. It is convenient at this point to refer to the principal findings.

5    With respect to Whiskey 108, those findings were as follows. After the compound had been declared secure, two Afghan nationals were discovered in a concealed tunnel and brought out into a courtyard onto which the tunnel opened. One was an old man (referred to as EKIA56), the other a man with a prosthetic leg (referred to as EKIA57). Once most of the Australian soldiers in the courtyard had left it, the appellant made the old man kneel before Person 4 and ordered Person 4 to execute him. Person 4 did so with a single shot to the old man’s head fired from an M4 rifle fitted with a suppressor. Sometime after that, the appellant frogmarched the man with the prosthetic leg out of the compound to a point at its northwest corner, threw him on the ground and executed him with machine gun fire.

6    With respect to Darwan, his Honour found that, during the clearing of compounds by the appellant’s patrol, a soldier referred to as Person 11 and the appellant had murdered an Afghan man known as Ali Jan. His anterior findings included that Ali Jan was handcuffed and was being held by his shoulder by Person 11 when the appellant kicked him off a small cliff or steep slope into a dry creek bed below. His Honour found that at the appellant’s direction Person 11 and Person 4 carried Ali Jan to the opposite side of the creek bed and into the cornfield where, with the agreement of the appellant, he was executed by Person 11. Afterwards, Ali Jan’s handcuffs were removed, an ICOM (a two-way radio) was placed on his body, and photographs were taken to create the false impression that he was an enemy combatant.

7    With respect to Chinartu, his Honour’s principal findings were these. While the appellant was questioning an Afghan man in the presence of other soldiers, another member of his patrol, Person 14, discovered a cache of weapons and supplies in a perimeter wall outside the room where the questioning took place. In response to the discovery, through an interpreter the appellant directed Person 12, a commander of the Afghan partner forces, to shoot the Afghan man. After a discussion between the interpreter and Person 12, and then Person 12 and the Afghan partner soldiers, one of the Afghan soldiers then shot the Afghan man.

8    The primary judge was satisfied that each of the men who was killed at Whiskey 108, Darwan and Chinartu in the circumstances described above was a “Person Under Control” (PUC), that is to say, a person who was being detained or held by the SASR for the purpose of interrogation and/or processing. Consequently, each of the executions constituted offences against s 268.70 of the Criminal Code Act 1995 (Cth) (Criminal Code or Code) which is entitled “War Crime – Murder”. Thus, the findings of the primary judge constitute findings that Person 4 and the appellant had committed that crime at Whiskey 108, that Person 11 had committed that offence at Darwan, and that an Afghan soldier had done so at Chinartu.

9    Section 11.2 of the Code is entitled “Complicity and Common Purpose”. It makes it an offence to aid, abet, counsel or procure the commission of an offence under the Code including s 268.70.

10    The primary judge found that the appellant ordered Person 4 to execute the old man, that he had agreed with Person 11 that Ali Jan should be executed at Darwan, and that he had ordered the commander of the Afghan partner forces at Chinartu to execute the Afghan man who was being questioned and so was complicit in, and responsible for, the executions. Each of these conclusions constituted findings that the appellant had committed the offence in s 11.2 as applied to s 268.70. The latter two executions would also satisfy the terms of s 11.2A, which commenced on 20 February 2010, after the events at Whiskey 108. That section provides that, where a person who enters into an agreement to commit an offence and an offence is committed in accordance with the agreement or in the course of carrying out the agreement, that person is taken to have committed the offence. The section makes it clear that the agreement may consist of a non-verbal understanding and may be entered into before, or simultaneously with, the conduct constituting the physical elements of the offence.

11    Although it has no direct legal significance in this litigation, it should be noted that these statutory provisions give effect to Australia’s obligations under Article 3 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (Fourth Geneva Convention). Article 3 applies to hostilities which are not of an international character but which occur in the territory of a contracting party which was the case with Australia’s involvement in the hostilities in Afghanistan. Article 3 requires the humane treatment of persons taking no active part in hostilities including persons who have been taken into custody, and prohibits, among other things, acts of violence towards them, including murder and summary execution. .

12    It was common ground that at all relevant times the war in Afghanistan was “an armed conflict that is not an international armed conflict”, no doubt because at least at all relevant times it was not an armed conflict conducted between States. In Mohammed v Ministry of Defence [2014] EWHC 1369 (QB) at [231] Leggatt J observed that, since the overthrow of the Taliban in 2001 and the establishment of a new Afghan government pursuant to the Bonn Agreement, it is generally accepted that the fighting in Afghanistan was “a non-international conflict”. We interpolate that the Bonn Agreement was a reference to the “Agreement on Provisional Arrangements in Afghanistan pending the Re-establishment of Permanent Government Institutions”, dated 5 December 2001, which provided for the establishment of an Interim Administration in Afghanistan on 22 December 2001. Leggatt J went on to explain, citing J Pejic, “Conflict Classification and the Law Applicable to Detention and the Use of Force” in E Wilmshurst (ed), International Law and the Classification of Conflicts (OUP, 2012), p 82:

In the taxonomy of such conflicts, the situation in Afghanistan can be classified as a “multi-national non-international armed conflict”, i.e. one in which multi-national armed forces are fighting alongside the armed forces of a ‘host’ state, in its territory, against one or more organised armed groups.

13    Some of the evidence in this case is covered by the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth). The evidence which is subject to that Act cannot be disclosed in open court. Consequently, parts of the trial were conducted in a court closed to the public. The primary judge prepared public reasons in the usual way but he also prepared a set of closed court reasons portions of which cannot be disclosed publicly due to national security constraints. In this Court the same approach was taken. The parties made separate closed court submissions and, like the primary judge, we will also give separate closed court reasons. Where there are closed court reasons touching upon a subject matter discussed in the open court reasons, we will indicate as much.

SOME GENERAL REMARKS

14    Before going any further, it is useful to refer to some matters of law which bear upon the fact-finding process, the nature of the appeal, and the manner in which the issues it raises are to be decided.

The burden and standard of proof

15    As the Chief Justice of the High Court observed in a recent article, the legal concept of truth is not absolute; it is a matter of degree. “True or untrue”, his Honour wrote, “means proven or unproven, and proven or unproven is ultimately believed or not believed with the requisite degree of intensity”. His Honour explained:

When we speak in a civil case of proof “on the balance of probabilities” or “on the preponderance of the evidence”, just as when we speak in a criminal case of proof “beyond reasonable doubt”, we are expressly eschewing any notion that we can determine that a past fact happened or did not happen with absolute certainty. We are talking probabilistically. But we are not talking about objective probabilities; otherwise we would never find an improbable thing to have happened. We are talking about belief, and we are acknowledging that belief can be held with different degrees of intensity.

See Stephen Gageler, Truth and justice, and sheep (2018) 46 Australian Bar Review 205 at 207-8.

16    The difference between the criminal and civil standards of proof is “not a mere matter of words” but one of “critical substance”; in a civil case, “no matter how grave the fact which is to be found … the mind has only to be reasonably satisfied”: Reifek v McElroy (1965) 112 CLR 517 at 521. In a criminal case where circumstantial evidence is relied upon, especially to prove the accused’s state of mind, the prosecutor must exclude all reasonable explanations consistent with innocence: Shepherd v The Queen (1990) 170 CLR 573. But that is an aspect of the criminal standard of proof beyond reasonable doubt, “which has no analogue in relation to the civil standard of the balance of probabilities”, even in civil cases where serious wrongdoing, including criminal conduct, is alleged: Australian Competition and Consumer Commission v Delta Automation Pty Ltd [2023] FCA 880 (Delta) at [55] (Bromwich J). As Bromwich J went on to say in Delta at [56]–[57]:

[56]    In a civil case, the combination of circumstances relied upon must do no more than raise “a more probable inference in favour of what is alleged”: see Shepherd per Mason CJ at 576 and per Dawson J at 581 (with whom Toohey and Gaudron JJ agreed), explaining a passage from Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 536 containing that phrase without adverse comment. The unquoted, but footnoted, source of that phrase in Chamberlain is Luxton v Vines (1952) 85 CLR 352 at 358, where Dixon, Fullagar and Kitto JJ quoted from the following passage in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5 (emphasis added to identify the phrase):

Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley (1911) AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at p 678.

[57]    It follows that the starting point is that the exclusion of alternative explanations forms no part of any civil law requirement for reaching the necessary state of satisfaction on the balance of probabilities, even if it might be analytically deployed as a process of reasoning. Although common, this is not a rule of law even in relation to jury directions in criminal cases and is sometimes not appropriate in such a case: Shepherd per Mason CJ at 575 and per Dawson J at 578. As Dawson J pointed out, while a direction of that kind is customarily given to a jury in circumstantial evidence cases, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt, such that in some cases such a direction may be confusing rather than helpful. Even in criminal proceedings, it is only the elements of an offence that must be proven beyond reasonable doubt, each fact relied upon to support the proof of that element need not be proven to that standard unless indispensable to the finding of guilt. Of course, sometimes a non-element component of a criminal case may need to be proven beyond reasonable doubt, such as identification.

(Emphasis in original in [56], emphasis added to [57].)

17    The primary judge cited the same passage in Bradshaw v McEwans as that which Bromwich J extracted in Delta at [56] (at J[168]).

18    In Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 361 Dixon J explained that, before a particular finding of fact can be made, the tribunal of fact “must feel an actual persuasion of its occurrence or existence” and no such finding can be made “as a result of a mere mechanical comparison of probabilities independently of any belief in its reality”. In a civil case, his Honour went on to explain at 362, “it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal”. His Honour continued:

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences …

19    Later, at 363, his Honour remarked that, where a question arises in a civil proceeding as to whether a crime has been committed, “the standard of persuasion is … the same as upon other civil issues” but “weight is given to the presumption of innocence and exactness of proof is expected”.

20    Consequently, as the High Court observed in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 (Neat Holdings) at 450, authoritative statements have often been made to the effect that clear, cogent or strict proof is necessary where, for example, a court is asked to find “so serious a matter as fraud”.

21    These principles have effectively been codified in s 140 of the Evidence Act 1995 (Cth) (Evidence Act). That section requires a Court, when determining whether a party who bears the burden of proof has discharged that burden on the balance of probabilities, to take into account the nature of the cause of action or defence, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged.

22    The appellant argued that the primary judge failed to apply these principles and had failed to give weight to the presumption of innocence because he did not explain how he applied the principles and in what way the presumption had affected his view of the evidence.

23    We reject this argument. The primary judge discussed the relevant principles at length in the early part of his reasons and repeatedly reminded himself of them. Section 140 of the Evidence Act, for example, is mentioned nine times in the reasons for judgment, Briginshaw 10 times, Neat Holdings three times and the presumption of innocence seven times. These were no mere ritualistic incantations, as the appellant suggested. It is apparent that his Honour was acutely conscious of the seriousness of the findings the respondents called upon him to make and of the necessity that he be reasonably satisfied that the imputations were substantially true without resorting to inexact proofs, indefinite testimony or indirect inferences. Accordingly, he gave no weight to uncorroborated evidence and largely relied on eyewitness accounts. He expressly adverted to the appellant’s submission concerning the strength of the evidence required to discharge the respondents’ burden and the presumption of innocence (at J[114]). Still, he was satisfied that “the proof [was] clear and cogent” (J[115]).

24    It is manifestly clear from the reasons of the primary judge that, in reaching conclusions about contested facts, his Honour did not engage in any mechanical comparison of probabilities divorced from a belief in the occurrence or existence of the matters in dispute. That is perhaps best illustrated by his unwillingness to find that the imputations concerning the mission to Fasil on 5 November 2012 were substantially true, despite evidence from an SASR member (Person 16), which his Honour accepted in the face of the appellant’s denials, that the appellant had admitted to shooting a young, unarmed Afghan adolescent in the head and gloating about it. His Honour said at J[1686]:

Having regard to all the evidence, including the absence of an eyewitness to the alleged execution, and the nature of the allegations, I do not think the respondents’ case can succeed unless the Court is clearly satisfied that the deceased Afghan male shown in exhibit R105 is the young Afghan male detained by Person 16.

Exhibit R105 was a photograph of a deceased Afghan male.

25    While Person 16 identified the man in the photograph with “a high degree of confidence” as the man he had detained and the primary judge did not doubt the honesty of Person 16, his Honour did not consider that the identification evidence was “sufficiently clear and cogent” to support a finding that the deceased Afghan male in the photograph was the man detained by Person 16 (at J[1688]-[1692]).

26    Similarly, while his Honour did not accept the appellant’s evidence about any of the matters in dispute in relation to the allegations concerning the imputations relating to Person 17, who testified that she had been assaulted by the appellant, his Honour did not consider her evidence to be sufficiently reliable to make out the substantial truth of the imputations themselves (J[2226]).

27    The appellant also repeatedly criticised the primary judge for failing to consider the reliability of the testimony of witnesses, claiming that he focussed on credibility only. These criticisms are unwarranted. The reasons must be read as a whole. At J[162]–[166] his Honour discussed the fallibility of human memory, particularly with the passage of time, and the effect of imagination, emotion, prejudice and suggestion. The particular attention his Honour gave to the credibility of the witnesses was an inevitable result of the attention given to the matter in the submissions made on behalf of both the appellant and the respondents.

The nature of the appeal and the advantages of the primary judge

28    This is an appeal by way of rehearing. Speaking of appeals of this kind, Gibbs ACJ, Jacobs and Murphy JJ said in Warren v Coombes (1979) 142 CLR 531 at 551:

[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.

29    The respect and weight to be afforded the conclusion of the primary judge is not limited to findings likely to have been affected by assessments of demeanour, as the appellant seemed to suggest. That is clear from what the High Court said in a number of cases.

30    As Lord Sumner observed in SS Hontestroom v SS Sagaporack [1927] AC 37 at 47 in a passage cited with approval by McHugh J in Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167 at 178 (Mason CJ, Deane, Dawson and Gaudron JJ agreeing) and affirmed in many later authorities, including Devries v Australian Railways Commission [1993] HCA 78; 177 CLR 472 (Devries):

[N]ot to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.

31    In Devries at 479-480 Deane and Dawson JJ remarked:

An appellate court which is entrusted with jurisdiction to entertain an appeal by way of rehearing from the decision of a trial judge on questions of fact must set aside a challenged finding of fact made by the trial judge which is shown to be wrong. When such a finding is wholly or partly based on the trial judge’s assessment of the trustworthiness of witnesses who have given oral testimony, allowance must be made for the advantage which the trial judge has enjoyed in seeing and hearing the witnesses give their evidence. The “value and importance” of that advantage “will vary according to the class of case, and, … [the circumstances of] the individual case” (Watt (or Thomas) v Thomas [1947] AC 484 at 488 per Lord Thankerton).

32    In Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy) at [23] Gleeson CJ, Gummow and Kirby J explained that, while an appellate court is obliged to give the judgment it considers should have been given at first instance:

[I]t must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

(Footnotes omitted.)

33    The limitations to which their Honours adverted unquestionably apply to the present appeal.

34    Further, in Fox v Percy at [93] McHugh J observed:

[N]othing has occurred that would justify abandoning the current doctrines of appellate review, doctrines that have remained unchanged for over a century. The nature of the materials that appellate courts act on remain the same as they were in the last quarter of the nineteenth century when the principles of appellate review were formulated and developed. No persuasive research suggests that the interests of justice would be better served if appellate courts decided appeals on the printed record without regard to the advantage that the trial judge has in seeing and hearing the witnesses …

35    In Rosenberg v Percival [2001] HCA 18;205 CLR 434 at [41], McHugh J said:

One of the consequences of the “advantage” of seeing and hearing the witnesses is that the trial judge is in a far better position than an appellate court to know what individual weight should be assigned to the various factors — credibility, matters for and matters against — that must be evaluated in making the ultimate findings of fact in the case. Where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript, the trial judge gave insufficient weight or consideration to other facts and circumstances in the case. The common law tradition is an oral tradition. Trial by transcript can seldom be an adequate representation of an oral trial before a judge or an oral trial before a judge and jury.

36    That is particularly true of a case like this in which the trial ran for 110 days over a period of more than 13 months, in which 44 witnesses were called and over a thousand documents tendered, in which ferocious attacks were made on the credibility of key witnesses, and in which details matter. With respect to the latter, for example, it was commonplace for witnesses’ attention to be drawn to maps and photographs as they were giving their evidence. While counsel endeavoured to explain the witnesses’ annotations to and explanations of those documents, the primary judge had the advantage of seeing the witnesses mark these documents in real time. There is no substitute for being in the room and hearing the evidence as the case unfolds.

The significance of the wholesale rejection of the appellant’s case

37    In relation to each of the matters the subject of the appeal, the primary judge found that the appellant had presented false accounts of the events in question and rejected him and the witnesses he called to support it as witnesses of truth.

38    Of course, the mere fact that a witness is disbelieved does not prove the opposite of what the witness asserted: Steinberg v Commissioner of Taxation (Cth) (1975) 134 CLR 640 at 694 (Gibbs J). Moreover, as Gibbs J observed in that case (also at 694), it is sometimes said that where a witness’s account is disbelieved, “the result is simply that there is no evidence on the subject”. Still, that is incorrect “as a universal proposition”. As his Honour explained:

There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case: Eade v. The King [(1924) 34 CLR 153 at [158]; Tripodi v. The Queen [(1961) 104 CLR 1]. Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts: Lee v Russell [[1961] WAR 103 at 109].

39    The respondents’ case was in part a circumstantial one. “Often enough”, in such a case, as the plurality observed in R v Hillier [2007] HCA 13; 228 CLR 618 at [48] (Gleeson CJ agreeing at [1]), “there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused, [b]ut neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal”. Of course this is a civil case, not a criminal one, but the same holds true here. In deciding whether a trial judge erred, a court is not entitled to disregard parts of the evidence. Yet that is what the appellant urged this Court to do. While he did not challenge any of the adverse findings of the primary judge about his own credit or that of his witnesses, he submitted that the Court was required to put those findings to one side and focus only on the evidence adduced by the respondents in their own case. Where, as here, however, a party who does not shoulder the burden of proof chooses to give evidence, the fact that that evidence was disbelieved does not mean that his testimony (and that of the witnesses he called to support it) can be put to one side. The Court cannot pretend that the evidence was not given. In the context of a murder case based on circumstantial evidence, the High Court explained in R v Baden-Clay [2016] HCA 35; 258 CLR 308 at [57]:

[T]he respondent chose to give evidence. To say that the respondent’s evidence was disbelieved does not mean that his evidence could reasonably be disregarded altogether as having no bearing on the availability of hypotheses consistent with the respondent’s innocence of murder. His evidence was important, even if it was disbelieved, because it was open to the jury to consider that the hypothesis identified by the Court of Appeal was not a reasonable inference from the evidence when the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility.

40    How this principle applies is discussed further below.

WHISKEY 108

Introduction

41    The appellant was a member of G Troop. On the morning of 12 April 2009, G Troop established an overwatch position on the western side of the Deh Rafshan river. On the eastern side, the 7th Battalion of the Royal Australian Regiment was being engaged by insurgents as part of the second Battle of Kakarak. The regiment was part of the broader Mentoring and Reconstruction Taskforce (MRTF). The insurgents were operating out of several compounds on the western side of the river. The word “compound” has a military connotation but the evidence shows that the compounds were very basic rural structures made from mud and used for mixed purposes including habitation and farming.

42    Two particular compounds were identified as harbouring insurgents. These were designated Whiskey 108 and Whiskey 109. During the morning, G Troop observed numerous insurgents manoeuvring against the MRTF from its overwatch position and engaged them with sniper fire. Three insurgents were observed entering Whiskey 108 over the course of the day. A drone located high above the battlefield also detected insurgents at Whiskey 108 and this intelligence was conveyed to G Troop.

43    After the detection of insurgent activity at Whiskey 108, a 500lb bomb was dropped on the compound. This occurred at 12.21pm and caused extensive damage to its northern end. As the primary judge noted, there was a misunderstanding on the day of the mission concerning cardinal directions such that north (which is correctly displayed on the aerial photographic evidence of Whiskey 108) was thought by troops on the ground to be more parallel to the river. As a result the courtyard relevant to the events occurring at Whiskey 108 was described in the oral evidence as being at the northwestern end of the compound despite the photographs instead showing it more around the northeast. At any rate, the primary judge did not consider this misunderstanding created any confusion with the evidence and we, like his Honour, will proceed by reference to the cardinal points as they were understood on the day. A decision was then made that G Troop would clear Whiskey 108 and Whiskey 109 of insurgents. Orders to that effect were given to the patrol commanders of the troop by its captain, a person known in this proceeding as Person 81.

44    The troop itself was divided into five patrols and a headquarters unit. These were as follows:

(a)    Headquarters – consisting of the captain, Person 81; the troop sergeant, Person 82; and an interpreter.

(b)    Gothic 1 – consisting of a sergeant, Person 44; a corporal, Person 45; and four privates: Persons 27, 46, 47 and 48.

(c)    Gothic 2 – consisting of a sergeant, Person 29; a corporal, Person 40; and four privates: Persons 35, 38, 41 and 42.

(d)    Gothic 3 – consisting of a sergeant, Person 43; a corporal, Person 72; and four privates: Persons 3, 98, 108 and 109.

(e)    Gothic 4 – consisting of a sergeant, Person 6; a corporal, Person 73; and four privates, Persons 14, 24, 68 and 80.

(f)    Gothic 5 – consisting of a sergeant, Person 5; the appellant, who was then a lance corporal; and three privates: Persons 4, 18 and 52.

45    For the mission to Whiskey 108, the five patrols were given functions either as assault patrols or as cordon and security patrols. The role of the assault patrols was to enter Whiskey 108 and clear it of insurgents. The role of the cordon patrols was to provide a cordon around the compound and external security for the compound. The assault patrols were Gothic 2 and Gothic 5. During the assault phase, the cordon patrols were Gothic 1, Gothic 3 and Gothic 4.

46    The overwatch position which the troop occupied was known as the vehicle drop off point (VDOP). The troop stepped off the VDOP at around 3 pm. It proceeded in a formation known as open file which is essentially a wedge shaped formation with a single patrol leading the way at the wedge’s apex. The patrol at the front was Gothic 4.

47    The troop approached the compound from the south. On the approach, Gothic 4 engaged three insurgents and killed them. An insurgent killed in action is referred to as an enemy killed in action or “EKIA” or sometimes just as a “KIA”. The last of these insurgents was designated EKIA50. The body of EKIA50 was close to the northwest corner of the compound. Although he did not accept this at trial, the appellant now accepts that Gothic 4 was located off the northwest corner of the compound.

48    The two assault patrols entered the compound through an alleyway which opened up about half way along the compound’s western wall. The appellant’s patrol, Gothic 5, entered first followed by the other assault patrol, Gothic 2. The southern half of the compound was cleared first. On balance, the evidence indicated that there were local nationals (not insurgents) in the southern end of the compound. Having cleared the southern part of the compound, Gothic 2 and Gothic 5 then proceeded to clear the northern part of the compound.

49    At the western end of the northern edge of the compound there was an adjoining courtyard which was enclosed by walls and measured approximately 18 metres by 30 metres. Its precise purpose was not altogether clear. It may have been an animal pen, or perhaps a cooking area or even a latrine. The courtyard had two means of ingress and egress. One was through a gap in the compound wall. It was possible to pass through this gap in a northerly direction and thereby to gain access to the courtyard. The other was through a gap in the wall of the courtyard. Through this latter gap it was possible to gain access to the area outside the western wall.

50    It is convenient at this point to make an observation about nomenclature. The courtyard was treated as being part of the compound both in much of the evidence and in the primary judge’s reasons which was entirely appropriate since the courtyard forms part of the overall structure. It does have the consequence, however, that sometimes the northwest corner of the courtyard is referred to as the northwest corner of the compound and vice versa. The two corners are the same corner. We will refer to the corner as the northwest corner of the compound unless the context otherwise requires. Similarly, sometimes the western wall of the courtyard is referred to as the western wall of the compound (since it is part of the same wall). We will use the expression “the western wall of the compound” where what is being discussed does not directly concern the western wall of the courtyard but will use the latter expression where the subject matter concerns the courtyard.

51    Returning to the events on the day, once the compound had been cleared and declared secure, the duties of some of the patrols were reassigned. There were two kinds of duty. The first was maintaining cordon security around the compound and the second was conducting a process known as Sensitive Site Exploitation (SSE) within the compound and its local environs (such as nearby sheds). The SSE process involved a thorough search for items of interest such as explosives, weapons and the bodies of dead insurgents. This SSE process was documented in written and photographic records which were available at trial.

52    Once the formal declaration that the compound was secure had been made, Gothic 3 and Gothic 4 were given cordon duties. In the case of Gothic 4, this entailed that it remained off the northwest corner of the compound where it was already located having engaged EKIA50. Gothic 3 was at the southern end of the compound. Gothic 1 appears to also have been engaged in security duties. Gothic 2 and Gothic 5 were assigned SSE duties.

53    Another event which occurred when a compound is declared secure was a meeting between the troop commander, the captain (in this case Person 81), the troop sergeant (in this case Person 82), and each of the patrol commanders (in this case, the sergeants Persons 44, 29, 43, 6 and Person 5). This meeting was known as the RV meeting (the RV meeting). Although there was a dispute about this at trial it is no longer in dispute that the RV meeting occurred inside the compound.

54    It is now also uncontroversial that after the compound had been declared secured and during the SSE process which followed, a tunnel was discovered in the courtyard. The tunnel entrance was located about halfway along the northern wall of the courtyard. The discovery of the tunnel occurred at or around the time that the RV meeting was beginning.

55    At or just after the time the tunnel was discovered, it is no longer controversial that five soldiers called as witnesses by the respondents were present in the courtyard. These were Persons 18, 40, 41, 42 and a sergeant, Person 43, the patrol commander of Gothic 3. Also present in the courtyard at around that time were the appellant and four witnesses who testified on his behalf: Persons 5, 29, 35 and 38. Person 5 was the patrol commander of the appellant’s patrol, Gothic 5. Person 29 was the patrol commander of Gothic 2.

56    At trial these witnesses for the appellant gave evidence that they alone had discovered the tunnel before the compound was declared secure and that when they did so no persons had been discovered inside it. However, this evidence became untenable during the trial. The evidence became untenable because of the evidence of Persons 18, 40, 41, 42 and 43 all of whom gave evidence of having been in the courtyard at or around the time the tunnel was discovered and some of whom gave evidence that they saw men being brought out of the tunnel. The appellant accepted on appeal that each of these witnesses was in the courtyard at or around the time the tunnel was discovered. He also accepted that the tunnel was discovered after the compound was declared secure. Furthermore, he does not challenge the honesty of any of these witnesses.

57    The events which unfolded after the tunnel was discovered constitute the terrain of dispute between the parties. That dispute may be passed over for now. But it is useful to record an important fact which is no longer contested. The appellant has accepted that an old man was shot dead in the tunnel courtyard by Person 4 and that his body lay where it fell. What remains in dispute about the old man is not whether he was shot dead by Person 4 in the courtyard but rather whether the killing was a murder or a lawful engagement and, if the former, whether it was a murder carried out on the orders of the appellant. This is an important fact to keep in mind when the time comes to consider the appellant’s various submissions about the weaknesses and contradictions in the respondents’ case at trial.

The respondents’ case at trial

58    The respondents’ case was that after the tunnel was discovered the old man and the man with the prosthetic leg were discovered inside it and brought out. They were placed under control and taken by the appellant and Person 35 for tactical questioning. Subsequently, the old man was brought back into the courtyard and executed by Person 4 on the orders of the appellant. The appellant then left the courtyard. Sometime after that, he carried or frogmarched the man with the prosthetic leg out the gap in the western wall of the courtyard and carried him about five metres to a point just outside the compound off its northwest corner. There the appellant threw the man with the prosthetic leg on the ground and killed him with machine gun fire.

59    To prove this case the respondents called the following witnesses whose evidence touched directly on this case. They were Persons 4, 18, 40, 41, 42, 43, 14 and 24.

Person 18

60    Person 18 was a soldier in Gothic 5. Other members of Gothic 5 were its sergeant, Person 5, the appellant who was its second in charge (2IC) and two soldiers, Person 4 and Person 52. Person 18 gave evidence relevant both to the death of the old man and the death of the man with the prosthetic leg together with evidence on other topics.

Person 18’s evidence concerning the old man

61    Person 18’s patrol, Gothic 5, was one of the two patrols that had cleared the compound before it was declared secure and the SSE process commenced. Person 18 had a speciality in the SSE process. He described it as a process by which evidence was labelled and moved back to the base.

62    Once the SSE process commenced, Person 18 began to search the compound. He went back to the entry point on the western side of the compound (where the alleyway entrance was) and began searching the rubble (recalling that a 500lb bomb had been dropped on the compound some hours before). Person 18 then worked clockwise around the compound from that point. He recalled a cache of rockets having been found by someone in a wall. While he was doing this on the western side of the compound, he received a radio call that a tunnel had been found and that a person or persons had been pulled out of it. He recalled that at this time the meeting of patrol commanders (the RV meeting) was taking place. When he arrived at the courtyard, he saw an Afghan male wearing flexicuffs (handcuffs made of plastic straps), who was dressed in white, together with two or three soldiers. He did not think this was unusual as the finding of Afghan males in a compound was a regular occurrence. He went over to the tunnel and looked down into it. He recalled another soldier, Person 35, went down into the tunnel and Person 18 slid in after him so that he was up to his waist “inside the tunnel leaning on the stairs”.

63    Person 18 did not give any evidence of having seen the man with the prosthetic leg before undertaking the SSE process on his body.

The evidence of Person 18 concerning the man with the prosthetic leg

64    After his involvement in the clearance of the tunnel Person 18 returned to where he had been before the radio call and recommenced searching that area. This area consisted of some rooms on the western side of the compound. While there he heard a conversation between the appellant’s patrol commander, the sergeant Person 5, and the appellant. They were no more than three metres away from Person 18. The conversation was as follows:

Person 5:    You’ve just done this – done this whilst the ISR is still flying above and may have recorded you?

The appellant:    We need to find out if the ISR was still above us.

(ISR is an acronym for Intelligence Surveillance Reconnaissance. It is a drone.)

65    Person 5 then sent a message on the troop internal chat to the Joint Terminal Attack Controller (JTAC) during which the following was said:

Person 5:    Where is the ISR platform and was it recording?

JTAC:    No, I pushed the ISR off station after we made entry and was – pushed into another area that was a threat area.

66    This conversation was consistent with records which showed that the drone was not above at this time. The primary judge accepted that the conversation recounted by Person 18 had occurred.

Person 18’s examination of the bodies during the SSE process

67    Person 18 subsequently conducted the SSE process on three bodies. This involved him searching the bodies and placing anything found in an evidence bag which was then placed on the body’s chest and photographed. He started with the body of EKIA50 which was off the northwest corner of the courtyard near a break in a wall, then the body of the man with the prosthetic leg (referred to in the records as EKIA57) and finally the body of the old man in the courtyard (referred to in the records as EKIA56). The body of the old man was located near the tunnel entrance. Person 18’s evidence was that the notation “NW corn tunnel” on the evidence bag meant that the body was located at the northwest corner in the vicinity of the tunnel.

Person 18’s evidence concerning the weapons in the hay store

68    It was after his conduct of the SSE process on the three bodies that Person 18 discovered some weapons in a hay store which he photographed. This evidence is relevant to part of the appellant’s case that the old man and the man with the prosthetic leg were armed insurgents that he had engaged as they ran around the outside of the compound. The appellant purported to identify the weapons he claimed the men had been carrying in the photographs taken by Person 18. If Person 18’s evidence was correct, this could not be right.

Person 18’s evidence concerning the “blooding of the rookie”

69    When the troop got back to the VDOP, Person 18 heard the appellant and Person 5 say that they had “blooded the rookie”. Person 5, one of the appellant’s witnesses, denied having had such a conversation and the appellant denied using or hearing the phrase “blooding the rookie”. They supported this contention by eliciting evidence that the word “rookie” was not used in the troop and that, even if it were, Person 4 had already been “blooded” in an earlier engagement in which he, that is Person 4, had killed a target known as Objective Depth-charger.

70    But the respondents elicited evidence from Person 18 that it was a running joke between him and Person 4 that Person 4 was known as the “rookie” since Person 4 was 20 years older than Person 18. He also gave evidence of having been asked by a regimental sergeant major in 2014 whether he had heard a rumour about blooding the rookie at Whiskey 108. The relevance of this evidence was to suggest that the expression “rookie” was in use in the SASR. In addition, Person 18 had himself been part of the mission during which Objective Depth-charger had been killed. His evidence was that Objective Depth-charger had been first engaged by Person 6 and next by him and Person 14 who were on a ladder next to a wall. After them, the next to engage the Objective was Person 73. Person 18 said that if anyone had engaged after that they would have been killing a dead body. He could not rule out that Person 4 had engaged the Objective but he had not heard of that as a possibility until the week before he was cross-examined.

Person 40

71    Person 40 was the 2IC of Gothic 2, one of the two assault patrols that had cleared the compound. He gave evidence relevant to the deaths of both the old man and the man with the prosthetic leg.

72    He said that a thorough search was conducted during the SSE process. He found a cache of weapons that was well hidden within a wall. He recalled there was a gathering of key personnel from the troop which was broadly in the courtyard area (probably the RV meeting of patrol commanders). He described himself as bouncing back and forth. While doing so someone told him that they believed there was “a tunnel there”. He went into the courtyard. He recalled there being present in the courtyard the patrol commanders for each patrol (Persons 44, 29, 43, 6 and 5) as well as the troop commander (the captain, Person 81), the troop sergeant (Person 82) and an interpreter. He also recalled the presence of the appellant, Person 35 and two women who were looking concerned. He was about five to seven metres from the tunnel. The two women and the interpreter were calling into the tunnel for the persons within it to come out.

73    Person 40 thought that it was Person 35 who was instrumental in persuading the individuals to come out of the tunnel. He said two men came out of the tunnel and were very frightened. One had a distinctive limp and this was the man with the prosthetic leg. He was an older man with a beard and no shoes. Person 40 did not recall anything significant about the second man other than that he had a beard and was baldish. (It is worth interpolating here that the man with the prosthetic leg was not old).

74    Person 40 said the two men were searched and then marched off to another area by the appellant and Person 35. Person 40 considered they were being taken for tactical questioning. He was unable to recall whether they were handcuffed, but he thought that they would have been since it was standard practice for this to be done.

75    Person 40 gave no evidence of having heard a single suppressed shot from an M4 rifle. The relevance of this is that, according to Person 41, the old man was shot dead by Person 4 using an M4 rifle fitted with a suppressor. It is not controversial that a suppressor reduces the sound of a shot but does not eliminate it.

76    After the two men were taken away, Person 40 went out of the compound to the northwest side and took up a defensive position. He was waiting for the next command when he heard a burst of machine gun fire from an LSW or F89 (also known as a Para Minimi). He was facing out and the sound came from his right and was quite close, about 30 metres away. Person 40 did not say how many rounds were in the burst of fire he heard. There was then initial confusion on the radio with people saying “What was that? Where did that come from?”.

77    Sometime later, as he left the compound, he saw the body of the man with the prosthetic leg outside the northwest corner of the courtyard. He recognised the body as being one of the men who had come out of the tunnel.

Conversations involving Person 40

78    We consider the evidence of Person 41 and Person 42 below. But it is useful to note at this point that both gave evidence of conversations with Person 40 on the day. Person 41 gave evidence that Person 40 had asked him “Do you know what happened to those two blokes that they pulled out of the tunnel?” to which Person 41 had replied “No mate, I was just in that cowshed there” (the cow sheds are discussed below). Person 43 gave evidence that Person 40 had asked him just as the troop was leaving Whiskey 108 where the PUCs were: Person 43 had replied “You know where they are”; and Person 40 had responded “That’s fucked”.

79    In addition to these two conversations, Person 40 himself recounted a conversation back at the base at Tarin Kowt where he had told Person 42 that what had happened was wrong.

80    The primary judge found that these witnesses had not colluded in giving their evidence and were reliable. He therefore found that these conversations occurred in the terms suggested.

Person 41

81    Person 41 was a member of Gothic 2, which it will be recalled was one of the two assault patrols that had cleared the compound. He was probably the most important witness in the case concerning Whiskey 108 as he gave direct testimony about both killings.

The killing of the old man

82    When Person 41 went to the courtyard for the first time, he saw the appellant and Persons 4, 5, 35 and 29. He had a bit of a look around and “there didn’t appear to be too much there”. At that point, someone – either Person 29 or Person 35 – discovered a tunnel entrance. Person 41 recalled standing around it with Persons 29 and 35. Person 29 started yelling down the tunnel and this went on for a short time. Person 41 did not see anyone come out of the tunnel. As he concluded that not much was going on there, he left the tunnel area to look at two rooms on the northwest of the courtyard. In the first room he saw batteries on a makeshift shelf together with a lot of wires. Damage to the walls caused by the 500lb bomb strike revealed hidden items in the walls such as wood, hacksaw blades and more wires. He concluded that the Afghan nationals must have been making improvised explosive devices (IEDs) in the room. He also observed two or three large bags of a black sticky substance which he later identified as opium.

83    He searched the room for “probably a minute or two”. This statement by Person 41 forms one of the appellant’s central points on appeal and we will return to it in more detail later. This point concerns how much activity could have occurred in the courtyard while Person 41 was away from it for “probably a minute or two”.

84    It was at this point that Person 41 heard some louder voices and “a bit of a commotion” outside in the courtyard. He stepped out of the room, which contained the IED components and the opium and back into the courtyard. He noticed the appellant and Person 4 standing to his immediate left. Just beyond them and squatting against the northeast wall near the tunnel entrance was an Afghan male who Person 41 described as an older male with short-cropped hair dressed in a traditional Afghan loose top with either white or very light-coloured clothing.

85    The appellant and Person 4 approached Person 41 and asked him whether they could borrow his suppressor. A suppressor suppresses the flash and noise of a rifle. Unlike a silencer, however, a suppressor does not make a weapon completely silent. He thought this a strange request but nevertheless complied. He thought it a strange request because Person 4 would have had his own suppressor. He thought that perhaps Person 4 was going down into the tunnel and needed the suppressor to muffle any sound made in the tunnel.

86    In any event, Person 41 removed the suppressor from his own M4 rifle and handed it to Person 4. Person 4 turned around and began fitting the suppressor to his M4. The appellant and Person 4 then began walking towards the old man who was still squatting against the wall. At this point Person 41 thought to himself “I think I know what’s about to happen here”.

87    Even so, he stood there and watched for a few seconds. He saw that Person 4 was facing the old man towards the tunnel entrance. Then the appellant walked down and grabbed the old man by the scruff of his shirt, picked him up and marched him a couple of metres until he was in front of Person 4. The appellant kicked the old man in the back of the legs just behind the knees until he was kneeling in front of Person 4. The appellant then pointed at the old man and said to Person 4 “Shoot him”. As he said this, the appellant stepped to the side.

88    By this time, Person 41 was about three metres from the old man, Person 4 and the appellant. Person 41 did not wish to witness what was about to occur, so he stepped back into the room where he had found the IED components. Within a second or two he heard a single suppressed shot which he knew was from an M4 rifle. He waited for 15 seconds or so and then stepped back out of the room and into the courtyard.

89    When he stepped into the courtyard there were only two people there: Person 4 and the old man he had previously seen by the wall who was now dead. It is implicit that the appellant had left the courtyard. Person 41 walked over to Person 4 who did not say anything. Person 4 then removed the suppressor from his rifle and gave it back to Person 41. The suppressor was warm so Person 41 knew that it had just been used to shoot the old man. Person 41 refitted the suppressor to his own M4, after which he walked over to look at the body of the old man.

90    The old man had been shot once in the head. A lot of blood was flowing around out of his head wound and he was lying on his back. Photographs taken of the old man by Person 18 during the SSE process (referred to above) show a large amount of blood around the head of the old man. Person 41 thought that Person 4 seemed to be “in a bit of shock”. It should be noted that although it was controversial at trial, the appellant has accepted that the old man was killed in the courtyard and that he was killed by Person 4.

91    The appellant no longer contends that the body of the old man had been moved from elsewhere. This contention was made impossible by the photographs of the old man’s body which, without dwelling on the detail, unquestionably show that he died where his body lay.

The killing of the man with the prosthetic leg

92    After he had looked at the body of the old man in the courtyard, Person 41 then walked out through the exit on the north-western side of the compound. He stopped on a footpad running alongside the wall of the compound which was about two metres wide. He looked to the front and noticed two small buildings just up a slight hill in front of him, not very far away. Person 41 later referred to these two structures as cowsheds. He decided to go and search these cowsheds when he noticed the appellant out of the corner of his eye to his right about five metres away from him, walking along the outside wall of the compound. The appellant was walking up towards him holding another Afghan male by the scruff of his clothing with his left arm and holding up a machine gun with his right arm. The Afghan male was wearing a dark coloured top. He described the appellant as frogmarching the man. At this point, Person 41 turned to face the appellant to see what was happening. He saw the appellant throw the man on the ground on his back. The appellant reached down, grabbed the man by the shoulder and flipped him over on to his stomach. The appellant then lowered his machine gun and shot approximately three to five rounds into the man.

93    After shooting the man, the appellant looked at Person 41 and said “Are we all cool? Are we all good?”. Person 41 replied “Yeah, mate, no worries”. Person 41 continued to look at the appellant who walked past him and back into the courtyard through the exit that Person 41 had himself come through.

94    Person 41 identified the man who had been shot as the man with the prosthetic leg. He then proceeded to the two buildings he had seen (up the slight hill). There he had a conversation with Person 40 who said to him “Hey [Person 41], do you know what happened to those two blokes they pulled out of the tunnel?”. Person 41 replied “No, mate, I was just in that cowshed there”.

Person 42

95    Person 42 was a soldier in the same assault patrol as Person 41, that is to say, Gothic 2. His evidence was relevant only to the death of the old man.

96    When Person 42 first entered the courtyard he recalled his whole patrol being present there. Person 42 said that there were women in the courtyard when the tunnel was discovered. They had been making a noise and indicating that there was something else within the courtyard. A more thorough search was then conducted and the tunnel was found. He recalled Persons 35 and 38 being present when the tunnel was found. He was unable to recall who else was present. He said that either he or another soldier were shouting down into the tunnel in broken Pashto. He believed it was Person 29 who called the men out of the tunnel but he was not completely sure of this.

97    After the tunnel had been discovered, members of his patrol (Gothic 2) had their weapons trained on it. Members of the patrol were shouting out to have anyone in the tunnel come out. He recalled men coming out of the tunnel. There were at least two men but there could have been three. He did not recall anything specific about the men’s physical appearance. They were unarmed and came out freely. They were subject to a pat down search. This was to ensure that they were not carrying concealed weapons or any type of suicide vest or fragmentation grenades.

98    Person 42 recalled searching and clearing one of the men. After he had conducted that search he passed the man on but he could not remember to whom. He could not recall whether the man was handcuffed but it would have been normal practice to do so.

99    At this point, Person 42 could only recall the presence of members of Gothic 2. The implication of this evidence is that he could not recall any members of the appellant’s patrol, Gothic 5, being present (which would include the appellant, Person 5 and Person 4). After this, Person 42 left the courtyard area and continued with the clearance of the compound.

Person 43

100    Person 43 was a sergeant and the patrol commander of Gothic 3 which had been one of the three cordon patrols during the time when the compound was being cleared by Gothic 2 and Gothic 5. His evidence principally related to the death of the old man but it did touch tangentially on the death of the man with the prosthetic leg.

101    Gothic 3 had been stationed on the southwest aspect. Once the compound was declared secure, Person 43 was called into the compound for the RV meeting as he was a patrol commander. The people present were getting ready for that meeting when he saw Person 35 discover the tunnel. He ran over to render assistance. Other soldiers were present. He pointed his weapon down the tunnel. He recalled Person 35 being on his right. He recalled calling for the interpreter. But before the interpreter arrived someone crawled out of the tunnel. That person was an elderly Afghan male with a beard dressed in local clothing.

102    Along with several other pairs of hands Person 43 helped remove the old man from the tunnel. He recalled that the old man had been “PUC’d” immediately. He said the old man had his hands out in front of him in the universal “I give up” position. He recalled the old man being placed on the ground headfirst and searched. He was then handcuffed and walked away by people holding his upper body and walking him. He may have been blindfolded as well.

103    The old man was handed over to the appellant’s patrol, Gothic 5, for tactical questioning. Person 43 then continued with the RV meeting. At the meeting, it was decided that the majority of the troop would move to Whiskey 109 and clear that compound before returning. Person 43 identified the man he saw come out of the tunnel from the photograph of the body of the old man taken by Person 18.

104    Later on, Person 43 had a conversation with Person 40 as they were walking “off” Whiskey 108 during which Person 40 asked him where the PUCs were to which Person 43 replied “You know where they are”. He added something vague so as not to incriminate someone for something he did not know had happened or not happened. Person 40 responded “That’s fucked”. We referred to this conversation above when discussing Person 40’s evidence.

Person 14

105    Person 14 was a soldier in Gothic 4, the cordon patrol located off the northwest corner of the compound. He gave direct evidence relating to the killing of the man with the prosthetic leg and indirect evidence relating to the killing of the old man.

Pre-mission evidence

106    In the period leading up to the mission, Person 14 said that he had heard Person 5 say in a group context at Tarin Kowt that he was going “to blood the rookie”. Person 14’s recollection was that the appellant had been present in the room on that occasion but that Person 5 had been addressing Person 3, Person 24 and himself. He also agreed under cross-examination that the appellant had not been within earshot when Person 5 made this statement.

Whiskey 108

107    As a member of Gothic 4, Person 14 had been located outside the compound on its northwest side. Person 14 was the scout of the patrol and had engaged insurgents on the approach to the compound. One of these was EKIA50, whose body was documented to have been located off the northwest corner of the compound near a break in a wall. It was this evidence about the location of the body of EKIA50 that spelled the end of the appellant’s forensic efforts to situate Gothic 4 well away from the northwest corner of the compound. As we have said, it is no longer in dispute that Gothic 4 was located at the northwest corner.

108    Person 14 gave the following account of the execution of the man with the prosthetic leg.

109    He was in the cordon position looking towards Whiskey 109. He heard a noise to his right which was similar to stomping or heavy footsteps together with some chatter or people talking. It caught his attention and he turned to his right. He saw three Australian soldiers and a black object which was similar to a human being carried. The black object was thrown to the ground and made a thud when it hit the ground. He heard a noise like an expulsion of air when someone is winded. Then a soldier raised his Minimi and fired an extended burst into the object. The machine gunfire was loud. The person who fired the weapon then turned and walked away out of sight and back into Whiskey108 through the entry/exit point along the western wall of the compound. Person 14 did not recognise the soldier who fired the weapon but he did recognise the soldier’s camouflage paint. It was the brown and grey camouflage paint of the appellant’s patrol, Gothic 5. Two of the three people he observed had that highly illuminated grey-brown camouflage paint. Photographic evidence shows the appellant wearing grey-brown camouflage paint on the day. Person 14 said that there were two other soldiers standing there observing. Person 14 agreed that he was unable to deny that Gothic 2 was wearing the same camouflage paint on the day. The primary judge speculated, but made no specific finding, that the two other soldiers may have been Person 41 and Person 40 who, it will be recalled had a conversation near the cowsheds.

110    After the shooter left, Person 14 turned to his 2IC, Person 73, and said “What the hell was that?”. Person 73 shrugged and nodded his head as in “and”, which Person 14 interpreted as meaning he did not know.

111    Person 14 said that the execution was witnessed by every member of his patrol, Gothic 4. That would include the sergeant, Person 6; a corporal, Person 73; and four other soldiers Persons 14, 24, 68 and 80. At the trial, only Persons 14 and 24 were called to testify. Person 14 was adamant that the patrol commander, Person 6, saw the execution.

112    It will be recalled that Person 41 testified that the appellant asked him “Are we all cool? Are we all good?” to which Person 41 had replied “Yeah mate, no worries”. Person 14 gave no evidence of having heard that conversation. Notably Person 14 was located off the northwest corner while Person 41 was at the cowsheds.

Post-mission evidence

113    Person 14 did not report the killing until ten years after the event when he spoke with the third respondent, Mr Chris Masters. Person 14 met Mr Masters on 27 February 2018 and Mr Masters took notes of the meeting. At the bottom of the first page of the notes Mr Masters recorded:

E Troop went in. [P5s] patrol seen through the doorway of their next compound. R-S had M-14 and [P4] a Minimi. Understood [P4] had shot an old guy with a prosthetic leg.

114    Under cross-examination, Person 14 said that his initial assumption on the ground was that Person 4 was carrying the Minimi but later he came to understand that it was the appellant who was carrying the Minimi. He denied telling Mr Masters on 27 February 2018 that Person 4 had shot the Afghan male with the prosthetic leg.

Person 24

115    Person 24 was another soldier in the cordon patrol, Gothic 4, along with Person 14. His evidence directly related to the death of the man with the prosthetic leg and touched upon the death of the old man.

116    It will be recalled that Person 14 gave evidence that before the mission Person 5 had said to Person 24, Person 3 and himself that he, Person 5, was going to blood the rookie. Person 24 did not give evidence of this conversation. But he did give evidence that about a week before the mission Person 5 had come to Gothic 4’s patrol room and said to Person 6 and the others present (including Person 24) that “we are going to blood the rookie”.

117    It will be recalled that Gothic 4 was located off the northwest corner of the compound. Person 24 was carrying the 7.62 Maximi (a machine gun) on the mission to Whiskey 108. He took up a position about two or three metres from Person 14. He heard Person 5 referring to Person 4 by name and saying a couple of times “Get in here, get in here now”. Person 5 was near the exit from the compound on the northwest wall of the courtyard. Sometime later, Person 24 saw the appellant walk out of the compound holding a man. The man had come off his feet and was being held by his pants or shirt parallel to the ground. The man was making a grunting noise. He was marched about 15 metres directly out of the entrance. The appellant then dropped the man and immediately began to fire a machine gun burst into his back. Person 24 thought about eight or ten rounds had been fired before the appellant’s machine gun had a stoppage. The appellant immediately turned back towards the entrance and walked towards the compound, rectifying the stoppage as he went. Person 24 saw the appellant re-enter the compound.

118    Person 24 then said to Person 14 “Did we just witness an execution?”. Although Person 14 responded, Person 24 could not remember what the response was. Person 24 identified the person shot by the appellant as the man with the prosthetic leg.

The appellant’s affirmative case at trial

119    The appellant gave a version of events at trial which, if accepted, would have demonstrated that the old man and the man with the prosthetic leg were killed during a lawful engagement. In pursuing this case he testified himself and also called a number of witnesses who supported that case. These witnesses were his patrol commander, Person 5, the patrol commander of the other assault patrol (Gothic 5), the sergeant Person 29, the soldiers Persons 27, 35 and 38 and the troop captain Person 81.

120    The appellant’s case for much of the trial was that the tunnel in the courtyard had been discovered while the compound was being cleared and before it had been declared secure. Person 35 was chosen to go down into the tunnel. The appellant also went down into the tunnel but sometime later. Person 35 was instructed to clear the tunnel. It was possible that Person 18 was covering him at the top of the tunnel. Since the appellant had a machine gun, it was not practical for him to clear rooms as that weapon was not suitable for confined spaces. He therefore decided to go outside the compound. He was unaware at that time if anything had been found in the tunnel. He walked outside towards the corner of the compound. As he walked down the track he saw an insurgent moving from right to left outside the line of the compound. He said that the insurgent was coming around in an arc. He engaged him with his Minimi but had a stoppage. He thought that he had fired maybe two rounds. The insurgent was killed. There was a second insurgent who was about three metres from the first insurgent. This insurgent was shot by a soldier who came up behind him. He did not see who this soldier was and could not recall who it was. He assumed it was someone in his patrol, possibly Person 4 or Person 18.

121    The appellant identified the body of the man with the prosthetic leg as the man he shot. He identified the body of the old man as the insurgent killed by the other soldier. Immediately after the engagement, the appellant dragged the body of the man with the prosthetic leg back about five metres behind the compound wall. He also retrieved the weapon he had been carrying. He subsequently identified this weapon in a photograph taken on the day of some weapons. These are the weapons that Person 18 said that he found in a hay store. Initially, the appellant said that the other soldier had pulled the body of the other insurgent back but he changed his evidence the next day to say that this was not so.

122    After the engagement he did not recall telling anyone about it although he may have told someone, possibly Person 5.

123    Person 5 testified that he was at the RV meeting when he heard gunshots outside the compound towards the northwest corner. He ran out of the compound in the direction of the sound. He could see the appellant and Person 4 at the northern corner. He shouted out whether they were OK. The appellant responded “yes” and that they had just killed two squirters to the north. Person 5 asked whether they were enemy killed in action and the appellant responded that they were. As we will later explain, a squirter is the expression used within the SASR to describe an insurgent who is fleeing an area under its control.

124    Person 5 then returned to the RV meeting and informed the troop captain, Person 81, that there would be two EKIA on the northwest corner of the compound. The RV meeting then continued. Person 5 also said that he saw the appellant and Person 4 near the bodies on his return from Whiskey 109. At a later troop debrief during the mission, Person 4 said that he had killed an insurgent.

125    Person 29, on the other hand, was sure that there were no engagements during the RV meeting and that what had happened outside had occurred before that meeting. Nor did he recall Person 5 leaving the RV meeting to investigate an engagement. Indeed, Person 29 recalled hearing a radio call reporting the engagement while he was involved in the SSE process in the tunnel. As the primary judge observed (at J[860]), given that the engagement was just outside the courtyard and involved the appellant firing an unsuppressed Minimi machine gun, Person 29 would have heard it, yet Person 29 did not recall hearing it. Person 29 claimed to be certain that Person 81 had referred to the engagement at the RV meeting, although he could had no “specific” recollection of it.

126    Person 35 testified that no men had been found in the tunnel. He could not recall hearing any Minimi fire and could not recall seeing any bodies.

127    Person 38 testified that he saw the appellant, Persons 5, 29 and 35 in the vicinity of the tunnel. Person 35 entered the tunnel. He then came up and pronounced it “clear”. Person 38 and Person 41 then left and cleared an orchard immediately adjacent to the courtyard. No such proposition had been put to Person 41 and in those circumstances the appellant accepted at trial that the primary judge should not rely on Person 38’s evidence of his trip to the orchard. No effort was made by the appellant to pursue the proposition that Person 41 was in the orchard (and hence could not have seen the executions). On appeal that remains so.

128    Person 27 recalled there were two women in the compound and that the troop did not encounter any fighting age males. He did not recall seeing a tunnel entrance nor receiving a radio transmission about a tunnel being found. He said he did not see any engagements at Whiskey 108.

129    Person 81 did not recall any engagements or any reports of any engagements while he was in the compound. He did not recall anyone leaving the RV meeting. His best recollection was that he was told about the EKIAs back at the VDOP or some later point in time.

Person 4

130    Person 4 was obviously a central witness. He was called by the respondents and gave evidence relevant to the events at Darwan. In relation to Whiskey 108, however, he claimed the privilege against self-incrimination and the primary judge did not require him to answer any questions about it.

Other aspects of the appellant’s conduct of the trial

131    In addition to the appellant’s own affirmative case that he and an unidentified soldier had killed the man with the prosthetic leg and the old man as they ran from right to left outside the line of the northern end of the compound, he also elicited other evidence designed to aid that case and damage the respondents’ case. These included:

(a)    Evidence that the cordon patrol, Gothic 4, was not located off the northwest corner of the compound but was elsewhere. The point of this evidence was to explain why no members of that patrol testified that they saw the engagement he described in his evidence (which they would have seen if they were located off the northwest corner). It was also to permit him to mount a challenge to the honesty of the two soldiers in that patrol who did give evidence, Person 14 and Person 24, on the basis that they were perjuring themselves. The primary judge found, and the appellant has now accepted, that Gothic 4 was located off the northwest corner of the compound. This was inevitable in light of the photographs of EKIA50 which show that he was killed off the northwest corner of the compound.

(b)    Evidence that none of the respondents’ witnesses, except perhaps Person 4, were in the courtyard when the tunnel was discovered and that when it was discovered no men had been brought out of it. The point of this evidence was to support the appellant’s own version of his encounter with the old man and the man with the prosthetic leg outside the compound. The appellant abandoned the contention that none of the respondents’ witnesses were present in his closing submissions in the face of the evidence of Persons 18, 40, 41, 42 and 43. On appeal, the appellant contended that at the time the tunnel was discovered the courtyard was filled with soldiers.

(c)    Evidence that the body of the old man was not located in the courtyard. This too was designed to assist his own case by supporting his account of the engagement outside. This was untenable in the face of the photographs of the body of the old man which clearly show an information sheet on his chest recording that the body was in the tunnel courtyard and the photographs themselves which show that he died in the location where he was photographed.

(d)    Evidence that the tunnel had been discovered only after the compound had been declared secure. The point of this evidence was to make it appear impossible for the respondents’ witnesses Persons 40, 41, 42 and 43 to have been in the courtyard at the time the tunnel was discovered and to have seen men brought out of it. This issue no longer matters since the appellant has accepted that Persons 40, 41, 42 and 43 were in the courtyard.

(e)    Evidence that the RV meeting had occurred after the tunnel had been discovered. This was part of an effort to reduce the number of witnesses in the courtyard. However, the appellant’s acceptance that Person 43, a patrol commander, was in the courtyard when the tunnel was discovered rendered this problematic as he was the patrol commander of a cordon patrol off the southwest corner of the compound and had no reason to be in the compound except for the RV meeting.

(f)    Evidence that the word “rookie” was not used within the troop.

(g)    Evidence that even if it were, Person 4 had killed Objective Depth-charger on an earlier mission and could not therefore be the rookie.

(h)    Documentary evidence in official reports that the two men had been killed as they fled the compound. In these documents they were referred to as “squirters” which the evidence established meant insurgents fleeing a place under the control of the SASR.

132    Each of these encountered difficulties at the trial, some were abandoned before the end of the trial, all were rejected by the primary judge, and only (f), (g) and (h) are now pursued on appeal. As will be seen, the version of events described in (h), that is that the two men were squirters fleeing the compound, now forms a central part of the appellant’s case on appeal.

Problems with the appellant’s case at trial

133    The appellant’s affirmative case could not be reconciled with several facts:

(a)    The fact that the cordon patrol off the northwest corner did not see the engagement described by the appellant when it was precisely the sort of thing they were posted there to see.

(a)    The absence of any evidence that the cordon patrol, Gothic 4, had failed in its cordon duties by failing to intercept the old man and the man with the prosthetic leg. Put another way, not only did Gothic 4 not observe the two men running around the northern end of the compound as they should have if this had occurred, but no one suggested in the aftermath that there had been a failure by Gothic 4 in the performance of their cordon duties.

(b)    Evidence that the weapons said by the appellant to have been carried by the two men were in fact found by Person 18 in a hay store.

(c)    The fact that the old man died in the tunnel courtyard and not outside the compound.

134    In addition to these problems the primary judge made serious credit findings against the appellant and his principal witnesses (except the troop captain, Person 81). He accepted that the appellant had attempted to intimidate various soldiers into not giving evidence or into changing evidence they had given at an earlier military inquiry conducted on behalf of the Inspector General of the Australian Defence Force) (IGADF Inquiry). These were Persons 6, 18 and 40. His Honour did not find that it had been proven that these acts of intimidation related to Whiskey 108 and, in the case of Person 40, the intimidation was no more than a communication with a threatening undertone. Nevertheless, the findings in relation to Persons 6 and 18 are serious and reflect badly on the appellant.

135    The primary judge also found that in advance of the trial the appellant had discussed the events at Whiskey 108 with Persons 5, 29 and 35 and that their evidence was contaminated to that extent. This evidence related to a marked up diagram of Whiskey 108, which had been shared through a drop box, and some evidence from the appellant’s former wife about a phone call between Person 5 and the appellant.

136    In addition, the primary judge found that the appellant had deliberately concealed evidence in the course of the proceeding. These included a failure to discover USB sticks which he kept in a lunch box buried in his garden. Finally, the primary judge found that the appellant had given much evidence which was not credible.

The rejection of the appellant’s affirmative case

137    The primary judge rejected in its entirety the appellant’s account of his engagement outside the northern end of the compound. He found the account incapable of being sustained on its own terms and incapable of being reconciled with the other evidence, including the evidence of the soldier (Person 41) who witnessed the appellant order Person 4 to execute the old man, the evidence of the two soldiers in the cordon patrol (Persons 14 and 24) who saw him execute the man with the prosthetic leg from their vantage point off the northwest corner of the compound, and the evidence of the soldier who saw the same execution before proceeding to the cowsheds (Person 41). The primary judge found the appellant and his witnesses Persons 5, 29 and 35 were not credible witnesses.

The appellant’s case on appeal

138    The appellant has accepted that his case was correctly rejected by the primary judge and he does not seek to have this Court resurrect it. Given the advantages enjoyed by the primary judge who saw the evidence unfold over more than 100 days of hearings and the serious findings made against the appellant and his witnesses, this position is inevitable.

139    Thus, in this Court the appellant’s challenge to the primary judge’s findings was advanced without any effort to rely upon his own evidence at trial or that of his principal witnesses. His principal attack on the respondents’ evidence at trial was that it was inconsistent with his affirmative case and the evidence that he elicited in support of that case. Now that he has accepted that his affirmative case was correctly rejected by the primary judge, the appellant was forced back into a strategy of submitting that the respondents’ evidence, on its own terms, was not sufficient to justify the grave findings made by the primary judge against him.

140    One potential difficulty the appellant faces is that, in advancing any hypothesis about how the old man and the man with the prosthetic leg died, he is now hampered by the fact that any such hypothesis is necessarily unsupported by his own testimony or that of his main witnesses. For example, he may hypothesise that the old man and the man with the prosthetic leg were killed as they fled the compound. However, the appellant gave no evidence to that effect and no witness says that he saw the old man and the man with the prosthetic leg fleeing the compound or the appellant engage them in the course of doing so. It is, of course, evidence he could have given at trial if he had chosen to but he instead gave a version of events which was rejected and that rejection is not challenged. Whether an inference may be drawn against the appellant that any evidence he might have given about such a hypothesis would not have supported his case (because if it did, he would have given it) is an interesting question. As will become apparent, however, there is no need to engage with how the rules of evidence operate insofar as they relate to failures to give evidence supporting a case when there was an opportunity to do so.

141    It is perhaps to overcome that problem that the appellant focussed on the contemporaneous official records created shortly after the events at Whiskey 108. These do contain a reference to two insurgents having been killed as they fled the compound. The appellant submitted that these documents are inherently reliable so that when the contradictions in the respondents’ evidence are brought to account, their evidence is insufficiently cogent to displace the official records especially having regard to the serious nature of the findings involved.

142    It will be observed that the documents the appellant now relies upon directly contradict his own case at trial. At trial, his case was that he had engaged the two men as they ran from right to left outside the northern line of the compound. The documents, on the other hand, suggest that two insurgents were killed as they fled the compound.

143    It might be thought odd that the appellant now advances a case on appeal directly contradicted by his own evidence at trial. However, it seems clear that the appellant did in fact advance both cases at trial. He did seek to rely upon his own evidence that the old man and the man with the prosthetic leg were running from right to left outside the northern line of the compound but at the same time he relied on the official documents to point to the fact that two insurgents were killed as they fled the compound. He did so as part of an endeavour to persuade the primary judge that even if his case was not accepted, the documentary record contradicted the respondents’ evidence.

144    At first blush, it may appear difficult to understand how the appellant is able to occupy both these positions at the same time. However, a procedurally orderly way of understanding what occurred is to see the appellant as having put his own case as a primary case and a case based on the official documents as a secondary case which only arose in the alternative. The tactical advantage of this approach was that, if it was shown that the official records were reliable, then they would contradict both his case and that of the respondents. If the official records caused both sides cases to fail, it was the appellant who would succeed since the respondents bore the burden of proving their allegations.

145    On the other hand, if the official records were found not to be reliable then they neither harmed his case nor that of the respondents. Once this is appreciated it becomes clear why the appellant advanced a case based on his own evidence at trial and an inconsistent case based on the official records in the alternative. The procedural regularity of this may be admitted. Whether it is a plausible position is quite a different question.

146    Understandably, the respondents sought to meet this case. They submitted that the appellant was no longer permitted to advance any hypothesis for how the two men died which was inconsistent with his own evidence and that of his main witnesses. For this the respondents cited Baden-Clay. In that case, the accused gave evidence at his trial for the murder of his wife. He claimed to have been elsewhere on the evening of her death but was nonetheless convicted. The Court of Criminal Appeal, however, found that a case that he had killed his wife during a struggle in which she had accidentally hit her head against a hard surface as she fell and then died from injuries sustained as a result, ought to have been left to the jury so that it could consider an alternative verdict of manslaughter. The High Court reversed the Court of Criminal Appeal holding that this hypothesis was not a reasonable one since it was not only not supported by any evidence from the accused but was contrary to his evidence that he was elsewhere on the evening.

147    The difference between Baden-Clay and this case is that, here, there is evidence which supports the hypothesis that the two men were killed as they fled the compound. That evidence appears in some official records. In Baden-Clay there was no evidence that suggested the hypothesis recognised by the Court of Criminal Appeal. Cases that have distinguished Baden-Clay have usually done so on this basis – that is, notwithstanding the inconsistent evidence provided by the party in question, the evidence itself raises alternative hypotheses. Further, as we mentioned above, the appellant relied upon these official records at trial to attack the respondents’ evidence in the alternative fashion we have described. We do not think that it was legally impermissible for the appellant to rely upon the official records in the event that his own case failed. The fact that his case has been rejected does not, in itself, involve the making of any findings about how the two men died. The rejection of the appellant’s affirmative case is not logically inconsistent with a finding that the two men died as they fled the compound. No doubt, there is a practical problem that the appellant gave no evidence that this was how they died, but that is a different problem.

148    In a related vein, we do not see that the appellant is procedurally barred from conducting his case on appeal in this fashion on the basis that he is bound by the way he ran his case at trial because his case at trial did include an alternative case based on the official records.

Structure of the appeal concerning Whiskey 108

149    The appeal concerning the events at Whiskey 108 is covered by grounds 1 and 2 of the notice of appeal, which challenge the findings that the appellant ordered Person 4 to execute the old man and that the appellant, himself, executed the man with the prosthetic leg. Grounds 3 and 4 are cognate challenges to the primary judge’s upholding of the respondents’ defences of substantial truth. Grounds 1 to 4 were accompanied by 19 particulars which related to Whiskey 108. In his written submissions, the appellant grouped these particulars under specific headings.

150    In his written submissions, the appellant raised seven broad sets of contentions:

(a)    that the primary judge failed to “adequately deal with the improbability of the existence of a widespread conspiracy to conceal the truth about the deaths in the official records” and give weight to those records, which suggested the two men were insurgents who were killed in a legitimate encounter as they fled the compound (particulars 7 and 8);

(b)    that it was unlikely that the old man was executed in a courtyard filled with soldiers without anyone noticing: (particular 1);

(c)    that there were inconsistencies in the evidence given by the witnesses as to the number of men who emerged from the tunnel once it was discovered (particulars 9(a), 10 and 13);

(d)    that there were inconsistencies in the evidence given by the witnesses who saw the execution of the man with the prosthetic leg (particular 9(b));

(e)    that the following witnesses were unreliable:

    Person 14 (particular 11)

    Person 24 (particular 6)

    Person 41 (particulars 4)

(f)    that Person 4 was neither a rookie nor known as such (particulars 14, 16 and 17); and

(g)    that the primary judge was not entitled to make a particular finding about insurgent behaviour (particular 12). This point relates to the observation of the primary judge that it was unlikely that the two insurgents appeared at the very moment the appellant stepped out of the courtyard. Since the appellant has accepted that his affirmative case was correctly rejected, it is unclear how this matters.

151    Each particular is extensive. While the appellant’s submissions referred to most of the particulars, it is apparent from the submissions made on his behalf that not every allegation made in those which were mentioned was pursued. Where part of a particular has not been pressed in that fashion, we will indicate as much at the relevant juncture.

152    The appellant did not advance submissions in support of particulars 2, 3, 5, 15 or 18 so we take them not to have been pressed. Particular 19 was an omnibus allegation that the process of fact finding did not “properly comply with” s 140 of the Evidence Act and Briginshaw, which we will address in relation to each of the challenged findings. There is no omnibus allegation that the primary judge’s reasons were inadequate but inadequate reasons are alleged as aspects of particulars 1, 8, 11, 14 and 17. We address the inadequate reasons contentions under those headings.

153    We will deal with the contentions raised by the particulars that were pressed in the above order.

Did the primary judge err by failing to give weight to the official records (particulars 7 and 8)?

154    Particulars 7 and 8 are in the following terms:

7.    The primary Judge did not adequately deal with the improbability that there was a widespread conspiracy to conceal the truth concerning the deaths of EKIA 56 and EKIA 57 in the official reporting of the mission. The official contemporaneous reports record that only one fighting aged male was located at W108 and that EKIA 56 and EKIA 57 were “2 squirters” who were engaged while attempting to squirt during the clearance of W108 (J[683]). The primary Judge found the likely source of this information (which would have been disseminated at a patrol debrief) was Person 5 and the Appellant (J[588] and J[683]), but he also accepted Person 81’s evidence that he relied on all of the patrol commanders to tell him about the events of the mission which were then summarised in a report that Person 81 “cleared” (J[668] and J[669]). The persons said to be present at the time or shortly after the men emerged from the tunnel included Persons 40, 41, 42, 43 and (possibly) the Troop Commander Person 81 (not including the Appellant’s witnesses). Later according to Person 14, Person 6 (a patrol commander) actually witnessed the killing of EKIA 57 outside the compound (in addition to Persons 24, 73, 80, 68 and 41).

8.    It is improbable that none of Person 81 or the other patrol commanders (not including Person 5) were unaware that the official report of one fighting aged male being located at W108 or of the engagement of “2 squirters” was obviously false. The Judge conceded that there was “obvious force” in the point (J[674]). The primary Judge did not adequately deal with this improbability or explain how a large number of SASR operators must have known about the executions (on the version of the Respondents) and did not report them or do anything about them (J[674]). The primary Judge’s approach in this regard contrasted with the way in which he described as a “minor detail” Person 14’s evidence that Person 6 (the patrol commander) witnessed the execution of EKIA 57 (J[762]).

155    After the mission a document was created entitled “Patrol Debrief for Gothic Troop for Operation Harpoon (Phase 1)”, which included entries for the events at Whiskey 108. The relevant portion was as follows:

5.    …

c.    Spotter and squirter engagement: throughout the day numerous INS were engaged. The INS were identified as either spotters or squirting from known INS locations within the green.

…

f.    Clearance of W108 & W109

…

iii.    Approach route: There were numerous aqueducts and channels throughout the approach route with good water flow. The rate of movement was approximately 1km/hr. The heavy cloud, rain and good vegetation provided excellent cover and concealment for the approach. This in turn enabled the FE [force element] to close with the INS and kill using stealth and precision. Three x INS were KIA on the approach.

iv.    Clearance W108:

…

(2)    Squirters: 2 x squirters were killed.

(3)    Exploitation:

(a)    EKIA 9 x EKIA (including 3 x EKIA from JDAM [i.e. the 500lb bomb]).

(b)    PUCs: Nil.

(c)    FAMs [fighting age males]: 1 x FAM.

(d)    LN [local nationals] Protected: Several WaCs [women and children].

(e)    Items of interest: Substantial cache found with 107, 73 RCL, 7.62, 2.75”, Aks, RPD, etc. There were tunnel systems, false walls and cache locations throughout the compound. Mor detail can be found in the Exploitation Report to be released SEPCOR.

26.    Upon breaching the compound and commencement of clearance INS attempted to squirt, but were engaged.

156    It will be recalled that a squirter is an insurgent who is attempting to flee an area in which the SASR is operating. Paragraph 5(f)(iv)(2) records that two squirters were killed and paragraph 26 records that insurgents attempted to squirt upon the breach of the compound and the commencement of its clearance. Paragraph 5(f)(iv)(3) records that there were no PUCs (persons under control) and that there was one fighting age male.

157    These statements are inconsistent with the respondents’ evidence which, if correct, should have meant that the Patrol Debrief recorded two PUCs rather than nil, three fighting age males rather than one (it is uncontroversial that there was another fighting age male at Whiskey108) and it should also have recorded that the two PUCs were executed contrary to the laws of war. The Patrol Debrief, and other similar official records, are therefore evidence which contradicts the respondents’ case. In particular, it directly contradicts the eyewitness evidence of Person 41 concerning the execution of the old man and the eyewitness evidence of Persons 14, 24 and 41 concerning the execution of the man with the prosthetic leg.

158    At trial, the appellant contended that the Patrol Debrief document (and other documents) were contemporaneous official records of what had occurred and should be given substantial weight in the fact finding process.

159    The primary judge rejected this submission. While his Honour found that the Patrol Debrief was a contemporaneous and official report of events at Whiskey 108 on the day in question, he concluded that the statement in it that two squirters had been engaged was not reliable. It is apparent from his Honour’s reasons that he reached this conclusion because its otherwise reliable nature had been compromised in relation to the statement that two squirters had been engaged. It was compromised because the evidence showed that the way in which it had been prepared involved the troop captain, Person 81, obtaining from his patrol commanders, including Person 5, information concerning any engagements their patrols had had at Whiskey 108. The primary judge found, and the appellant does not now dispute, that the information that two squirters had been engaged was provided to Person 81 by Person 5. Since the primary judge regarded Person 5’s evidence as unreliable, he concluded that this statement was also unreliable notwithstanding the otherwise contemporaneous and official nature of the Patrol Debrief.

160    There is, of course, no error in concluding that a document which by its nature would ordinarily be reliable is not, in a particular instance, reliable. For example, a solicitor’s file note is a contemporaneous record of a discussion but this does not prevent a court from finding, on appropriate evidence, that the file note is not a complete record or even, in some cases, that the file note is wrong. Such a conclusion does not involve an erroneous conclusion that file notes in general are not reliable documents; rather, it involves the conclusion that a particular file note is not reliable for a particular reason.

161    The primary judge reasoned in this latter fashion rather than the former. The appellant is therefore wrong to frame the issue which arises as being whether the primary judge erroneously failed to give the correct weight to a document which belonged to a class of documents which was inherently reliable. The real issue is whether the primary judge erred in concluding that the otherwise reliable nature of a contemporary and official record was compromised by the particular circumstances attending its creation. This in turn gives way to a consideration of whether the particular circumstances identified by the primary judge did have the effect of degrading the otherwise reliable nature of a contemporaneous and official record such as the Patrol Debrief.

162    The primary judge gave two reasons for concluding that the squirter statement in the Patrol Debrief was unreliable.

163    The first reason was that its original source was the discredited witness, Person 5. Since the stream can rise no higher than its source, the squirter statement could be no more reliable than Person 5 and hence could not, on its own, be regarded as reliable evidence.

164    The second reason the squirter statement was unreliable was because the primary judge was affirmatively satisfied on the evidence that the old man and the man with the prosthetic leg had not been fleeing the compound when they were killed and were not squirters. This was because no witness called at trial (including the appellant) gave evidence that the two men had been killed as they fled the compound. Such a contention was neither part of the respondents’ case nor the appellant’s own testimony (which involved two insurgents being killed as they ran around in an arc on the outside of the northern end of the compound).

165    The appellant challenged both these reasons. As to the fact that the origin of the squirter statement was Person 5, the appellant accepted on appeal that the primary judge was right to find that Person 5 had likely told Person 81 that two squirters had been killed. But he contended that there were two reasons why the statement was nonetheless reliable even if, as the appellant accepted, its author was not.

166    The first reason was that other circumstances independent of Person 5 proved that the statement was reliable. A variety of circumstances were advanced but they all had in common the proposition that no soldiers had ever objected at the time to the statement that two squirters had been engaged at Whiskey 108. The fact that no such objections had been raised, he argued, objectively tended to prove that none of the soldiers had disagreed with the statement which in turn tended to prove that the statement was correct and, therefore, reliable.

167    The second reason the appellant contended that the statement was reliable even if its author was not, was because it was possible that Person 81 had received the information that two squirters had been killed at Whiskey 108 not just from Person 5 but from some other soldier as well. The appellant’s submission did not identify who this other soldier might have been but the point of the submission, as we understood it, was to provide a parallel origin story for the squirter narrative which was unafflicted by the unreliability of Person 5.

168    In relation to the primary judge’s conclusion that the Patrol Debrief was incorrect to the extent that it contained the squirter narrative, the appellant countered that the fact that no witnesses gave evidence that supported the narrative did not mean that the narrative was wrong and it certainly did not entail that the Patrol Debrief had no evidential value. Recollections fade and the fact that no-one at trial could recall any squirters having been engaged did not mean that this had not occurred.

169    From these observations four substantive questions arise for consideration:

(a)    Is it correct that the failure of any soldier to object to the squirter narrative makes it objectively more likely that the narrative was correct?

(b)    If the squirter narrative derives from more sources than just Person 5 does this increase the likelihood that the narrative is correct?

(c)    If yes, can the evidence sustain any reasonable inference that there is a parallel origin for the squirter narrative apart from Person 5?

(d)    Does the fact that no witness gave evidence supporting the squirter narrative mean that the squirter statement in the Patrol Brief has no evidentiary value?

Is it correct that the failure of any soldier to object to the squirter narrative makes it objectively more likely that the narrative was correct?

170    It does not. The appellant posited a number of different ways in which the statement that two squirters had been engaged might have been made in the presence of several soldiers. One of these involved the statement being made at a meeting attended by all the patrol commanders and the troop captain for the purpose of preparing the official records of the events of the day (including the Patrol Debrief). Another involved a meeting of the entire troop. A third, with which Mr Walker SC flirted in oral argument, was that the information may have been conveyed at the RV meeting on the day at which all the patrol commanders were present. In each case, the appellant’s point was the same, namely, that there was no evidence at these meetings that any soldier had objected that the squirter narrative was false and the truth was that two men had been executed.

171    The time at which any challenge to the squirter narrative should have occurred depended on the time when the narrative was spoken or, if put in writing, was seen by a soldier. In the appellant’s submission there was a degree of vagueness about these timing questions which, in turn, was a function of vagueness and inconsistency in his account of the meetings. For example, in his written submissions in chief he characterised a meeting known as the Troop Debrief as a meeting between the troop captain and his patrol commanders but at a later point in the submissions he implied, and explicitly stated in his submissions in reply, that it was a meeting of the entire troop.

172    While much time can be squandered on attempting to pin the appellant down on details of this kind, none of it matters and it is a mistake to become entangled in that material. It does not matter because the appellant’s submissions operate in the same way at any particular point in time and regardless of the actual number of soldiers present. For any meeting of soldiers held at any particular time and involving any given number of soldiers, those present may grouped into one of four categories:

(a)    those who had no idea that two Afghan men had been killed;

(b)    those who had personally witnessed one or more of the executions;

(c)    those who had not seen the executions but had seen one or more PUCs in the courtyard and/or the bodies of the old man or the man with the prosthetic leg; and

(d)    those who had heard from other soldiers that the appellant and/or Person 4 had executed two Afghan males at Whiskey 108.

173    Soldiers in category (a) would have had no reason to object to the squirter narrative and their silence is probative of nothing.

174    The appellant’s submissions implied that there were really only two explanations for the failure of soldiers in categories (b)-(d) to have objected to the statement that two squirters had been killed at Whiskey108. They were that:

(a)    the soldier did not object to the statement because he did not regard it as wrong; or

(b)    the soldier regarded the statement as false but, despite knowledge or suspicion of the statement’s falsity, decided not to challenge it in the relevant forum at the relevant time.

175    The appellant’s contention is that (b) is implausible (and hence improbable) and therefore that (a) is probable. If (a) is probable, then this is powerful evidence that the statement in the Patrol Debrief that two squirters were killed is correct even if the source of the statement, Person 5, is himself an unreliable witness. The logic of this may be accepted; not everything said by an unreliable witness need be untrue.

176    The mainstay of the argument is the appellant’s submission that proposition (b) is implausible and hence improbable. The appellant developed this submission by observing, we think correctly, that the only circumstance in which a soldier would have regarded the squirter narrative as false was one in which the soldier in question had some degree of knowledge that the actual truth was that one or more PUCs had been executed. From this redoubt the appellant then launched his submission along two separate paths. Along the first path, he drew attention to the obligation of all soldiers to report through the chain of command the commission of war crimes by members of the Australian Defence Force (ADF). A decision to remain silent in the face, on this hypothesis, of the false squirter narrative would be contrary to this legal obligation and it was implausible that a soldier would engage in that kind of unlawful behaviour.

177    Along the second path, the appellant posited that the silence of a soldier in the position of (b) could only be explained if there had been a widespread conspiracy to conceal the truth. But, the appellant observed, there was no evidence that such a conspiracy had ever existed.

178    It is convenient to begin with an examination of the first path, that is to say, the proposition that it is implausible to think that a soldier with some degree of knowledge of the executions would not speak up or object when confronted by Person 5 (or anyone else) articulating the false squirter narrative in whatever forum. A variant of the proposition is that it is implausible that any soldier who saw a document such as the Patrol Debrief would not have objected to the squirter narrative it contained.

179    In the case of the soldiers who had direct knowledge of the executions, this submission cannot be accepted. There were five direct witnesses to the murders on the primary judge’s reasons. These were Person 4, who executed the old man, and the appellant, who ordered that execution and executed the man with the prosthetic leg; Person 41; who saw the appellant order that execution and who also saw the appellant execute the man with the prosthetic leg; Person 24. who saw the appellant execute the man with the prosthetic leg; and Person 14 who saw an unidentified soldier fire a Minimi into a human object which he later identified as the man with the prosthetic leg and later inferred that the soldier was the appellant because he saw him carrying the Minimi back at the VDOP.

180    It seems clear that Person 4 and the appellant did not report either war crime and there is no reason to think that either would have objected to a statement by Person 5 (or anyone else) that the two men who had been killed were squirters. This is commonsense for they are unlikely to have reported themselves as having committed war crimes.

181    Person 14’s evidence was that he did not report what he had seen to anyone. Person 41’s evidence was to similar effect. According to Person 41, he “just wanted to toe the line and it’s sort of an unwritten rule is you just go along with whatever happens”. The primary judge recorded this evidence at J[699].

182    According to Person 24, however, the execution of the man with the prosthetic leg by the appellant was discussed with his own patrol (Gothic 4) back at Tarin Kowt and he told his patrol commander, Person 6, about it. He did not, however, ask Person 6 to report it through the chain of command and there is no evidence that Person 6 did report it through the chain of command.

183    There was therefore evidence which suggested that the soldiers who had direct knowledge of the executions did not seek to report their commission through the chain of command or, in most instances, to anyone at all. The appellant’s submission that non-reporting of war crimes by soldiers is improbable or implausible is undermined by the evidence of those who testified that they witnessed such crimes.

184    Another matter also undermines this aspect of the appellant’s submission. We have already referred to a fragment of Person 41’s evidence that he kept what he had seen at Whiskey 108 to himself for a long time because of an “unwritten rule is that you just go along” and because he just “wanted to toe the line”. Person 41 was cross-examined about the unwritten rule and conceded, perhaps unsurprisingly, that nobody had told him of the unwritten rule’s existence. He then gave this further testimony about why he did not report what he had seen:

It was just a general knowledge, being a new trooper on the deployment, and toe the line, as you say. Back then, I was afraid that if I had had brought it up and mentioned it, I would have been seen as someone who wasn’t willing to conduct the tasks of SAS trooper, and the fear with that was possibly being unsuitable to be operating within that troop, possible removal from my patrol and given a – a mundane job, for example, looking after possibly the Afghan nationals or even sent back to HQ, or, worse case, deemed just unsuitable to be a SAS soldier and possibly sent back to Australia. Word would have gotten back before I had have gotten back if I had have made anything about the events and possibly just bounced around back in Perth at the barracks with everyone knowing what you dobbed in, so to speak, not wanting to work with you, and effectively the career you had worked sort of so hard for could possibly be over just like that.

185    He was also re-examined about it:

The reason I didn’t make a complaint about Whisk[e]y 108 is because I wanted to keep my job, and I was afraid what would possibly happen to me if I was seen to be the bloke who was speaking out about incidents and not playing the team game.

186    The primary judge set this evidence out at J[729]-[730] and at J[731] accepted Person 41’s explanation. The appellant does not specifically challenge that conclusion.

187    The evidence of Person 41 is evidence from which one could infer that soldiers more generally, and not just Person 41, might have concerns about speaking out about the commission of war crimes. Such an inference is consistent with the failure of Person 14 to report what he had seen and with the failure of Person 24 to do nothing beyond mentioning the matter to his patrol commander, Person 6.

188    The evidence is therefore capable of supporting an inference that soldiers who had direct knowledge that war crimes had been committed at Whiskey 108 had reasons not to report the crimes through the chain of command.

189    That leaves, of course, the soldiers who had less direct knowledge of the killings which, as indicated above, includes those who had suspicions derived from having seen PUCs and later dead bodies and those who saw nothing but heard through conversations with other soldiers that the appellant and/or Person 4 had executed one or more PUCs at Whiskey 108.

190    Although there was a debate between the parties about how numerous this class actually was and who its members were, its size does not matter. The question is not who was in the class but rather how likely it was that any of this cohort would have spoken out against the false squirter narrative had they been confronted with it.

191    There is no reason to think that this class of soldier would be more likely to report war crimes than the class who had actual knowledge of the executions. The fact that their knowledge was less direct does not seem to us to increase the objective likelihood of their willingness to challenge a narrative which was, based on what they had seen or heard, only possibly false.

192    Once one arrives at that conclusion, we do not think that the soldiers with indirect knowledge of the war crimes can stand in a different position to the soldiers who had actually witnessed them. The inference is equally open that this class would not have challenged any false squirter narrative advanced by Person 5, anyone else or in a document seen by the soldier.

193    The appellant’s submission currently under consideration was advanced to the primary judge. His Honour rejected it at J[674]:

The applicant’s point is not that he is accepting that two men were taken from the tunnel. His case is that no men were found in the tunnel. He points to the unlikelihood of the respondents’ case that two men were taken from the tunnel and then executed because one of the features of that case is that a large number of SASR soldiers knew about the executions and did not report them or do anything about them. There is obvious force in that point, but the respondents’ case is too strong otherwise and sadly this is part of the conclusion.

194    For the reasons we have just given it was open to the primary judge on the evidence to draw the inference that the soldiers who knew or had been told that two men had been executed contrary to the laws of war would not have reported them. The appellant did not submit that this finding by the primary judge was erroneous under ordinary principles of appellate review. Rather, his point on appeal was that the Court should conclude that the evidence before the primary judge was not sufficiently cogent having regard to the seriousness of the allegations to justify the findings of murder and complicity in murder; in other words, the appellant contended that the primary judge to did not comply with the requirements of s 140 of the Evidence Act. Having carefully examined the evidentiary record on this aspect of the appellant’s submission, we do not accept that submission. The evidence that soldiers would not have spoken up to report the matter or to confront the false squirter narrative was entirely cogent in our opinion.

195    That brings us to the second limb of the appellant’s submission which concerns conspiracy. The appellant submitted the failure of any of the soldiers with direct or indirect knowledge of the war crimes to report them through the chain of command or to confront the false squirter narrative could only be explained by a widespread conspiracy to conceal the truth for which there was no evidence.

196    We would reject this submission for two reasons.

197    First, it does not follow that the only way that all of the soldiers with knowledge could have failed to have reported the war crimes (or challenged the false squirter narrative) was if they had conspired between themselves to do so. It is logically possible for each of the soldiers in question to have remained silent without any co-ordinated action between them to achieve that end.

198    In this case, the soldiers had reasons why, from their individual perspectives, silence was a preferable course. That each of them acted upon them no doubt gives rise to the phenomenon of parallel behaviour. But conspiracy is not the only inference from that parallel behaviour. A simpler and more, or at least equally, plausible explanation is that the soldiers had similar disincentives. The proposition that parallel behaviour need not always be caused by conspiracy is illustrated by cases in the competition field concerned with price fixing: see, for example, Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794; 160 FCR 321 at [927]–[930] (Gray J) and In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 906 F 2d 432, 444–5 (9th Cir, 1990).

199    Thus, the appellant’s submission that the joint silence of the soldiers could only be explained by a widespread conspiracy to conceal the truth fails at the threshold. It can be explained by the more pedestrian, if disappointing, path of widespread individual failure. When at J[674] the primary judge observed of his conclusion that many soldiers had not reported the war crimes that “sadly this is part of the conclusion” this is the point his Honour was making: all the soldiers that knew or suspected looked the other way.

200    That is sufficient to dispose of the submission. But there is a further reason why it should be rejected. This concerns the appellant’s submission that there was no evidence before the primary judge of a widespread conspiracy to conceal the truth. As has often enough been observed, the absence of evidence is not the same as evidence of absence. In this case, neither party alleged in their pleadings the existence of a widespread conspiracy to conceal the truth and it was not a formal element in either party’s case.

201    The absence of evidence of a widespread conspiracy to conceal the truth appears to have entered the legal discourse in the case no later than the appellant’s closing submissions to the primary judge and is recorded in his Honour’s reasons. On the appeal, however, the argument was put as the second and necessary limb to the appellant’s submission as to how the Patrol Debrief might contain the false squirter narrative. Having contended that only two possible scenarios could account for the falsity of the squirter narrative in the official documentation, to make good his assertions about the first limb he needed to disprove the second, being the presence of a widespread conspiracy.

202    The unproved conspiracy submission was syllogistic in form: the soldiers were silent; their silence could only be explained by a conspiracy or by the fact that two squirters were killed at Whiskey 108; no such conspiracy was proven to exist on the evidence; ergo, two squirters were killed at Whiskey 108. However, it was the appellant who was seeking to prove that the fact that no soldiers objected to the squirter narrative increased the objective likelihood that it was true. It was the appellant who alleged that the absence of a conspiracy to conceal the truth increased that objective likelihood. It follows that it was the appellant in his own defence who was advancing the negative proposition that there had been no such conspiracy. As the party advancing that negative proposition, it was the appellant who bore the forensic (evidential) burden of proving it. Thus, the last step in the appellant’s submission — that there was no evidence of the conspiracy — is correct, but it pulls back from what follows from that, namely, his own failure to establish a fact he was seeking to prove. Thus, the absence of any evidence of a widespread conspiracy to conceal the truth simply meant that the appellant failed to prove what he asserted, namely, that there was no such conspiracy.

203    We conclude that the fact that it does not appear that any soldier ever challenged the false squirter narrative does not increase the objective likelihood that the statement was correct. The primary judge’s conclusion that the soldiers had reasons not to speak out was, as his Honour correctly observed, part of the sad facts of the case. His Honour’s reasoning discloses no error and the evidence before him about this was more than sufficiently cogent to support his ultimate conclusion that the appellant committed war crimes at Whiskey 108.

If the squirter narrative derives from more sources that just Person 5 does this increase the likelihood that the narrative is correct?

204    If the alternative source of the statement was a soldier whose reliability is not in doubt, then the answer to this question would be yes.

205    The appellant has accepted that the primary judge was correct to find that it was Person 5 who told the troop captain, Person 81, that two squirters had been engaged (though he asserts there may have been others who also told him). At various points in his submissions, however, the appellant took the primary judge to task for concluding that it was only Person 5 who had provided that information to Person 81.

206    The appellant eschewed identifying in this Court who this other source of the squirter narrative was. Yet, his submission assumed that it was a soldier who obtained the information that two squirters had been engaged from a source other than Person 5, the appellant or any of his other witnesses who were found to be unreliable (for example, Person 29, 35 or 38).

207    We would accept that, if such a person could be identified, then the squirter statement in the Patrol Debrief may become a reliable piece of evidence having the same credibility as the soldier who was the parallel source of the information. We will assume for present purposes that the answer to this question is yes.

If yes, can the evidence sustain any reasonable inference that there is a parallel origin for the squirter narrative apart from Person 5?

208    The short answer is that it cannot. As we have observed, the appellant did not attempt to identify a parallel source.

209    There were four classes of witness about the events at Whiskey 108:

(a)    the appellant’s witnesses all of whom, apart from Person 81, were found to be unreliable. As it happens, none of these witnesses (including the appellant) testified that they had witnessed an engagement involving two squirters. And Person 5, himself, gave no such evidence. The testimony which touched on the topic was the evidence of Person 5 that during the RV meeting he heard gunfire and ran outside the compound where the appellant told him that he and Person 4 had engaged two squirters;

(b)    the respondents’ witnesses, apart from Person 4, none of whom gave evidence of having seen an engagement involving two squirters;

(c)    Person 4; and

(d)    other soldiers who did not give evidence.

210    As to (a), in terms of providing an independent source for the squirter statement none of the appellant’s witnesses can serve this purpose since, apart from Person 81, all were found to be unreliable. While reliable, Person 81 gave no evidence of having witnessed an engagement involving two squirters. In any event, resort to Person 81 would be circular since the present submission is concerned with the search for a soldier apart from Person 5 who could also have told Person 81 that two squirters had been engaged. None of the soldiers in (a) are plausible reliable alternate sources for the squirter narrative.

211    As to (b), none of the respondents’ witnesses gave evidence of having seen the killing of two squirters. Three of them testified that they saw the appellant execute the man with the prosthetic leg; one of them testified that he saw him order Person 4 to execute the old man in the courtyard; and some gave evidence of having seen men taken from the tunnel and placed under control, including in one case that a baldish man and a man with a prosthetic leg had been brought out of the tunnel. Plainly, none of these witnesses could be an alternative source of the squirter narrative.

212    As to (c), Person 4 claimed the privilege against self-incrimination so it is not known what his testimony about the suggested squirters would have been. There is some evidence that Person 4 might have said that there had been two squirters. However, this evidence came from Person 5. Person 5’s evidence was that he had been at the RV meeting and heard shots. He had run over to a point from which he could see the appellant and Person 4 just off the northwest corner of the compound. Person 5 asked the appellant if they were “OK” and the appellant replied with words to the effect that they were good and that they had engaged two squirters. This evidence cannot be reconciled with the fact that it is now accepted that Person 4 shot the old man in the courtyard.

213    Person 5’s evidence about the old man was in these terms: “He was engaged as a squirter, one of the two squirters that ran away to the north-west, north-east by my cardinal direction”. When tested on how he knew this, Person 5 said that he had obtained this understanding at a meeting of the whole troop which he referred to as “the post-operational brief”. That the two men had been killed squirting in this fashion was, according to Person 5, the general consensus of the meeting. He could not remember who at the meeting had said this but he accepted that since the only people who were directly involved in the incident were the appellant and Person 4, it must have been one of them.

214    This evidence does not provide a basis for concluding that Person 4 was a reliable and independent source of the information appearing in the Patrol Debrief that two squirters had been engaged. There are two problems with it. First, it is based on the evidence of Person 5 who the primary judge found was not a reliable witness. Secondly, even if Person 5’s evidence about this were accepted, it commits the appellant and/or Person 4 to a version of the death of the old man which cannot be correct. It is a fact that the old man was shot dead in the courtyard by Person 4. On no view was he shot as he “ran away to the north-west”. Thus, if the appellant or Person 4 had actually said this at this meeting (as Person 5 suggested), it is now apparent that the statement could not have been correct. Accordingly, Person 5’s evidence does not provide a basis for concluding that the squirter statement in the Patrol Debrief is reliable because Person 4 was a reliable parallel source.

215    As to (d), the defining feature of these witnesses is that it is not known what they saw because they did not testify. However, there was evidence from Person 24 that all the members of Gothic 4 had seen the execution of the man with the prosthetic leg. This would have included Persons 6, 73, 68 and 80, none of whom gave evidence. But it is impossible infer from that evidence that they saw the engagement of two squirters. It is therefore not possible to infer that any of the soldiers who did not testify could have been an independent reliable source for the squirter narrative.

Conclusions

216    We do not accept that the evidence permits an inference to be drawn that the statement in the Patrol Debrief that two squirters had been engaged is reliable because someone apart from Person 5 might have been its source. Only the appellant and Person 4 are plausible alternative sources. The appellant is not reliable and Person 4 gave no evidence one way or the other, having raised his privilege against self-incrimination. In any event, if Person 4 told a meeting of soldiers that the two men had been killed as they fled the compound, it was not true because it is not in dispute that Person 4 shot the old man in the courtyard.

Did the fact that no witness gave evidence of having seen the two men killed as they fled the compound mean that the statement in the Patrol Brief had no evidentiary value?

217    The primary judge found, and the respondents in this Court submit, that the squirter statement in the Patrol Debrief is also unreliable because it was wrong. It was wrong because not a single witness at trial gave evidence of having seen the two men killed in a lawful engagement as they fled the compound. In his reply submissions, the appellant submitted that the fact that no witnesses could now recall such an event did not mean it had not happened. As a matter of general principle, this submission is correct. There is a distinction between a witness who has no recollection of seeing two squirters killed in a lawful engagement and a witness who recalls events which are inconsistent with such an event. The appellant’s submission elides these two categories of witness.

218    There was in fact evidence from soldiers who were in the location where the squirting is alleged to have occurred that they saw the execution of the man with the prosthetic leg. These were Persons 14 and 24. The primary judge concluded that they were in a position where they would have seen two squirters being killed in a legitimate engagement as they fled the compound. Their evidence is inconsistent with such an engagement having occurred.

219    In response, the appellant submitted that it was speculation to reason that these witnesses would have seen any such engagement. We do not agree. It was not speculation at all.

Other matters

220    The appellant raised some other disparate matters concerning the Patrol Debrief.

The PUC submission

221    In his reply submissions, the appellant raised a similar submission concerning the reference to there being no PUCs. His point, in broad terms, is that on the respondents’ case, many soldiers knew that there was at least one PUC and possibly more and hence it was unlikely that such a statement would have gone unchallenged. The reasons we have given for rejecting his submission concerning the squirter narrative apply equally to this submission which we do not accept.

Person 5’s knowledge that the execution was going to occur

222    In his written submissions in reply, the appellant submitted that it was important to the primary judge’s finding that Person 5 caused the post mission operational reporting to be falsified that Person 5 knew before the execution of the old man that it was to take place and later that it had taken place. For this proposition the submission cites J[712]. While J[712] certainly includes a finding by the primary judge that Person 5 knew that the old man would be executed, it says nothing which links that finding to the conclusion that Person 5 had falsified the post mission operational reporting.

223    The primary judge’s conclusion that Person 5 was the likely source of the information in the Patrol Debrief is at J[588] and J[683], at least according to the appellant’s written submissions [16.2], fn 136. We have been unable to discern any part of the primary judge’s reasons where his Honour relied upon the fact found at J[712] (that Person 5 knew that the execution was to take place) as part of a chain of reasoning leading to a conclusion that Person 5 had caused the post mission operational reporting to be falsified. The appellant’s submission in reply, while asserting this matter, cites nothing for it except J[712]. In those circumstances, the submission must be rejected.

224    If we had accepted that it was important for the primary judge’s conclusion that Person 5 had caused the post mission operational reporting to be falsified that Person 5 knew that the old man was to be executed before it occurred, it would then have been necessary to consider the appellant’s challenge to that proposition. The appellant submitted that Person 5’s knowledge of the killing before it occurred had been found on the basis of, first, evidence of Persons 14 and 24 that they had heard Person 5 say he was going to blood the rookie and, secondly, evidence of Person 24 that he had heard Person 5 telling Person 4 to “get in here”. The appellant then developed detailed submissions about the fragility of those findings.

225    It is by this circuitous route that a submission that purports to be in reply to the respondents’ submissions about the post mission reporting, transpires to be a challenge to the reliability of these two sets of evidence. This is achieved by the device of attempting to tie the matter to a non-existent statement by the primary judge that the fact that Person 5 knew about the execution before it happened was important to the conclusion that Person 5 had caused the post mission operational reporting to be falsified. In those circumstances, we do not propose to address this matter further.

The TF66 – SUPINTREP 028-09 document

226    In oral argument Mr Walker SC also drew the Court’s attention to Exhibit R192.2 which is an official record headed “TF66 – SUPINTREP 028-09”. This document records at paragraph [3]:

[REDACTED] In addition to an INS KIA 500m South of W0108, a further two INS were KIA; one of these 10m from the North-west corner of W0108 and the third 5m from the North-west corner of W0108.

227    Mr Walker SC submitted that the reference to the INS five metres from the northwest corner of the compound was a reference to the man with the prosthetic leg but the document makes no reference to the killing of the old man inside the courtyard. We interpolate that we take the reference to the insurgent ten metres from the northwest corner of the compound to be a reference to EKIA50 who was an insurgent killed by Gothic 4. On that basis, we agree with Mr Walker’s submission. Mr Walker submitted that the absence of any reference to the killing of the old man contradicted the whole of the respondents’ case. It is not apparent that any such submission was put in the court below, either in writing or orally. The problem with this submission on the appeal is that the appellant accepts that Person 4 shot the old man in the courtyard. The fact that this document does not record the fact that an old man had been shot dead in the courtyard proves that the statement in para [3] of the document is not reliable evidence in relation to the killing of the old man.

228    Thus, while it is true that the primary judge did not address the submission, we do not think that has any impact on the outcome of the appeal.

Conclusions

229    There is no reason to doubt the primary judge’s conclusion that the Patrol Debrief was not a reliable source of evidence.

230    For all these reasons, particulars 7 and 8 are not made out. In terms of the omnibus particular 19, in which it is alleged that the evidence was not sufficiently cogent for the purposes of s 140 of the Evidence Act having regard to the seriousness of the allegations, we are not persuaded that the evidence before the primary judge was insufficient to justify the findings made he made having regard to the very serious nature of the allegations and taking into account the presumption of innocence.

Did the primary judge err in assessing the reliability of Person 14 (particular 11)?

231    Particular 11 reads as follows:

The primary Judge, when assessing the reliability of Person 14’s evidence in relation to the W108 mission, failed to take into account the implausibility of his evidence about the Chinartu mission. The primary Judge also failed to adequately explain “how he took into account” when assessing Person 14’s honesty and reliability (J[9]) the fact that he told Chris Masters in 2018 that he understood Person 4 had shot the man with the prosthetic leg rather than the Appellant (see J[743]–[745], J[750], J[754]-[760]).

232    The first proposition must be rejected because we are not satisfied of the correctness of its premise. For the reasons given below, we do not accept that Person 14’s evidence about the Chinartu mission was implausible.

233    With respect to the second proposition, the ultimate submission the appellant made was that no weight could be placed on the evidence of Person 14 because he had made a prior inconsistent statement and that the primary judge had therefore erred in relying on his evidence to corroborate the evidence of Person 24 and Person 41 in relation to the death of the man with the prosthetic leg. The prior inconsistent statement concerned the death of the man with the prosthetic leg. It is convenient to begin with the testimony given at the trial by Person 14 before turning to the alleged prior inconsistent statement.

Person 14’s evidence about the death of the man with the prosthetic leg

234    We have already explained the import of Person 14’s evidence above, but it is now necessary to do so in more detail. It was Person 14’s evidence that, while the assault patrols were clearing the compound, the members of his patrol remained static and were in close proximity to each other. Person 14 was kneeling and looking towards Whiskey 109 at the point marked A on p 2 of Exhibit R98. The patrol commander of his patrol, Person 6, had just decided that some soldiers would be deployed forward towards Whiskey 109. But before those orders could be given effect to, Person 14 had heard a noise to his right similar to stomping or heavy footsteps and some chatter “like some kind of people talking”. He turned only his head to the right (recalling that he was kneeling) and he saw three Australian soldiers and a black object which looked similar to a human. Why Person 14 did not perceive that the object was a human is of some importance and we will return to this shortly but for now it is enough just to note this unusual aspect of his evidence.

235    Person 14 testified that the black object was then thrown to the ground by one of the soldiers and he heard the sound of an expulsion of air as when a person is winded. A soldier then raised a Minimi and fired an extended burst which was loud and lasted for about a second. The soldier who had fired the Minimi then turned and walked away out of sight and back into the compound.

236    An important element of this evidence is that Person 14 was unable to recognise the soldier who fired the Minimi. He was unable to recognise the soldier for a number of reasons. He was kneeling and looking to his right, last light was closing in, and everyone was wet. Further, everyone was wearing similar dress and carrying similar items.

237    Person 14 had a particular recollection of three matters. First, he remembered that the soldier was carrying a distinctive weapon, namely, the Minimi. Secondly, he noticed that the camouflage paint of two of the soldiers was that of Gothic 5, the appellant’s patrol. The paint was brown with a highly illuminated grey which Person 18 thought more typical for use in urban environments. He thought that the brown and grey stood out in the dark against the green of the tree canopy illuminating their faces. A photograph of the appellant on the day shows him wearing this camouflage paint. Thirdly, the other two soldiers were very close to the appellant, maybe one or two metres away.

238    At Whiskey 108, Person 14 did not have any understanding about which of the soldiers in the troop was carrying a Minimi but he was aware that generally new soldiers in an infantry unit were given the task of carrying heavy items. Although the camouflage paint of two of the soldiers was that of Gothic 5, and Person 14 was aware that the most junior member of Gothic 5 was Person 4, he did not then know the identity of the soldier who fired the Minimi although his assumption at the time was that it was Person 4. Apart from this incident, he did not see any soldier at Whiskey 108 carrying a Minimi.

239    However, after the mission, when the troop had returned to the VDOP, he saw that the soldier with the Minimi was the appellant and not Person 4. We interpolate that Person 14’s evidence was that this occurred when the troop returned to the “lay up point” but he explained that this was the vehicle lay up point, namely, the VDOP which the primary judge noted at J[751]). He did not know whether the troop might have had more than one Minimi but he did know that Gothic 5 had one.

240    After this, some but not all of the troop began to leave Whiskey 108 for Whiskey 109, a process known as “exfiltration”. By this time, Person 18 had fitted his night vision goggles. Person 14 went over to examine the object into which he had seen the soldier with the Minimi fire a burst of machine gun fire. There was still enough light to conduct that examination and he did not need the night vision goggles. He saw that the dark object he had seen shot not only resembled a human but was in fact a human. It was a man lying on his back, with a shaved head, a little bit of beard and dark Afghan robes. He also had a white leg which “did end up being a prosthetic leg”. At the trial, Person 14 identified the man from some photographs in Exhibit R7. There is no dispute that these are photographs of the body of the man with the prosthetic leg.

241    The effect of this evidence is that at the time that Person 14 saw the killing of the man he would subsequently identify as the man with the prosthetic leg, he did not know the identity of the soldier who fired the Minimi. He did, however, recognise the camouflage paint on two of the soldiers as the camouflage paint worn by the members of Gothic 5. His initial assumption was therefore that the soldier who fired the weapon had been Person 4. This was because Person 4 was the most junior member of Gothic 5, because usually the most junior member of a patrol got to carry the heavy equipment and because he knew that Gothic 5 had a Minimi. But when he returned to the VDOP he saw that it was actually the appellant who was carrying the Minimi and he had then concluded that the soldier he had seen fire the Minimi into the man with the prosthetic leg must have been the appellant.

The prior inconsistent statement

242    The above account was said to be inconsistent with what Person 14 had told the investigative journalist, Mr Masters, at a meeting on 27 February 2018. Although a party to the litigation, Mr Masters did not give evidence. But he kept a file note of his meeting with Person 14 which became Exhibit A63. The file note deals with Whiskey 108 but also covers other matters discussed by Mr Masters and Person 14. Although the appellant relies on a single sentence in the part of the note dealing with the events at Whiskey 108 we consider that the whole of that part of the note needs to be set out. As will be seen, the full text of the Whiskey 108 section bears upon an assessment of what meaning can be derived from the sentence upon which the appellant relies. The section dealing Whiskey 108 reads as follows (with the critical sentence underlined):

Whiskey 108/9 well remembered. Only time it rained. Camped out unexpectedly on high ground getting drenched under the V shaped BM hull. Gunshots. Heads up like Meerkats. Scanning with his sniper rifle. Saw ins manoeuvring against infantry.

Clear hot. Advanced in daylight across open ground thinking ‘I am going to die today’. Approached a bunker occupied by 7 to 8 guys. Had to cross a log bridge. His way was to hit it at speed and trust his momentum. Laughs when he recalls Person 6 negotiating it ‘like a ballerina’ ‘princessing along’ and saying ‘oh shit’ as he fell in. There is a good photo taken by 7RAR of the approach. P24 BK Person 24 as opposed to Mark Donaldson VC – the BK is for Bagh Koshak) carrying a 7.62 Maximi.

Initially P5 ‘adamant he had to be the lead assault patrol’. But when discovered action tended to follow they flipped the arrangement. [REDACTED] was the Alpha and [REDACTED] the Bravo. P43 [REDACTED] led another patrol but he was always sidelined – accused of being soft. Person 72 in his patrol.

Saw a bloke but did not take the shot. Soon after saw an ins with a weapon moving, spotted through broken cover. Estimated where he would emerge and shot him. SSE and could not see where bullet struck. On closer inspection saw he had been shot neatly through the cornea.

E Troop went in. P5’s patrol seen through the doorway of their next compound R-S had an M-14 and P4 a Minimi. Understood P4 had shot an old guy with a prosthetic leg.

243    The appellant’s counsel cross-examined Person 14 with the aid of this file note and put to Person 14 that he had told Mr Masters that it was Person 4 that had shot “an old guy with a prosthetic leg”. Person 14 replied that this was “based off me assuming that the Minimi carrier was Person 4”. It will be recalled that his initial assumption was that Person 4 had shot the man with the prosthetic leg but after he returned to the VDOP and saw the appellant carrying the Minimi he realised that the soldier must have been the appellant. It may be inferred that by 2018 when Person 14 spoke with Mr Masters he believed that the soldier who had executed the man with the prosthetic leg was the appellant and not Person 4.

244    At this point it is useful to set out the relevant portion of the cross-examination of Person 14:

Thank you. And you told Mr Masters that you understood that Person 4 had shot an old guy with a prosthetic leg?---That was based off me assuming that the Minimi carrier was Person 4.

So are you now saying you told Mr Masters that you understood it was Person 4 who shot the Afghan male with the prosthetic leg?---That was my initial assumption on the ground, tactically, but I later came to learn who was carrying the Minimi.

Stick with me. What I’m asking you is did you tell Mr Masters that you understood that Person 4 had shot the Afghan male with the prosthetic leg?---No.

You said that to him, didn’t you?---No.

You – just let me finish. You said that to him on 27 February 2018, do you accept that?---No.

You never said to Mr Masters on 27 February 2018 that you understood that it was Mr Roberts-Smith who had shot the man with the prosthetic leg; you accept that?---What I accept is that my initial assumption was Person 4 had the Minimi, as the junior person in the patrol, and that was my initial assumption on what I saw.

You are a liar, aren’t you?---No.

I’m going to ask you the question again: did you tell Mr Masters at this meeting that it was Mr Roberts-Smith who shot the Afghan male with the prosthetic leg?---I later came to learn that it was Ben Roberts-Smith and, yes, I would have.

No, no. You told the court earlier that you did tell Mr Masters that. Do you recall giving that evidence?---Yes.

So that’s what you told Mr Masters, you say?---Yes.

At this meeting?---At the second meeting.

Which Mr McKenzie later turned up at?---Yes.

What I want to suggest to you is that you said to Mr Masters you understood it was Person 4 who had shot the Afghan male; correct?---Incorrect.

And the reason you say you understood was because you never saw anything. Do you accept that?---100 per cent incorrect.

You were spreading rumours, weren’t you?---100 per cent incorrect.

You are a liar, aren’t you?---I am not.

And when you told the court that the first time you told the narrative you said to Mr Owens in this court on Friday was April 2018, you were trying to mislead the judge that you had been previously speaking to journalists about this case, hadn’t you?---No.

245    It will be seen that Person 14 denied having told Mr Masters that Person 4 had killed “an old guy with a prosthetic leg”. But he also explained that his assumption on the day was that it was Person 4 who had been armed with the Minimi. He also said under cross-examination that he had told Mr Masters that the person who had killed the man with the prosthetic leg was the appellant.

246    The primary judge dealt with the issue of the file note in the section of his Honour’s reasons which dealt with the death of the man with the prosthetic leg. First, at J[745]-[747], he set out the file note and the transcript of the relevant part of the cross-examination set out above. Secondly, at J[748], he recorded the respondents’ submission that the file note was a very abbreviated summary of what was said at the meeting and did not purport to be a transcript. His Honour also recorded their accompanying submission that the file note did not accurately capture the complexity of Person 14’s evidence, that is to say, his initial assumption on the day that the shooter was Person 4 but his realisation at the VDOP was that it must have been the appellant. Thirdly, the primary judge then set out at J[753]-[759] the appellants’ submissions about why Person 14 was an unreliable witness. In this section of the primary judge’s reasons, his Honour did not reach any conclusions on either party’s submissions but he did say at J[760] in reference to the appellant’s submissions that “[a]ll of these matters must be taken into account in assessing Person 14’s honesty and reliability.”

247    After a survey of all of the evidence in the case, including the evidence of Persons 24 and 41, the primary judge reached this conclusion at J[869]:

I accept Person 41’s evidence about witnessing the execution of EKIA57 outside the north-western corner of W108. Persons 14 and 24 also witnessed the execution. There are reasons to scrutinise Person 14’s evidence with care, but in the end and having done that, I accept his evidence and it supports Person 41’s evidence. Person 24’s evidence must be approached with considerable caution. However, it does not stand alone and is supported by the evidence of Persons 14 and 41. Further, relevant to the analysis is that there is no suggestion that there has been any collusion, or indeed contamination, between Person 41 on the one hand, and Persons 14 and 24 on the other.

248    The primary judge did not explicitly resolve the issue of whether Person 14 had told Mr Masters that Person 4 had killed “an old guy with a prosthetic leg”.

249    The respondents submitted that the primary judge had dealt with the question of the file note at J[745]-[748] and that it was plain that his Honour had accepted that the reference to Person 14 having understood (the word used in the file note) that Person 4 shot an “old guy with a prosthetic leg” reflected his understanding “on the ground” that Person 4 was carrying the Minimi.

250    When recourse is had to J[745]–[748] it is apparent that all that is set out in those paragraphs is the primary judge’s recitation of Person 14’s evidence on the matter and the respondents’ submissions on this topic. It is not, therefore, obvious from those paragraphs that the primary judge had accepted the submission that the word “understood” in the file note reflected Person 14’s understanding on the ground on the day.

251    On the other hand, the primary judge accepted Person 14’s evidence. That evidence included his denial that he had not told Mr Masters that Person 4 had killed “an old guy with a prosthetic leg” and his evidence that what he had told Mr Masters was that it was the appellant who had killed the man with the prosthetic leg.

252    Thus, although it is clear that the primary judge did not regard Exhibit A63 as an obstacle to the acceptance of Person 14’s evidence, it is not clear what his Honour’s reasons for discounting Exhibit A63 actually were.

253    There are, however, only three possibilities.

254    First, the primary judge could have reached this conclusion because he interpreted Mr Masters’ file note in the manner suggested by the respondents in their submissions recorded at J[748] (where the word “understanding” imported that Person 14 on the day had initially thought that Person 4 had shot the man with the prosthetic leg only later to discover it was the appellant) so that it was not evidence of a prior inconsistent statement.

255    Secondly, his Honour could have reasoned that the file note did record a prior inconsistent statement but concluded that it was not an accurate summary of what Person 14 had actually said to Mr Masters.

256    Thirdly, the primary judge could have reasoned that the file note accurately recorded a prior inconsistent statement but concluded, notwithstanding that statement, that he was still going to accept Person 14’s evidence at trial.

257    Following a long discussion of the challenges to Person 14’s credibility by the appellant including the challenge based on the file note, the primary judge said at J[760]:

All of these matters must be taken into account in assessing Person 14’s honesty and reliability. I note that none of the four matters just mentioned relate directly to Person 14’s account of events at W108.

258    It is not possible to discern from this passage why the primary judge did not think Exhibit A63 was an obstacle to accepting Person 14’s evidence.

259    It is convenient to assume that this difficulty entails that the primary judge’s reasons are not adequate in the legal sense, that is, not sufficient to permit an appellate court to review them for error. On that assumption it would fall to this Court to form its own view about Exhibit A63.

260    As the respondents submitted at trial, it is clear that the file note is a very abbreviated summary of what was said at the meeting and is not a transcript. It also includes at some points what are clearly Mr Masters’ opinions. For example, in a section of the file note we have not set out it records: “Amazing, vivid description of [REDACTED]”. To that one might add that the critical sentence contains statements which are incorrect:

E Troop went in. P5’s patrol seen through the doorway of their next compound. R-S had an M-14 and P4 a Minimi. Understood P4 had shot an old guy with a prosthetic leg.

261    It was G Troop, not E Troop, the appellant did not have an M-14, Person 4 did not have the Minimi and there is no dispute that the central characters in the events at Whiskey 108 are an old man and a man with a prosthetic leg and not a hybridised man with both qualities. Further, the statement that Person 5’s patrol was seen through the doorway of their next compound (Whiskey 109) makes no sense.

262    It is clear in our view that the file note is a very quick summary which is incomplete and incorrect in some aspects. We would read the word “understood” as recording in an inadequate way Person 14’s evidence that he had initially assumed that the shooter was Person 4 but had revised that assumption when he saw the appellant carrying the Minimi back at the VDOP. On the assumption that the primary judge’s reasons for rejecting the appellant’s submissions about Exhibit A63 are not adequate in the legal sense, the conclusion we would reach is that Exhibit A63 is not evidence of a prior inconsistent statement.

263    As a footnote to his submission about Exhibit A63, the appellant also advanced five other challenges to the reliability of Person 14. It is difficult to understand how these contentions are related to his principal submission but they are as follows:

(a)    Person 14’s fluctuating evidence about what he told various journalists (including Mr Masters);

(b)    the fact that Mr Masters was a party to the litigation and could have given evidence about what Person 14 had said to him which led him to draft Exhibit A63 in the form that he did;

(c)    a suggested failure to assess the evidence of Person 14 in a global manner. Person 14 was the central witness for the killing at Chinartu and the appellant submitted that the primary judge had failed to conduct a global assessment of his reliability. Instead, he had made only passing reference to Person 14’s evidence about Chinartu;

(d)    “the other matters summarised by the primary judge in relation to the credibility of Person 14”; and

(e)    Person 14’s inability to distinguish the appellant, who is over two metres tall, from Person 4, who is of average height (this point was advanced only in reply).

264    Leaving aside how (a), (c) and (d) relate to Exhibit A63, we are unpersuaded by these submissions. As to (a), we do not think that the primary judge’s treatment of this question involved any error. His Honour gave detailed reasons explaining Person 14’s concerns about being seen to have spoken to journalists given the strong culture within the SASR against that practice, and we are satisfied, as his Honour was, that this comfortably explains Person 14’s varying evidence about his dealings with journalists.

265    As to (b), we accept that an inference may be drawn that evidence from Mr Masters would not have assisted the respondents on whether Exhibit A63 recorded a prior inconsistent statement of Person 14. However, the fact that Mr Masters’ evidence would not have assisted the respondents has no relevance having regard to our conclusion that Exhibit A63 is not evidence of a prior inconsistent statement.

266    As to (c), there is no substance to the contention that the primary judge did not engage in a global assessment of Person 14’s reliability. At J[753] the primary judge said this:

… The submissions the applicant made about Person 14’s evidence in both his closing written submissions and his closing oral submissions were as follows. Person 14 should not be accepted as a reliable witness. Person 14 is a perjurer and the applicant challenges his credibility (honesty) as well as his reliability. The applicant relies on the submissions he makes in the context of the mission to Chinartu concerning Person 14’s reliability as a witness. I have addressed those matters in Section 5 of this Part. As I said early in this Section, the whole of a witness’ evidence must be taken into account.…

267    In his reasons dealing with the events at Chinartu (which we discuss later in these reasons), his Honour dealt extensively with the credibility of Person 14. We can see no basis for concluding that the primary judge did not carry out the very assessment he refers to at J[753]. As the respondents correctly submitted, any doubt on that matter (and we have none) must be resolved against the appellant given what the primary judge said at J[225]:

Some of the respondents’ witnesses are also witnesses in relation to other missions and events. For example, Person 14 is the respondents’ key witness in relation to events at Chinartu and Person 18 is an important witness in relation to the threatening letters. In assessing the credit of a witness, it is necessary to have regard to the whole of the witness’ evidence while at the same time recognising that the witness may be correct as to one matter and mistaken as to another, or truthful as to one matter and dishonest as to another. As will be seen, I accept the evidence of Persons 41, 40, 42, 43 and 18. As I will explain, there are reasons to scrutinise Person 14’s evidence with care, but having done that, I accept his evidence. Person 24’s evidence must be approached with considerable caution, but it does not stand alone and is supported by the evidence of Persons 14 and 41.

268    As to (d), it is true that the primary judge did summarise all the challenges to the credibility of Person 14 but he also concluded that he would accept Person 14’s evidence. It is not clear therefore what the appellant intends by (d). Certainly, he does not articulate any error which would engage this Court’s appellate jurisdiction. On the other hand, if the submission is directed to this Court reaching its own view on Person 14’s evidence (in the event that some error were discerned), we are not prepared to read a single sentence in the appellant’s submissions as, in effect, reproducing hundreds of paragraphs of close reasoning of the primary judge and inviting this Court to reach its own views about the matter. If the appellant wished to make submissions about this, he could have done so. The usual page limit for appeal submissions was substantially increased and the appeal was listed for 10 days.

269    As to (e), we were not taken to any evidence about Person 4’s height although the appellant asserted in his submission that Person 4 is of average height. Leaving that problem to one side and assuming for the sake of argument that the appellant is much taller than Person 4, the submission becomes that it is not plausible for Person 14 initially to have thought that the soldier firing the Minimi was Person 4 and then afterwards to have thought that it was the appellant. Person 14 explained why he could not identify the soldier. It was close to last light, they were under a verdant tree canopy, everyone was wet and was wearing the same uniform. He did not identify the soldier as Person 4. Rather he assumed that since the soldier had fired a Minimi it was likely to have been Person 4, as the junior member of the patrol, who had been carrying it. He realised that assumption was wrong when he saw the appellant carrying the Minimi back at the VDOP. When the difficulties with the visual circumstances are brought to account, there is nothing improbable about Person 14’s suggested inability to distinguish the appellant from Person 4. If Person 14 had in fact identified either soldier at the time, then the matter might be somewhat different but Person 14 was clear that he was unable to identify the soldier at the time. We reject the submission.

Conclusions

270    We therefore reject the appellant’s submissions about the honesty and reliability of Person 14.

271    We have explained why we do not accept that the primary judge failed to take into account Person 14’s evidence about the Chinartu mission. The balance of the particular is an allegation that the primary judge’s treatment of Mr Masters’ file note was not adequate. We have indicated that we accept that is correct but have concluded on review that the primary judge reached the correct conclusion. On the assumption that the appellant’s omnibus s 140 challenge in particular 19 is intended to extend to the reliability of Person 14, to the extent necessary we would indicate that we are satisfied that the evidence acted upon by the primary judge was sufficiently cogent having regard to the seriousness of the allegations and the presumption of innocence.

Did the primary judge err in assessing the reliability of Person 24 (particular 6, 7 and 8)?

272    This is the subject of our closed court reasons. For the reasons we give there, we do not accept that the primary judge erred in relying upon Person 24’s evidence.

Did the primary judge err in assessing the reliability of Person 41 (particular 4)?

The suppressor evidence

273    The first part of the appellant’s submissions about the reliability of Person 41 turned on his evidence concerning the suppressor. That is the subject of Particular 4.

274    As we have explained, Person 41’s evidence was that when he stepped back into the courtyard he saw the appellant, Person 4 and the old man. It will be recalled that his evidence concerning the suppressor was as follows or to the following effect. The appellant asked Person 41 for his suppressor and Person 41 then handed his suppressor to Person 4 who fitted it to his own M4. At the time, Person 41 thought this was an odd request. The appellant kicked the old man behind the legs so that he was made to kneel before Person 4 and then ordered Person 4 to shoot the old man. To avoid seeing the execution, Person 41 stepped back into the room with the IED components where, after a second or two, he heard a single suppressed shot. He waited for 15 seconds or so and stepped back into the courtyard where he saw Person 4 looking shocked and the old man lying dead at his feet. Person 41 walked over to Person 4 who returned his suppressor to him without saying anything. The suppressor was still warm from the shot. Person 41 then walked over to look at the body of the old man.

275    At trial, the appellant submitted that Person 41’s evidence about the borrowing of his suppressor was not credible. The primary judge examined his submissions about this at J[685]–[698]. The first was a submission that it was unlikely that Person 4 had forgotten to bring his suppressor to Whiskey 108 or that he had placed it in a position where it was not readily accessible to him. The second was that it made no sense for Person 4 to have used a suppressor since it would not hide the fact that someone had been shot and would in fact distinguish the shot as friendly fire. Here the thinking was that a suppressor does not eliminate the noise of the shot but merely reduces it. This is borne out by the fact that Person 41 said that he heard the suppressed shot when he was in the room with the IED components.

276    The evidence did not explain why the appellant had asked Person 41 for his suppressor or why Person 4 had used that suppressor rather than his own. It was, as both parties accepted, an odd fact.

277    The primary judge then reasoned at J[698]:

The evidence does not establish a reason why Person 4 or the applicant would want or need to borrow a suppressor from Person 41. That is a matter to be taken into account. At the same time, it seems to me that there is considerable force in the respondents’ submission that it is a very strange detail for Person 41 to include in his account if he is making up that account.

278    The appellant’s first contention is that the primary judge erred in finding, in effect, that an improbable detail enhanced Person 41’s account because of its very improbability. It was said that the primary judge’s observation revealed a preoccupation with the witness’s honesty rather than an assessment of the reliability of his evidence.

279    We read J[698] as the primary judge indicating that, insofar as the question was whether Person 41 was giving honest evidence, his Honour thought that the improbable detail tended to support a conclusion of honesty (“…if he is making up that account”). One may expand this reasoning slightly to see the point the primary judge was making. On the hypothesis that Person 41 was lying in his evidence and had not witnessed the appellant order Person 4 to execute the old man, it would be irrational as part of that lie to include an element in the story — namely the unusual request for his suppressor — that was itself improbable. The inclusion of such an element would be likely to lead to the false account not being accepted.

280    A riposte to this argument would be that a very good liar might include a most unlikely element into a false version of events precisely to attract the reasoning in the preceding paragraph. This might be thought to be particularly so where the false element is not really related to the central thrust of Person 41’s evidence (noting that whether Person 4 used Person 41’s suppressor or his own to execute the old man does not really bear on the central fact of the execution).

281    There is an ambiguity in the appellant’s written submissions as to whether his submission about the suppressor evidence relates to the primary judge’s conclusions about the honesty of Person 41 or whether it concerns only his reliability. The ambiguity may be observed in the last two sentences of AS [12.3]:

It was an error for the primary to effectively find that an improbable detail enhanced Person 41’s account because of its very improbability. The primary judge’s observations revealed a pre-occupation with the witness’s honesty rather than an assessment of the reliability of the evidence.

282    However, in Mr Walker SC’s address it became clear that the appellant’s submissions were concerned with reliability or plausibility rather than honesty. Thus, there is no reason further to consider the riposte we have set out above in any consideration of whether the primary judge’s reasoning on the honesty of Person 41 is affected by error for this is not the appellant’s case in this Court.

283    Once the challenge is identified as being to the reliability of Person 41 (used by Mr Walker SC interchangeably with plausibility) the question then becomes how the primary judge approached that issue. We do not read J[698] as expressing any view on what impact the improbable detail had on the reliability of Person 41 (as opposed to his honesty).

284    A consequence of this conclusion concerns the primary judge’s observation that there was considerable force in the notion that it was an odd detail to include if Person 41 were making his evidence up. However, it is clear on the face of that remark that the considerable force the primary judge apprehended related only to the suggestion that Person 41 had made his evidence up, that is, that his evidence was a lie. It was not an observation directed to the issue now raised by the appellant that the suppressor evidence made Person 41’s evidence unreliable (or implausible).

285    Thus, while the appellant relied heavily upon the primary judge’s statement that there was considerable force in the proposition that it was a strange detail to include if Person 41 was making up his evidence, that observation was connected to the honesty issue and the appellant does not challenge that aspect of the primary judge’s reasoning. It is not connected to the issue of reliability which is the subject of the appellant’s actual challenge.

286    There are other problems too. The reliability case, itself, is also hampered by the fact that Person 41 gave evidence that at the time the request was made he, too, thought it was odd. The case thus presents not as one in which a witness gave evidence of a sequence of events which a trial court might regard as odd but rather, as one in which a witness says that a sequence of events took place which the witness at the time thought was odd. For that reason, we do not agree with the appellant’s submission in reply at [6.1] that this fact made no difference.

287    Bearing that in mind, the primary judge accepted that the evidence did not disclose any explanation for why the appellant would have requested Person 41 to supply his suppressor to Person 4 at J[698] in the passage set out above. He then said that it was “a matter to be taken into account”. The primary judge was aware that in the ordinary course Person 4 would have had his own suppressor readily to hand (J[687]-[691]) and he was equally aware that using another person’s suppressor might affect the firing ability of a weapon (J[691]). His Honour’s ultimate conclusion was that he accepted the evidence of Person 41 at J[660]. This occurred before the parts of the primary judge’s reasons where he dealt with a number of the appellant’s submissions (including the submission concerning the suppressor evidence). However, it is clear that the primary judge was aware of the oddness of the evidence and that he took it into account in assessing whether he was willing to accept Person 41’s account of the death of the old man in the courtyard.

288    We detect no error in this approach. Nor do we accept the appellant’s broader submission that the existence of this odd piece of the evidence meant that the primary judge had failed to comply with the requirements of s 140 of the Evidence Act. The appellant accepts that the primary judge’s recitation of the principles governing s 140 is correct. His point on appeal is that the primary judge failed to apply those principles. The appellant has not shown that the primary judge’s approach to the suppressor evidence involved a misapplication of s 140.

The no sense submission

289    It will be recalled that it was Person 41’s evidence that, after the execution of the old man in the courtyard, he had gone outside the compound where he saw the appellant execute the man with the prosthetic leg with a machine gun. This was also witnessed by Person 24. Similarly, Person 14 saw a soldier with a Minimi shoot a dark object which looked like a human. He subsequently learned, back at the VDOP, that the appellant had been carrying the Minimi and he had also inspected the black object and seen that it was a human. In addition to these witnesses, Person 40 was in a defensive position to the northwest of the compound and heard a burst of machine gun fire. Person 18 was in the tunnel in the courtyard with Person 35 and he also heard a burst of machine gun fire.

290    The appellant submitted that Person 41’s evidence about the request for the suppressor in the courtyard made no sense when, on Person 41’s evidence, the appellant executed the man with the prosthetic leg with a machine gun. Put another way, if the purpose of fitting Person 41’s suppressor to Person 4’s M4 was to conceal the fact that an execution was to take place, what possible sense did Person 41’s evidence make that the appellant had then executed the man with the prosthetic leg with a loud burst of machine gun fire. The appellant garnished this submission with the evidence of Person 24 that what he had witnessed was an “exhibition execution”. A submission to this effect was advanced in oral submissions to the primary judge at the foot of T6597 and in two lines on T6627. We were not taken to any written submission before the primary judge to this effect, however.

291    The primary judge appears to have overlooked this submission. It is not dealt with in the reasons for judgment. However, we do not agree with the appellant’s submission that it made no sense for the suppressor to have been used in the courtyard and for the machine gun to have been used outside the compound. The courtyard was inside the compound and, as the appellant pointed out in relation to other grounds, had recently been a hive of activity. There were obvious reasons why the appellant might seek to conceal the fact of the killing. The fact that it had happened only after the courtyard cleared of soldiers affirms the correctness of that observation.

292    The fact that the shot which killed the old man was heard by not a single witness except Person 41 also strongly points to the conclusion that the sound of the shot was suppressed just as Person 41 said. Person 4 had an M4. The fatal shot fired by him was either suppressed or it was not. The evidence was that unsuppressed M4 fire was as loud as the Minimi. Not a single witness gave evidence of having heard a single shot of unsuppressed M4 fire inside the compound or the courtyard. The objective circumstances point overwhelmingly to the shot having been a suppressed one.

293    Contrary to the appellant’s submission in reply at [6.2], so to reason is not to indulge in pure conjecture. It is the appellant who says that the use of the suppressor made little sense and he cannot complain when it is pointed out that it does make sense. Still less is it possible to accept the appellant’s reply submission that the fact that no witness heard the shot “tends to be probative that no shot was fired”. Here the appellant overlooks the fact that he accepts that Person 4 shot the old man in the courtyard. The hypothesis that there was no shooting in the courtyard is not live in this appeal.

294    That of course leaves the appellant’s point that if the appellant had been seeking to conceal the murder of the old man by having Person 4 use a suppressor then it is puzzling that he had decided to kill the man with the prosthetic leg with a very loud machine gun in the performance of an exhibition execution.

295    In meeting this submission, the respondents submitted that the appellant’s Minimi did not have a suppressor fitted and this provided the very reason why he needed to take the man with the prosthetic leg outside the compound to execute him. If he had discharged the Minimi inside the courtyard, it would have attracted the attention which the use of the suppressor by Person 4 shows the appellant wished to avoid.

296    We accept this submission. Even so, the killing of the man with the prosthetic leg in such a dramatic fashion does suggest a certain recklessness or perhaps even brazenness on the part of the appellant. Be that as it may, that the appellant was reckless in his actions accords with the evidence of Person 18 who heard Person 5 remonstrating with the appellant about the killing in circumstances where there might be a drone overhead.

Leaving the body of the old man in the courtyard

297    The third matter raised by the appellant is that, if the body of the old man was left in the courtyard, then the fate of the person allegedly emerging from the tunnel would have been obvious. For example, Person 18 performed SSE on the old man but had earlier seen him in the courtyard. This submission was advanced explicitly as part of the appellant’s submissions about the implausibility of Person 41’s evidence concerning the suppressor. But it does not appear to be logically connected to that submission and we do not accept that the submission includes any contention concerning the reliability of Person 41’s evidence concerning the suppressor.

298    Leaving aside that problem, the submission suffers from a larger problem. It seems to be directed towards proving that the old man’s body was not left in the courtyard (“if the body of the old man was left in the courtyard then it would have been obvious what the fate of the person allegedly emerging from the tunnel was”). But there is no question that the old man’s body was in the courtyard where Person 4 shot him. Whether Person 18 must have realised when he performed SSE on the body that it was the same person he had seen dressed in white near the tunnel entrance when he arrived in the courtyard is incapable of affecting the known fact that the old man’s body was in the courtyard. Yet it is to prove that the body was not left in the courtyard that the submission is apparently advanced. In our view, this makes no sense.

299    One could argue that the evidence of Person 18 was unreliable because, if he had seen the old man in the courtyard when he first arrived, then he would have realised when he did SSE on the old man’s body that it was the same person. Yet he did not record the fact that the old man had been executed as part of that SSE process. That might affect the reliability of Person 18’s evidence about what he saw when he first arrived in the courtyard.

300    The problem with such an argument is that it has nothing to do with the reliability of Person 41’s evidence concerning the suppressor and is beyond the scope of the appeal. The appellant was explicit about the reliability challenges he raises in the appeal. These are to Persons 41 (particulars 4 and 5, the latter of which was not pursued), Person 14 (particular 11) and Person 24 (particular 6). He does not challenge the reliability of Person 18. In that circumstance, it is not appropriate to consider it further.

301    The appellant’s submissions concerning the suppressor and Person 41 and related matters constituted his submissions on particular 4. It was in these terms:

The primary Judge erred in relying upon an improbable aspect of Person 41’s evidence to bolster his reliability. This involved circular reasoning. Person 41’s evidence was that Person 4 requested to borrow a suppressor prior to the execution of EKIA 56. The primary Judge agreed the evidence did not establish a reason why Person 41 would wish to borrow a suppressor (J[698]) and that while this was a matter to be taken into account (without explaining how he would do so), there was “considerable force” in the submission that Person 41’s inclusion of this “very strange” detail in his account only enhanced its credibility (J[698]). In effect, the primary Judge relied upon an improbable aspect of Person 41’s evidence to bolster the reliability of his other evidence about the occurrence of an improbable event, being the authorised, undisguised execution of an unarmed PUC by two professional SASR operators in breach of the laws of armed conflict. The primary Judge’s reasoning is circular and erroneous. Moreover, the primary Judge failed to adequately explain this improbable aspect of Person 41’s evidence where the weight of evidence indicated that there was no logical or operational reason for an operator to borrow someone else’s suppressor.

302    The last sentence may conceal a submission that the primary judge’s reasons were inadequate. If so, we reject the submission. His Honour was aware that the evidence concerning the request for the suppressor was unexplained and took that anomalous nature into account in the fact finding process. The reasons are not inadequate. For completeness, we are also satisfied that the evidentiary record before the primary judge concerning Person 41 was sufficiently cogent to justify the primary judge in making the serious findings that he did and taking into account the presumption of innocence (particular 19).

Difficulties with the timing of the death of the old man (particular 1)

303    It will be recalled that the respondents’ critical witness, Person 41, gave evidence of having entered the courtyard twice. When he first did so, he saw some soldiers in the courtyard but did not think that there was much going on in the courtyard at the time. But not long after this, the tunnel was discovered and he then saw Person 29 yelling down into it for anyone inside to come out. When Person 41 did not see anyone emerge he, again concluded that there was not much going on in the tunnel area. He therefore decided to go and look at two rooms on the northwest of the courtyard in which he found the IED components. In his evidence he said that he searched this room “for probably a minute or two”.

304    It was at the expiration of that period — “probably a minute or two” — that he heard “a bit of a commotion” in the courtyard and stepped back into it to witness the chain of events leading to the appellant ordering Person 4 to execute the old man. He then stepped back into the room with the IED components and within a second or two heard a single suppressed shot. After about 15 seconds or so he stepped back out into the courtyard and saw the old man dead and Person 4, who seemed to be in shock.

305    It will be seen that Person 41 was away from the courtyard for two distinct periods of time. The first interval of “probably a minute or two” occurred between the time he decided to leave the courtyard because there was not much going on there and the time when he decided to step back into the courtyard after hearing a commotion to see the appellant order Person 4 to execute the old man. The second, much shorter, interval of less than about 20 seconds occurred between the time he stepped out of the courtyard to avoid seeing the old man executed and the time he stepped back into the courtyard to see the old man’s body and Person 4.

306    These two intervals are easily confused, but for the purposes of the present submission the first longer interval of “probably a minute or two” is key.

307    The primary judge took Person 41’s evidence that he was away from the courtyard searching in the room with the IEDs for “probably a minute or two” to mean that he was doing so for a short time or not a very long time. The appellant submitted that it was erroneous for his Honour to have done this. As Person 41 had not been re-examined by counsel for the respondents to clarify that this was what he had meant and the primary judge had not done so either, the appellant submitted that it was not open to the primary judge to have interpreted Person 41’s evidence in this way.

308    This submission, even if correct, was disconnected from any fact which matters. Making the assumption that the appellant is correct about the error he seeks to identify, the significance of the error concerns the timeline of events which occurred in the courtyard. At the risk of oversimplification, the appellant submitted that on the evidence, the courtyard contained many soldiers at or around the time Person 41 testified that he decided to leave the courtyard and return to the room with the IED components. It was, he submitted, “a hive of activity”, picking up on an expression used by the High Court in Pell v The Queen [2020] HCA 12; 268 CLR 123 (Pell v The Queen), to which we will shortly turn. If Person 41 was only in the room with the IED components for two minutes, so the argument ran, it is not plausible that the soldiers in the courtyard could have dispersed in time for Person 41 to return two minutes later and see the appellant order Person 4 to execute the old man and, a few seconds later, hear the single suppressed shot fired by Person 4. But none of the soldiers who had just been in the courtyard saw or heard anything like this.

309    This submission is initially attractive until one recalls that the appellant does not challenge on appeal the primary judge’s finding that Person 4 did kill the old man in the courtyard. Whether it is plausible that this could have occurred without anyone seeing it when the courtyard was a hive of activity only moments before is a question of no relevance once the primary judge’s finding that Person 4 shot the old man in the courtyard goes unchallenged in this Court.

310    The hive of activity submission based on Pell v The Queen would have force if the debate in this Court concerned, as it once did at trial, whether the old man had in fact been shot in the courtyard and, if so, whether the shooter was Person 4. In that circumstance, the submission might well throw doubt on whether it was plausible that the old man could have been shot in the courtyard if none of the soldiers who in the courtyard moments before saw or heard it. The case would then indeed resemble the hive of activity in the sacristy discussed by the High Court in Pell v The Queen. In that case, the accused had just finished celebrating Sunday mass after which the sacristy was a hive of activity with many people coming and going. The High Court concluded that this gave rise to a reasonable doubt as to whether the accused could have sexually assaulted a boy in the sacristy just after mass without someone noticing.

311    By contrast, this case concerns an agreed homicide by Person 4 which it is also agreed took place in the courtyard. The issues are limited to whether there is error in the findings of the primary judge that the homicide was a murder as opposed to a lawful engagement and, if it was murder, whether his Honour erred as alleged in holding that Person 4 did it on the orders of the appellant. The fact that there is no dispute that the homicide occurred therefore makes the case very different to Pell v The Queen.

312    Once that is understood, it becomes apparent that it does not matter whether the courtyard was a hive of activity when Person 41 stepped out of the courtyard and into the IED room. The fact that no soldiers saw the killing of the old man by Person 4 cannot create any doubt about whether Person 4 did kill the old man in the courtyard because the appellant does not challenge the finding that he did. The hive of activity submission goes nowhere.

313    This is sufficient to dispose of this aspect of the appellant’s submission about the meaning of Person 41’s evidence that he was searching in the room with the IEDs for “probably a minute or two”.

314    In any event, even apart from that overarching and insuperable problem, we do not accept the submission. The primary judge did not err in concluding that Person 41’s evidence that he was gone from the courtyard for “probably a minute or two” meant a short time, or not a very long time. The uncontested facts as they stand on appeal are that:

(a)    there were a number of soldiers in the courtyard including Person 41;

(b)    Person 4 killed the old man in the courtyard; and

(c)    apart from Person 41, none of the people who had been in the courtyard gave evidence of having seen Person 4 kill the old man or having heard the fatal shot.

315    The fact in (c) can be reconciled with those in (a) and (b) in only one of two ways. Either the soldiers in the courtyard had left the courtyard when Person 4 killed the old man or their evidence that they did not see Person 4 kill the old man is not correct. In this Court neither side suggested the latter. It follows that the only inference which is available is that, at the time that Person 4 killed the old man in the courtyard, all of the soldiers who had been in the courtyard (apart from Person 41) had ceased to be in the courtyard.

316    It follows that Person 41 must have stepped into the room with the IEDs for a sufficient period of time to permit this to occur. The task of the primary judge was to determine what happened on all the evidence, not the isolated issue of what was meant by Person 41’s expression “probably a minute or two”. His Honour was confronted by evidence that the old man was killed by Person 4 in the courtyard (now no longer challenged on appeal); evidence that there were soldiers in the courtyard when Person 41 stepped into the room with the IEDs; and, evidence that when he returned after “probably a minute or two” only the old man and Person 4 still remained.

317    The only way these matters can be reconciled is if Person 41 was away from the courtyard for a sufficient period of time for the soldiers who had been in the courtyard to have dispersed. Once that is appreciated, it becomes apparent that Person 41’s evidence that he was away from the courtyard for “probably a minute or two” needs to be approached as part of sequence of events concerning now uncontested facts. This, in our view, is how the primary judge approached it.

318    The phrase “probably a minute or two” is not a precise expression. In seeking to make findings based on all of the evidence, it was appropriate for the primary judge to take this to mean a short time rather than a long time. In any event, contrary to the submissions of the appellant, this is in fact what the expression means. The expression “a minute or two” is an idiomatic phrase which means a short period of time, just like “wait a minute” which the Macquarie Dictionary defines as “an indefinitely short space of time”. In that regard, “a minute or two” does not have the same meaning as “one or two minutes”. “Lunch will be served in a minute or two” does not mean “lunch will be served in one minute or it will be served in two”. When the word “probably” precedes “a minute or two” the idiom becomes vaguer still.

319    Since the expression is somewhat open-textured it would have been open to the respondents to re-examine Person 41 about it. But they were not obliged to do so and it was equally open to the appellant to have cross-examined Person 41 further about its meaning if he had wished. At the end of the day ”probably a minute or two” is the evidence that Person 41 gave. No re-examination was required; still less was there any reason for the primary judge to have asked a question.

320    For completeness, we would also note this. In his written submissions the appellant repeatedly suggested that Person 41’s evidence was that he was away from the courtyard for a “minute or two” but in doing so omitted the word “probably”. This misquotation occurs four times at AS [11.1], [11.2] and [11.3]. Nowhere in the appellant’s submission is the evidence accurately quoted. Read without recourse to the evidence, the appellant’s submission may be apt to mislead; it is certainly unhelpful. At [11.3] the appellant submitted that the primary judge erred by “finding that [Person 41] meant something quite different to the words he actually used”. It was not the primary judge who misquoted the evidence and there is no substance in the submission that his Honour misinterpreted it.

321    The appellant’s submissions about the timing of the death of the old man should therefore be rejected for three reasons. First, at best they are linked to the hive of activity submission which is incoherent when the appellant does not challenge the finding that the old man was killed in the courtyard by Person 4. Secondly, on the undisputed facts, Person 41 must have been away from the courtyard sufficiently long for the soldiers in it to disperse. Thirdly, Person 41’s evidence that he was away from the courtyard for ‘probably a minute or two’ was consistent with this conclusion.

322    The appellant also advanced a number of other submissions under the rubric of particular 1 although they are perhaps only tangentially related to it.

323    First, the appellant submitted that there was an inconsistency between Person 41’s evidence and that of Person 40. Person 40 said that approximately 20–25 minutes elapsed between the time he saw the two PUCs being marched off by the appellant and Person 35 and the time he heard the machine gun fire which marked the death of the man with the prosthetic leg. The effect of Person 41’s evidence, however, was that the death of the man with the prosthetic leg had occurred “moments after the death of EKIA56 [i.e. the old man]’” and this had occurred “less than a minute or two” after the men had emerged from the tunnel.

324    If there were a dispute in this appeal about whether Person 4 had killed the old man in the courtyard then it would be possible to see that the suggested inconsistency might be useful for the purpose of creating doubt about whether it was possible that Person 4 did kill the old man in the courtyard. If Person 41’s account was inconsistent with Person 40’s then, on this view, Person 41’s account might be rejected. But the timing issues come to nothing when there is no debate that Person 4 killed the old man in the courtyard and no debate that none of the soldiers who had been in the courtyard were still in it when this happened. At the risk of stating the obvious, Person 41’s evidence that he saw the appellant order Person 4 to kill the old man in the courtyard is consistent with the undisputed fact that Person 4 did kill the old man in the courtyard. The remaining scope of the debate is whether Person 41’s evidence that the killing he saw was a murder ordered by the appellant was sufficiently reliable to justify the serious conclusion that the appellant is a war criminal. The suggested timing inconsistencies between Person 40 and Person 41 do not intersect with either of those questions.

325    In any event, even apart from that problem we do not accept the submission. Person 41’s evidence was that his entire time in the courtyard (including the time he stepped into the room with the IEDs) was “possibly, maybe 10, 15 minutes, if that, maximum”. It was after that time he went to search the cowsheds where he stayed about five to ten minutes. Thus Person 41’s evidence is consistent with him exiting through the north side of the courtyard and seeing the appellant execute the man with the prosthetic leg 15 minutes after he first entered the courtyard and the tunnel was discovered. Person 40, on the other hand, says that the time between when he saw the PUCs being marched off and heard the machine gun fire which killed the man with the prosthetic leg was about 20 to 25 minutes. These ranges differ by only five minutes at their respective upper and lower bounds. A five minute difference in the current context provides no reasonable basis for thinking that the timings proffered by the two witnesses are so inconsistent as to mean that their evidence cannot be accepted. Rather, they are consistent with the ordinary range of variations in recollection. No-one would have been timing any of the relevant activities. All the times the witnesses were called upon to provide were necessarily rough estimates based on imperfect recollections.

326    In his reply submissions at [5.10] the appellant submitted that Person 41’s account of the events in the courtyard was consistent with those events unfolding rapidly. He therefore submitted that it was not probable that those events could have taken anything like the 20 to 25 minutes estimated by Person 40. The difficulty with this submission is that Person 41’s own estimate of how long the events took was 10 to 15 minutes which differs only by the five minutes we have mentioned. We prefer to act upon the terms of Person 41’s actual evidence than the appellant’s characterisation of that evidence as “events unfolding rapidly”.

327    Further, the appellant’s submission again involves misquotation of the evidence. Person 41 did not say that the death of the old man had happened “less than a minute or two” after the men had emerged from the tunnel. Rather, he said he was searching in the room with the IED materials for “probably a minute or two”. On no view does “probably a minute or two” mean “less than a minute or two”. Nor did Person 41 say that the man with the prosthetic leg had been killed “moments after the death of EKIA56”. Rather, he said he walked over to Person 4 who returned his suppressor to him, inspected the body of the old man, walked over to the exit in the western wall of the courtyard and outside stopped on a footpad. After that he saw the cowsheds up a slight hill and it was as he was contemplating whether to walk to the cowsheds on the footpad or through the grass that he became aware of the appellant dragging the man with the prosthetic leg off to his right. We do not accept that that sequence of events can be collapsed into the few seconds suggested by the appellant’s reference to “moments after the death of EKIA56”. Nor do we accept his submission in reply (at AS[5.7]) that the two deaths happened in “quick succession”.

328    Connected to this submission was a further contention that the 20 to 25 minutes suggested by Person 40 was difficult to reconcile with the primary judge’s conclusion that Person 41 was in the room with the IED components for a short, but sufficient, time for the soldiers in the courtyard to disperse. Again, this cannot matter because the appellant does not challenge the fact that Person 4 killed the old man in the courtyard. In effect, this is the same submission as the principal submission we have rejected, but it has an additional element which is that the inconsistency was underscored by the fact that the courtyard was 18 metres by 30 metres. We do not think that affects the analysis. There is no additional problem presented by the size of the courtyard. It is an indisputable fact that by the time Person 4 killed the old man in the courtyard the soldiers who had been in the courtyard had dispersed. Whether the dimensions of the courtyard rendered it unlikely that the soldiers could have dispersed sufficiently quickly to avoid seeing the killing of the old man is again a pointless inquiry when the appellant does not challenge the finding that Person 4 killed the old man in the courtyard and when it is a fact that no-one, apart from Person 41, saw the now undisputed killing.

329    The second allied submission turned on the evidence of Person 18 and the appellant’s interpretation of Person 41’s evidence as meaning that he was away for only two minutes in the room with the IEDs. We have explained already why we do not accept that submission. Here the variant of the submission was that Person 18 had arrived at the courtyard after hearing a radio message that a person or persons had been pulled from a tunnel. On his arrival he saw two or three soldiers standing around a man dressed in white. He did not think this unusual and had gone over to the tunnel entrance and helped Person 35 clear the tunnel. According to the appellant, if only two minutes had elapsed, then Person 18 would have seen the body of the old man when he emerged from the tunnel after helping Person 35. This might be a useful submission if the appellant was contending that the old man was not killed in the courtyard by Person 4. But where there is no dispute about that all this shows is that when Person 18 emerged from the tunnel and went back to where he had been searching before, Person 4 had not yet killed the old man. If anything useful follows from that, it is the correctness of the primary judge’s conclusion that Person 41 was away from the courtyard for a sufficient period of time to allow the soldiers in it, including Person 18, to disperse.

330    The third allied submission also concerns Person 18. It will be recalled that he was the soldier who carried out the SSE process on the bodies of EKIA50, the man with the prosthetic leg and the old man. The appellant submitted that when he performed the SSE process on the body of the old man Person 18 must have been aware that this was the same Afghan male he had earlier observed wearing flexicuffs when he first arrived in the courtyard. What follows from this does not appear from the appellant’s written submissions. The submission is advanced in support of particular 1 but that particular concerns the two minute aspect of Person 41’s evidence. It is possible that the submission is an invitation to conclude that Person 18’s evidence that he saw a man dressed in white who had been PUC’d when he arrived in the courtyard is unreliable. Here the thinking would be that the fact that Person 18 had not noted on the information sheet placed on the chest of the old man when he photographed him that he was a PUC tended to undermine his evidence that the old man had been a PUC. But this submission is certainly not within particular 1. Since it is not clear what the appellant intends by this submission and it does not fall within particular 1, it is not appropriate to consider it further.

331    A similar submission concerning Person 18’s SSE activities with the body of the man with the prosthetic leg was also advanced. However, it too lies outside particular 1.

332    The fourth allied submission concerned the troop captain, Person 81. The submission was that, if Person 41’s evidence about the “minute or two” was accepted, then this entailed that it was highly improbable that Person 81 would not have been aware of the execution. This suffers from the same difficulties which afflict the appellant’s principal submissions on particular 1. First, whether Person 41’s evidence about being away from courtyard for “probably a minute or two” is accepted or not, the fact is that Person 4 killed the old man in the courtyard and Person 81 did not see it. The fact that Person 81 did not see it is incapable of throwing doubt on whether the old man was killed in the courtyard by Person 4 when the appellant does not challenge the finding that he was. Secondly, the appellant again misquoted the evidence of Person 41 by omitting the word “probably”.

Conclusions

333    The appellant grouped his submissions about the timing of events in the courtyard under particular 1 which was in these terms

The primary Judge erred by impermissibly construing the evidence of Person 41 (who was the only person who gave evidence claiming to have witnessed the execution of EKIA 56) to resolve the inconsistency between, on the one hand, there being multiple Special Air Service Regiment (SASR) operators in the courtyard at the time the Afghan males emerged from the tunnel (including the Respondents’ witnesses being Persons 18, 40, 42 and 43) and on the other hand, the absence of any other eyewitnesses to the execution of EKIA 56. According to Person 41 only a “minute or two” (J[555]) elapsed between his leaving the courtyard (after the men emerged from the tunnel) and returning to observe the execution of EKIA 56. The primary Judge impermissibly construed Person 41’s evidence when finding that “Person 41 was not using the expression ‘minute or two’ literally” and “[i]t was a short period, but a sufficient time for the majority of people in the courtyard area to disperse” (J[556], J[660]). In doing so, the primary Judge added to and cherry picked the evidence of a witness whose evidence he otherwise found to be reliable without adequately explaining the basis for doing so (J[868]). If Person 41’s evidence were accepted without modification, and the execution of EKIA 56 occurred within a minute or two of two Afghan males emerging from the tunnel, it is improbable that none of the other of the Respondents’ witnesses observed it.

334    We have not dealt with the allegation of cherry picking. But there is nothing in it. The primary judge did not add to Person 41’s evidence for the reasons we have given. Neither did his Honour cherry pick the evidence of any witness. His Honour was confronted with a great deal of evidence not all of which was consistent. His task was to make findings on all of the evidence, as Mr Walker SC was at pains to stress on the appellant’s behalf. His Honour did so. For the reasons we have given, particular 1 is not made out. Insofar as particular 19 is concerned, we are satisfied that the evidence upon which the primary judge acted was sufficiently cogent having regard to the seriousness of the allegations and the presumption of innocence.

Did the primary judge err in considering the inconsistencies between the evidence of the witnesses as to the number of men who emerged from the tunnel once it was discovered (particulars 9(a), 10 and 13)?

335    Under this heading, the appellant developed a number of submissions the purpose of which was to demonstrate the existence of inconsistencies between the testimony of various witnesses about the emergence of men from the tunnel. The witnesses concerned were the respondents’ witnesses Persons 18, 40, 41, 42, 43 and the appellant’s witness, the troop captain, Person 81. One aspect of the submission pursued both in writing and orally was the contention that, although the primary judge referred to the differences between the accounts given by these witnesses, his Honour did not really explain why they did not matter. Another aspect of the submission was a larger argument that the inconsistencies showed that the testimony of the respondents’ witnesses was not sufficiently reliable to be accepted having regard to the seriousness of the allegations and the terms of s 140 of the Evidence Act.

336    The inconsistencies identified by the appellant about the emergence of men from the tunnel related to these five topics:

(a)    the number of men who were brought out of the tunnel;

(b)    whether, after they had come out of the tunnel, two men were led away together;

(c)    whether a man with a prosthetic leg was brought out of the tunnel;

(d)    whether any of the men were PUC’d; and

(e)    the evidence of Person 81.

337    In addition to these topics, the appellant submitted that:

(f)    the primary judge erred by concluding that the evidence of Persons 18, 40, 41, 42 and 43 was reliable because they had no motive to lie.

The number of men brought out of the tunnel

338    Before turning to the appellant’s submissions about the evidence touching on this issue, two aspects of the appellant’s written submissions should be noted.

339    First, the appellant’s submissions contain references to multiple aspects of the witnesses’ evidence concerning the emergence of men from the tunnel which ultimately do not connect with any submission he makes. For example, the submissions assay in detail evidence about the number of women in the courtyard, whether the language shouted down the tunnel was Pashto and if, and possibly when, it was that the interpreter arrived. But the appellant made no submission to this Court about these matters and they appear to be irrelevant. We will shortly set out what the appellant says about each of these witnesses but for the sake of clarity will underline at this stage those elements which are the subject of a submission which is actually advanced on his behalf.

340    Secondly, the appellant approached Person 41 as if he was but a witness who saw an old man who was a PUC in the courtyard. This description of Person 41’s evidence is not incorrect, but it is incomplete in material respects. What Person 41 said he saw was the appellant make the old man kneel before Person 4 and then order Person 4 to shoot him. While this is no doubt evidence that the old man was a PUC who was seen in the courtyard, to summarise Person 41’s evidence in only those terms may carry a risk of distracting attention from its most salient aspects.

341    Having made those two introductory observations, the appellant approached the evidence of the relevant witnesses this way.

342    First, the evidence of Person 40 was that he saw two women in the courtyard and an interpreter calling for insurgents to leave the tunnel after which he saw two insurgents come out of the tunnel. He saw them searched and then marched off to another area by the appellant and Person 35. One of the men had a prosthetic leg. The appellant submitted that Person 40’s evidence suggested that two men had come out of the tunnel and that there were two women in the courtyard.

343    Secondly, in his evidence, Person 41 said that when he arrived in the courtyard he stood around the tunnel with Persons 29 and 35 who were yelling down it to see if anyone would come out. Person 41 then left the courtyard to search the room with the IED components. Importantly, he did not see any men come out of the tunnel and he did not see any women. Person 29 and Person 35 also gave evidence for the appellant that no men had come out of the tunnel. The appellant submitted that Person 41’s evidence also suggested that no men had come out of the tunnel. But, as we have already observed, to concentrate on that element of Person 41’s evidence to the exclusion of his central testimony that he also saw, as it happens, two men executed in circumstances which amount to a violation of the laws of war either in or not far from the courtyard carries a risk of a somewhat blinkered analysis.

344    Thirdly, Person 42 said that after the tunnel was discovered he had seen soldiers who had their weapons trained upon it. These soldiers were shouting phrases in Pashto calling for anyone in the tunnel to come out. Afghan women present, according to Person 42,. Person 42 said that two or potentially three men emerged from the tunnel. They were searched and Person 42 said that he searched one of them. The appellant submitted that Person 42’s evidence suggested two or potentially three men came out of the tunnel.

345    Fourthly, Person 43 was the patrol commander of Gothic 3,which, it will be recalled, was a cordon patrol situated at the southern end of the compound. As a patrol commander, he was called into the compound for the RV meeting. When he came in for that meeting, he saw (and, it may be inferred, saw in the courtyard) Person 35 discover the tunnel and, on seeing this, Person 43 ran over to render assistance. Other soldiers were also present. Person 43 called for an interpreter but before the interpreter could arrive he saw an elderly Afghan male with a beard come out of the tunnel. He and other soldiers helped remove the man from the tunnel and he was then PUC’d. After he had been handcuffed, he was handed over to Person 5’s patrol (Gothic 5) for tactical questioning. The appellant submitted that Person 43’s evidence suggested that one man had come out of the tunnel.

346    Fifthly, Person 18 said that he heard a radio call concerning the tunnel’s discovery and went to the courtyard. There he saw an Afghan male in flexicuffs who was dressed in white. The appellant submitted that Person 18’s evidence suggested that one man had come out of the tunnel.

347    In light of this evidence, the appellant submitted that the evidence of the respondents’ witnesses on the question of how many men came out of the tunnel was inconsistent. Person 41 did not see any. Persons 18 and 43 saw one. Person 40 saw two. Person 42 saw two or potentially three. The appellant submitted that the inconsistency was important because if one or three men had come out of the tunnel then Person 41’s account of the execution of the old man and the man with the prosthetic leg could not be correct.

348    We would reject this submission for several reasons, the principal one being that the appellant’s submissions are far from an accurate summary of the evidence of these witnesses.

Person 18

349    It will be recalled that Person 18’s evidence was that he heard a radio call concerning the tunnel’s discovery and went to the courtyard. When he arrived in the courtyard he saw two to three soldiers standing around a person in white. He was unable to recall the identity of these soldiers. He did not regard the fact that an Afghan had been found as being something out of the ordinary.

350    The radio call had included the information that a person or persons had been “found from or pulled from the tunnel area, the tunnel itself”’. As a result of that he assumed that “these people were found at the side of that tunnel”. Person 18’s reference to “these people” prompted a further question from counsel as to whether he saw more than one person. Person 18 replied that he could only recall seeing one person but that there may have been more. He did recall, however, that the man in white was wearing flexicuffs on his wrists. Under cross-examination he clarified that the radio call had referred to only one person being pulled from the tunnel.

351    Person 18 then went over to the tunnel entrance and assisted Person 35 in clearing it. Person 18 was asked, when he came out of the tunnel, he had observed the man in white. His answer was that he did not recall him being anywhere in the vicinity, adding “but I wasn’t looking for him”.

352    The effect of Person 18’s evidence was therefore as follows. First, he heard a radio call to come to the courtyard because a person had been found in a tunnel there. Secondly, when he arrived in the courtyard he saw a man dressed in white wearing flexicuffs surrounded by two or three soldiers. Thirdly, while he only recalls seeing one Afghan male, there may have been more. He then assisted Person 35 in clearing the tunnel. Fourthly, after that he did not observe the man in white with flexicuffs in the courtyard but he was not looking for him.

353    This evidence is not inconsistent with the respondents’ case that two men had been brought out of the tunnel. Although Person 18 said that he only saw a man dressed in white wearing flexicuffs when he arrived in the courtyard, he also said that there may have been more. The context is important. The evidence emerged in the following exchange:

You said the radio call referred to persons and, I think, you said “these people”. Did you see one person or more than one?---I can only recall seeing one person. There may have been more. But as I walked past and as I said previously it wasn’t an eyesore to see Afghans or Australian soldiers dealing with them. I just gave it a quick glance, there was a person there with troop members, and kept going to the –to where I was needed.

354    Person 18’s evidence is therefore not inconsistent with Person 40’s evidence that two men had emerged from the tunnel.

355    The appellant submitted in reply that to reason in this fashion involved impermissible speculation. It does not. Where the appellant submitted that the evidence of two witnesses is sufficiently irreconcilable as to warrant their rejection, he takes upon himself the evidential or persuasive burden of proving that the two accounts cannot stand together. Where, as here, one of the witness volunteers that “there may have been more”, the appellant cannot ignore that by arguing that any consideration of the uncertainty inherent in the evidence involves speculation.

Person 41

356    When Person 41 went to the courtyard for the first time, Persons 4, 5, 35 and 29 were there. He had a bit of a look around and there did not seem to be much in the courtyard. At that point, someone — either Person 29 or Person 35 — discovered a tunnel entrance. Person 29 started yelling down the tunnel and this went on for a short time. He did not see anyone come out of the tunnel. Person 41 decided that there was not much going on in the tunnel area at that point so he left and went to look at two rooms on the northwest of the courtyard. In the first room he saw batteries on a makeshift shelf together with a lot of wires. Damage to the walls caused by the 500lb bomb strike revealed hidden items in the walls such as wood, hacksaw blades and more wires. He concluded that the Afghan nationals must have been making IEDs in the room. He also observed two or three large bags of a black sticky substance which he later identified as opium.

357    He searched in this room for “probably about a minute or two”. The primary judge took this to mean a short time, or not a very long time. We have rejected the appellant’s challenge to that finding.

358    It was at this point that Person 41 heard some louder voices and a “bit of a commotion” outside in the courtyard. He stepped out of the room which contained the IED components and the opium and back into the courtyard. He noticed to his immediate left the appellant and Person 4 standing there. Just beyond them and squatting against the northeast wall near the tunnel entrance was an Afghan male who he described as an older male with short-cropped hair dressed in a traditional Afghan loose top with either white or very light-coloured clothing.

359    There are two points to make here. First, although the appellant submitted that the effect of Person 41’s evidence is that no men came out of the tunnel, this is simply incorrect. His evidence was that he did not see anyone emerge from the tunnel. But it will be recalled that, after the tunnel was discovered, he left the courtyard and went to the room with the IED components and remained there for a short time. He also heard soldiers shouting down the tunnel for people to come out. When he returned he saw Person 4, the appellant and the old man squatting against the wall. Person 41’s evidence is not inconsistent with Person 40’s evidence that two men were brought out from the tunnel because that could have occurred during the time he was in the room with the IED components.

360    Secondly, Person 41s evidence is that he saw the appellant order the execution of the old man and he, himself, witnessed the appellant execute the man with the prosthetic leg. The appellant does not challenge the primary judge’s finding that the old man was killed by Person 4 in the courtyard and it is not disputed that someone killed the man with the prosthetic leg and that his body was located outside the northwest corner of the compound. Person 41’s evidence that he saw two men (albeit not necessarily emerging from the tunnel) therefore matches Person 40’s evidence that he saw two men as well. Leaving aside the appellant’s discredited version of events that the old man and the man with the prosthetic leg were running around the outside of the compound armed with weapons actually found by Person 18 in a hay store, and the also discredited squirter theory sourced to Person 5, there is no evidence that the old man or the man with the prosthetic leg were seen anywhere else in the compound or outside it.

361    Thus, not only is Person 41’s evidence not inconsistent with Person 40’s evidence that two men were brought out of the tunnel (because this could have occurred while he was in the room with the IED components) but it is consistent with the number of men who are said to have emerged from the tunnel (because he saw two men and because there is no evidence which can support a hypothesis that the two men came from anywhere else).

Persons 40 and 42

362    Person 40’s evidence was that two men came out of the tunnel. Person 42’s evidence was that two “or potentially three” men came out of the tunnel. That evidence is consistent with two men coming out of the tunnel. This follows from the word “or”. No inconsistency therefore arises between the testimony of Person 40 and Person 42.

363    We repeat what we have said about the appellant’s submission that to reason this way involves speculation.

Person 43

364    It will be recalled that Person 43 was the patrol commander of Gothic 3 (which was on cordon duty at the southern end of the compound). He had been called in to attend the troop captain’s RV meeting. He saw Person 35 discover the tunnel and ran over to render assistance. He was standing next to Person 35 on the left side covering down into the tunnel. Person 43 and others called for an interpreter. Before the interpreter could arrive, someone came crawling out of the tunnel and then began to stand up with his hands in the “I give up” position. Person 43 grabbed the man by his upper body and pulled him out of the tunnel. The man was an elderly Afghan male with a beard dressed in local clothing which was light coloured. With the assistance of other soldiers, Person 43 helped place the old man on the ground. By then there were enough people to “contain” the old man, so Person 43 went back to his job of decision-making. At some point, he saw the old man handed over to the Gothic 5 and then taken away.

365    But while Person 43 could only recall one man coming out of the tunnel, he also said that he was not sure that no one else came out of the tunnel: T3353/35. Once that is understood, it follows that Person 43’s evidence is not inconsistent with a second person being brought out of the tunnel.

366    For completeness, we should note that the respondent submitted that this conclusion was also supported by Person 43’s evidence that he recalled that there were two PUCs at Whiskey 108: T3402/22. We have not found it necessary to rely upon that evidence. It is therefore not necessary to deal with the appellant’s submission at ASR [5.8]. However, out of fairness to counsel for the respondents at trial we would record that we would reject the submission that the evidence of Person 43 had been prompted by a leading question at T3354/6. The question was not a leading question.

367    In light of this evidence, the respondents submitted that Person 43 had grabbed the first Afghan male to come out of the tunnel and that it was unsurprising that while engaged in getting him on the ground and then returning to his job of decision-making he was unsure whether anyone else had come out of the tunnel. We accept this submission.

368    We repeat what we have said about the appellant’s submission that to reason this way involves speculation.

Conclusions on consistency

369    In those circumstances, while we agree that the accounts of Persons 18, 40, 41, 42 and 43 are different we do not accept the appellant’s submission that they are inconsistent on the number of men who came out of the tunnel. The evidence of each is consistent with the proposition that two men were brought out of the tunnel.

A further observation

370    That is sufficient to dispose of the appellant’s submission. However, because the appellant makes an overarching submission concerning the need for the evidence against to him to be sufficiently cogent to justify a finding that he is a war criminal (particular 19), it is worth noting that, in our view, the evidence that two men came out of the tunnel was sufficiently cogent in that sense. In addition to the testimony of Persons 18, 40, 41, 42 and 43 there were several other matters which bore on the question of whether two men had come out of the tunnel.

371    First, there was post-mission reporting that two men had been found in a tunnel and shot which was referred to by the primary judge at CCJ[67].

372    Secondly, there is no reliable evidence that the old man and the man with the prosthetic leg were squirters fleeing the compound. This is the discredited version of events conveyed by at least Person 5 to the troop captain, Person 81. The primary judge rejected this version and we have rejected the appellant’s challenge to that conclusion.

373    Thirdly, there is no reliable evidence that the two men were killed as they ran around the northern end of the compound. This is the discredited versions of events advanced by the appellant.

374    Fourthly, there is no evidence that either man was in the compound before the tunnel was discovered.

375    Fifthly, the old man and the man with the prosthetic leg each had links to the tunnel. In the old man’s case, the link was physical because it is not in dispute that he was shot dead by Person 4 near the tunnel entrance. We do not accept the appellant’s submission in reply at [5.5] that the fact that the body was located near the tunnel did not favour the probability that before the old man was shot he had been in the tunnel. If there was some other plausible place from which the old man might have come, it might have some force. But there is not. In the case of the man with the prosthetic leg, his identification documents were found in the tunnel.

376    Sixthly, there is no evidence that the man with the prosthetic leg was killed by anyone apart from an Australian soldier. Person 41 and Person 24 both say they saw the appellant do so. Person 14 saw an Australian soldier do so. The appellant himself claimed to have killed the man with the prosthetic leg in the discredited version of events in which he claimed to have seen him running from right to left at the northern end of the compound carrying a weapon which was shown actually to have been found in a hay store by Person 18. None of appellant’s witnesses, apart from the appellant, and none of the respondents’ witnesses, claimed to have killed the man with the prosthetic leg. Yet the two men were undoubtedly killed. Apart from the hypothesis that the two men came from the tunnel, the evidence is incapable of supporting any hypothesis that they came from somewhere else. Certainly, none was advanced on appeal.

377    It is not necessary to rely upon these six matters to reject the appellant’s submissions concerning the inconsistencies in the respondents’ evidence about how many men came out of the tunnel (for the reasons we have given). However, these matters strongly support the correctness of that conclusion. On the evidence as it stands, it is clear in our view that the two dead men could only have come from the tunnel.

Whether the two men were taken away together

378    The appellant drew attention to the fact that Person 40 said that he had seen Person 35 and the appellant lead the two PUCs away from the courtyard. He submitted that was inconsistent with the evidence of both Persons 18 and 41 who saw only a single Afghan male placed under control.

Person 18

379    Person 18 did not see any men brought out of the tunnel. He had arrived in the courtyard after hearing a radio call that someone had been pulled out of a tunnel. When he arrived in the courtyard he saw an Afghan male in flexicuffs who was dressed in white around whom were standing two or three soldiers. Although Person 18 said that he could only recall one Afghan male he also said that there may have been more. In any event, he did not think what he saw was unusual and, having assisted to clear the tunnel, left the courtyard to return to his earlier task of searching near the entrance to the compound on the western wall.

380    Person 18’s evidence is not inconsistent with the man with the prosthetic leg being present in the courtyard when he arrived. It is therefore not inconsistent with Person 40’s evidence that he saw two men led away by the appellant and Person 35.

Person 41

381    The appellant characterises Person 41’s testimony in terms that suggest that he saw only a single Afghan male under control in the courtyard and on that basis submitted that his evidence is inconsistent with Person 40’s evidence that he saw two Afghan males led away by the appellant and Person 35. There is no such inconsistency.

382    Person 41’s evidence is consistent with Person 40’s evidence that he saw two Afghan males being led away by the appellant and Person 35. It is consistent because this could have occurred while he was searching in the room with the IED components. It is true that to be consistent with Person 40’s evidence this would also require two further events to have happened: first, that the two men were taken away by the appellant and Person 35 during the same period; and, secondly, that the old man was then brought back from wherever he had been taken to be executed in the courtyard.

383    If we had accepted the appellant’s submission that “probably a minute or two” meant literally two minutes or his more ambitious submission that it meant less than two minutes, then we would accept that the timing on this would be tight. However, we have not accepted that submission. And, as we have already explained, the fact is that however long Person 41 was searching in the room with the IED components, it was long enough for the soldiers who had been in the courtyard to have dispersed. No other inference is available given the unchallenged fact that Person 4 killed the old man in the courtyard and the fact that not one of the soldiers (apart from Person 41) saw that now unchallenged killing. If all of that could happen while Person 41 was searching in the room with the IED components we do not think it unlikely that within the same timeframe the two men could be pulled from the tunnel, placed under control, led away by the appellant and Person 35 and then the old man brought back into the courtyard to be executed. We reject the appellant’s submission in reply at [5.9] that this is not probable even if the expression “a minute or two” is used figuratively.

384    In that circumstance, we do not accept that the evidence of Person 41 was inconsistent with the evidence of Person 40. Further, we do not think that the timing issue to which we have adverted raises a matter which indicates that the primary judge could not have correctly applied s 140 of the Evidence Act in coming to his conclusion that the appellant had ordered Person 4 to execute the old man.

Inconsistencies about whether a man with a prosthetic leg was brought out of the tunnel

385    The appellant submitted that only Person 40 saw a man with a prosthetic leg exit the tunnel. This is true. However, the evidence of the other witnesses was not inconsistent with Person 40’s evidence to that effect. The inconsistent evidence is suggested to be that of Persons 18, 41, 42 and 43.

Person 18

386    When Person 18 arrived in the courtyard he saw an Afghan male in flexicuffs who was dressed in white. Although he could only recall one Afghan male in the courtyard he also said that there may have been more. He then assisted Person 35 in clearing the tunnel. It is true that Person 18 did not give evidence of having seen a man with a prosthetic leg but he did say that there could have been more Afghan males in the courtyard. Person 18’s evidence is not inconsistent with there being a second Afghan male with a prosthetic leg.

Person 41

387    Person 41 did not see any men removed from the tunnel when he first arrived but when he stepped back into the courtyard after going to search the room with the IED components, he saw the appellant order Person 4 to execute the old man. We have already explained why Person 41’s evidence is not inconsistent with Person 40’s evidence that he saw two men emerge from the tunnel. For the same reasons, his evidence is also not inconsistent with the proposition that a man with a prosthetic leg emerged from the tunnel.

388    Further, although it is true that Person 41 did not see a man with a prosthetic leg emerge from the tunnel, it is incorrect to characterise that as an inconsistency between Person 40 and Person 41 on the question of the presence of the man with the prosthetic leg. This is because Person 41 did give evidence on that subject. His evidence was that he saw the appellant execute a man whom he subsequently identified as the man with the prosthetic leg off the northwest corner of the compound. Thus, Persons 40 and 41 are consistent as to the fact that there was a man with a prosthetic leg.

389    The extent of any inconsistency between Person 41 and Person 40 on the question of the man with the prosthetic leg is limited by the extent to which Person 41’s evidence is capable of suggesting that a man with a prosthetic leg never emerged from the tunnel. But that is not the effect of Person 41’s evidence which is only that he did not witness such a man emerge from the tunnel. Testimony that one did not see something occur is not the same as testimony that one saw that something did not occur. Once that is appreciated, it becomes clear that there is no inconsistency between the evidence of Person 40 and Person 41.

390    In fact, one may go somewhat further than this. Person 40’s evidence was that he saw two men emerge from the tunnel, one of whom had a prosthetic leg. Person 41’s evidence was that he saw the body of the old man after the appellant ordered Person 4 to execute him and he saw the appellant execute the man with the prosthetic leg. The evidence of Person 40 and Person 41 have in common that they both saw two Afghan males one of whom had a prosthetic leg. Person 40 did not see either execution and Person 41 did not see the men emerge from the tunnel but this only underscores that they saw the two men at different times.

Person 42

391    Person 42 saw two or potentially three men come out of the tunnel. He did not give evidence that any of them had a prosthetic leg. But neither did he give evidence that none of them did. There is nothing particularly surprising about the fact that Person 42 did not recall this detail. His evidence is not inconsistent with the evidence of those witnesses who did.

Person 43

392    Person 43 helped the old man out of the tunnel and saw him taken away, but he did not see anyone else brought out of the tunnel before he went back to what he had been doing before the tunnel was discovered. As we have explained, however, his evidence was not inconsistent with another man being brought out of the tunnel. Thus, his evidence is not inconsistent with the evidence of Person 40 that one of the men brought out of the tunnel had a prosthetic leg.

Inconsistencies with whether any of the men were PUC’d

393    The appellant next submitted that there is an inconsistency between the evidence of Person 43, who said that after the old man was removed from the tunnel he was PUC’d, and the contemporaneous documents which do not record any PUCs. This submission involves treating the Patrol Debrief document as reliable. The primary judge did not do so and we have already rejected the appellant’s challenge to that conclusion. Thus Person 43’s testimony is contradicted on this issue only by evidence which is not reliable and thus the suggested inconsistency is immaterial.

The evidence of Person 81

394    The troop captain, Person 81, was in the area for the RV meeting. His evidence was that he was not told that any men had come out of the tunnel. The appellant submitted that the fact that two men had been found in a tunnel which contained ordnance (military and related equipment) was something of which the troop captain would have been informed particularly as it must have been known to three of his patrol commanders, Person 5, Person 29 and Person 43.

395    In other part of his submissions, the appellant drew the Court’s attention to evidence of Person 81 that, if insurgents had made it to within ten metres of the northern end of the compound, he would not necessarily have expected that this would have been brought to his attention. The reason he gave was this:

Obviously, a range of contacts occur, a range of time and other complicating factors. In the end, my job is coordinating a range of different support mechanisms to enable that action to occur rather than specifically about that tactical manoeuvre inside a compound.

396    This evidence tends to suggest that the fact that two men had been found in a tunnel containing ordinance is not something which would necessarily have been brought to his attention, just as it might not have been brought to his attention if two insurgents had made it to within ten metres of the northern end of the compound.

397    So the evidence of Person 81 is against the submission the appellant now makes. But quite apart from that evidence, we would not have accepted the appellant’s submission. The submission does not explain why this information had to be communicated to the troop captain. While there is evidence that at least two caches were found at Whiskey 108, there is no evidence of any rule or practice whereby information of that kind was to be, or was, immediately conveyed to the troop captain. The documenting of caches found in compounds was something to which the SSE process appears to have been directed and the finding of caches of weapons in compounds which were being cleared of insurgents is not surprising.

398    If, as the appellant submitted, the information needed to be conveyed to the troop captain, that must have been because of the functions of the troop captain or because of procedures that were in place which required it. Apart from the evidence of Person 81, which we have just set out, we were not taken to any evidence of such a procedure. In relation to the troop captain’s functions, aside from evidence about the sort of things that would have occupied Person 81’s attention on the day, the appellant adduced no evidence about the functions of the troop captain, let alone evidence explaining why those functions required for their effective discharge the immediate provision of information of this kind. And, as we have explained, the evidence that was elicited from Person 81 contradicted the appellant’s submission. In those circumstances, we do not accept that the evidence of the troop captain, Person 81, is inconsistent with evidence given by other witnesses that men emerged from the tunnel and were PUC’d.

399    In reply, the appellant developed a variant of this submission. He argued that Person 81’s evidence was directly inconsistent with the evidence of Person 40 and Person 43. Person 40 said that Person 81 had been present when two men were brought out of the tunnel. Person 43 said that Person 81 had been present when one man was brought out of the tunnel. By contrast, Person 81 did not see anyone come out of the tunnel and he did not see any fighting age males being PUC’d.

400    We reject the submission.

401    Person 81 also gave evidence that at the time he was engaged in a range of tasks and did not carefully observe what the other SASR operators were doing around him. As the primary judge said at J[429]:

Person 81 did not have a good recollection of events at W108. This is not a criticism, but a reflection of his evidence and the fact that his focus was on a number of matters in respect of which, as troop commander, he bore responsibility.

402    Thus it is no surprise that Person 81 was unable to recall whether he was standing near the tunnel and was unable to say one way or the other whether there were men in the tunnel. It is not possible to construct from the evidence of Person 81 about what he did not remember an inconsistency with the evidence of Persons 40 and 43 about what they did remember.

403    The appellant also criticised the primary judge’s statement at J[492] that “Person 81 also agreed that he is unable to say one way or another whether there were people in the tunnel. All he could say was that he did not see any people come out of the tunnel”. The criticism was that it was based upon one question and answer during cross-examination. In relying on that single answer, the appellant submitted, the primary judge had underestimated the entirety of Person 81’s evidence and the evidence of Persons 40 and 43. We consider that four of the questions and answers are relevant. They are at T6179/8–18:

Now, you said that you were not informed yesterday of any people being found in the tunnel; do you agree – you remember that?---I did say that, yes.

Yes. And is this right: you don’t have a recollection of seeing anyone come out of the tunnel?---That is correct.

Were you – do you have a recollection of seeing the tunnel being cleared?---I do not have a recollection of that.

So is this right: you are unable to say one way or another whether there were people in the tunnel; all you can say is you didn’t see any come out?---That is correct.

404    On its face, the primary judge’s summary of this evidence at J[492] is unquestionably accurate. This leaves the appellant’s submission that the primary judge had “underestimated the entirety of Person 81’s evidence and the evidence of Persons 40 and 43”. In fact, it was submitted that Person 81’s evidence was inconsistent with the primary judge’s finding at J[492] because “he denied seeing anyone come out of the tunnel”. This is not what Person 81 said at all and involves a material misrepresentation of the evidence. As the questions and answers above show, Person 81 did not deny that people came out of the tunnel; rather, he said that he did not have a recollection of people coming out of the tunnel. The submission should not have been advanced and is rejected.

Error in concluding the evidence was reliable because each witness had no motive to lie

405    The appellant submitted that the primary judge had erred in accepting that, once a witness was found to have no motive to lie, it followed that their evidence was reliable. According to the appellant, once it was accepted that a witness had no motive to lie, the question of whether their evidence was reliable still needed to be assessed. The logic of this may be accepted. But we do not agree that the appellant’s submission accurately reflects how the primary judge approached the question of the reliability of the witnesses Persons 18, 40, 41, 42 and 43 or, for that matter, any witness.

406    It is clear that his Honour was conscious that their evidence about the events in the courtyard differed and he was clear about what those differences were. However, the task for the primary judge was not just to determine the correctness of the evidence of these witnesses on their own terms. It was, in fact, the more complex task of evaluating that evidence with all the other evidence in the case. As we have explained above, this included evidence strongly supporting the notion that two men had emerged from the tunnel; the discredited version of events given by the appellant; the incorrect squirters’ case in the Patrol Debrief (and other official documents); evidence that the old man died in the courtyard and the allied fact someone killed the man with the prosthetic leg off the northwest corner of compound. On appeal, there may also be added to this list the now uncontested facts that Person 4 killed the old man in the courtyard in the vicinity of the appellant and that this certain killing by Person 4 was not witnessed by anyone except Person 41.

407    It is also a feature of the respondents’ case that the two deaths are forensically linked. If the appellant ordered Person 4 to execute the old man, it was inherently more likely that the appellant had also executed the man with the prosthetic leg. The reasons for this are several but an important matter concerns the evidence of Person 41 who saw both the appellant’s order to execute the old man and his execution of the man with the prosthetic leg. Once either of those war crimes was established, then Person 41’s evidence in relation to that crime will have been completely correct and this, in turn, makes it much more likely that his evidence about the other war crime is also correct. Put another way, it would be remarkable for Person 41 to give an honest account of one war crime but then confabulate a second.

408    Thus, when the primary judge came to consider the significance of the differences between the evidence of Persons 18, 40, 41, 42 and 43 for his assessment of how many men came out of the tunnel, his Honour approached the matter by examining all of the evidence before drawing any conclusions. His Honour’s reasons traversing the evidence and his exploration of the various difficulties arising from that evidence are detailed, thorough and multi-layered.

409    Ultimately, his Honour concluded that differences in the evidence of the relevant witnesses did not persuade him that Person 40’s evidence (that he saw the two men brought out of the tunnel, PUC’d and taken away) should not be accepted. His Honour was not persuaded by the differences because “[t]he fact is that there were a number of people in the area, they were in a highly tense situation attending to different tasks and they saw different things”: J[522]. We reject the appellant’s submission that the primary judge had simply assumed that these witnesses were reliable once he concluded that they had no motive to lie. The primary judge did not think that the differences between these witnessed entailed that their evidence was not reliable. For the reasons we have already given, we agree with his Honour. Although their evidence differed on the question of how many men came out of the tunnel, when examined closely it is apparent that their evidence was not inconsistent.

Other matters

410    For completeness, four final points should be made.

411    First, in his address, Mr Walker SC submitted that the primary judge’s statement at J[522] which we have just quoted, was an insufficient explanation for why the primary judge was willing to accept the evidence of Persons 18, 40, 41, 42 and 43 despite their differences. For example, his Honour did not explain which parts of the accounts were accepted and which were not. We do not agree. Once it is recognised that the accounts given by these witnesses were not inconsistent but merely different, the reasons given by the primary judge were more than adequate.

412    Secondly, the appellant submitted the primary judge had dismissed the differences because the situation in the courtyard was “chaotic”, citing the primary judge’s reasons at J[487]. In fact, what is set out in that paragraph is the respondents’ submission, not the primary judge’s conclusion. The primary judge’s actual reasons for accepting that the differences did not affect the reliability of the witnesses is the one we have set out from J[522]. In any event, there is nothing in this submission.

413    Thirdly, the appellant developed a submission purportedly in reply to RS [189] but which was in fact a fresh submission concerning a new suggested error in J[446]–[451]. The alleged error was that the primary judge had used the evidence concerning conversations between Person 40, on the one hand, and Persons 41, 42 and 43, on the other, to corroborate Person 40. But this was circular. Such a contention appears in particular 9(a) in these terms: “The proof the fact (that two men emerged from the tunnel) is established by inconsistent evidence (that one or two to three men emerged from the tunnel) which is only inconsistent if one assumes the truth of the fact”. There are some difficulties in understanding what this sentence actually means. Whatever it means, however, rests on the false characterisation of the evidence of the various witnesses as being inconsistent. As have explained, their evidence was not inconsistent.

414    Fourthly, in his reply submissions the appellant advanced a submission which does not appear to suggest any error on the part of the primary judge or to be in reply to any submission made by the respondents. It is in these terms (underlining added):

The trial repeatedly observed that findings regarding the events of W108 were made having regard to the whole sequence of events of which they form a part J[224], [866]-[867]. Whilst a tribunal of fact must consider the evidence as a whole, the supposed fact that two men were killed in the general vicinity of the courtyard tunnel does not increase the probability that the two men were found in the tunnel as opposed to somewhere else. There was no logical or causal connection between the trial judge’s finding that two men were executed during the W108 mission that made it more or less likely that those two men came out of a tunnel. The trial judge was alert to the danger of such reasoning in relation to the identity documents of EKIA 57 which were found in the tunnel (J[493]). The discovery of those identity documents inside the tunnel of itself did not increase the probability that EKIA 57 was found in the tunnel when it was discovered, rather it established a connection between that man and the tunnel and suggested only that he had used the tunnel and had been present in it at some point in time (J[493]).

415    Only the underlined sentence appears to hint at an error. However, the difficulty is that the sentence does not make any sense. The submission posits an absence of a logical connection between a finding and something but does not include the word “and” or identify the something. Recourse to the next sentence suggests that what might be missing from the sentence are the words “and any finding”. Making that assumption, the submission then proceeds to say that the primary judge did not make that error. If this is what the submission means, then it does not call for this Court to do anything with it. If it means anything else, its meaning is too obscure to warrant further consideration.

Conclusions

416    The appellant’s submissions about the inconsistencies between the witnesses on the question of the number of men who emerged from the tunnel were put forward by him under particulars 9(a), 10 and 13. Particular 9(a) is in these terms:

The primary Judge erred in relying on the inconsistencies between the Respondents’ witnesses to infer that it made their account more plausible. In particular:

(a)    Person 40 observed two men emerge from the tunnel J[438]. Person 42 observed two to three men J[459]. Person 43 observed one man (J[461], J[489]). The primary Judge does not seem to have considered the significance of the inconsistency and in fact found “although the witnesses’ evidence did not accord in all respects it is a coherent and plausible account of two Afghan men being in the tunnel” (J[480]). The reasoning is circular. The proof of the fact (that two men emerged from the tunnel) is established by inconsistent evidence (that one or two to three men emerged from the tunnel), which is only inconsistent if one assumes the truth of the fact. Further the primary Judge’s reference to a “plausible account” is speculative and inconsistent with making a finding of fact on the balance of probabilities. The subsequent finding that the inconsistencies can be excused because “they were in a highly tense situation attending to different tasks” elides the problem with the reliability of the witnesses and the evidence generally. What the primary Judge did not adequately explain is the inconsistency, on the one hand, of accepting the evidence of Persons 40, 42 and 43 (which he did), and his finding, on the other hand, that two men emerged from the tunnel.

417    We have already explained why we do not accept this proposition. To the extent that an inadequacy of reasons is suggested, it rests on the false premise that the evidence of the witnesses was inconsistent.

418    Particular 10 is in these terms:

The primary Judge erred in finding that Person 81’s evidence does not rule out a finding that two Afghan males were taken from the tunnel (J[492]). The primary Judge should have found that Person 81’s evidence was inconsistent with any such finding. Person 81, who was not the subject of any adverse credit findings, recalled seeing fighting aged males as he moved through the compound but was not sure where this occurred (J[491]). He said that he was not informed as to whether there were any fighting aged males found in the tunnel and did not see any men come out of the tunnel. The primary Judge’s finding about the effect of Person 81’s evidence overlooks the improbability that as the Troop Commander, he would likely have been told about the discovery of two Afghan men hiding in a tunnel that contained ordnance, yet his evidence was to the contrary. Also, if only a minute or two elapsed between the emergence of two men from the tunnel and their execution, then Person 81 must have been aware of the executions given that Person 40 (whose evidence was accepted by the primary Judge) said that Person 81 was in the tunnel courtyard when two men emerged from the tunnel.

419    Person 81’s evidence was not inconsistent with a finding that two Afghan males were taken from the tunnel. The appellant conflates evidence that a witness did not see something with evidence that the witness perceived that something did not occur. Person 81’s account makes it clear that he remembered very little of the detail as he was focussed on other things.

420    Particular 13 is in these terms:

The primary Judge’s finding that there was no evidence of a “plausible motive to lie or collude” in the case of Persons 40, 41, 42 and 43 took into account irrelevant considerations (J[864], J[724] and J[731]). The fact that the Appellant was unable to suggest a reason why Persons 40, 41, 42 and 43 might lie about seeing Afghan men coming out of or in the vicinity of a tunnel is an unsafe basis upon which to reason factually. The Appellant was not in a position to see into their minds. Witnesses may give unreliable evidence for a number of reasons. The primary Judge did not take into account the possibility that the witnesses’ memory had become distorted or polluted over time because of intervening events.

421    There is nothing in this. The primary judge’s observation that the witnesses had no plausible motive to lie was not an irrelevant consideration. If the witnesses did have a motive to lie then this would mean that their evidence might be unreliable. The primary judge was merely removing that from his assessment of their evidence. This does not mean that their evidence might not be reliable for some other reason. But the appellant’s submission that the primary judge assumed that the witnesses were reliable once he concluded that they had no motive to lie proceeds on a wholly unrealistic reading of his Honour’s reasons.

422    In terms of the omnibus particular 19, we conclude in light of this discussion that the evidence concerning the number of men who emerged from the tunnel was more than sufficiently cogent to justify the findings made by the primary judge taking into account the seriousness of the allegations and the presumption of innocence.

Did the primary judge err in considering the inconsistencies between the witnesses who saw the execution of the man with the prosthetic leg (particular 9(b))?

423    There were five witnesses who gave evidence which touched directly on the death of the man with the prosthetic leg. These were Persons 24 and 41, each of whom testified (in effect) that he saw the appellant murder the man; Person 14, who saw a soldier fire a burst of machine gun fire from a Minimi into a dark object which resembled a human, subsequently inspected the object and saw that it was the man with the prosthetic leg, and then back at the VDOP realised that the appellant had been carrying the Minimi and was therefore the soldier who had killed the man; Person 18, who heard a loud burst of machine gun fire while he was clearing the tunnel in the courtyard with Person 35; and Person 40, who was in a defensive position to the northwest of the compound and heard a burst of machine gun fire off to his right which he estimated to have been about 30 metres from his position.

424    The appellant submitted that the evidence of Persons 41, 14 and 24 was inconsistent on a significant matter of detail, namely, the number of soldiers who were present at the time that the appellant allegedly executed the man with the prosthetic leg. The appellant also submitted that there were other less significant inconsistencies between the evidence of the three witnesses which cast doubt on their evidence. These were: the part of his clothing by which the appellant was holding the man with the prosthetic leg as he frogmarched him along the outside of the compound; whether the appellant dropped the man on his back and then flipped him over onto his front before shooting him in the back or whether instead he was dropped on his front in the first place and then shot in the back directly; and, how many rounds of machine gun fire were fired into him.

425    It is convenient to deal with the alleged inconsistencies separately.

The number of soldiers in the vicinity of the killing of the man with the prosthetic leg

426    The appellants submission about this may be shortly stated. There were three witnesses who saw the killing of the man with the prosthetic leg. These were Persons 14, 24 and 41. According to the appellant, Person 41 observed only two soldiers who were in the vicinity of the execution. These were the appellant and Person 41 himself. Another way of putting this, perhaps less apt to confuse, is that Person 41 saw only the appellant. In contrast, Person 14 thought that there were three Australian soldiers in the vicinity. Person 24 observed no other soldiers in the vicinity of the appellant. Although the appellant submitted that Person 24 and Person 41’s evidence is inconsistent, it is in fact the same. Both soldiers saw only the appellant in the vicinity of the killing.

427    The appellant next submitted that the primary judge had not adequately dealt with the significance of this discrepancy. His Honour accepted that the discrepancy had to be carefully considered but concluded that “the similarities far outweigh this difference or, indeed, all the differences”: J[798]. According to the appellant, in proceeding in this fashion the primary judge had failed to give proper weight to the discrepancy. In particular, if Person 24 was correct and no one was present at the execution except the appellant, then the evidence given by Person 14 and Person 41 was wrong in a material detail. In Person 41’s case that entailed that he could not have been present to see the execution or to have had the conversation with the appellant in its immediate aftermath (“Are we all cool? Are we good?”). In Person 14’s case it meant that his evidence that he observed two other soldiers could likewise not be correct.

428    To understand the evidence of Persons 14, 24, 40 and 41 about what happened it is necessary to grasp precisely their evidence about the location of critical events and matters. Each was shown aerial photographs of the compound taken on the day and each was asked to mark various locations on these photographs. The photographs thus marked up by each witness were then tendered. The relevant exhibit for each witness is as follows:

Person 14:    Exhibit R98

Person 24:    Exhibit R141

Person 40:    Exhibit R137

Person 41:    Exhibit R92

429    Dealing first with Exhibit R98 and Person 14, Exhibit R98 is this marked-up photograph:

430    It will be recalled that on day the soldiers understood north to be northeast as indicated on this photograph. Person 14’s evidence was that he was kneeling facing north at the point marked A. His 2IC (Person 73) was at the point C and Person 24 was at point D. The point marked E was where Person 14 says that he saw the dark object like a human being thrown on the ground and shots fired into it. There was also a beige wall at this point. The distance between Person 14’s position (point A) and the spot where the shooting happened (point E) was about 10 to 15 metres. Although there appears to be what the cross-examiner referred to as a thick line of shrubs and trees between the two points, Person 14 said that the foliage visible in the photograph was actually tree canopy and that much more was visible on the ground than the photograph suggested. The point marked B is where Person 14 engaged EKIA50. Person 14 also says that after the shooting of the man with the prosthetic leg he saw the appellant walk back into the compound through the point at which the assault patrols had initially entered. This was illustrated by Person 14 on page 1 of Exhibit R98 at point A:

431    In Exhibit R98 the courtyard is not visible but will appear in a later exhibit. For ease of reference, it is useful to take particular note of the structure at the point E (the beige wall) where Person 14 says he saw the shooting. It is in the context of this evidence that Person 14 said that he saw three Australian soldiers in the vicinity of the killing of the man with the prosthetic leg, i.e., in the vicinity of point E. He was not able at the time to see who they were but one of them fired the Minimi and two of them were wearing the grey and brown camouflage paint he thought was worn by the members of Gothic 5. On the day, as is now known, the appellant was carrying the Minimi at Whiskey 108 and was wearing the grey and brown camouflage paint.

432    It is useful also to note Person 14’s evidence about why he could not identify the soldiers. He explained that he was looking to his right (recalling that he was on his knee facing north). The location of points A and E suggests that he was looking to his right and almost backwards a bit. He did not think the conditions for identification were good. Last light was closing in and the events happened under the tree canopy. Further, it had been raining and all the soldiers were wet. It was difficult to identify even people he knew because they were all dressed in a uniform way. What was notable at the time for him was the camouflage paint the grey component of which stood out in the green light.

433    The next witness is Person 24 and his diagram of locations is Exhibit R141. Exhibit R141 is this photograph of the compound marked up by Person 24:

434    According to Person 24 he and Person 14 were located in an approximate area where the circle appears. He thought he was about two to three metres from Person 14. Person 24 testified that he first saw the appellant at the point marked B as he walked out of the compound. He was holding a man in his hand who had come off his feet. The man was being carried by the appellant parallel to the ground, held by his pants or the back of his shirt. The man was making grunting noises. The appellant carried the man to the point marked C and fired eight to ten rounds of machine gun fire into him.

435    In examination in chief, this exchange with Person 24 then occurred:

Okay. And what did Mr Roberts-Smith do after he had finished firing those eight to 10 rounds?---He – as soon as he stopped firing, because the machine gun had a stoppage, he immediately turned and started rectifying the stoppage with his - - -

When you say “turned”, which way?---Turned back towards the entrance of the building and started walking back towards the way that he came.

Okay?---Rectifying the stoppage whilst he was moving.

Okay. And did you see where he went?---Back inside the compound.

Okay. Were you able to see any other SAS operators at this time?---No, only Person 14, who I was with.

436    The respondents submitted that the last answer related to the time at which the appellant walked back into the courtyard and not the time at which he fired the Minimi. Having regard to where Person 24 was (in the circle on Exhibit R141), it strikes us as unlikely that he intended this answer to be temporally limited in the way suggested by the respondents. Further, the primary judge treated Person 24’s evidence as being evidence that he could see no-one apart from the appellant: J[798]. We see no reason to depart from the approach taken by the primary judge on this issue.

437    The next witness is Person 40 and his diagram of locations is Exhibit R137. Exhibit R137 is this photograph of the compound marked up by Person 40:

438    Person 40’s evidence is that after he saw the two men marched off in the courtyard, he went around the corner of the compound to take up a defensive position because he had completed his part in the SSE process. He marked this position at point A on Exhibit R137. He was waiting for the next command to extract (i.e. leave Whiskey 108). At this point he heard a burst of machine gun fire from an LSW or F89. He was facing out from the compound and he heard the gun fire from his right which he thought was about 30 metres away. Later the troop extracted from Whiskey 108 and he saw the body of the man with the prosthetic leg. Person 40 did not give evidence of having had a conversation with Person 41 in the cowsheds (although Person 41 says that he did have a conversation with Person 40 in the cowsheds after the killing). The point for present purposes is that the evidence of Person 40 suggests that he was in the vicinity.

439    The next witness is Person 41 and his diagram of locations is Exhibit R92:

440    Person 41 gave evidence which we did not understand to be controversial that the courtyard at the northern end of the compound was constituted by the three sided rectangle he drew on Exhibit R92. The letter D is the location of the rooms containing the improvised explosive devices. Point C is the location of the tunnel entrance. The dot to the left of point E is where the body of the old man was. The vertical dotted line from that point to outside the courtyard is the route followed by Person 41 to the point where he stopped on the footpad. The two dots around the letter F are the two structures he could see up the slight hill. The dot next to the letter G is where he first saw the appellant to his right and the distance between his location and that point was about five metres. The appellant was frogmarching an Afghan male with his left arm. Person 41 described the appellant as walking “up”. He then threw the man on his back, flipped him over onto his stomach and fired the three to five rounds into him. After that the appellant looked up and asked Person 41 “Are we all cool? Are we good?” to which Person 41 replied “Yeah, mate, no worries”. The appellant then walked past Person 41 and went back through the exit through which Person 41 had entered. Later Person 41 walked up to the cowsheds and had a conversation with Person 40. He also accepted under cross-examination that there may have been other members of the patrol in the vicinity of the cowsheds.

441    It is useful at this point to pause to observe three contradictory aspects of this evidence about which the appellant does not complain and which the primary judge was astute, with respect, not to resolve. An appreciation of these unchallenged inconsistencies provides essential context for considering the inconsistencies about which the appellant does complain.

442    The first inconsistency concerns where the killing occurred. According to Person 14 it was at the point E on Exhibit R98 p 2. However, Person 24 put himself and Person 14 in very close proximity to that same point as a comparison between Exhibit R98 p2 point E and the circle on Exhibit R141 well shows. Person 40 also put himself in that location as Exhibit R137 point A shows. The central witness, Person 41, located the execution outside the hole in the courtyard’s western wall in quite a different location, at point G on Exhibit R92. It might be noted that it is only on Person 41’s photograph that the courtyard has been marked. Person 24 put the execution at point C on Exhibit R141.

443    A second inconsistency lies in the conflicting evidence of Person 14 and Person 24 as to where they themselves were located: compare Exhibit R141 circle (Person 24) with Exhibit R98 p 2 point A and D (Person 14).

444    A third inconsistency is the location of EKIA50. Person 14 said that the body was at point B on Exhibit R98 while Person 24 said that it was at point A on Exhibit R141.

445    The primary judge did not attempt to reconcile these matters. Instead, he examined the evidence as a whole and concluded that, while there were differences between the accounts, there were significant similarities. His Honour did not attempt to resolve the three differences we have just identified. To be specific, his Honour did not make any finding about where Persons 14, 24 and 41 were at the time of the killing or where the killing actually happened.

446    The primary judge grouped the parties’ submissions about the differences in the accounts into six categories as follows:

(a)    Person 41’s evidence that he saw the appellant holding the man by the scruff of his clothing; Person 24’s evidence that he was holding him in the region of the lower back; and Person 14’s evidence that he saw the dark object thrown to the ground from a height of between waist and knee;

(b)    Person 41’s evidence the appellant threw the man on the ground on his back, flipped him over and then shot him and Person 24’s evidence that the appellant threw the man on the ground and immediately shot him in the back;

(c)    Person 14’s evidence that he saw an extended burst of Minimi fire of about 10 to 15 rounds, Person 24’s estimate of eight to ten rounds and Person 41’s estimate of three to five rounds;

(d)    Person 24’s evidence that while firing the Minimi the appellant had experienced a stoppage in the weapon and the absence of evidence from Person 40 and Person 41 that they perceived such a stoppage;

(e)    Person 14’s evidence that he saw three soldiers in the vicinity of the killing and the evidence of Person 41 and Person 24 that they saw only the appellant; and

(f)    Person 14’s recollection of having said to Person 73 “What the hell was that?” and Person 24’s recollection that he said to Person 14 “Did we just witness an execution?”.

447    On appeal, the appellant pursues contentions (a), (c) and (e) as the principal inconsistencies underlying his submission. However, at AS[13.7] he mentioned inconsistencies (b), (d) and (f) to identify them as “less material” but submitted that, when taken together with the inconsistencies in (a), (c) and (e), “there is an accumulated significance to them that undermines the clear and cogent proof required to satisfy a tribunal of fact of the allegation in question”.

448    The primary judge considered all six of the suggested inconsistencies and regarded the differences as outweighed in each case by the similarities in their evidence: J[792]-[799]. At J[800] his Honour identified these similarities as follows:

I have mentioned the essential similarities in the evidence of Persons 14, 24 and 41. In summary, those similarities are as follows: (1) each of Persons 14, 24 and 41 observed a PUC being forcibly and aggressively moved in an area outside the north-western part of W108; (2) each of them heard, together with Person 40, an extended burst from a machine-gun; and (3) each of them witnessed a soldier fire a burst of machine-gun into the body of a human being outside the northwest corner of W108. Persons 41 and 24 identified the soldier as the applicant. Person 41 was independent and he had no obvious motive to fabricate the account he gave. There is no evidence of any collusion between Person 41 on the one hand, and Persons 14 and 24 on the other hand.

449    The respondents developed a submission that Person 14 and Person 24 were separated by some distance so that their fields of vision would have been different. They also submitted that the cowsheds affected the issue once they were “taken into account”. This was a very complex submission. Person 14’s evidence was that he and Person 24 were close to each other, only a few metres apart. This is illustrated by points A and C in Exhibit R98. Person 24’s evidence was that they were reasonably close together as well — in the circle he drew on Exhibit R141. The respondents’ submission combined their evidence to suggest that Person 24 was in the circle he drew on Exhibit R141 while Person 14 was at point A in Exhibit R98. By those means, the distance between the two men was substantially increased. If Person 41’s evidence about the location of the cowsheds is then superimposed over that evidence it does, perhaps, lead to a situation where the cowsheds were between Person 14 and Person 24 but this involves a good deal of speculation.

450    It is not necessary to engage in that speculation, however. The attempt to combine the evidence of Persons 14 and 24 (and Exhibit R98 and Exhibit R141) to increase the distance between the two men should not be accepted. If one accepts Person 14’s evidence that he was at point A, then it is difficult to avoid also accepting his evidence that Person 24 was at point B. On the other hand, if one accepts Person 24’s evidence that they were both in the circle on Exhibit R141 then it is difficult to see how one can then say that Person 14 was at point A on Exhibit R98. It is not permissible to mix and match the evidence of Person 14 and Person 24. Accordingly, we do not accept this aspect of the respondents’ submission.

451    In that circumstance, we agree that the primary judge was correct to approach the issue on the basis that Person 14 saw three soldiers one of whom he subsequently identified as the appellant and Person 24 saw only the appellant as did Person 41.

452    Turning then to appellant’s submission, it begins with the mischaracterisation of the evidence we have flagged above. He submitted that Person 41’s evidence was that there were two soldiers in the vicinity of the killing: the appellant and himself. As the primary judge correctly observed, Person 41’s evidence was that he saw only the appellant. This is in fact the same as the evidence of Person 24 who also saw only the appellant. The point the appellant was probably seeking to make is that Person 41’s evidence put him about five metres from the appellant and, in that circumstance, Person 24 should have seen two soldiers and not one. The next step, then, is Person 14’s evidence that he saw three soldiers.

453    The primary judge’s treatment of this issue was at J[798]:

The fifth difference is as to how many soldiers were seen in the vicinity at the time of the alleged execution of EKIA57. Person 14’s evidence was that he could see three soldiers in the vicinity of EKIA57. Person 41 said he could see no-one other than the applicant. Person 24’s evidence is to similar effect. Obviously this difference must be carefully considered. As I have said, it is possible Person 14’s field of vision took in Persons 40 and 41. In any event, the similarities far outweigh this difference or, indeed, all of the differences.

454    The appellant criticised the primary judge’s observation that it was possible that Person 14’s field of vision took in Persons 40 and Person 41 which he described as speculation. He submitted that Person 40’s evidence was that he was about 30 metres away and could not see the killing.

455    We reject this submission for four reasons.

456    First, the suggested speculation occurs in the context that it is the appellant who submitted that the evidence of Person 14, on the one hand, and Persons 24 and 41, on the other are inconsistent because Person 14 saw more soldiers in the vicinity of the killing than did Persons 24 and 41. The submission of inconsistency invites consideration of whether the evidence can be reconciled or whether it is inevitably discordant. It is not speculation in that context to say, as the primary judge did, that it was possible that Person 14’s field of vision took in Persons 40 and 41. The appellant’s inconsistency submission invited that very analysis.

457    Secondly, Person 41’s evidence was that he was about five metres from the appellant. It was not speculative that Person 14 may have seen him. It was a probable inference from Person 41’s evidence.

458    Thirdly, in relation to Person 40, the appellant again advanced an inaccurate summary of his evidence. What Person 40 actually said was that he was at point A on Exhibit R137 (above) waiting for the next order when he heard a burst of machine gun fire to his right. He was asked to say roughly what distance it sounded like it was coming from and he responded “Look, maybe 30 metres, thereabouts”. He did not say that it was not possible to see the source of the gunfire from his location. Rather, he said that he did not see it because he did not turn to look at it. His testimony was that, because the gunfire originated from inside the cordon, it was probably being fired at an external threat and once he heard the gunfire he was focussed on looking in the direction of that external threat. It was for that reason that he had not looked in the direction of the machine gun burst. Person 40’s evidence does not establish that he could not see the location of the killing from his location.

459    As we have explained, the accounts of each of these witnesses differs about the location of the killing and the location of each other. Thus, we do not accept the appellant’s submission that Person 40’s estimate that the gunfire was “look, maybe 30 metres, thereabouts” away is a figure set in stone, still less that there was no line of sight from Person 14’s location to Person 40’s location.

460    We reject the appellant’s submission. In the context of multiple witnesses seeing the murder, we are unpersuaded that the fact that Person 14 saw three soldiers and Persons 24 and 41 saw only the appellant in any way affects the cogency of the evidence against the appellant. Likewise, the fact that Person 24 did not see Person 41 is unimpressive. This was a short violent event in a long violent afternoon. Different soldiers saw different things. Differences of this kind are entirely to be expected. The correct focus is the one maintained by the primary judge, that is to say, a focus on the similarities between the accounts, the absence of any reason for these witnesses to have been making their evidence up and the striking nature of what they said they saw.

461    This last aspect of the matter is perhaps best captured by the evidence of Person 24 when challenged under cross-examination that it must be difficult for him to recall events which had occurred 13 years ago to which he responded “Not when it comes to watching an execution”. The problem for the appellant is that, unlike most homicides, there were three eyewitnesses to this murder. Their testimonies each had the three key central features described by the primary judge: the forcible and aggressive moving of a PUC to the northwestern part of Whiskey 108; the hearing of a burst of machine gun fire; and the seeing of a man being machine-gunned. This strength of this evidence cannot be erased, and is in no way undermined, by peripheral inconsistencies.

Inconsistencies on the part of the clothing by which the appellant was holding the man

462    Person 41 said that the Afghan male was being carried by the appellant by the scruff of his clothing. Person 24 said that the man was being held by the pants or the back of the shirt. Person 14 gave no evidence about this matter. This evidence is not inconsistent.

Inconsistencies on whether the man was dropped on his front or his back

463    Person 41 said that the appellant threw the Afghan male to the ground and he landed on his back. He recalled the appellant turning him over and then machine gunning him. Person 14 did not give evidence that the soldier who he could then not identify had flipped the man over or not. Person 24’s evidence was that the appellant had dropped the man and fired a burst of machine gun fire into his back. The primary judge was correct to conclude that this difference was not material in the broader context.

Inconsistencies on how many rounds were fired into the man

464    The Minimi fires between nine and 13 rounds per second. Person 5 agreed that it was very difficult accurately to count how many rounds are fired from the weapon. Person 14 estimated 10 to 15 rounds, Person 24 eight to 10 rounds and Person 41 three to five rounds. Each witness described a burst which is likely to have been less than 1.5 seconds in duration. These differences are also immaterial in the broader context.

Whether there was a stoppage

465    Person 24 recalled there was a stoppage. In his discredited evidence of his engagement with the man with the prosthetic leg outside the northern line of the compound, the appellant had also stated that he had a stoppage. Persons 40 and 41 did not mention a stoppage. The primary judge was correct to conclude that this difference was minor.

Conversations

466    Person 14 said he spoke to Person 73 while Person 24 said he spoke to Person 14. These are not necessarily inconsistent since both comments could have been made (as the primary judge observed). But even assuming that is wrong, inconsistencies in the recollection of peripheral detail of this kind of detail is entirely to be expected and the inconsistencies are immaterial.

Conclusions

467    These submissions were advanced under the rubric of particular 9(b) which is in these terms:

The primary Judge erred in relying on the inconsistencies between the Respondents’ witnesses to infer that it made their account more plausible. In particular:

…

(b)     Person 14 stated that he observed three soldiers in the vicinity when the Appellant executed EKIA 57. Each of Person 24 and Person 41 observed only the Appellant at this moment. The primary Judge “carefully considered” the difference but observed that the similarities outweighed the differences (J[798]). Again the primary Judge could not have accepted the evidence of all three witnesses (which he did) (J[523]). The primary Judge then speculated that Person 14 may have seen Person 41 and perhaps Person 40 in the area (J[763] and J[798]).

468    For the reasons we have given these criticisms of the primary judge are rejected. We detect no error in his Honour’s approach. The eyewitness accounts provided cogent evidence that the appellant had machine gunned the man with the prosthetic leg taking into account the seriousness of that allegation and the presumption of innocence (particular 19). When all is said and done, it is a rare murder that is witnessed by three independent witnesses. The appellant’s efforts to construct uncertainty out of inconsistencies in peripheral detail are unpersuasive.

Was Person 4 known as the rookie and had he previously been blooded (particulars 14, 16 and 17)?

469    The law of murder observes a distinction between an intention to kill and the existence of a motive to do so. While the former is a necessary element in of the offence of murder, the latter is not. Nevertheless, at a factual level the existence of a motive can form part of a circumstantial case that the accused committed the homicide with an intention to kill. If an accused person had a motive to kill a person this is capable, along with sufficient other facts, of making more likely the proposition that the accused did kill the victim and intended to do so. Whether motive has that effect in any given case depends on the nature of the circumstantial facts.

470    For that reason, the respondents were never obliged to prove that the appellant had any particular motive for the killings, although they were required to prove that the killings had been deliberate so as to satisfy the requirement of intentionality. In the case of the man with the prosthetic leg the respondents never advanced a motive to explain the appellant’s actions. They relied instead, principally but by no means solely, on the fact that the murder happened in daylight and was seen by the three witnesses Person 14, Person 24 and Person 41.

471    However, even though they had no need as a matter of law to do so, the respondents did offer evidence to prove the existence of a motive for the killing of the old man. They adduced testimony from several witnesses that Person 5 and the appellant had expressed a desire on the mission to Whiskey 108 that Person 4 should have his first kill. The existence of such a motive provided circumstantial evidence supportive of several matters. First, it provided powerful support for a finding that Person 4 had killed someone, for the practice of blooding always has two participants. Secondly, combined with the absence of any evidence that Person 4 had killed anyone else at Whiskey 108, it strongly suggested that Person 4 had killed the old man which, when combined with the unanswerable evidence that his body was located in the courtyard, strongly tended to suggest that Person 4 had killed the old man in the courtyard. Thirdly, and relevantly for this appeal, the putative motive provided circumstantial evidence that Person 5 and the appellant were involved, to use a neutral expression, with the sequence of events which led Person 4 to commit that homicide. Fourthly, the evidence therefore tended to corroborate Person 41’s evidence that there was a connection between the homicide and the appellant and the connection was that the appellant had ordered Person 4 to kill the old man.

472    Because the appellant no longer challenges the finding that Person 4 killed the old man in the courtyard the first two of the circumstantial matters are no longer directly material.

473    Turning then to the evidence, Person 14 testified that, before the mission to Whiskey 108, he heard Person 5 say “I am going to blood the rookie” in the troop briefing room at Tarin Kowt. Person 24 testified that, about a week before the mission to Whiskey 108, Person 5 came to the door of his patrol room and said “We are going to blood the rookie”. Person 18 testified that, after the mission when the troop was back at the VDOP, he heard the appellant and Person 5 saying “that they’ve blooded the rookie”. Similarly, Person 14 testified that at this time he also heard Person 5 say “I’ve finally blooded the rookie”.

474    Person 5 and the appellant both denied that these conversations had ever occurred. In addition to those denials, the appellant sought to demonstrate (through his own testimony and the testimony of Persons 5, 27, 29, 35 and 38) that Person 4 was not known as the rookie and that, in any event, he had been blooded before Whiskey 108 on a mission in the Mirabad Valley. Persons 4, 5 and 18 all gave evidence about this latter matter.

475    Both the appellant’s contentions, if accepted, supported the denial by the appellant and Person 5 that they had ever spoken in terms of blooding the rookie. The logic of this may be accepted. It is unlikely that the appellant and Person 5 would have referred to Person 4 as the rookie if that terminology was never in use in the troop. So, too, if Person 4 had already been blooded on an earlier mission, it is unlikely that the appellant and Person 5 would have expressed a desire to blood him again since blooding, as a rite of initiation, is something which can only be done once.

476    The disputes at trial were therefore about whether Person 4 was known as the rookie in 2009 at the time of the mission to Whiskey 108 and whether he had he been blooded at the earlier mission in the Mirabad Valley.

477    The primary judge concluded both of these matters in favour of the respondents. His Honour rejected the evidence of the appellant and that of the witnesses he called on this issue and accepted the evidence of Persons 14 and 24 to the effect that Person 5 and the appellant had spoken in terms of blooding the rookie. The primary judge found that before the mission Person 5 had expressed a desire to blood the rookie and at the VDOP immediately after the mission Person 5 and the appellant had been heard discussing that they had in fact blooded the rookie. Given that the appellant does not challenge the findings that Person 4 killed the old man and did so in the courtyard, this evidence potentially directly ties Person 5 and the appellant to the killing. There was a debate at trial as to whether “blood” referred to a lawful engagement or an unlawful one. In that context, it is useful to note that there is no reliable evidence that can now support a hypothesis that Person 4 killed the old man in a lawful engagement. There is no evidence, for example, that the old man ran out of the tunnel brandishing a weapon and that Person 4 shot him as he did so.

478    On appeal the appellant submitted that the primary judge made three broad errors.

479    First, on the question of whether Person 4 was known as the rookie, the respondents had not asked Person 4 whether he was known as the rookie in 2009. The primary judge had dismissed the significance of this on the basis that he had not required Person 4 to answer questions concerning Whiskey 108 on the ground that they might incriminate him. The appellant submitted that this was in error because the primary judge had permitted Person 4 to give evidence about whether he had had a kill at the mission at the Mirabad Valley.

480    Secondly, his Honour erred in concluding that, after the mission to the Mirabad Valley, the perception would not have been that Person 4 had been responsible for that kill. He submitted that this was contrary to the terms of Person 4’s evidence.

481    Thirdly, his Honour should not have relied upon the evidence of Persons 14 and 24 since their evidence was unreliable.

482    We have already rejected the third submission and no more need be said about it. We now turn to consider the first two.

Was Person 4 known as the rookie?

483    There was a conflict in the evidence as to whether the most junior member of a patrol was known as the rookie. For the respondents, evidence on this question was adduced from Persons 14, 18, 19 and 24.

Person 14

484    Person 14 gave unchallenged evidence that the term rookie was used in the SASR and meant a “junior trooper that is very new to the squadron/troop, if not on their first deployment”.

Person 18

485    Person 18 testified that in 2009 Person 4 was known in the patrol as the “rookie fuck” which was a witticism from the 2001 Jay Chandrasekhar film, Super Troopers. He also gave evidence that at a meeting in 2013 a regimental sergeant major had directly asked about the blooding of rookies at Whiskey 108. This evidence was elicited in response to a question asked of Person 18 in cross-examination.

Person 19

486    Person 19 gave evidence that when he joined the SASR in 2012 the term “rookie” was both used and understood.

Person 24

487    Person 24 gave evidence that he understood the word “rookie” to refer to Person 4 in 2009.

488    In addition to this testimonial evidence, the respondents also tendered a photograph taken in 2010 of a sign affixed to the door of the patrol room of the appellant’s patrol. In 2010 Person 4 was no longer the most junior member of the patrol. At that time it was Person 8. The sign on the door records the names of the six patrol members and Person 8 as “Rookie Fuck”. This photograph became Exhibit R210. Exhibit R210 was contemporaneous physical evidence that the word “rookie” was in use in the appellant’s patrol in 2010 and would have been seen by the appellant each time he entered the patrol room.

489    For the appellant, evidence was adduced from the appellant and Persons 5, 27, 29, 32, 35 and 38 that the expression “rookie” was not used in the patrol and they denied that they had ever heard any member of the SASR use the term. The primary judge considered that, when Exhibit R210 was considered with all of the evidence in the case, “there is a strong body of evidence that the junior member of Person 5’s patrol was known as ‘the rookie’ or ‘rookie fuck’ earlier and more generally and widely than just Persons 14, 18 and 24”. We would, with respect, go somewhat further than the primary judge. Exhibit R210 shows that the expression “rookie” was being used in 2010 and hence that the testimony adduced by the appellant that the expression was never used was obviously false. In our opinion, this part of the appellant’s case is fanciful.

490    On appeal, that leaves the appellant with little to work with. Understandably, given Exhibit R210, no attempt is made by him to resurrect his case that the word “rookie” was never used in the troop. Rather, his submission now is that the primary judge should not have accepted the respondents’ affirmative evidence that Person 4 was known as “the rookie” because they had failed to ask Person 4 himself whether that was his appellation in 2009.

491    This submission was advanced to the primary judge and took the form of an invitation to draw an inference adverse to the respondents from their failure to ask Person 4 this question: see Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel). The submission was recorded by the primary judge at J[244]. The primary judge declined to draw the Jones v Dunkel inference because Person 4 had claimed the privilege against self-incrimination in relation to events at Whiskey 108. His Honour inferred that, had Person 4 been asked by the respondents’ counsel whether he was known as the rookie in 2009, then it was likely he would have claimed the privilege. The primary judge also indicated that, had Person 4 claimed the privilege, he would have upheld the claim.

492    Although not explicitly articulated by the primary judge, the thinking underpinning this is that evidence which tended to identify Person 4 as the rookie had a tendency to implicate him in having murdered the old man on the orders of the appellant who was giving effect to his desire to “blood” him.

493    The appellant submitted that his Honour’s inference that the privilege would have been claimed by Person 4 was erroneous. It was erroneous because the trial record showed that Person 4 had been willing to answer questions relating to whether he had had a kill on the mission to the Mirabad Valley. Again, drawing that reasoning out, the point is that by giving evidence on the topic of whether he had engaged an insurgent on the mission to the Mirabad Valley, Person 4 was giving evidence which, depending on the answer, might tend to suggest that he had not been blooded before Whiskey 108. That evidence might, in turn, tend to suggest that he might have killed the old man on the orders of the appellant who was giving effect to his desire to blood the rookie.

494    We do not accept that the trial record shows that Person 4 had been willing to answer questions relating to whether he had a kill on the mission to the Mirabad Valley. In fact, it shows the opposite. Person 4 was asked whether he (with Persons 5 and 6) had killed the target of that mission. Person 4 successfully claimed the privilege against self-incrimination on the basis, as put by his counsel, that the question was “setting the foundation up for ‘Was there a blooding?’ [at Whiskey108]”. At this time, the appellant’s counsel submitted to the primary judge that Person 4 should be required to answer the question but the primary judge refused to require that.

495    It follows that the submission that Person 4 had not invoked the privilege against self-incrimination in relation to the killing at the Mirabad Valley is simply wrong. The primary judge’s conclusion that he was willing to infer that, had Person 4 been asked whether he was referred to as “the rookie”, he would have claimed the privilege against self-incrimination is therefore correct and the suggested error is not established.

496    For completeness, we would note two further matters. First, even if the question of Jones v Dunkel could have been raised, there was no room for its application given the clarity of the evidence. No question of drawing an inference more comfortably because Person 4 was not asked this question could conceivably arise in a factual milieu which includes Exhibit R210. Secondly, even if we had been satisfied that the primary judge had made an error about this, we would have declined to interfere with his Honour’s conclusions. The reference to the “rookie fuck” on the appellant’s patrol room door in Exhibit R210 made the respondents’ case that the most junior member of his patrol was known as the rookie, overwhelming and the appellant’s case correspondingly hopeless.

Was Person 4 blooded on the mission to the Mirabad Valley?

497    It will be recalled that Person 4 was a member of Gothic 5 whose patrol commander was Person 5 and whose 2IC was the appellant. Before the mission to Whiskey 108, Gothic 5 had been on a mission to the Mirabad Valley in early April 2009 to kill a high value target codenamed Objective Depth-charger. Gothic 5 performed what was referred to as a clandestine infiltration. It had involved quite some bravery on the part of the patrol to have been positioned where it was. A gate was opened and Person 6 went out, followed by Person 5, who was followed by Person 4. The cross-examiner asked Person 4 this question:

And the three of you engaged the target.

498    Counsel for Person 4 objected to the question but Person 4 did not claim the privilege against self-incrimination. There was this exchange:

And you rushed out, together with Person 6 and Person 5, and engaged the target, correct? – Correct.

Yes. And this mission occurred prior to the Whiskey 108 mission, didn’t it? – It did.

499    The cross-examiner returned to this subject the next day:

Okay. Yes. And you told us about a mission that you went on in early April 2009. That is, the Objective Depth Charger; do you remember that? To go after Objective--?—Yes.

--Depth Charger, correct? --- Yes.

And that was an engagement you had with Person 5 and Person 6, a successful one, correct? – That’s correct.

500    In each of these questions, the cross-examiner had used the word “engaged” rather than “killed”. However, the cross-examiner returned to the topic. this time using the word “killed”:

Yes. And of course, just to be clear, the objective in relation to the kill/capture mission in early April, that resulted successfully in the killing of the objective by Person 6, Person 5 and yourself; correct?

501    This elicited an objection from counsel for Person 4. Argument then ensued with the cross-examiner pointing out that Person 4 had agreed that he had engaged the target without claiming the privilege against self-incrimination. Counsel for Person 4 pointed out that this was not evidence that he had killed the target but only that he had engaged him. Counsel also pointed out that eliciting evidence on the question of whether Person 4 had killed the target was setting the foundation for the question of whether there was a blooding at Whiskey108. To unpack that slightly, if Person 4 gave evidence that it was not he who had killed the target then that answer would tend to prove that he was the rookie and hence to support the respondents’ case that he had murdered the old man on the orders of the appellant as part of the appellant’s plan to blood him.

502    Counsel for the appellant countered this argument by observing that he had already given evidence that he had “engaged” the objective and the witness could not give half the picture by refusing to answer what that meant:

So the question is, your Honour, if it’s not what I just put to the witness, well, what did he mean by that? He can’t….give half a piece of evidence without claiming the privilege and then seek to claim the privilege when having to explain the other element if he has already said that the three of them engaged, successfully, the object and, your Honour, of course it was a success. If there was to be an issue about it that – the claim for privilege should have been made yesterday by the witness. He didn’t. He answered the question.

503    The primary judge then declined to compel Person 4 to answer the question of whether he had killed the target.

504    In addition to Person 4’s evidence about Objective Depth-charger, there was evidence from Person 18 that Person 6 had engaged first and that Person 14 and Person 18 had engaged next. Person 18 also said that, if anyone had engaged thereafter, the target would already have been dead. The primary judge dealt with this issue at J[273]–[275]:

Person 5’s account of the engagement was unsatisfactory because it changed from his evidence-in-chief to cross-examination and then in the course of cross-examination. Under cross-examination, Person 5 said that Person 4 shot and killed Objective Depth-Charger and that he (Person 5) was, in fact, shooting at “the guy on the back of the motorbike” who was Objective Depth-Charger’s bodyguard. Later in his cross-examination, Person 5 reverted to saying that he was “aiming at the men on the bike” and that he fired “at both of them”.

I accept Person 4’s evidence as to the order of march out of the gate and I accept Person 18’s evidence that he was on a ladder next to the wall in preference to Person 5’s evidence that Person 18 was on the ground. I accept Person 18’s evidence that he and Person 14 engaged from an elevated position shortly after the first member of the ground force engaged.

I accept Person 18 as an honest and reliable witness. As I will explain in connection with the mission to Darwan, I accept Person 4 as an honest and reliable witness. I do not accept Person 5 as an honest and reliable witness. In terms of the perceptions at the time, they would have been that Person 4 was involved in the engagement, but they would not have been that Person 4 was responsible for killing Objective Depth-Charger, or his associate(s). The perceptions at the time were that the soldier(s) who fired the fatal shots were Person 6 or Persons 18 and 14.

505    The appellant submitted that J[275] involves error because “the plain meaning of Person 4’s own evidence was that he had engaged the target”. We reject that submission. We do not accept that the primary judge erred in not treating the word “engaged” as meaning “killed”. It is clear from the account we have given of the course of the cross-examination of Person 4 that he claimed the privilege against self-incrimination when asked whether he had killed the target but did not claim the privilege when asked whether he and the other soldiers had engaged the target. In our view, it is quite clear that Person 4 did not use the word “engaged” to mean kill. The only inference available from the evidence is that Person 4 did not wish to give evidence about whether he had killed the target. In discerning what Person 4 understood by the word “engaged” that unavoidable inference must be brought to account. It is unlikely in the extreme that Person 4 understood himself to be giving evidence that he had killed the target. Besides, if there was no ambiguity about the meaning of “engaged”, why did the cross-examiner include Person 4 in the question that prompted the objection?

506    Next the appellant made a related but dense submission that “the state of the evidence did not permit a positive finding that Person 4 was not responsible for a killing on the mission involving Objective Depth-charger”. This submission is based on a misconception. It was the appellant, not the respondents, who was seeking to prove that Person 4 had killed the objective. He was seeking to prove that so that he could demonstrate that it made no sense for the appellant and Person 5 to have been discussing having blooded the rookie at Whiskey 108 and it was therefore less likely that any such conversation had occurred. As such, it was the appellant who bore the forensic burden of proving that Person 4 had been responsible for the kill at the Mirabad Valley.

507    We reject the appellant’s submission about the engagement at the Mirabad Valley.

Conclusions on the blooding the rookie allegations

508    We discern no error in the primary judge’s treatment of the question whether Person 4 was known as the rookie and no error in his Honour’s conclusion that it would not have been perceived that Person 4 had been responsible for the kill at the Mirabad Valley.

509    The appellant’s submissions about the blooding of the rookie were advanced under particulars 14, 16 and 17. Particular 14 is in these terms:

The primary Judge failed to give adequate reasons explaining why he accepted the evidence of certain witnesses regarding uncorroborated conversations that occurred in 2009 in circumstances where human experience tells against the possibility of remembering such matters. In particular, the primary Judge accepted the evidence of Person 14 and Person 24 about what they heard Person 5 say in 2009 about “blooding the rookie” prior to the W108 mission. The primary Judge approached the fact-finding exercise on the basis that where there was a conflict between the evidence of Person 14 (J[257]) and Person 24 (J[265]) on the one hand, and Person 5 on the other, the evidence of Person 14 or Person 24 should be accepted as reliable and truthful because Person 5 lacked credibility. The primary Judge adopted a similar flawed approach in finding that Person 5 said that he had “blooded the rookie” following the mission (J[282], J[283]). The primary Judge then relied upon his findings about what Person 5 said pre and post mission to infer that Person 5 knew before the execution of EKIA 56 that it was to take place and later that it had taken place (J[712]).

510    Particular 14 is not made out. The suggested inadequacy of reasons argument in the first sentence is without substance. The primary judge accepted the evidence of Persons 14 and 24 for the guarded and elaborate reasons his Honour gave. It is not correct that he accepted their evidence only because he rejected the evidence of Person 5. The evidence of Persons 14 and 24 was not uncorroborated. Each gave evidence of independent occasions on which Person 5 had made remarks about blooding the rookie before the mission.

511    Particular 15 is in these terms:

The primary Judge’s determination that Person 4 was not required to give evidence about events at W108 denied, as a matter of procedural fairness, an opportunity to the Appellant to confront Person 4 in circumstances where the primary Judge made serious criminal findings against the Appellant in relation to matters alleged by the Respondents to involve Person 4.

512    It is not clear that this was pressed. No submissions appear to have been directed to it. In any case, the allegation is unsustainable. Person 4 gave no evidence against the appellant about the events at Whiskey 108. Procedural fairness did not require the appellant to be given the opportunity to cross-examine a witness who did not implicate him in the commission of crimes. Even if procedural fairness would have required that the appellant have an opportunity to cross-examine Person 4 about the events at Whiskey 108, the contents of the rules of procedural fairness are governed by the context in which the question arises. In this case, having raised the privilege against self-incrimination, by operation of the Evidence Act Person 4 could not be questioned about Whiskey 108. There could be no breach of the rules of procedural fairness in permitting Person 4 to claim the privilege against self-incrimination.

513    Particular 16 is in these terms:

The primary Judge erred in finding at J[244] and J[248] that no Jones v Dunkel inference should be drawn from the Respondents’ failure to ask Person 4 whether Person 5 called him a “rookie” in 2009 on the basis of speculation about what Person 4 might have said if asked that question.

514    We have dealt with this sufficiently above.

515    Particular 17 is in these terms:

The primary Judge erred in failing to find that Person 4 had been involved in the engagement of Objective Depth Charger prior to W108 at J[270] and J[274], such that he could not have been a “rookie” during the W108 mission. The primary Judge failed to give any reasons or adequate reasons as to why he rejected the evidence of Person 4 that he had been involved in the engagement of Objective Depth Charger.

516    We have explained above why we do not accept that Person 4 gave evidence of having killed Objective Depth-charger. The primary judge concluded that the perception would not have been that Person 4 had been responsible for the kill. It is apparent from his Honour’s reasons that he was aware, as this Court is aware, of the subtleties in the evidence of Person 4 which the appellant ignores. We do not consider his Honour’s reasons to be inadequate. But even if we were of that view, we are comfortably satisfied that Person 4 did not give evidence that he had killed Objective Depth-charger.

517    We therefore reject each of these challenges. For completeness, we are satisfied that the evidence concerning the blooding the rookie allegation was not only cogently, but in fact powerfully, probative that the appellant and Person 5 had succeeded in having Person 4 kill someone (particular 19) and this is so taking into account the seriousness of the allegation and the presumption of innocence. This in turn is a powerful circumstantial fact supporting Person 41’s evidence that he saw the appellant order Person 4 to execute the old man. This is especially so when neither the fact that Person 4 shot the old man in the courtyard nor the fact that he did so in the vicinity of the appellant is disputed in this Court.

Were the primary judge’s findings in respect of insurgent behaviour in error (particular 12)?

518    The primary judge rejected the appellant’s account that he had engaged the man with the prosthetic leg as he and the old man had run around the northern line of the compound. We have explained the various reasons why the primary judge took this course. which involved questions of physical impossibility (in relation to the old man), the fact that none of the witnesses in the cordon patrol saw the engagement described by the appellant even though it was their job to do so and, of course, the gravely serious credit findings made against the appellant. On appeal, the appellant was explicit that he does not seek to revive his own affirmative case.

519    Among the many reasons the primary judge gave for rejecting the appellant’s case was an observation at J[823] that it was unlikely that two insurgents would have appeared that close to the compound at the precise moment that the appellant said that he walked out of the compound. By particular 12 the appellant now alleges that there was no evidence before the primary judge that allowed his Honour to make such a finding about how insurgents might behave.

520    Particular 12 is in these terms:

The primary Judge found that it was improbable that two insurgents would appear so close to a compound at almost the precise moment the Appellant exited (J[823]). There was no evidence before the Court permitting the Judge to make conclusions about the probable behaviour of members of the Taliban in the moments after their hiding place had been attacked.

521    This allegation goes nowhere. The only point of the finding was as a reason why the appellant’s affirmative account should be rejected. Where the appellant does not now suggest that the primary judge erred in rejecting that affirmative case, the question of whether one of the matters which led his Honour to that conclusion was itself in error, is irrelevant.

522    In any event, there is nothing to the allegation. From J[821] to [844] the primary judge outlined six difficulties he saw in accepting the appellant’s case. The paragraph challenged (J[823]) was the second of these. What the primary judge said was this:

Secondly, it does seem unlikely, although not impossible, that two insurgents would appear so close to the compound at almost the precise instance the applicant walked out. The applicant said in his evidence that the insurgents appeared in a matter of three seconds. Person 6’s patrol was performing cordon duties in the area identified by Persons 14 and 24 and it is unlikely that two insurgents would appear from the direction which was the threat area as far as the cordon was concerned. That would have involved a serious failure of the cordon and it is reasonable to expect that had it occurred, it would have been the subject of comment on the ground or in the post-mission reporting, or both.

523    This finding has nothing to do with the behaviour of insurgents. All the primary judge was saying was that it was unlikely this would occur because of the presence at the cordon and even more unlikely that it would occur at the precise moment the appellant says he walked outside of the compound (by himself). There is no error in that aspect of the reasoning.

524    In his submissions in reply the appellant developed a submission criticising this Honour’s observation that the appearance of the two insurgents in this way would have “involved a serious failure of the cordon and it is reasonable to expect that had it occurred, it would have been the subject of comment on the ground or in the post-mission reporting, or both”.

525    The appellant submitted that this was directly inconsistent with two aspects of the evidence of Person 81. The first was the testimony of Person 81 that, as the troop had not cleared up to Whiskey 109, it was not possible to put in place a complete cordon around Whiskey 108. But this does not mean that the arrival of two insurgents from Whiskey 109 would not have involved a failure by Gothic 4 to detect incoming insurgents. The second was evidence from Person 81 under cross-examination that he would not necessarily have expected the fact that insurgents had made it to within ten metres of the northern end of the compound to have been brought to his attention. But this was because:

Obviously, a range of contacts occur, a range of time and other complicating factors. In the end, my job is coordinating a range of different support mechanisms to enable that action to occur rather than specifically about that tactical manoeuvre inside a compound.

526    The fact that a failure by Gothic 4 to detect two insurgents coming from the north was not something which would necessarily be brought immediately to the attention of the troop captain, Person 81, does not mean that it would not have been the subject of comment on the ground or in the post-mission reporting, or both. The appellant’s submission thus impermissibly conflates what the primary judge said with a different statement that it would have been reported to the troop captain. Once the conflation is recognised, the inconsistency submission must be rejected.

527    For completeness, we should note that in his reply submissions the appellant observed that he “does not accept that the rejection of the account of a legitimate engagement outside the compound means the only plausible explanation for the deaths of EKIA56 and 57 is that described by the Respondents’ witnesses”. It is not clear to us what this submission means in the present context where the appellant is pursuing an argument that the primary judge should not have rejected his evidence on the basis of assumptions about how insurgents behave. It seems not to be concerned with whether that case should or should not have been rejected and more with what flows from its rejection.

528    Particular 12 is not made out.

Further points raised by the appellant

529    In his written submissions in reply, the appellant pursued a submission that the primary judge had reasoned in a fashion which had reversed the burden of proof. He accepted that the primary judge had repeatedly stated that the burden of proof remained from start to finish on the respondents. But he submitted that the primary judge had reasoned inconsistently with that proposition.

530    It is not clear where this submission fits into the appellant’s notice of appeal. On the assumption that it does, however, it must be rejected.

531    The primary judge correctly identified that the burden of proof rested on the respondents from start to finish: “I bear in mind throughout the analysis that the onus of proof remains from start to finish on the respondents” (J[538]); “I must be satisfied to the required level that the respondents’ case is correct” (J[580]); “The only question is whether the evidence of Persons 14, 40, 41 and 24 is capable of discharging the onus of proof” (J[779]); “Insofar as the present submission is that the respondents bear the onus of proof and if the evidence is insufficient to discharge the onus, then the respondents fail, that proposition is undoubtedly correct” (J[789]); “I have considered the applicant’s case and the supporting evidence of Persons 5, 29, 35 and 38. I reject it. Of course, that does not of itself prove the respondents’ case in that the respondents carry the onus throughout” (J[871]).

532    The appellant submitted that the primary judge’s failure to observe his own repeated injunction that the respondents bore the burden of proof was no more evident than in his Honour’s findings concerning the executions of the old man and the man with the prosthetic leg. He set out a series of contentions made by the respondents to the primary judge and recorded by his Honour at J[535], under the heading “The Respondents’ Case as to the Execution of EKIA56”, before proceeding to criticise those contentions. But the submissions made to the primary judge by the respondents are not the primary judge’s reasons so the appellant’s criticisms go nowhere. What would go somewhere is if the appellant had identified some part of the reasons for judgment where it is said that the primary judge had reversed the burden of proof. But the appellant did not identify any part of the reasons to make good this submission. Consequently, there is nothing in this submission.

533    This submission was accompanied by another submission that the appellant “does not accept that either the trial judge or the appellate court is confronted with just two competing versions of events concerning W108”. This was a submission returned to from time to time during the appeal. For example, it was said that the primary judge had erred by overlooking that it was open to him not only to reject the appellant’s case at trial (as he did) but also to reject the respondents’ case too.

534    The difficulty with this submission is the primary judge repeatedly referred to the fact that rejection of the appellant’s case did not entail acceptance of the respondents’ case. Thus at J[580] his Honour observed: “Whilst acceptance of the applicant’s account means that the respondents’ case must be rejected, a rejection of the applicant’s case does not of itself mean that the respondents’ case is established”. Similar statements may be found throughout the judgment: see, for example., J[789] and J[871]. Statements of that kind are difficult to reconcile with an entire section of the appellant’s written submissions in chief entitled “The erroneous excluded middle”. In that section the appellant explains the undoubtedly true principle that rejection of the appellant’s case does not entail acceptance of the respondents’ case. But the submission does not identify any point in the primary judge’s reasons where it is said that his Honour indulged in this fallacy. We are unpersuaded that his Honour did so, especially when he appears to have been at pains repeatedly to remind himself of the principle.

Conclusions on Whiskey 108

535    Grounds 1 to 4 of the notice of appeal must be dismissed.

DARWAN

Introduction

536    Darwan is a village in Uruzgan adjacent to the Helmand River. On 11 September 2012, the SASR and commandos conducted a mission to Darwan, the objective of which was code-named “Jungle Effect”. In 2012 the village was divided in two by a dry creek bed, often referred to by witnesses and counsel alike as a riverbed (nothing turns on the discrepancy). On one side of the creek bed there was a cornfield. On the other, in an elevated area, there were several compounds which the evidence at trial indicated were occupied by subsistence farmers and their families.

537    The mission to Darwan was conducted by a squadron (2 Squadron) which consisted of two troops, G Troop and E Troop. G Troop consisted of tactical headquarters and four patrols known as Gothic 1, Gothic 2, Gothic 3 and Gothic 4. The troop sergeant was Person 26. The appellant was the commander of Gothic 2. The other members of that patrol were Persons 4, 11, 47 and 56. On occasions it was supplemented by others.

538    Person 4 was the 2IC. Person 11 was the scout and the designated sniper and “breacher”. As the scout, his role was to select the safest and most tactically sound routes. Person 56 joined the ADF in 1998 and the SASR in 2009. In 2012 he was a trooper. Person 47, who did not give evidence, was a military dog handler.

539    Person 11 was a good friend of the appellant and had been for a long time (J[1242]). He was one of the witnesses whose evidence the primary judge found was at “significant risk” of contamination from numerous detailed discussions he had with the appellant (at J[2466]). His Honour found that “the irresistible inference” was that he had discussed his evidence at length with the appellant (at J[1235]). Person 11 had been a member of the Australian Army since 2002 and joined the SASR in 2009. He first met the appellant in 2009 when the appellant was an instructor on Person 11’s patrol course.

540    The object of the mission was to capture a former member of the Afghan Partner Force or army known as Hekmatullah, who was believed to be on the run after having murdered three Australian soldiers. Australian soldiers and 18 Afghan Partner Force members were involved in the mission. Four Black Hawk helicopters, two Apache AH64 helicopters, two manned intelligence, surveillance and reconnaissance (ISR) aircraft and one unmanned aerial vehicle (UAV) (a Heron drone) were used as air support on the mission.

541    During the course of the mission several Afghan men were killed by Australian troops. One of them was shot dead in a cornfield. There was no dispute about that. Nor was there a dispute about who killed him. That was Person 11. But there was a dispute about his identity and the circumstances in which he was killed, including, in particular, the legitimacy of the killing. The respondents contended that the man who was killed in the cornfield was Ali Jan Fquir (Ali Jan), a visitor to the village on the day in question, who had been PUC’d and handcuffed. Their case was that the appellant had kicked Ali Jan off a cliff and dragged him along the ground to the cornfield where he was then shot. The appellant claimed that the deceased (dubbed EKIA4) was a spotter for the enemy who had been lawfully engaged in the cornfield. In support of that claim, he pointed to a photograph of the deceased with an ICOM beside him. The respondents’ case, which the primary judge upheld, was that the ICOM did not belong to the deceased and it was a “throwdown”, that is to say it had been placed on the body to make the killing appear lawful.

The pleaded imputations

542    The appellant pleaded that the first and second matters complained of carried the following defamatory imputations:

(a)    The [appellant] while a member of the SASR murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him;

(b)    The [appellant] broke the moral and legal rules of military engagement and is therefore a criminal;

(c)    The [appellant] disgraced his country Australia and the Australian Army by his conduct as a member of the SASR in Afghanistan.

543    The first of these imputations was also pleaded in relation to the third and fourth matters complained of.

544    The burden on the respondents at trial was to prove that every material part of these imputations was substantially true. That did not require them to prove the truth of every detail in the publication. It is enough that the “sting” or gravamen of them is substantially true: see, for example Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; 278 ALR 232 at [138] and the authorities referred to there, cited by the primary judge at J[94]. The primary judge was satisfied that that burden had been discharged.

The particulars of truth

545    The particulars of truth in relation to the Darwan mission are set out in full at J[933] of his Honour’s reasons. It is sufficient at this point to refer to the following allegations.

546    Towards the end of the mission the appellant and a number of soldiers including members of his patrol were clearing compounds at the southeast end of Darwan. In one compound they located and detained (placed under control) three fighting age males. The detention of these men rendered each of them hors de combat (and therefore protected against ill-treatment by international humanitarian law). One of them was Ali Jan. The other two were Person 62 and Person 63 (later identified as Mohammed Hanifa Fatih and Mangul Rahmi). The three Afghan men were handcuffed and questioned. The appellant questioned Ali Jan and Person 62.

547    Towards the end of the interrogation the appellant removed Ali Jan (still handcuffed) from the compound, caused him to be placed at the edge of a small rocky cliff greater than 10m in height, and forced him into a kneeling position. The appellant then took a number of steps backwards before moving towards Ali Jan and kicking him hard in the midriff/abdomen causing him to fall back over the cliff (the cliff kick). He landed in the dry creek bed below. The impact of the fall was so significant that it knocked Ali Jan’s teeth out of his mouth. The inference to be drawn from these actions is that the appellant intended to kill Ali Jan and/or acted with reckless indifference to his life.

548    After Ali Jan had fallen the full height of the cliff down to the dry creek bed, he was moved by two soldiers to the other side of the creek bed where there was vegetation. After he had been moved to that location Ali Jan was shot multiple times in the presence of the appellant and Person 11, a soldier under the appellant’s command. The shots were fired by either the appellant or Person 11 or both.

549    Ali Jan died as a result of injuries sustained from the cliff fall or the gunshot wounds or both.

550    The shooting of Ali Jan was a result of an understanding or arrangement (amounting to an agreement) between the appellant and Person 11, to ensure that Ali Jan was dead following the cliff kick. It follows that the shooting of Ali Jan was carried out pursuant to a joint criminal enterprise and in furtherance of the appellant’s criminal intent.

551    Person 4, a soldier under the appellant’s command and a member of Person 11’s patrol, conducted SSE in which he photographed Ali Jan’s body. During the SSE process, Ali Jan’s handcuffs were also cut off him and “a throwdown” ICOM radio placed next to him in an attempt to make it appear that Ali Jan was a spotter who was killed legitimately.

552    The appellant falsely alleged that Ali Jan was a spotter in a radio communication the same day, in post-mission debriefs and reports, and in his outline of evidence in the proceedings.

553    The killing of Ali Jan was impermissible under the Rules of Engagement and in breach of Article 3 of the Fourth Geneva Convention in that it constituted violence, cruel treatment and murder. The Rules of Engagement were rules relating to the Afghanistan conflict issued by the Chief of the Defence Force to the Chief of Joint Operations. They relevantly defined the circumstances under which ADF personnel were permitted to use force, including lethal force.

554    The appellant’s conduct with respect to Ali Jan constituted murder. Alternatively, the appellant was complicit in and responsible for, the murder.

The witnesses

555    The principal witnesses for the respondents were Persons 4 and 56 and three illiterate subsistence farmers from Darwan who testified as to their observations and experiences on the day of the killing. They were Mangul Rahmi, Shahzada Fatih and his eldest son, Mohammed Hanifa Fatih. For convenience only we shall refer to them by the names Mangul, Shahzada and Hanifa, and collectively as “the Afghan witnesses”. Each of them was born in Darwan and lived there until at least 2021. Each gave evidence in the Pashto language via audiovisual link from Kabul which was interpreted into English by a Mr Shehzad, who was in Ontario, Canada.

556    The evidence about their background and personal circumstances is not in issue. Nor is there a challenge to their evidence about their relationship to, and knowledge of Ali Jan. The primary judge summarised this evidence at J[960]–[1085]. The following account is largely drawn from that summary.

557    Mangul was 40 years old at the time of the trial. His work involved cultivating various crops. His compound was the southernmost compound in the village. There was a guesthouse attached to it.

558    Shahzada was an older man who was unaware of his precise age. He said he could be “60, 70 years. 70 years”. Shahzada was the father of five daughters and 11 sons. He had two wives, one of whom had passed away. Ali Jan was his brother-in-law in that he was the brother of Bibi, Shahzada’s first wife and Hanifa’s stepmother. On the day Ali Jan was killed, Hanifa was living in Shahzada’s house with his father and all but three of his brothers, including Mohammed Shah. Their neighbours were Mangul to the south and Amir Jan Aka (also known as Haji Amir Jan) to the north. Shahzada and Hanifa shared the use of Mangul’s guesthouse.

559    Both Shahzada and Hanifa testified that Ali Jan had lived in the village of Baag (approximately three hours walk from Darwan) and that he was married with three children at the time he died. Both Hanifa and Shahzada said that he kept animals and sold wood. Hanifa said he also cultivated crops. Before Ali Jan was killed, Shahzada would see him every 20 days or once a month. Both Shahzada and Hanifa testified that he had no link to the Taliban.

560    Mangul also knew Ali Jan. He, too, testified that Ali Jan had lived in the village of Baag and was married with children. He knew his brothers and his father. He confirmed that Ali Jan kept animals and collected wood to sell. He testified that Ali Jan was killed at the time of the corn crop. Like Shahzada and Hanifa, he said that Ali Jan had no connection to the Taliban.

561    The appellant denied the allegations made against him and called Persons 11 and 35 to support him. Persons 11 and 35 were close friends of the appellant. Person 11 was a member of the appellant’s patrol. Person 35 was not.

562    At the trial the appellant contended that the Afghan witnesses were liars, who were not where they claimed to have been and were in no position to witness any of the relevant events, and were motivated to give false evidence against the appellant because they hated the foreign troops and regarded them as infidels and/or because they had received financial support from the respondents. That contention is not maintained on the appeal. The honesty of these witnesses is no longer an issue, only the reliability of their evidence.

The evidence

563    Set out below is an abbreviated version of the account appearing in the judgment under appeal. It is not intended to be comprehensive and is provided for context only.

The days before the raid

564    Hanifa testified that in the days before the raid on Darwan during which Ali Jan was killed, the foreign forces distributed letters offering a reward for information about Hekmatullah, whom he did not know. The day before the raid, he and his father saw Ali Jan who told them he had come to Darwan to mill wheat. Ali Jan told them he would be going to “the mountain” the next day and Hanifa would accompany him in order to bring his stepmother Bibi back to Darwan. Mangul said that Ali Jan had brought wheat to his mill.

The day of the raid – early morning

565    The task force travelled by helicopter from the main base at Tarin Kowt. It consisted of 42 Australian soldiers and 18 NDS or Partner Force soldiers.

566    Official contemporaneous documents (the Sametime chat and the Operational Summary or OPSUM) record the following events. There were two “insertions” (also referred to as “turns”) into Darwan, each of which used two Apache helicopters and four Black Hawk helicopters. The SASR were part of Turn 1 (the first to arrive), the Commandos following as Turn 2. The appellant’s patrol left Tarin Kowt for Darwan at 0532DE. DE stands for Delta Echo and signifies local time. At 0547DE, the Turn 1 Black Hawks landed in Darwan.

567    The helicopter carrying the appellant landed at a helicopter landing zone (HLZ) codenamed “Stream 2”. Two other helicopters landed in the vicinity of “Stark 5”, “System 5” or “Stark 7”. The overwatch team landed at the HLZ codenamed “Bottle 3”.

568    Each of the Afghan witnesses began the day with morning prayers. They testified that, during the prayer (Hanifa) or shortly thereafter (Shahzada and Mangul), they saw helicopters arrive in the village. Hanifa said he saw two helicopters followed by four others. That evidence was consistent with the official record of the SASR which shows that two Apaches and four Black Hawks were deployed. Hanifa said that the helicopters passed by his house and three landed near Haji Mohammed Gul’s house, which was COI (compound of interest) 31, where certain items had been found associated with intelligence about Hekmatullah. Mangul and Shahzada said that one helicopter landed on the hillside or mountain. Hanifa said one landed in a different location to the other three near his cousin’s house. This evidence was consistent with the evidence that the overwatch team landed at Bottle 3.

569    On his way to irrigate his fields after morning prayers, Mangul saw Ali Jan and Haji Wali Jan sitting in front of Haji Wali Jan’s mosque. It was at this point that he heard and saw the helicopters and decided to go home. Hanifa then called him and they went to his guesthouse where they sat down together.

570    While they were at the guesthouse, Hanifa and Mangul saw Ali Jan approach from the riverbed with two or three donkeys. (Hanifa said two, Mangul three). Hanifa called out to Ali Jan to wait, saying he wanted to join him, and took one of the donkeys from him in the hope that the foreign soldiers would think they were both nomads. They walked off together. Shortly thereafter, however, Hanifa said that two shots were fired at them from the top of the mountain, which the primary judge identified as the overwatch position (at J[990]). Mangul heard the shots but could not then see Ali Jan or Hanifa. Shahzada saw the two of them and saw soldiers firing at them, which he took to be warning shots not to proceed. Hanifa and Ali Jan then turned around and returned to Mangul’s guesthouse with the donkeys. There they joined Mangul, drank tea, ate melon and engaged in conversation. At this time the sun “came up”.

571    At 0608DE the Turn 2 helicopters left Tarin Kowt for Darwan with the commandos, arriving in Darwan at 0623DE.

572    At about 0610DE, before the arrival of the Turn 2 helicopters, Person 35’s patrol had two engagements in COI 31. That patrol consisted of Person 32 and three or four members of the National Directorate of Security (NDS) (the intelligence agency of the Afghan Government), accompanied on occasion by an interpreter (Person 13). The engagements resulted in the deaths of two insurgents, recorded in the OPSUM as EKIA1 and 2, who were identified by Hanifa and Mangul as Haji Nazar Gul and Yaro Mama Faqir. Four fighting age males were located in a second compound nearby and they were PUC’d. Person 35 said they were taken under the control of his patrol, searched and handcuffed.

The engagement of an insurgent at the Helmand River

573    On landing in Darwan, the appellant’s first task was to patrol the Helmand River. Person 11 identified an insurgent on the other side of the river leaving the target area with a weapon slung over his back. The appellant and Person 11 fired at the man who then disappeared from sight behind some large boulders. The appellant decided to “clear” him, and he and Person 11 looked for a crossing point. As the river was deep, the appellant decided to cross it alone and directed Person 11 to stay behind. The appellant swam across the river and engaged the man, killing him instantly. He became EKIA3. The appellant then lifted up EKIA3 so that Person 4, who was performing the SSE, could photograph him. Several items were recovered from the body of EKIA3. Person 4 said they were an AK-47 rifle, a length of det (detonation) cord and an ICOM radio. Neither the appellant nor Person 11 claimed to remember any ICOM radio and both referred to a box of detonators. The OPSUM refers to the recovery of a rifle (described as a Chicom type 56 assault rifle) and the ICOM radio but not the det cord, one PCD (personal communication device) and two sim cards. The appellant testified that he wrapped all the “equipment” in a dark coloured shawl and swam back across the river (in the direction of the village). He said that “all of the equipment was starting to fill with water, so it was a difficult swim”. He said that when he reached the riverbank all the equipment was given to Person 11 and he and Person 4 joined the rest of the patrol.

574    The appellant’s patrol then moved back to the village where they met the troop sergeant, known as Troop Bravo (Person 26). The appellant said that he gave Person 26 all the equipment that he had taken from EKIA3. Person 4 said that the weapon was handed to the troop sergeant and that the det cord and ICOM were put into an evidentiary bag which was handed over to troop headquarters.

Clearance of the compounds and the killing of “EKIA4”

575    The appellant’s patrol and other patrols moved through the village, searching the compounds and taking prisoners (PUCs) as they went. Person 35 testified that, after he had finished clearing COI 31, his patrol moved north towards a position identified as Stark 1 where he saw the appellant. He noticed that the appellant was “soaking” wet. Person 16 was about two-thirds of the way through the compounds when he noticed the appellant walking by, “drenched from the waist down”. Person 7, whose patrol was the PUC-handling team, saw the appellant at compound 43. He, too, testified that the appellant was wet.

576    Hanifa, who was in front of Mangul’s guesthouse, saw soldiers going through the houses and on the rooftops.

577    All three Afghan witnesses gave evidence about soldiers entering the southern set of compounds looking for Taliban. The primary judge found that the last compounds were likely to have been cleared at about 0930DE, based on the Sametime chat record, which contained a report from the Ground Force Commander that clearances were nearing the limits of exploitation and extraction details were being planned.

578    Shahzada said he saw Mohammad Shah by a wall with his hands tied up. He testified that the soldiers came to his compound asking him, through an interpreter, to show them “the Taliban”. After he had been questioned, he said they left his house and went to Mangul’s house.

579    Hanifa testified that he first saw the soldiers when they were coming from Haji Muhammad Gul’s house, which was to the north of his father’s compound. As the soldiers arrived, he told Mangul to go to his house. He saw a dog and a soldier who pointed a flashlight at him, ordered him to stand up, grabbed him by the neck, and hit his head against the wall at the front of Mangul’s house. The soldiers brought Ali Jan with them and removed his jacket and turban. They tied Hanifa’s hands behind his back. They were both made to stand near the wall. Hanifa then saw Mangul, his hands also tied up, standing by an oven. All three were taken to Mangul’s house. There were soldiers on the ground, on the roof of the guesthouse, and in Mangul’s house. One of the soldiers in Mangul’s house was a “big soldier” whose uniform was wet up “near to his chest” and had “sand from the river” on it.

580    Mangul’s account was as follows. The soldiers were pointing guns at him and unleashed the dog, who bit him on the right thigh. He was then searched. The soldiers said something to the dog and the dog went away. The soldiers tied his hands behind his back, took hold of him by the back of his neck, and then lowered him onto his knees. He was then taken towards the wall in front of the guesthouse where he saw Hanifa and Ali Jan.

581    Hanifa said that he, Ali Jan and Mangul were made to face a wall under a balcony in Mangul’s house. Then a soldier approached Hanifa and interrogated him through an interpreter. He asked him his name, questioned him about whether he was a member of the Taliban, and instructed him to “show me Hekmatullah”. The interpreter took out a pistol and put it to his throat, insisting he was “Talib”. Then he pointed the pistol to his head and hit him with the pistol, threatening to shoot him in the head if he did not show him Hekmatullah. He was also punched by the big soldier with the wet uniform. The same soldier kicked him hard in the upper abdominal area after which he was made to sit near the door.

582    Hanifa testified that at this point the interpreter “brought” Ali Jan. Ali Jan smiled, and the interpreter left. The big soldier said something to Ali Jan. Ali Jan smiled again, and the big soldier kicked Ali Jan really hard causing him to fall on his back and roll down towards the river. Ali Jan’s hands were still tied behind him. He had a good view of Ali Jan because he was less than two metres away from him. After that he heard a shot. He did not see where the big soldier went. The next thing he saw was two soldiers dragging Ali Jan towards a berry tree, holding Ali Jan from his shoulder area. When they reached the berry tree there were “shots everywhere”.

583    Hanifa said that four “planes” then arrived. He said that one landed less than 50 metres away from where Ali Jan was. Hanifa saw the dog go towards the plane and then the soldiers. The OPSUM records soldiers preparing for extraction at about 1045DE, the “engagement” with “EKIA4” taking place at about 1110DE, and the extraction to Tarin Kowt at 1121DE.

584    Hanifa said that he returned to Mangul’s house. Mangul testified that he could see soldiers on the mountain so he asked: “What are you doing?”, adding: “There are still, I can see, two soldiers. They might fire at you”. Mangul said he asked Hanifa where Ali Jan was and he told him that “they” kicked him, he went down to the river, and they dragged him towards the trees. Mangul said he called to his daughter to cut the handcuffs off both of them. Hanifa said that he told Mangul’s daughter to untie him and she asked him: “Don’t you see the planes? Don’t come here”.

585    After their hands were untied, Mangul and Hanifa left the house. Hanifa walked towards the guesthouse and came upon Mohammed Shah who was tied up next to a well in the front of Mangul’s compound. At some point Hanifa was joined by his sister. Mangul walked down towards the riverbed in the opposite direction. He noticed some blood which he marked on a photograph (Exhibit R88, F in photograph 4) at a point at the bottom of the “cliff” (or steep embankment) below his guesthouse. Hanifa and his sister also saw blood at what appears to be the same spot (marked on Exhibit R87 photograph 4 with the letter “I”). The three of them followed the line of blood which led them to a berry tree at the edge of the cornfield where they found Ali Jan, who had been shot. While following the line of blood, Hanifa saw his father approach from the direction of the place Shahzada had identified as Amir Jan Aka’s hut. Hanifa said that there was dust on Ali Jan’s face and beard and he cleaned him up. Ali Jan was lying on his back. Ali Jan’s hands were no longer tied. Hanifa could see one of his hands under his back, the other on the side. He could also see that he had been hit on the right side of his jaw and he had a broken tooth, that he had been shot on the left side of his skull and in the belly. Some of the flesh was missing from his left hand.

586    Shahzada testified that he was at a neighbour’s house when he saw Ali Jan and Hanifa with their hands tied near a wall in Mangul’s compound. He saw “the big soldier” make Ali Jan stand up and kick Ali Jan causing him to fall down to the riverbed near the berry trees where he disappeared from sight. Soon afterwards he heard the sound of gunshots.

587    Person 4 testified that a man with a donkey was found a short distance to the south of the southernmost compound. He said that the donkey had a distinct Afghan rug on it and was carrying baskets full of wood used for cooking. He was searched and PUC’d (though not by Person 4) by handcuffing him behind his back and then placed up against a wall. The donkey was also searched. He said that Person 47, the dog handler, was present at this point. Then Person 4 said that the appellant directed Person 56 to go back to troop headquarters and return with the interpreter. When Person 56 returned with the interpreter, the tactical questioning began. Person 4 said that the appellant was the patrol’s “primary tactical questioner”. He said (without objection) that “[the appellant] had attended a course and had the qualification”. Person 4 said that Person 47 left with Person 56 but did not return.

588    Person 4 remembered seeing another local person in that compound at some point but was unable to say when.

589    Person 56 said he was involved in the clearance of the southernmost compound which belonged to Mangul. He recalled the presence of locals of both sexes there, including fighting age males and children. Hanifa and Mangul both spoke of having to shield the children. Person 56 searched the rooms and provided security for the patrol but did not participate in any interrogation. Nor did he witness one. But he “definitely remembered” that the appellant, Person 4, Person 11 and the interpreter were present. He also said that the dog handler may have been there, too. He confirmed that, when he was in the last compound, the appellant, Persons 4 and 11 and the interpreter were there the whole time. He said there was another member of the regiment there, too, possibly a dog handler, but he could not be sure that that person was there the whole time. Person 56 left the compound, taking the interpreter with him, after either the appellant or Person 4 “tasked” him to do so “and head to an area to select and/or provide security for a helicopter extraction site”. He said at one point during that task another regiment member joined him. He estimated that it was about 30 minutes between the time he left the compound and the time he was extracted by helicopter from Darwan. He did not hear any engagements while he was at the extraction site (Eurodos 1).

590    Person 4 said that after the call for extraction the appellant directed Person 56 to take the interpreter back towards the troop headquarters element and he watched the interpreter leave. A short time later Person 4 saw Person 11 holding by the right shoulder a PUC whom he identified as the man who had arrived with a donkey. Behind the PUC was a large slope. At the same time Person 4 noticed the appellant. He saw the appellant walk to a position about three to four metres away, turn around, walk forward, and kick the person under control in the chest causing him to “catapult” backwards, fall down the slope and strike a large rock. He said that a number of his teeth were knocked out, including his front teeth. He was shocked by what he saw.

591    Person 4 followed the appellant and Person 11 as they moved to a track system leading to the creek bed where the person under control was lying, with his hands still cuffed. The man tried to sit up but fell down again. Then the appellant directed Person 4 and Person 11 to grab the man and start to drag him. Persons 4 and 11 dragged the man across the creek bed to a large tree where they put him down. Person 4 moved about four or five metres away. The appellant and Person 11 had “a quick conversation”. Person 4 turned around. At this point he saw the man they had dragged to the tree standing up with his hands still cuffed. Person 4 looked away again. He was trying to locate Person 56. Then he heard a “number of shots… two to three rounds” ring out. From the sound of the shots, he identified the weapon as an M4, which was the standard primary weapon system carried by the patrol, and the weapon that the appellant and Person 11 were both carrying. Person 4 turned around again and saw Person 11 with his rifle raised to his shoulder and the appellant to his rear by the large tree.

592    Person 4 said that the appellant asked him to grab the camera. The SSE process then took place. Person 4 gave the camera to Person 11 who took photos. Person 4 noticed an ICOM radio positioned next to the body of the person under control. He had not seen it on him before. He saw that the ICOM was “slightly wet” and the screen was fogged up. Person 4 did not remove the man’s handcuffs but believed they were removed during the SSE process.

593    The Afghan witnesses went looking for Ali Jan, following the route of his fall, and found him dead in the cornfield. They each identified him from photographs taken during the SSE. The photographs depicted him with an ICOM radio on his chest. They all said they had never seen him with a radio. In cross-examination Hanifa denied that the man in the photograph was Amir Jan. He testified that Amir Jan was an old man from Ruyan who had been killed elsewhere, in Gawmurdeh.

594    Hanifa testified that Ali Jan was buried in the graveyard together with two of the other three men killed in Darwan that day. The exception was EKIA3, who he identified as Mula Gafur.

595    The appellant’s account of these events was very different.

596    The appellant and Person 11 testified that there were no fighting age males in the southern set of compounds. The appellant claimed they were empty. Person 11 said he did not recall whether he came across any women or children. The primary judge did not accept their evidence about the absence of Afghan males in the southern set of compounds. His Honour found that the patrol found at least Ali Jan, Hanifa and Mangul in and around the southernmost compound.

597    The appellant claimed that during the clearance of the middle set of compounds he received a call from the troop sergeant saying they wanted the interpreter back at the PUC holding area and gave orders to Person 56 to take him back to the sergeant. Person 56 said that he remained with the appellant’s patrol down to the clearance of the southernmost compound and when he left the rest of the patrol he did so on the order of the appellant or Person 4 and took the interpreter with him. Person 11 stated that the interpreter did not remain with the appellant’s patrol to the end of the clearance and, although he could not be precise, his recollection was that Person 56 and the interpreter left in the vicinity of the southern set of compounds. The primary judge did not accept this evidence either. He found that the three men were detained and questioned at least by the appellant through an interpreter. That finding is not challenged.

598    In his opening submissions, Mr McClintock QC, lead counsel for the appellant at the trial, said that after EKIA3 was killed the appellant grabbed his body, “probably not too gently” and “dragged it down to the river where he sat it up so that photographs could be taken for facial recognition purposes”. Later that day, following a short adjournment, he told the Court that “[i]t’s a more complex situation than that” and that what the appellant did was to “roll the insurgent down the slope”, sit him up, and kick or push him with his boot. The appellant subsequently testified that he put his foot on the back of the corpse and pushed it down the embankment to the base. No such account appeared in the appellant’s outline of evidence filed in July 2019. In his opening senior counsel postulated: “Whether that had a knock-on effect to other events that day or perceptions of other events that day is a matter that can wait till later”.

599    The appellant’s account was not supported by any of the other witnesses. The primary judge said that, if he had pushed the body down the embankment with his foot, “one would assume that at least one of Persons 4, 56 or 11 would have recalled the event” but each of them testified that they did not see it. In cross-examination Person 4 denied it was possible that, when he heard the appellant saying “I kicked the cunt off a cliff” or words to that effect, the appellant was referring to the engagement at the Helmand River.

600    By final submissions this version of events was abandoned. The primary judge held that it was a lie “with a view to possibly explaining evidence from witnesses which might otherwise seem unfavourable to him” (at J[1234]).

601    The appellant’s account of the death of EKIA4 was described by the primary judge at J[1063]:

The applicant said that after his patrol had received the call that it was time to move to the HLZ, the applicant moved from the end of that building set down into the creek line itself and in single file, they moved across the creek line heading towards the large open area between the two sections of green. He said that they moved across the river (i.e., the dry creek bed) in single file and started to move up the embankment. The order of march was Person 11 followed by the applicant followed by Person 4. Person 11 made his way up. The applicant started to move up the embankment and he does not recall whether Person 4 yelled “we’re definitely firing” which drew his attention and made him move up there to support him. It seems from all of the applicant’s evidence that this reference to Person 4 is an error and that the correct reference is to Person 11. The applicant said that as he got there, Person 4 and the applicant started to engage an individual which was effectively going down or was down. The applicant fired three or five rounds in the vicinity of that into the individual as well. He saw dust and strike on the ground around him suggesting to the applicant that his bullets were hitting him or very close to him. The applicant said at that point the patrol had identified that the individual, or Person 11 had identified that the person, was a spotter. On searching the individual, they found an ICOM radio. They said that in addition, because of the tactics, techniques and procedures (TTPs) of the enemy at that time, the patrol knew that people, particularly at extraction, hiding in corn or moving around in cornfields or thick areas of vegetation were likely to be a threat. The applicant said that in 2012, spotters had stopped trying to hit the Force Element on insertion and had focussed on trying to hit them as they were leaving. The applicant further said, in addition, that it was not the normal pattern of life for local nationals to sit in the corn. He said that even if they were frightened, what they would typically do is come out and get on their haunches and sit on the edge of cornfields or somewhere where it is open. They did this to indicate that they were not Taliban or members of the enemy force. Local nationals do not run because they know the potential of what will happen if they do.

602    The appellant said that Person 11 “engaged” the “spotter” and then he also “engaged” the “spotter” to “support” Person 11’s engagement. He said that the patrol had no PUCs with them when he was in the last compound and denied having handcuffed a PUC in that compound. The appellant said that once the engagement had taken place, he learned that the helicopters were only three minutes away and he “made a radio transmission” to the troop commander saying that they had “one EKIA” and had “engaged a spotter in the cornfield”. Person 7 gave evidence that he heard a number of shots, probably about two or three, and then the appellant’s voice coming over the radio reporting on the killing in the same terms.

603    In his evidence in chief the appellant testified that they found an ICOM on the EKIA when they searched him. In cross-examination he first said it was on his body but then said it was actually “on the ground”, “effectively, underneath him”.

604    Person 11 corroborated the appellant’s account.

605    Person 4 testified that on return to Tarin Kowt, following the troop debrief, the appellant said to Persons 4, 11 and 56 words to the effect that “[t]he story is that we engaged a spotter whilst moving to our HL[Z]”. Person 4 also testified that, following the mission, and while he was still at the base in Tarin Kowt, he saw a drawing on the whiteboard of a winged penis kicking an individual off a cliff. Person 35, whose evidence was generally not accepted (J[1285]) admitted to drawing winged penises on the whiteboard on several occasions but denied drawing or seeing a picture of a winged penis kicking a PUC off a cliff. Person 56 testified that, in the ready room in Tarin Kowt, in the absence of the appellant, either Person 4 or Person 11 told him that an individual had been kicked off a cliff and later shot. Person 11 denied that either conversation took place.

Reports about the appellant’s conduct

606    There were a number of reports about the appellant kicking a detainee off a cliff in Darwan all ultimately sourced to Person 4. Person 4 said he told Person 7 and Person 18 that the appellant kicked a PUC off a steep slope. He said his best recollection was that he told Person 7 in around late 2016. When asked whether he remembered when he told Person 18, he replied:

I would say – I would only be speculating, but I would say it would be about around the same time.

607    Both Persons 7 and 18 testified that Person 4 had reported it much earlier. The appellant insisted that Person 4’s evidence was unreliable but did not submit that he was dishonest. He relied on the fact that there was no reference to the incident in Mr Masters’ notes of conversations with Person 7 in late 2015 and early 2016 and evidence from Person 100, who was the regimental sergeant major in 2013, that no complaint about it (or any war crime) was raised at two meetings in 2013 although many other complaints had been made about the appellant.

The reasons of the primary judge

608    The primary judge accepted the evidence of Person 4, except in certain respects in which he found him to have been mistaken or his memory to be “faulty” (at J[1365]). His Honour rejected the notion that any of his evidence was driven by ill-will or professional jealousy (at J[1365]). He found that his evidence was corroborated in material respects by the evidence of the Afghan witnesses, particularly Hanifa (at J[1367]). He also accepted the evidence of Person 56 (at J[1366]). He rejected the evidence of the appellant and his witnesses, finding that they had all lied.

609    The primary judge rejected Person 11’s account of events at Darwan for three reasons (at J[1283]). The first was that he accepted the respondents’ case which necessarily meant that he did not accept his version. The second was that the account involved a number of improbabilities of the type he identified in the appellant’s account. The third was that there were 13 areas or topics in relation to which he either did not accept Person 11’s evidence or considered his evidence should be “noted in light of other evidence” (at J[1265]–[1282]). None of those findings is challenged on the appeal.

610    The improbabilities his Honour identified in the accounts of the appellant are set out at J[1233] of the judgment:

[T]here are a number of improbabilities in the applicant’s account of events, including the following:

(1)    that Person 56 would be away from the applicant’s patrol for one and-a-half hours or more;

(2)    that Person 47 and the military working dog would not be with the applicant’s patrol during the clearance of the southern set of compounds; and

(3)    that a spotter either entered the cornfield during the mission and was not observed, or remained undetected in the cornfield for the duration of the mission which was a period of over five hours. In this regard, I refer, in particular, to the closed Court reasons (at [77]–[81] and [89]–[90]).

611    His Honour proceeded to make the following findings (at J[1368]):

(1)    The interpreter was not sent back before the southern set of compounds were cleared;

(2)    The applicant’s patrol consisting of the applicant, Persons 4, 11, 56 and 47 and an interpreter cleared the last two compounds;

(3)    Shahzada Fatih was detained in his compound and later sent to the hut next to the HLZ;

(4)    The patrol found at least Ali Jan, Mohammed Hanifa and Mangul Rahmi in and around Mangul Rahmi’s compound which is the southernmost compound;

(5)    Those three men were detained (handcuffed behind their back) and questioned by at least the applicant through an interpreter;

(6)    Individuals were asked whether they, or the people they were with, were Taliban and as to the whereabouts of Hekmatullah. Some physical force was applied to one or more of the three individuals. The precise details are unclear on the evidence and, in any event, the precise details are not essential to a conclusion upholding the respondents’ case with respect to Darwan;

(7)    At a point in time, Person 56, the interpreter and Person 47 left the area in and about Mangul Rahmi’s compound. Person 56 and the interpreter may have left at a different time than Person 47;

(8)    Shortly prior to the extraction from Darwan, Ali Jan, who was handcuffed at the time, was taken to a position near Mangul Rahmi’s compound adjacent to a small cliff to the dry creek bed below or a steep slope to the dry creek bed below. He was held by the shoulder by Person 11 and facing the applicant. The applicant took some steps back and then moved forward and kicked Ali Jan off the small cliff or steep slope into the dry creek bed below;

(9)    Ali Jan injured his face and teeth in the course of his fall from the small cliff or steep slope;

(10)    At the applicant’s direction or order, Persons 11 and 4 carried the injured and handcuffed Ali Jan from the position at which he had fallen to a cornfield on the opposite side of the dry creek bed;

(11)    Ali Jan was placed on the ground. The applicant and Person 11 conferred briefly. Person 11 shot Ali Jan who at that point was standing and still handcuffed. The applicant was only four or five metres away at that point. I infer that the applicant and Person 11 agreed that Ali Jan would be shot;

(12)    An SSE process was subsequently performed in relation to Ali Jan and, during that time, the handcuffs were removed and an ICOM radio was placed on Ali Jan’s body by either the applicant or Person 11. That was done before photographs were taken;

(13)    The applicant falsely reported that Ali Jan was a spotter who had been engaged in the cornfield. The applicant continued to report falsely that Ali Jan was a spotter who had been engaged in the cornfield; and

(14)    After the troop debrief, the applicant advised Persons 4, 11 and 56 that the story was that they had engaged a spotter in the cornfield. In the absence of the applicant, but in the presence of Person 11, either Person 11 or Person 4 advised Person 56 that during the mission a man had been kicked off a cliff and subsequently shot.

612    Having made those findings, his Honour concluded at [1369] that the appellant was party to an agreement with Person 11 to murder Ali Jan, and Ali Jan was murdered in accordance with the agreement captured by ss 11.2A and 268.70 of the Criminal Code or that the appellant aided, abetted, counselled or procured Person 11 in the murder of Ali Jan within the meaning of ss 11.2 and 268.70 of the Criminal Code.

The issues on the appeal

613    The appellant alleges that the primary judge erred in finding that he kicked Ali Jan off a cliff, that he and Person 11 agreed that Ali Jan would be shot and that Person 11 then shot Ali Jan, and that the appellant murdered Ali Jan. The alleged errors are the subject of 11 particulars.

614    Broadly speaking the issues raised by the notice of appeal are whether the primary judge fell into appealable error by:

(a)    placing significant weight on the evidence of the Afghan witnesses when it was unreliable for various reasons (particular 20);

(b)    rejecting the account of a legitimate engagement in “the official contemporaneous records” (particular 21);

(c)    failing to “sufficiently consider” an alleged inconsistency in the evidence of Person 4 concerning the ICOM in assessing Person 4’s overall reliability (particular 22);

(d)    failing to accept the evidence of Person 100 that no complaints had been made concerning war crimes at meetings in 2013 and speculating as to the reasons for his evidence (particular 23);

(e)    finding that there was a high probability that, if there had been a spotter in the cornfield next to the helicopter landing zone, it would have been detected by the aerial scanning in the absence of expert evidence and when there was evidence that “scanning assets” had failed to detect insurgents on previous missions (particular 24);

(f)    failing to give sufficient weight to the practice of the SASR to photograph and record PUCs and then release them or take them back to Tarin Kowt for questioning and the absence of such a record or photograph of Ali Jan, Mohammed Hanifa or Mangul Rahmi to corroborate the claim that they had been placed under control during the mission (particular 25);

(g)    taking into account the findings about the murders at Whiskey 108 and the pre-deployment training to infer that the appellant had a tendency to execute persons he thought were or were likely to be Taliban (particular 26);

(h)    finding that the appellant’s motive for killing Ali Jan was that he would execute persons he thought were Taliban or likely to be Taliban when it was not put to the appellant and the respondents’ case was that Ali Jan was a farmer and not a member of the Taliban (particular 27);

(i)    taking into account the findings in relation to pre-deployment training to infer that the appellant had a tendency to use “throwdowns” to conceal an unlawful kill (particular 28);

(j)    making adverse credit findings about Persons 11 and 100 on the basis that because they were unreliable witnesses about some specific matters they were unreliable about all matters relating to Darwan (particular 29); and

(k)    failing to properly apply s 140 of the Evidence Act and the principles in Briginshaw at 362 (particular 30).

Did the primary judge err by placing significant weight on the evidence of the Afghan witnesses when it was unreliable (particular 20)?

615    In particular 20 the appellant alleges that the primary judge placed significant weight on the evidence of the Afghan witnesses, “including particularly relying on their evidence as corroborating the account of Person 4”, citing J[1176], [1187] and [1367], “when the evidence of those witnesses was not reliable to provide any corroboration”.

616    The primary judge accepted that there were some problems with the evidence of the Afghan witnesses and he took those problems into account in deciding what weight he should attach to that evidence and the findings he should make. We deal below with the particular ones pressed on the appeal. It is sufficient to observe at this point that for reasons his Honour gave in both his open court and closed court reasons he considered it was necessary to scrutinise their evidence carefully. Having done so, however, he accepted “the key aspects” of it (at J[1176] (Hanifa), J[1186–7] (Mangul) and J[1200] (Shahzada)).

617    At J[1176] his Honour said:

For the reasons set out in the closed Court reasons and the reasons set out above, the evidence of Mohammed Hanifa must be scrutinised with care. However, as I will explain in more detail later in these reasons, I accept the key aspects of Mohammed Hanifa’s evidence because it forms part of a strong, consistent and coherent body of evidence called by the respondents, including the other Afghan witnesses and Persons 4 and 56. Even if one discounts the consistency and coherence with the other Afghan witnesses on the basis that they have discussed their recollections with each other, the strong consistency and coherence with the evidence of Person 4 and, to a lesser extent, Person 56, is evident.

618    At J[1186] his Honour said:

As with the evidence of Mohammed Hanifa, Mangul Rahmi gave evidence that could only have been given by someone present on the day or a person who had spoken to someone present on the day and memorised the details with respect to the following matters:

(1)    that helicopters passed by and one helicopter went to the hillside;

(2)    the location of the soldiers on the top of the mountain;

(3)    the presence of the interpreter, the dog and the big soldier;

(4)    that the soldiers in the overwatch position were picked up last. In this regard, I refer to the closed Court reasons (at [91]); and

(5)    that he correctly identified the location of the body in the cornfield.

619    At J[1367] his Honour said:

Person 4’s evidence is corroborated in material respects by the evidence of the Afghan witnesses, particularly Mohammed Hanifa. I have no doubt the Afghan witnesses were present in and around the compounds on 11 September 2012. There is no evidence of any communication between Person 4 and the Afghan witnesses or any suggestion that they had some form of common motive to fabricate a story to harm or injure the applicant. I accept the evidence of the Afghan witnesses.

The specific allegations

620    The appellant submitted that the evidence of the Afghan witnesses was unreliable for a number of reasons. He pointed to:

(a)    “discrepancies” in the evidence of Mangul and Hanifa dealt with in CCJ[106]–[108] and CCJ[112]–[133];

(b)    an alleged inconsistency between the evidence of the Afghan witnesses and the evidence of Person 4 about the number of people in the southernmost compound;

(c)    an inconsistency between the evidence given by Hanifa and Shahzada on the one hand and Persons 4 and 56 on the other about the number of soldiers in the southern compounds and in a position to see Ali Jan being kicked off the cliff;

(d)    evidence that was inherently improbable and/or inconsistent with SASR practice about the firing of shots from aircraft; three soldiers firing into the air at or about the time Ali Jan’s body was dragged across the riverbed; about “the big soldier” firing shots as he came down “the mountain” and speaking Pashto; and Shahzada seeing Ali Jan kicked off a cliff from 250 metres away despite Shahzada’s allegedly poor eyesight;

(e)    “speculation” by the primary judge about the explanation for the evidence the Afghan witnesses gave about seeing and hearing shots fired from aircraft (at J[1169], [1181] and [1195]);

(f)    the failure of the primary judge to advert to the possibility that many of the details the Afghan witnesses described and upon which his Honour relied as corroboration could have been drawn from other raids on Darwan; and

(g)    the failure of the primary judge to give sufficient weight to the motives the Afghan witnesses had to lie or which might at least have affected the reliability of their evidence, namely their hatred of “infidels” and the financial support they had received from the respondents’ agent (J[1174], [1184]).

621    The appellant submitted that the primary judge ignored or understated the significance of “discrepancies” in the evidence of the Afghan witnesses and failed to undertake a holistic analysis of their evidence in order to assess its reliability.

Some general observations

622    The appellant also complained about the adequacy of the primary judge’s reasons. He submitted that it was not sufficient to say that discrepancies or inconsistencies are taken into account; it is also necessary to decide whether what a witness said is correct or not. It is convenient to deal immediately with this complaint.

623    No ground of appeal and no particular to any ground raises a complaint about the adequacy of the reasons. The complaint is therefore irrelevant. The appellant sought to make it relevant by suggesting that there is some connection between the way the reasons are expressed at times and the cogency of the evidence. The connection is difficult to understand.

624    That can be seen in the following part of the argument which followed submissions about evidence from the Afghan witnesses that the interpreter was armed and that he assaulted them with his pistol, when the appellant and three of his witnesses— Persons 32, 35 and 42 (none of whom was said to be in the relevant compound at the relevant time) — gave evidence that interpreters were unarmed; Persons 7 and 31 were not asked whether the interpreter carried a pistol; and Person 56’s role was to protect the interpreter. The appellant contended that the evidence of the Afghan witnesses that the interpreter had assaulted them with his pistol was, in effect, fanciful — despite the fact that a photograph of the interpreter was tendered in evidence (Closed Court Exhibit R231) showing him with a pistol strapped to his belt.

625    After Kennett J asked counsel whether his Honour discussed this matter in the judgment, counsel responded in this way:

MR WALKER: No. No, your Honour, no. Now, may I put this – I hope fully; of course his Honour is concerned and expresses that with discrepancies between the evidence of – in this aspect of the case particularly – some Afghans or you can even lump them together – the Afghans and others. So, yes, that general area of concern is found in a number of important parts of the reasons, but the answer is no to the question, “What does it say about the reliability or plausibility of the evidence of those two?” Because there is two witnesses saying this, and no, that there is none of the consideration that we say has to arise. Or to put it another way, noting a discrepancy or inconsistency is not sufficient reasoning – and this comes somewhat to the duty to give reasons, Fox v Percy point, but only tangentially – that, in itself, is not sufficient reasoning, coupled with the next sentence commencing with the word, “notwithstanding”, “but” or “however”, to explain how evidence given affects the question of sufficient cogency of the case upon which the onus is borne.

And where that cogency is going to be very largely informed by matters of reliability, then, in our submission, it’s a cardinal point of method that you cannot start by identifying those propositions factually which support the facts on which the onus is borne, and therefore, discarding as less reliable those aspects of evidence that do not accord with those probanda – those desirable facts to be proved. And, of course, his Honour never does that in terms, but for the loser reading the reasons, in the absence of any other explanation, that is obviously a concern, but for our part, as counsel for the appellant, our point is simply this. The reasons don’t contain consideration of this matter, and therefore, there is another accumulated deficiency in the way in which the section 140 Briginshaw satisfaction is reached.

626    And again, in connection with a submission about the evidence given by Hanifa of seeing three soldiers shooting in the air, counsel was critical of the primary judge’s statement that “it is a matter to be taken into account” but “[a]t the same time, the situation must have been a very frightening and fast-moving one from Mohammed Hanifa’s perspective”. He argued:

Now, that’s not consistent with the version given by Person 4, it’s not corroborated by any of the soldiers, and it is inherently unlikely that soldiers would be shooting in the air, bearing in mind the risks that bears, as opposed to an aimed shot. At 1163, with respect to that, we would say, anomalous version – anomalous, not meaning it can be discarded, but meaning that when it is taken into account it will tend to detract, rather than not affect the cogency of the case as a whole – his Honour says, at 1163, that it’s to be taken into account, which, as your Honours know, we say is just the beginning of an exercise, and we think, with respect, that the reasoning in that paragraph is to say implicitly either it is not right, or it may not be right, and a reason-query-excuse for that being so is that the situation must have been very frightening and fast-moving.

… What we say about 1163 is that we think that’s where we find the reasoning of the judge a la section 140 of [sic] Briginshaw concerning what, if anything, that inconsistency between Afghan evidence and what I will call soldiers’ evidence says generally, but you start by asking, “Well, what – is the evidence correct?” Now, I mean correct, rather than honest.

If it’s correct, it obviously says something different about the soldiers’ evidence, it would cast – inconsistencies are capable mutually of casting doubt on the inconsistent integers in the overall picture, and therefore, there needs to be … there have to be criteria for selection for that which is, for the point in question, better than the other. And then, is it sufficiently better than, so as to inform generally the overall conclusion with the requisite cogency?

627    There is no reason to suppose that, when his Honour said he was taking a matter into account, he did not in fact do so or that he did not stand back and ask himself what to make of the evidence of the Afghan witnesses where it was said to be implausible or inconsistent with other evidence. While an inherently unlikely event or inconsistencies in the evidence could detract from the cogency of the evidence as a whole, that does not necessarily follow. When the reasons are fairly read, it is apparent that his Honour was satisfied that, despite some difficulties with aspects of their evidence, it corroborated Person 4’s account in material respects. We are of the same opinion, for reasons given below.

628    Before addressing the sub-particulars, it is also important to say something about the approach taken to the evidence of the Afghan witnesses during the trial, which differs from the approach taken on the appeal.

629    The attack on the Afghan witnesses at trial was ferocious. They were repeatedly accused of lying and fabricating evidence.

630    It was put to Hanifa, for example, that his evidence that his brother, Mohammad Shah, had been handcuffed and placed near the well on the day of the raid was “a straight-out, bare-faced lie” and that he had fabricated everything he had said about the presence of his brother in Darwan that day. That line of attack was irreparably undermined at the trial by evidence adduced in closed court. It was also put to him that his evidence that he did not believe or know that Hekmatullah was in the village that day was knowingly false. It was put to him that it was not true that he saw three soldiers shooting in the air and that he had “simply made that up”.

631    Hanifa was said to have lied about hearing gunshots that day and seeing Ali Jan taken to the berry tree. It was put to him that he could not remember what Ali Jan looked like (although his evidence was to the effect that Ali Jan was his step-uncle and he had a fair degree of contact with him over the years); that on the day of the raid he never saw any soldiers at Mangul’s compound or his father’s; that he never saw a dog that day; that he never saw an interpreter in his compound, Mangul’s compound or nearby, and that neither he nor any members of his family were in the southern compounds that day.

632    Indeed, it was put to him that everything he said about the events on the day in question was a fabrication. It was also put to him that he knew that the only way he would receive compensation was by giving the particular “version” of events the subject of his evidence and that the reason he had said that the man he called Ali Jan was not “Talib” is that he knew he would not get compensation if he were “a Talib”.

633    Similarly, it was put to Mangul that he had “made up everything” he had said about the events on that day; that neither he nor his family were present in the compounds at the time the soldiers arrived; that he did not see a big soldier or a dog that day; and that the man he saw in the cornfield was not Ali Jan.

634    It was put to Shahzada that he had “made up” his evidence that he saw Hanifa and Ali Jan outside the guesthouse and that a soldier told him in Pashto that he should not move. It was also put to him that he had made up “this whole story about the big soldier coming to the hut”. And it was put to him that he did not see any soldiers on the day he claimed that Ali Jan had been martyred.

635    As we have already observed, however, on the appeal no challenge is made to the honesty of any of the Afghan witnesses. Their evidence is said to be unreliable for other reasons.

636    In oral argument, Mr Walker SC submitted that, even if the ICOM shown in the photograph of the corpse of the man killed in the cornfield had been placed on the body by a soldier, it is not cogent evidence that the killing was illegitimate for it might simply have been used to divert any inquiry into the legitimacy of a lawful killing.

637    That submission must be rejected. The respondents’ case that the killing was unlawful was answered by the appellant and Person 11 giving evidence that the man in the cornfield was a spotter and that they knew he was a spotter because he was carrying an ICOM. Person 11 said he saw it. The appellant did not suggest that the killing was a dreadful mistake or that the deceased was lawfully killed and the ICOM was planted on the body. Neither hypothesis was put to the primary judge. Nor is either reasonably available.

638    On the case run below, the man killed in the cornfield was either an innocent Afghan villager who had come to Darwan with his donkeys, was kicked off a cliff by the appellant and then dragged to the cornfield where he was shot or he was a spotter who was hiding in the cornfield. He could not have been a spotter unless he had a communication device. As senior counsel for the respondents, Mr Owens SC, argued, there was no dispute that Person 11 fired the shot that killed the deceased, no dispute about the weapon he used, and no dispute about where he was killed. Apart from his identity, the only dispute concerns the immediate circumstances that led to his death. As Mr Owens put it:

So it’s not – if all one had was a body in a cornfield with a bullet wound, one can imagine an enormous number of hypotheses. It could have been a Taliban bullet. It could have been suicide. It could have been any number of misfortunes, it could have been – who knows? But once every witness to the killing comes to court and gives evidence, two of them come along and say, “He was a spotter in the cornfield wielding a radio and we shot him.” The other one comes along and says he was a prisoner who had been kicked off a cliff and dragged into the cornfield and executed. There is no third hypothesis that’s available on the evidence, or, as we say, if it’s available, it must be a probability that is so low that it cannot possibly affect the outcome of the case when the standard of proof is balance of probabilities.

639    While the respondents carried the burden of proving that the killing was illegitimate, they were not required to exclude a hypothesis that was never raised. Even in a criminal trial where the prosecution relies on circumstantial evidence, the burden of proof does not extend to excluding all conceivable hypotheses As in Baden-Clay, the evidence given in the present case by the appellant “narrowed the range of hypotheses reasonably available upon the evidence as to the circumstances of the [deceased’s] death”: Baden-Clay at [54]. As in Baden-Clay, not only did the appellant not give evidence which might have raised the posited hypothesis, the evidence he gave was capable of excluding it: Baden-Clay at [54]. As in Baden-Clay, “[t]he issues and available lines of argument to be pursued were narrowed by the way the case was conducted at trial” (Baden-Clay at [63]) and the hypothesis identified by Mr Walker was not open.

640    We will now deal in turn with the allegations of error raised by, and particularised in, the notice of appeal.

Was insufficient weight given to discrepancies in the evidence of Mangul and Hanifa?

641    The first allegation the appellant makes is that the primary judge accorded insufficient weight to the discrepancies in the evidence of Mangul and Hanifa. The allegation is exclusively concerned with certain paragraphs of his Honour’s closed court reasons and addressed in closed court submissions. Consequently, we deal with it in our closed court judgment. For the reasons given there, the answer to this question is no.

Was no or insufficient weight given to a material inconsistency between the evidence given by the Afghan witnesses and Person 4?

642    The second allegation is that the primary judge accorded no, or insufficient, weight to a material inconsistency in the evidence of the Afghan witnesses and Person 4. As the appellant put it, on the one hand, according to Person 4, the southernmost compound had been empty until a man arrived on a donkey, and at some point after that a second fighting age male was placed under control (J[1033], J[1041] and J[1047]). On the other hand, according to the Afghan witnesses, multiple persons including Hanifa, Mangul, Ali Jan and women and children had been present (J[1036]-[1039]). The appellant asserted that Person 4’s evidence was that, at the time the man with the donkey arrived and was PUC’d, no other local national was present. The appellant submitted that the inconsistency in the evidence concerning Ali Jan’s arrival makes the evidence of Mangul and Hanifa “simply impossible”.

643    In oral argument Mr Walker SC raised another allegation concerning an inconsistency between the evidence of Person 4 and the Afghan witnesses (that the former testified that Person 11 was holding the PUC at the time of the kick whereas the latter omitted any reference to his or another soldier’s involvement). But this matter is beyond the scope of the pleaded allegations as particularised and therefore need not be addressed.

644    The assertion that Person 4 testified that, at the time the man with the donkey arrived and was PUC’d no other local national was present is based on a misrepresentation or mischaracterisation of Person 4’s evidence. Person 4 did not testify that no “local nationals” were present at that time. When asked in examination in chief whether he recalled any other “local individuals” at this point, Person 4 replied “No”. Senior counsel for the respondents asked him whether he “positively remember[ed] there was only one, or [he] just [did not] remember whether there were others”. His answer was not to the point. He replied: “Well, I still – I remember that initial individual that we came into contact, but I’m unsure of basically what happened to that individual post – post running into them, basically.” The topic was not explored further in examination in chief. In cross-examination he was asked whether there were any “fighting age males” in the guesthouse. His answer to that question was that he could not recall. He confirmed, when asked by Mr Moses SC for the appellant, that the effect of his evidence was that he “[did] not have a recollection one way or the other”. At no point was Person 4 asked whether women and children were present in the southernmost compound.

645    Nor did Person 4 give evidence that the southernmost compound had been empty until the arrival of a man with a donkey. Person 4’s evidence was that a man with a donkey was found during the clearance of the last compound. That is crystal clear from the transcript of his evidence.

646    In response to a question about what he recalled of that clearance, he replied:

As it was identified as the last compound, Ben Roberts-Smith, Person 11, got to the compound wall, or the entrance, first. And as we went through and cleared it, there was — the timeline is a bit rough, but potentially there was an individual at that point located.

647    Person 4 was then asked to indicate on a photograph where the individual was located and he identified a spot where the ascending track terminated into the compound (that is, at the southern end of the guesthouse). He marked the point with a dot and the letter E. In response to a question whether there was anything in particular he remembered about the individual, he replied:

That individual had an animal with him, like a donkey. The donkey itself had a distinct Afghan rug on it, a red designed rug. And there were baskets on that donkey that was full of wood for them to use for cooking.

648    He proceeded to give evidence about the man with the donkey being PUC’d, explaining:

PUC is “person under control”. That individual is restrained, searched bodily for items of – that could provide dangerous for our callsign. Also, you know, intelligence. There may have been some form of intelligence on him, as well as the donkey was searched. Historically there has been movement of high explosive weapon systems on donkeys. So that was a prime focus of clearance as well.

649    Person 4 said that he did not PUC the man with the donkey and he could not remember who did. It is apparent from his evidence that he did not see that process take place. But he did see that he was handcuffed to the rear, that is, with his hands tied behind his back, and placed up against a wall. Hanifa’s evidence was not inconsistent in this respect.

650    Person 4 did go on to say that, at the time the man with the donkey was restrained and handcuffed, he did not remember any other locals being present but he did recall a second local in the end compound “at some stage”, although he could not remember when.

651    In cross-examination, Person 4 said that “initially” there were no PUCs in the last compound (by which he meant Mangul’s house, being the last building he recalls his patrol clearing) and that changed when the man with the donkey approached. While he did not see him approaching, he did see him when he was at the compound.

652    The appellant’s submission elides the difference between the guesthouse, which Person 4 marked “C” on Exhibit R126 and Mangul’s house, which he marked as “D” on the same page of the exhibit. On Person 4’s account, the guesthouse was cleared before Mangul’s house. It will be recalled that both Hanifa and Mangul testified that they had tea at the guesthouse before the soldiers arrived and moved them into Mangul’s house. The appellant submitted that Hanifa and Mangul’s evidence that they had been at the “last compound” drinking tea for hours is inconsistent with Person 4’s evidence that Ali Jan “just arrived on a donkey”, and that “the last compound was empty until a man on a donkey arrived”. But Person 4’s evidence was not that he saw a man arrive at the guesthouse on a donkey. He said he saw a man with a donkey at the top of the track outside the guesthouse (at the point he marked “E”). He encountered the man with the donkey at Mangul’s house at the point he marked “D”, but did not see the man approaching. None of that is inconsistent with the evidence of Hanifa and Mangul that Ali Jan had been drinking tea with them at the guesthouse for some time.

653    The respondents submitted that Person 4’s account needs to be understood having regard to the following matters. He was not engaged with what was going on in the last compound. He was not involved in tactical questioning. As Person 4 put it, the patrol commander (the appellant) was focussing “in” and he, as his 2IC, was focussing “out”, that is, he was “scanning the areas, making sure people [were] placed in a tactically viable position”, and “looking out for any change in atmospherics or basic deconfliction with other call signs and maybe elements coming up and moving again”. We note that Person 56 was similarly focussed on other matters. While he testified that there were fighting age men in the last compound, he was not involved in tactical questioning either and had no dealings with them. He was busy searching rooms within the compound for items of possible interest and providing security for the patrol. It was the appellant who undertook the questioning.

654    We accept the respondents’ submission. It is a matter of common experience that one is likely to remember things upon which one is focused far better than those with which one is not.

655    Be that as it may, there were inconsistencies between Person 4’s evidence and that of the Afghan witnesses. But the appellant exaggerated their significance. They certainly do not make their evidence “impossible”. The fact is that the Afghan witnesses did corroborate Person 4’s evidence that there were fighting age males who were placed under control in the end compound. Moreover, the evidence of the Afghan witnesses as to the presence of local nationals of both sexes, including fighting age men and children, was corroborated by the evidence of Person 56 and none of the particulars to the grounds of appeal calls into question the reliability of the account given by Person 56 or the primary judge’s acceptance of it. The appellant’s account and those of Persons 11 and 35, which the primary judge rejected (and which rejection is not challenged on appeal), left no room for the possibility that any part of this evidence was correct.

656    In oral argument the appellant submitted that, even if one accepts the evidence that three men were detained in the final compound, that does not make the respondents’ account of the kick or the killing in the cornfield more probable. But if one of those men was Ali Jan, who had travelled to Darwan with his donkeys and he was the man who was kicked off the cliff and then killed, then he was plainly not a spotter captured in the circumstances described by the appellant and Person 11.

Was evidence given by Hanifa and Shahzada about the number of soldiers in the southern compounds inconsistent with the evidence of Persons 4 and 56 and “inherently improbable”?

657    The third allegation is that the high number of soldiers Hanifa and Shahzada claimed to see in the southern compounds and to have been in a position to observe Ali Jan kicked off the cliff was both inconsistent with the evidence of Persons 4 and 56 and “inherently improbable”.

658    The open court submissions made in support of this allegation do not refer to evidence given by Hanifa, only Shahzada, save for the reference to Hanifa’s evidence of seeing three soldiers “shooting in the air” at the time he said he saw Ali Jan’s body being dragged across the riverbed. The allegation that this account is inherently improbable is part of the complaint in the fourth allegation and will be considered shortly in that context.

659    The appellant submitted that, according to Shahzada, “‘many soldiers’ were present at the hut at which he was guarded near the side of the river bed” (the hut belonging to Amir Jan Aka) and that he also saw “many soldiers” near their houses and at the creek over the riverbed. At the same time he said he saw Ali Jan and Hanifa with their hands tied sitting near a wall in the corner of a compound.

660    In his evidence in chief Shahzada testified that, when the soldiers took him to Amir Jan Aka’s hut, there were “many soldiers” beside the riverbed and “soldiers near our houses”. He did not say there were many soldiers at Amir Jan Aka’s hut.

661    When he saw “the big soldier” make Ali Jan stand up, he said there were no other soldiers with him but “they were, like, on the rooftops or they’re in the house” and “[t]hey were sitting there with them”. In cross-examination he said there were two soldiers on the rooftop of Mangul’s compound, other soldiers to the side of the guesthouse and soldiers on the creek bed. Neither in chief nor in cross-examination was he able to recall the number of soldiers at Amir Jan Aka’s hut, even when pressed.

662    The appellant’s submission to the primary judge, as recorded at J[1193] was that “it was improbable that the high number of soldiers Shahzada identified were present”. The primary judge said of this submission that “[t]he evidence is not precise and there may be a degree of embellishment by the witness, but nothing to the point of suggesting that [he] ha[d] invented the whole account”.

663    The appellant’s criticism of this finding was that it focused on the potential for deliberate fabrication and submitted that the primary judge did not consider the reliability of the evidence.

664    The criticism is both unfair and unfounded. If that were the primary judge’s focus, as we indicated at the beginning of the discussion on particular 20, that was because the appellant’s focus was on the honesty of the witnesses. In cross-examination it was put to Shahzada that his evidence was “a complete fabrication”. It would have been unsurprising in these circumstances for the judge’s focus to have been any different. But the primary judge did not overlook the question of reliability. In the same paragraph of the judgment, immediately after the passage to which the appellant took exception, his Honour observed that the appellant did not deny that there would have been soldiers on the roofs of the compounds at various times and were likely members of his patrol. That observation goes beyond the issue of honesty to general reliability. So does his Honour’s acceptance of the respondents’ submission about this aspect of Shahzada’s evidence in the following paragraph (J[1194]) that it is likely there would have been another patrol at the helicopter landing zone ready for extraction with the appellant’s patrol and the same helicopter landing zone was used by the commandos on Turn 1 about half an hour before then. The appellant did not argue against these matters. In the circumstances, the proposition that Shahzada’s account is inherently improbable must be rejected.

665    In any event, the appellant’s submission was based on a misrepresentation of the effect of Shahzada’s evidence. The effect of Shahzada’s evidence was not that there were many soldiers present at the time that Ali Jan was killed, but rather that he saw many soldiers throughout that morning.

666    As the respondents submitted, it could not be seriously disputed that there were Australian soldiers at each of the locations Shahzada placed them at various times during the mission and only a few minutes before the critical events were found to have taken place, the commandos were extracting nearby at Eurdoros 1. Consequently, the appellant’s complaint is simply one of imprecision and that is no basis for rejecting the whole of the account. We are not persuaded that Shahzada’s evidence of an unspecified number of soldiers at various places during the day is inconsistent with the accounts of Persons 4 or 56.

667    Nor are we satisfied that it is improbable that there were a number of soldiers in the vicinity.

668    The appellant submitted that, if there were many Australian soldier witnesses, that is, more than just Person 4, the appellant and Person 11, “it becomes quite improbable that the [a]ppellant was able to get away with providing a false account of an engagement in a cornfield at the post patrol debrief only hours later”. That assumes, however, that the soldiers who were present at these locations not only saw what happened but would have reported it to the patrol commanders before the patrol debrief. There was no basis for such an assumption. Indeed, the evidence before the Court suggested it was unlikely. It will be recalled that when Person 41 was asked why he did not tell Person 40 about what he had seen in and in the vicinity of the courtyard of Whiskey 108, he said he was “toeing the line, so to speak” and that “it’s sort of an unwritten rule is you just go along with whatever happens”. Mr Andrew Hastie MHR, who had been a captain in the regiment, testified that a “pagan warrior ethos” had developed, a “warrior culture”, “shorn of just war theory” in which killing became a “sacrament in itself”. Person 16, who served the SASR as a medical technician (“medic”), gave evidence of the existence of “a code of silence within the regiment” and his inhibitions about reporting shocking admissions by the appellant of unlawful killing for fear of retribution and ostracism. The primary judge considered him to be an honest and reliable witness (at J[1681]) and accepted this evidence (at J[1683]). His Honour formed the same opinion about Mr Hastie (at J[1787]).

Did the Afghan witnesses give evidence that was inherently improbable and/or inconsistent with SASR practice?

669    The fourth allegation is that each of the Afghan witnesses gave evidence of events that were inherently improbable and/or inconsistent with SASR practice, namely:

(a)    all three observing the firing of shots from helicopters;

(b)    Hanifa observing three soldiers firing into the air at or about the time Ali Jan’s body was dragged across the riverbed;

(c)    Shahzada observing a big soldier fire shots as he came down the mountain;

(d)    Shahzada’s evidence that the appellant spoke to him in Pashto; and

(e)    Shahzada observing Ali Jan being kicked off a cliff at a distance of 250 metres, despite his poor eyesight.

Shots fired from helicopters

670    Hanifa testified that after Ali Jan was kicked he rolled down towards the river; the big soldier shouted, “the helicopters, they were firing … in some area” although “[they] could not see exactly where they were firing at”; and then he heard shots fired. He said that the soldiers were firing shots and so were the helicopters. Mangul testified that he heard, but did not see, “firing from the planes” and then he saw Hanifa who told him that Ali Jan had been kicked, “went down to the river” and was then dragged towards the trees.

671    The appellant submitted that “no Australian soldier or official document confirmed the existence of this (not insignificant) activity” . At the trial the appellant submitted that Hanifa’s evidence was “plainly wrong” (J[1167]). The respondents submitted that an obvious explanation for what he heard was the destruction of the caves by the task force at about the same time which might well have sounded like heavy aircraft fire (J[1168]). In fact, senior counsel for the appellant suggested that explanation to the witness in cross-examination. We interpolate that, according to the post-debrief summary in the Sametime chat, the caves were destroyed at approximately 1010DE and 1100DE and “EKIA4” was killed at approximately 1110DE.

672    The primary judge said (at J[1169]) that “the respondents’ explanation is a possible explanation”, adding that, apart from his evidence about seeing Ali Jan being kicked off the cliff, Hanifa “did not always distinguish between what he saw, what he heard, and what he assumed”. His Honour said this was a matter he took into account (J[1170]).

673    The appellant submitted his Honour’s explanation was “a speculative explanation” and he never considered the effect of the evidence.

674    The problem with this submission is that his Honour did not adopt the respondents’ explanation. He merely opined that the explanation proffered by the respondents was a possible one.

675    More importantly, SASR practices are not a matter of common knowledge of which the Court can take judicial notice and the Court was not taken to any evidence to suggest that firing from helicopters was inconsistent with SASR practice. To the contrary, the evidence is that the soldiers flew from Tarin Kowt to Darwan in Black Hawk helicopters. Black Hawk helicopters are armed helicopters, designed to provide aerial fire support for ground troops. Four Black Hawk helicopters were assigned to the mission, accompanied by two Apaches. The Black Hawks are referred to in the section of the OPSUM for the Darwan mission entitled “FR Military Hardware” as UH-60 and the Apaches as AH64. UH is an acronym for utility helicopter and AH is an acronym for attack helicopter. Further, the appellant testified that on an earlier mission in 2010 in the Valley of Tizak he was in “the aerial fire support helicopter” and “[their] role was to stay in the air when everyone landed and fly around and provide them with fire support from the side of the Black Hawks”. Person 5 described the process of shooting from a helicopter.

676    In these circumstances we are unable to conclude that the accounts of firing from helicopters given by Hanifa and Mangul are either inherently improbable or contrary to SASR practice. In any case, given that nothing turned on this evidence, it is of no consequence that no Australian soldier witness confirmed it. Even if Hanifa and Mangul were mistaken (bearing in mind that the appellant no longer contends that they were dishonest), they were mistaken about an entirely peripheral detail. A mistake of this nature could not detract from the force of the evidence they gave which corroborated Person 4.

677    In his evidence in chief Shahzada testified that, earlier in the day, when Hanifa was with Ali Jan down at the river on the way to fetch Hanifa’s stepmother, “the planes” came, shots were fired at them from soldiers sitting at the top of the mountain, causing them to turn around and return. Hanifa’s evidence was that two shots had been fired at him and Ali Jan, which caused them to return. In cross-examination he said that he could see the soldiers who fired the shots; they were at the top of the mountain, kneeling down.

678    The appellant noted that Hanifa and Mangul had testified that the raid had begun sometime before then. Consequently, he submitted it was not plausible that planes or helicopters would have been in the air at that time. But the appellant’s submission overlooked the clarification provided by Shahzada in cross-examination. In cross-examination, Shahzada said that the shots took place from the aeroplane which dropped the soldiers on the top of the mountain and while it was stationary.

Shots fired “in the air”

679    Hanifa also testified that he had seen three soldiers “shooting in the air”.

680    It was put to him that he was lying about the matter, not that he was mistaken.

681    The appellant submitted that this was “a reckless act contrary to training and not corroborated by anyone else”. But the Court was not taken to any evidence to indicate that shooting in the air was against SASR practice or to suggest that shooting in the air was implausible. We accept the respondents’ submissions on this matter, which were not contradicted in reply. As they put it, the appellant led no evidence of any relevant SASR training and it is not a matter of common knowledge. In fact the appellant adduced no evidence from his witnesses to contradict Hanifa on this point. Presumably this was a forensic decision. No inferences can be drawn in the appellant’s favour when he refrained from giving evidence himself or asking questions about the matter of his witnesses and the inference should be drawn that nothing they could say on this matter would have assisted him: Commercial Union Assurance Company of Australia v Ferrcom Pty Ltd (1991) 22 NSWLR 389 (Ferrcom) at 418–9 per Handley JA, Kirby P agreeing at 398-399.

682    Even if this evidence were implausible, that would not be a sufficient basis to disbelieve Hanifa’s evidence altogether, especially those parts which were consistent with the evidence of Person 4.

Shahzada’s evidence

683    The final series of complaints relates to three aspects of Shahzada’s evidence touching upon the conduct of the appellant.

Shots fired by “the big soldier”

684    The first complaint relates to the claim that Shahzada gave evidence of observing a big soldier fire shots as he came down the mountain. The submission the appellant put was in the following terms:

Shahzada Fatih gave evidence to the effect that after he witnessed the big soldier kick Ali Jan he lost sight of him. He initially gave evidence that at one point the “big soldier” was shooting when he came down the mountain. He later retreated from this position. The trial judge found at J[1190] that the witness was “confused” and this was not a change of position. With respect, the issue is the reliability of the evidence as a whole. It seems reasonably clear that the witness was deeply confused – repeatedly.

685    As will be seen, fairly read, the transcript does not support the appellant’s claim that Shahzada gave evidence that the big soldier was shooting when he came down the mountain.

686    The basis for proposition that Shahzada was “deeply confused – repeatedly” was never clearly articulated. It is not at all apparent from the written submissions. This was the oral argument:

At 1190, in his Honour’s reasons, there’s the finding that the evidence – the witness was confused, and his Honour distinguishes that from a change of position, presumably on the basis that an out and out change of position more readily inspires doubts as to reliability than what I will call mere confusion. One would be cautious with respect about following that approach too rigidly. Whether confused or an out and out change of position, the elements that involve different statements about whether he could see him or not, whether he was shooting or not, whether he was in a particular place or not, they are, in our submission, on any view of it, matters that go reliability, and it’s for that reasons that there is an inadequacy of consideration in 1190.

687    We do not accept that the witness was deeply confused and certainly not in a way that warranted the wholesale rejection of his evidence. It is apparent that something was lost in translation. During the course of Shahzada’s evidence the interpreter, himself, raised issues as the following passage from the transcript discloses:

THE INTERPRETER: … And the issues, your Honour, with this – the setup that we have here, sometime the witness is speaking over the interpreter. So maybe during that time, the interpreter is missing some words. It seems that these witnesses are illiterate. We have a very different system when it comes to instructing the witnesses here. They are repeatedly instruct by the – especially by the Crown attorney that they have to wait for the interpreter and that they should speak in brief sentences and they should talk clearly and loudly. They should never speak over the other person when there is the judge or the other counsel or the interpreter, they should wait for them. Once they are done speaking, they can start. Otherwise, the court reporter and even the interpreter and other people might miss some of the things or the words that they utter. So that’s – your Honour, that’s the issue the interpreter is having here.

HIS HONOUR: All right.

THE INTERPRETER: It’s very easy for another interpreter, your Honour, to pick a word here and there, but if somebody is continuously interpreting, there might be times where a person – like, for example, the witness used a word and now I am looking at it, I believe he said (foreign language spoken) means okra or lady finger, but at that time, by the time I was about to interpret it, the witness started saying something else, so I didn’t have the chance to say that he had lady fingers or okra in the fields. That’s the issue, your Honour. Thank you.

688    We gather that the reference to “the setup that we have here” is to the taking of evidence by video link with a three-way link from Kabul, where the witnesses were, to Ontario, where the interpreter was, to Sydney where counsel were.

689    There were also other problems. Superimposed on common problems with interpreting evidence from one language into another, the respondents submitted (and the appellant did not deny) that often the interpreter would say, in effect, “I’m speaking classical Pashtun but this witness is using words that I don’t quite understand”.

690    In his evidence in chief Shahzada said that he saw shots fired at Ali Jan and Hanifa when they were down in the riverbed which caused them to turn around and walk back towards Mangul’s house. He said those shots were fired from soldiers sitting at the top of the mountain. The effect of his evidence is that they were warning shots (“the soldiers didn’t want anybody to leave”). He later testified that he saw Ali Jan and Hanifa with their hands tied seated near a wall in Mangul’s compound and then “the big soldier” who had been near their houses made Ali Jan stand up, his hands still tied. He then said that Ali Jan was facing him, the soldier kicked Ali Jan causing him to fall down towards the river and he then lost sight of him because trees blocked his view. He also testified that the “soldier came down and then there were light firing” and that “[w]hen the light firing took place, we could not see them because of the berry trees”.

691    The evidence the subject of the present challenge appears at T1156 of the transcript:

MR OWENS: Okay. And then a moment ago, you talked about shots that you heard near the berry tree. When did you hear those shots?

THE INTERPRETER: That was probably maybe 10 minutes or something like that when that soldier started coming down, but we could – I could not see him anymore. That’s when those shots were fired.

MR OWENS: You mean when – which soldier came down from where?

THE INTERPRETER: When the – the soldier came, that – what I mean is the – the – the big soldier. When he was coming down, the shot – he – he fired the shots.

MR OWENS: Coming down from where?

THE INTERPRETER: Soldier?

MR OWENS: Yes. The soldier. You said - - -

THE INTERPRETER: Soldier – soldier from where?

MR OWENS: You said it was after the big soldier came down, and I want to know came down from where? Where was he coming down from?

THE INTERPRETER: From our – from our – the witness didn’t mention our what. From our – when he came from our, he came down, and that’s when the shots were fired. Yes.

MR OWENS: From our what, Shahzada?

THE INTERPRETER: You mean when the soldier came to us? The – when the [soldier] came to us, he told us not to move until we are gone.

MR OWENS: No, Shahzada, you said that the big soldier came down from somewhere, and then after that, you heard shots near the berry tree. I want to know where did the big soldier start and where did he – where was he coming down from? Where did he start?

THE INTERPRETER: The big soldier – he came from Mangul’s house and then he came to the river and came to the berry trees.

692    As the respondents submitted, in this part of the evidence Shahzada was explaining that, after the big soldier kicked Ali Jan, came down from Mangul’s compound to the riverbed and then the berry trees, he (Shahzada) heard shots near the berry trees. We accept the respondents’ submission that, at worst, there was momentary confusion in the translation where Shahzada is recorded as saying “when he was coming down, the shot – he – he fired the shots”. Read fairly and in context, that is, together with the evidence he had given earlier, it is clear that Shahzada did not see who fired the shots and, specifically, did not see the big soldier shoot because his vision was blocked by the trees. Any confusion was surely dispelled in cross-examination:

MR McCLINTOCK: All right. Now, you say you saw a soldier kick Ali Jan, and he went down.

THE INTERPRETER: From here, he hit him. He came down to the river, but because of this berry tree, I could not see him anymore.

MR McCLINTOCK: That is, you could not see the big soldier or you – I withdraw that. You could not see the soldier who kicked, or you could not see Ali Jan?

THE INTERPRETER: Your Honour, the interpreter told the witness that he – the interpreter can not interpret if he keeps talking, talking and does not let the interpreter to interpret.

HIS HONOUR: Yes. Thank you.

THE INTERPRETER: The big soldier – the big [soldier] was on the top over there.

MR McCLINTOCK: Right.

THE INTERPRETER: It was Ali Jan who fell down there. And the big [soldier] he took the path, and coming down from that path towards the water – the riverbed.

MR McCLINTOCK: And what do you say the [soldier] did as he was coming down?

THE INTERPRETER: He fell down, and then he – because of the berry tree, I could not see him anymore.

MR McCLINTOCK: You could not see the soldier anymore; is that what you’re saying?

THE INTERPRETER: There was one soldier there, and the other soldiers were sitting on the rooftops there.

MR McCLINTOCK: I asked you something different, Shahzada. What I asked you was whether you saw – the soldier you said came down, whether you saw him doing something as he came down?

THE INTERPRETER: Yes. The [soldier], he disappeared from me because he came down to the riverbed. He disappeared from me.

MR McCLINTOCK: Right. Thank you. Do you recall saying, shortly before lunch, to Mr Owens, when the soldier came that – what I mean is the big soldier – when he was coming down, the shot – he fired the shots; do you recall saying that?

THE INTERPRETER: I remember is that the shots were fired at that area where my land is that area.

MR McCLINTOCK: You said before lunch that you saw the soldier, the big soldier, as he was coming down, fire shots, didn’t you?

THE INTERPRETER: No. What I said – when he came down, then on the ground light firing took place. Shots were fired.

MR McCLINTOCK: So you didn’t see the big soldier firing as he was coming down the slope?

THE INTERPRETER: No. No. I didn’t see the big soldier firing. I didn’t see the big soldier firing.

693    The witness went on to confirm, repeatedly, that he did not see the big soldier firing.

694    We reject the submission that Shahzada was “deeply” and “repeatedly” confused. To the extent that Shahzada was apparently confused about aspects of his evidence, the primary judge took that into account (at J[1190]) and he approached Shahzada’s evidence “with considerable caution”. We discern no appealable error in his Honour’s reasoning at J[1190].

The “big soldier” speaking in Pashto

695    The second of the three complaints about Shahzada’s evidence is about “the big soldier” speaking in Pashto.

696    In cross-examination Shahzada was asked in what language the soldier was speaking when he told him he should not move. The below exchange followed:

MR McCLINTOCK: You – did the soldier say anything to you when you say he came?

THE INTERPRETER: That soldier told us that, “You should not move. Enter our plane,” comes, lands, and goes back – go back.

MR McCLINTOCK: What language was he speaking in?

THE INTERPRETER: This was said to us in Pashto language. It was said to us in Pashto language.

MR McCLINTOCK: Thank you. That never occurred, did it, Shahzada?

THE INTERPRETER: I don’t know. That’s what was said to us in Pashto. I didn’t know them.

MR McCLINTOCK: Yes. You made that up, didn’t you?

THE INTERPRETER: I have not made it up.

697    In re-examination Shahzada confirmed that “the big soldier talked to us in Pashto”.

698    The appellant submitted to the primary judge that this evidence was “plainly wrong”.

699    His Honour disposed of the submission at J[1191]:

Secondly, the applicant submits that Shahzada Fatih’s evidence that the big soldier, that is, the applicant, said to him and others in Pashto words to the effect of “Do not move until the planes come here and leave” was plainly wrong. It is possible that something more basic was said by the applicant as there was evidence that some Australian soldiers, including the applicant, could speak some basic Pashto [scil.] words. However, I do not think that this evidence can be strictly correct and this is a matter I take into account.

700    On the appeal, the appellant submitted that Shahzada’s evidence that the big soldier spoke to him in Pashto was “fanciful” and his Honour did not adequately deal with the evidence. He contended that “the contradictory evidence as to whether the big soldier was firing when he came down the mountain and the nonsensical evidence about the conversation in Pashto by themselves were sufficient to render the witness unreliable”.

701    We reject the submission and the contention. We have already dealt with the first limb of the contention. We do not accept the second limb. The witness did not say there was a conversation in Pashto and the appellant glossed over the primary judge’s observation that “some Australian soldiers, including the [appellant], could speak some Pashto words”. Moreover, Shahzada did not testify that the appellant told them: “Do not move until the planes come here and leave”. That was a paraphrase of his evidence. In circumstances where it was uncontentious that the appellant could speak some basic Pashto words, it was not erroneous for his Honour to deal with the submission in the way that he did. Neither on its own or in concert with the supposed confusion about whether the big soldier was firing when he came down to the riverbed is it sufficient to render the witness’s evidence unreliable.

Visibility

702    The third of the three complaints about Shahzada’s evidence is that it was implausible that, despite his poor eyesight, he could have seen Ali Jan being kicked off a cliff at a distance of 250 metres.

703    At the trial, Mr McClintock QC put to Shahzada that the distance between where he was sitting in Amir Jan Aka’s hut and Mangul’s house was 250 to 300 metres. Shahzada agreed. It is not clear why the proposition was put. There was no apparent foundation for it. As the respondents pointed out, the scale on the satellite photograph of Darwan which was before the Court (Exhibit R1) shows that the distance was about 100 metres. Moreover, Shahzada denied he was sitting inside the hut. He said he was sitting on the side where the field was in a place which was slightly elevated (“a little bit high”). It was also put to Shahzada that he could not have seen either Ali Jan or the soldier who kicked him, indeed that he did not see any soldiers at all on the day that he claimed that Ali Jan had been killed. But Shahzada was unshakeable. He was adamant that he could see the big soldier kick Ali Jan.

704    It was not glaringly improbable, inconsistent with facts incontrovertibly established by the evidence or even contrary to compelling inferences that Shahzada saw the big soldier kick Ali Jan from his vantage point on the side of Amir Jan Aka’s hut. Nor do we consider that the primary judge failed to use or, still less, palpably misused his advantage. Shahzada did not say he had poor eyesight generally.

705    The foundation for the proposition that his eyesight was poor was a comment Shahzada made when asked during his evidence in chief whether he could see anything else near the berry trees in a photograph on a computer screen from which he had identified Amir Jan Aka’s land and a berry tree. The photograph was on p 7 of Exhibit R90. In fact the photograph does not depict anything that even vaguely resembles a hut and, apart from the berry trees, which he had no trouble seeing, there appears to be nothing of note in the photograph (reproduced below):

706    A witness with perfect vision would struggle to understand what they were being asked to identify. When counsel realised that the photograph was a poor prompt for the evidence he was seeking to elicit, he changed tack.

707    In cross-examination, when counsel for the appellant put to Shahzada that there was “no chance” with his “poor eyesight” that he could have seen the overwatch helicopter land on the mountain over one kilometre away, Shahzada replied “No. No, it’s not weak. I saw it with my own eyes”. When counsel for the appellant asked about his comment in examination in chief that his eyesight was not good, Shahzada said that his eyesight “doesn’t work good” and that he could not see the ground very well (which in all probability was a reference to the ground in the photograph he had been shown during his examination in chief) but he was adamant that he could see Ali Jan and Hanifa from where he was sitting at the side of Amir Jan Aka’s house. He did not say that he could see their faces. The thrust of his evidence is that he recognised Hanifa from his clothing and Ali Jan was sitting with him. He knew them both very well and may be taken to have been familiar with their gait, bearing, physical features and mannerisms. It was not suggested to him that Hanifa’s clothing was not sufficient to distinguish him from anyone else. It is a matter of common knowledge that a person may have good distance vision but poor vision at close range.

708    It is not at all implausible that Shahzada saw a big soldier kick an Afghan man and the man roll down towards the riverbed. Later, when, together with Hanifa and one of his daughters, he went looking for Ali Jan they followed the route of his fall to the body in the cornfield and he identified Ali Jan from a photograph of “EKIA4” taken during the SSE.

709    The appellant also submitted that, if Shahzada saw a soldier kick an Afghan civilian off a cliff, it “beggars belief” that others did not also. We reject this submission. There are at least two problems with it. For a start, it is based on a false premise. The primary judge found that others did see it. They were Persons 4 and 11. Whether or not more soldiers could have seen it, too, depends on what they were doing at the time and whether they were looking in the direction of the appellant. There is no particular reason why they would have been. On the other hand, as the respondents submitted, unlike the Australian soldiers, Shahzada had a very powerful reason to be watching the end compound. On his account, supported by the other Afghan witnesses, his son and brother-in-law were there with their hands tied. In the respondents’ words, “a well-founded fear for the safety of his son and his brother-in-law readily explains why Shahzada was fixated on that location”.

710    In his submissions in reply the appellant also referred to J[1195] in which his Honour addressed a submission from the appellant about other evidence given by Shahzada. That evidence relevantly related to shots having been fired from the overwatch position or aircraft and the witness’s evidence that he had never discussed the case with his son (Hanifa). The submission was that Shahzada’s evidence that shots were fired from the overwatch position or a “plane” earlier in the day was improbable given the distances and the fact that no document or soldier recorded engagements involving helicopters, and that it was also improbable that he had never discussed the case with his son (Hanifa). His Honour said at J[1195]:

The respondents address the first point and submit that there is a misconstruction of the evidence and that, properly construed, Shahzada Fatih was saying that the shots came from the soldiers on the mountain who came out of the helicopter. That does not seem to me to be clear and I think that the evidence is confusing. I take this matter into account. I also find it difficult to accept that he has never discussed the case with Mohammed Hanifa.

711    The appellant submitted that the primary judge was correct to describe the particular evidence as confusing but contended that his Honour should have gone further. In particular, he submitted that his Honour erred by giving any weight to Shahzada’s evidence in the light of the confusion in his evidence and the likelihood that it had been contaminated by discussions with Hanifa.

712    We reject the submission. A similar submission was put below. His Honour dealt with that submission at J[1197]:

Finally, I reject the submission that I should find that Shahzada Fatih’s demeanour was erratic such that I should conclude that he was dishonest or hopelessly confused. I did not form that conclusion from the evidence of Shahzada Fatih. He appeared to me to be taciturn and not as articulate as Mohammed Hanifa and Mangul Rahmi.

713    Having expressly abandoned any challenge to the honesty of the Afghan witnesses, it is difficult to see how it is now open to the appellant to submit that the Court should find that Shahzada’s denials were untruthful. Notwithstanding his scepticism about whether Shahzada had discussed the case with Hanifa, his Honour did not find him to be dishonest or hopelessly confused. The material to which we were taken does not persuade us that Shahzada was so confused that his evidence had no probative value. Having seen and heard the witness the primary judge was in the best position to determine what to make of his evidence. His Honour said that he approached his evidence “with considerable caution” but accepted “the key aspects” of it because he was satisfied that, as with Hanifa and Mangul, Shahzada knew details of events that he could only have known if he was in Darwan on the day of the raid and because “it formed part of a strong, consistent and coherent body of evidence called by the respondents”, even if that is discounted on the basis that they discussed their recollections with each other (J[1200] read with J[1176]). In doing so, we are not satisfied that his Honour fell into appealable error.

Did the primary judge engage in speculation?

714    The fifth allegation is that the primary judge engaged in “speculation” in positing an explanation for the evidence the witnesses gave about seeing and hearing shots fired from aircraft (at J[1169]. [1181] and [1195]).

715    In none of these paragraphs did the primary judge posit an explanation or engage in speculation. His Honour was merely addressing a submission that the evidence the witnesses gave about these matters was improbable or implausible. In the first two paragraphs, he did no more than observe that the explanation the respondents proffered was a possible one and in each case it was a matter to be taken into account. In other words, his Honour was saying that he would take into account the possible explanation in deciding what to make of their evidence in the light of the appellant’s complaints about it. That was not an appealable error.

Did the primary judge fail to advert to the fact that many of the things described by the Afghan witnesses could have been drawn from other raids on Darwan?

716    The sixth allegation is that the primary judge failed to advert to the fact that many of the details the Afghan witnesses described and upon which his Honour relied as corroboration could have been drawn from other raids on Darwan.

717    In substance, this is an allegation that the primary judge failed to deal with a submission about the matter put at [81] of the written submissions below.

718    We reject the allegation.

719    The “submission” below was brief. It was one sentence of a 230 page document. This is how it was put:

Perhaps they were confused with the multiple other raids that occurred on Darwan during the period of conflict.

720    The sentence was accompanied by a footnote to Mangul’s evidence at T1104/14–1105/10. There, it was put to Mangul in cross-examination that Darwan had been repeatedly raided in the years leading up to the raid on 11 September 2012. Mangul agreed that many raids had taken place on Darwan. It was put to him that he encountered foreign soldiers in Darwan on many occasions. He said that sometimes when a raid took place they were elsewhere and that he neither met nor saw foreign soldiers (on other raids).

721    The primary judge addressed the proposition put at [81] of the appellant’s submission below in at least three places: at J[1175], [1186] and [1199].

722    At least some of the key aspects of Hanifa’s evidence that the primary judge accepted appear to be those to which he referred at J[1175], which his Honour found were consistent with Hanifa’s presence in Darwan during the raid in question because they aligned with other evidence which was either uncontroversial or as to the truth of which his Honour was independently satisfied. They were:

(a)    Hanifa’s evidence that he saw two helicopters coming in, followed by four others, and his identification of the landing places;

(b)    Hanifa’s correct description of soldiers at the top of the mountain and to the east;

(c)    Hanifa’s description of four helicopters consistent with Turn 2;

(d)    Hanifa’s correct description of the scheme of manoeuvre of the task force, that is, the manner in which it proceeded through the compounds;

(e)    Hanifa’s correct description of the presence of a black dog, a “big soldier who was wet up to his chest area” and the presence of an interpreter;

(f)    the consistency of the area Hanifa marked as the place to which Ali Jan’s body was dragged with the area identified by Person 4; and

(g)    the consistency between Hanifa’s description of the movement of the helicopters for extraction with the helicopter extraction plans, both in relation to the landing places and the direction from which they approached.

723    Similarly, the primary judge observed that Mangul gave evidence that could only have been given by someone present on the day of the mission or a person who had spoken to someone who had been present on that day and memorised the details relating to: the movement of the helicopters; the location of the soldiers on the top of the mountain; the presence of the interpreter, the dog and the big soldier; the fact that the soldiers in the overwatch position were picked up last; and his correct identification of the location of the body in the cornfield (at J[1186]).

724    His Honour also observed that Shahzada gave details of events that he could only have known if he had been in Darwan that day, including the number and landing areas of the Black Hawk helicopters, the location of the overwatch team and the presence of the tall soldier and the interpreter during the clearance of the southern compounds (at J[1199]).

725    There was no dispute that the village had been raided by coalition forces, including the SASR, on other occasions both before and after 11 September 2012. On appeal, but not below, the appellant submitted that it was unlikely that matters such as the positioning and formation of helicopters, the pattern of manoeuvre of the troops through the village, the location of the overwatch, tactical questioning of villagers, how fighting age males were placed under control, the presence of military working dogs, interpreters and “big” soldiers, and how some villagers were taken back to Tarin Kowt for further questioning were unique to the mission on 11 September 2012.

726    While the appellant did not bear the legal burden of proof and was entitled to the presumption of innocence, if he wished to argue that the matters the Afghan witnesses described could have occurred on other occasions it was incumbent on him as a matter of fairness to put that proposition to the witnesses so that they had the opportunity to respond: see The Queen’s Case (1820) 2 Brod & Bing 284 at 313-4; 129 ER 976 at 987-8 (Abbott CJ); Browne v Dunn [1893] 6 R 67 at 70-71 (Lord Herschell), 76-77 (Lord Halsbury); 78-79 (Lord Morris) and more recently Griffiths v TUI (UK) Ltd [2023] UKSC 48; [2025] AC 374; [2023] 3 WLR 1204 (Griffiths) at [42]–[70] (per curiam). Moreover, as Lord Hodge DPSC said in Griffiths at [55], what is at stake is not just fairness to the witness or the party who called the witness but “the integrity of the court process itself in enabling the judge to reach a sound conclusion”. The rule applies with particular force where a witness gives evidence of fact of which the witness has knowledge and it is proposed to invite the court to disbelieve the evidence: Edwards Lifesciences LLC v Boston Scientific Scimed Inc [2018] EWCA Civ 673; [2018] FSR 29 at [66] (Floyd LJ), with whom McCombe LJ and Kitchin LJ agreed at [73] and [74] respectively.

727    Yet it was never squarely put to any of the Afghan witnesses that they could have been mistaken or that they were confusing what happened on the raid in September 2012 with events that occurred in connection with another raid. The closest the appellant went was to put to Hanifa and Mangul in cross-examination that Darwan had been raided on many occasions over the last 10 years and, in closed court, that dogs had been present on other occasions when foreign soldiers raided Darwan. In his submissions in reply the appellant submitted that, having put to Hanifa that his evidence should not be accepted because it was deliberately false, it was unnecessary, as a matter of fairness, to put to him that he was confused. We reject that submission. If an argument to that effect was to be advanced, even in the alternative, the proposition should have been put to him and the other Afghan witnesses in order to afford them the opportunity of answering it. The opportunity is particularly important where they were to be accused of dishonesty, but the rule is not confined to cases of dishonesty: Griffiths at [70].

728    Nor did the evidence to which the appellant pointed support the proposition. That evidence consisted only of the appellant’s testimony that Darwan had been hit at least three times before the raid on 11 September 2012 and multiple SAS assaults had taken place in the village over the course of those years; testimony given in closed court by Person 7 that there was a further mission to Darwan on 30 October 2012; and the testimony of Hanifa and Mangul that there had been other raids on Darwan.

729    Even if some of the details described by the Afghan witnesses upon which his Honour relied could have been drawn from other raids on Darwan, there was substantial support for the primary judge’s conclusion that they were describing events which had occurred during the insertion of the SASR in Darwan on 11 September 2012. That evidence was compelling and even more so in the absence of a challenge to his Honour’s rejection of the appellant’s account.

730    The objective of the mission was to capture or kill Hekmatullah. The evidence indicates that this was the only mission in Darwan with this objective. Hanifa testified that in the days before the raid foreign forces distributed letters offering a reward for information about Hekmatullah. On his account the interpreter assaulted him in an effort to extract information from him about Hekmatullah. It is common ground that on 11 September 2012 an Afghan man was killed in a cornfield in Darwan. All three Afghan witnesses gave evidence about this. It was never suggested that on any other raid on Darwan a man had been killed in a cornfield.

731    The respondents also pointed to evidence given by Hanifa that the big soldier who was wet up to his waist had “blue eyes kind of brownish” (later corrected by the interpreter as green) and the absence of any suggestion that this could not have been a description of the appellant; evidence the Afghan witnesses gave of soldiers on rooftops which was confirmed by the appellant in his evidence; and “the critical similarity of the evidence of Person 56, Person 4 and the Afghan witnesses [Hanifa] about the interpreter being sent away”, which the primary judge mentioned at J[1047] and following.

732    The similarity between the evidence of Person 4, Person 56 and Hanifa concerning the interpreter is striking. As summarised by the primary judge, the evidence of Persons 4 and 56 was as follows. Person 4 said that after the person with the donkey had been PUC’d, the appellant directed Person 56 to move back towards troop headquarters and get the interpreter. Person 56 did that and that is when the tactical questioning occurred. Person 56 said he left the compound when he was ordered (either by the appellant or Person 4) to head to an area to select and/or provide security for a helicopter extraction site. He took the interpreter with him and upon reaching the helicopter landing zone he waited with the interpreter for about half an hour, meeting up with the other members of his patrol on the extraction platform of the helicopter. Hanifa’s evidence was to the effect that after Ali Jan had been PUC’d, the interpreter brought him in, made him stand there, and then left. It was after the interpreter left, he said, that “the big soldier” kicked Ali Jan.

733    Further, as the respondents submitted and the primary judge found, Person 4, Hanifa and Shahzada give “a fundamentally consistent account of Ali Jan being kicked off the cliff”.

734    Hanifa said that two soldiers dragged Ali Jan to the berry tree and then he heard shots being fired. The primary judge quoted this part of his evidence at J[1054]:

They–two soldiers. They were holding Ali Jan from his shoulder area … They were dragging him. They took him to the berry tree, and then there were shots everywhere ...

735    Person 4 said that the appellant directed him and Person 11 to drag the man to a large tree directly across from the riverbed and that after he moved away “a number of shots rang out” — two or three rounds.

736    Moreover, like Person 4, both Hanifa and Shahzada testified that the man with the donkey was detained, handcuffed behind his back, and questioned by the big soldier, kicked by the big soldier while he was facing him, and dragged towards trees at the edge of the cornfield where he was shot. Person 4 said he saw all this occur. Hanifa said he saw everything except the firing of the shots at the person in the cornfield but all the Afghan witnesses heard the shots. The presence of the appellant would doubtless have been memorable. He is a giant of a man, who stood head and shoulders above other members of his patrol and would have towered over the villagers.

737    Mangul’s evidence was that he remained on one side of the wall outside the guesthouse when Hanifa and Ali Jan were taken to the other side. He testified that when Hanifa later returned he (Mangul) asked him where Ali Jan was and Hanifa told him: “They kicked him and he went down to the river … and they dragged him towards the trees”. The place where they found the corpse corresponds with the place the appellant said “EKIA4” was killed. Both Mangul and Hanifa testified that helicopters landed after Ali Jan was shot and left not long afterwards. That evidence was consistent with all the other evidence about the arrival and departure of the helicopters in which the appellant’s patrol left Darwan on the day in question.

738    It is also notable that Mangul testified that, after they found Ali Jan’s body, cleaned it, covered it with a shawl, dispatched a nephew of Ali Jan to inform family members that he had been killed, and proceeded to the graveyard where they discovered that Haji Nazar Gul and Yaro Mama Faqir had been killed. It was not in dispute that both those men were killed in the raid that day. Both Mangul and Hanifa identified them from photographs shown to them during their evidence in chief. The effect of their evidence is that they were the men who were killed in another compound in Darwan the same day (by Person 35’s patrol) and originally designated EKIA1 and EKIA2 (see J[987]-[988]). In cross-examination, Mangul agreed that Sayed Alam and Sayed Jan were taken prisoner in Darwan that day and taken to Tarin Kowt and that in the compound two Kalashnikovs were found with them, together with about 100 kilos of poppy seeds.

739    While some of the matters about which the Afghan witnesses testified might be common to other missions, numerous aspects of their evidence make it extremely unlikely that their accounts of the critical events (that is, those bearing on the essential elements of the respondents’ truth defence) were drawn from other raids and almost certain that they were speaking of what they saw, heard and experienced in Darwan on 11 September 2012. In addition to the matters listed by the primary judge at J[1175], reproduced above (at [722]), those matters include: Hanifa’s evidence concerning the letters about Hekmatullah; the evidence of Hanifa and Mangul that they were questioned about the whereabouts of Hekmatullah; their identification of people other than Ali Jan who were admittedly killed in Darwan on the day in question; Hanifa’s knowledge that four adults and no children were killed in Darwan that day; Hanifa’s identification of EKIA3 as Mula Gafur who he admitted was a Talib; Mangul’s knowledge that Sayed Alam and Sayed Jan had been taken prisoner that day; the evidence in common between Hanifa and Mangul on the hand and the appellant on the other about the timing of the departure of the soldiers after the killing of the man in the cornfield; and above all the remarkable similarities between key aspects of the Afghans’ account and the account of Person 4, including, in particular, the “big soldier” kicking an Afghan detainee causing him to fall down a cliff to the riverbed; the discovery of the same man (after shots had been fired) dead in the same cornfield; and Hanifa’s evidence that two soldiers dragged the man to the other side of the riverbed after he had been kicked. Both Person 4 and the Afghan witnesses identified the person in the photograph said by the appellant to have been killed in the cornfield and designated “EKIA4” as the man with the donkey(s), who had been handcuffed and kicked. The fact that the handcuffs did not appear in the photograph is explained by Person 4’s evidence that they were removed during the SSE process.

Was sufficient weight given to the witnesses’ hatred of infidels and the support they received from the respondents?

740    The final allegation is that the primary judge did not give sufficient weight to the two motives the Afghan witnesses had to lie or which might at least have affected their reliability, namely their hatred of infidels and the extended period during which they and their families had received financial support from the respondents’ agent, Dr Sharif. The references given were to J[1174] and J[1184]. The former related to Hanifa, the latter to Mangul.

741    The appellant submitted that “at no point” did the primary judge consider more generally the potential effect of such matters on the reliability of their evidence and “at no point” did he refer to the extent and long term duration of the financial support, let alone consider the significance such support might have to witnesses living in the prevailing economic conditions of a country like Afghanistan. The tenor of the argument put below was that the Afghan witnesses were, or were possibly, lying out of a sense of obligation to the respondents for providing support to them while they were away from home (see written submissions below at [79] and [81]).

742    At J[1174] of his reasons the primary judge said:

[T]he applicant submits that Mohammed Hanifa’s hatred of foreign soldiers gave him a motive to lie. Mohammed Hanifa admitted that the soldiers are called “infidels” and he does not like them. Persons killed by soldiers are called “martyrs”. Nor, it may be said, would Mohammed Hanifa have liked the relatively frequent raids on Darwan that were occurring at about that time. It may be accepted that these matters gave him a potential motive to lie. However, I do not consider this, or indeed the other general motive to lie advanced by the applicant of the sustenance (food and transportation) provided by the respondents through Dr Sharif, to be strong motives for Mohammed Hanifa to lie.

743    At J[1184] his Honour said:

[T]he applicant submits that Mangul Rahmi’s expressed hatred of foreign soldiers and his view that they were infidels and those that they killed were martyrs “unavoidably coloured” his evidence. I take this to mean that his feelings affected his evidence in a way adverse to Australian soldiers, including the applicant. He also said that he did not agree with the Taliban and they had done injustices to the villagers as well. He was asked about financial support provided by the respondents through Dr Sharif. This was limited to the costs of accommodation, food and transport. I make the same observations about these possible motives to lie as I did in relation to the equivalent submission in the case of Mohammed Hanifa.

744    The written submission on the appeal was expanded upon in oral argument but all that was said then is this:

Then, can I complete the evidence by a brief drawing to attention of the extent to which there is exploration – challenge perhaps – of reasons for this witness to be engaged in a way that might affect impartiality. It’s the whole of the passage that starts at the top of 1181. The financial arrangements for sustenance, including accommodation for him not working, and for his family, is described in terms sufficiently descriptive, at 1182 and 1183, to be a real reason for gratitude to the respondents, whose agent, Dr Sharif, had arranged these matters, the extent of the witness’ acceptance of – that this obvious circumstance is seen at lines 4 and 5. In answer to a sense of obligation to their agent, the witness says:

What I feel regarding him is that he is providing us for food. That’s all I feel towards him.

Well, if you understand food as necessary sustenance, and children being involved, then in our submission, that is no small thing.

745    The numerical references in the above passage are to pages in the transcript of the cross-examination of Shahzada. Shahzada was asked how long it has been since they had left Darwan and how they had supported themselves. He replied that they had been in Kandahar for approximately one year, accompanied by his wife, three (of his 12) sons and two (of his five) daughters, (before moving on to Kabul) and that Dr Sharif was giving them money for rent, food and medical treatment where necessary. It was put to him that he knew Dr Sharif to be “the agent for the respondents in these proceedings”. He replied “I don’t know. I don’t know about that”. His reply was not challenged or contradicted. After the reply he gave to the question about whether he felt a sense of obligation to Dr Sharif which is recorded above in italics, Shahzada was asked whether he had discussed with Dr Sharif what he was going to say in court. He replied: “No. No.” That reply was not challenged either.

746    We reject the submission.

747    Since the honesty of these witnesses is no longer an issue, the proposition that the primary judge erred by giving insufficient weight to their alleged motives to lie can be put to one side. That leaves the allegation that their hatred of infidels and the financial support they received from the respondents otherwise affected the reliability of their evidence. Frankly, it is difficult to understand how a motive to lie could affect the reliability of the witnesses’ evidence in circumstances where their honesty is not impugned.

748    In any case, the evidence was that they were subsistence farmers with no means of supporting themselves when taken away from their land, that they were not paid any money but supported in kind by the provision of the bare essentials of food, transport and accommodation while they were away, and that they were keen to return home if it was safe to do so. We respectfully agree with the primary judge that the payment by the respondents of their expenses is not a strong motive to lie. Moreover, as the respondents submitted, “[t]he veiled suggestion that, as a rural villager, the lure of spending several months in Kabul or Kandahar was a sufficient basis to infer a motive to lie has no evidentiary basis”.

749    The proposition that the primary judge did not consider more generally the potential effect of their “hatred of infidels” was not developed either in writing or in oral argument. The absence of a mention in his Honour’s summaries of the appellant’s submissions of the extent or duration of the financial support or the potential significance of that support does not mean that his Honour failed to have due regard to those matters. His consideration of the submissions does not disclose appealable error.

750    Finally, the appellant made an isolated submission, not tied to any of the sub-particulars, about the evidence of Hanifa and Mangul that Hanifa was assaulted by the interpreter. The submission was that this evidence was not corroborated by either Person 4 or Person 56 and there was evidence that the interpreter was unarmed, pointing to his own evidence and evidence from Person 32 and 35. The appellant also pointed to the fact that it was actually put to him in cross-examination that interpreters attached to the SASR were not armed. His complaint was that the primary judge failed to address the inconsistency between, on the one hand, the evidence of Hanifa and Mangul that the interpreter was armed with a pistol and the body of evidence to the contrary as well as the implications of that inconsistency to the reliability of Hanifa and Mangul, although it was the subject of a submission below.

751    The submission that was put below was brief. It was in these terms:

Neither Person 4 nor Person 56 corroborated Hanifa’s and Mangul’s evidence of being assaulted during tactical questioning. … Person 13, who was the only interpreter in the village for that mission, could not have waved a pistol at Hanifa. Person 13 was unarmed, which is why Person 56 escorted him to THQ.

752    In support of the assertion that Person 13 was unarmed, the appellant referred to his own evidence and that of Person 35 but not that of Person 32. The primary judge did not accept Person 35 was either honest or reliable and he found that his evidence that Person 13 was with his patrol and not allocated to any other patrol throughout the entire mission was deliberately false (J[1285]–[1287]). Person 32 gave evidence that it was unlikely that the interpreter remained with Person 35’s patrol throughout the mission (J[1292]). The sole source of the assertion that Person 13 was escorted to troop headquarters by Person 56 because he was unarmed was the appellant, and the appellant was not accepted as a witness of truth.

753    As the respondents pointed out, however, there was corroboration of the evidence of Hanifa and Mangul that the interpreter was armed. The only objective evidence was the photograph to which we referred above at [89] which shows him armed with a pistol. The evidence was that the photograph was taken “inside the wire”, that is, inside the army base. The respondents said (without contradiction) that this photograph, which depicts him in the company of Person 12, was the only full-length picture of Person 13 in evidence. It was Exhibit R231 and is part of the closed court material.

754    In submissions in reply, the appellant claimed that the fact that he was carrying a pistol while on the base at Tarin Kowt was not probative of whether he carried one on missions. It makes no sense, however, that Person 13 would be armed with a pistol while on base at Tarin Kowt and would be unarmed during the mission to Darwan. As the respondents submitted, inside the base is the last place you would need a pistol. It could hardly be said to be improbable that the appellant was armed with a pistol while outside “the wire” where the risk of harm is likely to have been infinitely greater.

755    At the trial the appellant submitted that the Court should infer from the respondents’ failure to call Person 13, when they had earlier proposed doing so, that nothing he could say would assist their case. The primary judge rejected the submission because an adequate explanation for not calling him had been provided, namely, as his Honour put it, “Person 13 was refusing to engage at all and was clearly engaged in misconduct, therefore he could on no view be said to be in the respondents’ camp” (at J[1290]).

756    In circumstances where there was objective evidence that the interpreter was armed, the evidence that he was unarmed came from witnesses whose evidence was generally disbelieved (including evidence from one witness whose evidence about the interpreter was specifically rejected), the findings that those witness were untruthful are not challenged and the interpreter was not called, we accept the respondents’ submission that the primary judge made no error in not referring to the submission about the oral evidence that he was unarmed.

Conclusion

757    We are not satisfied that the primary judge erred in concluding that the evidence of the Afghan witnesses, especially Hanifa, corroborated Person 4 in material respects. To the contrary, we are of the view that his Honour was correct. Nor do we accept the appellant’s submission that his Honour failed to undertake any holistic analysis of the evidence to assess its reliability.

758    It is trite that a tribunal of fact may accept parts of the evidence given by a witness and reject other parts. Put another way, as the appellant acknowledged, a witness can be reliable about one thing and not about another. The circumstance that a witness is unreliable about certain matters “may affect the degree of satisfaction of the existence or otherwise of a fact in issue to which the witness’s evidence was directed” but “need not lead to the rejection of all of the evidence of that witness”: Kazal v Thunder Studios In (California) [2023] FCAFC 174; 416 ALR 24 at [272] (Wheelahan J), with whom Wigney and Abraham JJ agreed at [1] and [425] respectively. In Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [795] the NSW Court of Appeal observed that, in contrast to “[a]n accumulation of lies, or matters which are not peripheral or inconsequential but which do not go to the precise matter in issue”, which may have an impact on the witness’s evidence, “[a] lie or a number of lies on inconsequential matters … may not, and in a normal case would not, have such an impact on that witness’ [sic] evidence as to require that the evidence be treated with added caution”. Even in the former case, the extent of the impact is a matter for the trial judge and “usually not the matter of appellate intervention” unless the appellate court is satisfied that the trial judge failed to use or palpably misused his or her advantage, or acted on evidence that was glaringly improbable or contrary to incontrovertible facts.

759    In the present case, there were remarkable similarities between key aspects of the evidence given by the Afghan witnesses on the one hand and Person 4 on the other. There was no suggestion, let alone prospect, of collusion and no evidence of communication between them. In these circumstances, notwithstanding differences in recollection about non-essential matters, the only rational explanation for those similarities is that all these witnesses were giving an account of the same events. Despite some difficulties with certain aspects of the evidence of the Afghan witnesses, his Honour was entitled to give weight to their accounts, as he did, where it was supported by other evidence.

760    It is true, as the appellant argued, that where a trial judge finds in favour of one party against another’s criticisms of the reliability of a witness’s evidence, there must be a rational explanation for doing so. Here, however, there was such an explanation.

761    Particular 20 is not made out.

Did the primary judge err by rejecting the account of a legitimate engagement in “the official contemporaneous records” (particular 21)?

762    Particular 21 is concerned with an entry in the OPSUM for the Darwan mission, which was prepared at 1445DE on 11 September 2012. In particular, it is concerned with an entry for events said to have occurred at approximately 1110DE. An uncontentious summary of this entry appears at J[1202(11)]. It reads:

[A]t approximately 1110DE, a Force Element member whilst waiting for extraction, observed an individual moving through a thickly vegetated cornfield and utilising an ICOM radio. The Force Element assessed that the individual was taking a direct part in hostile activity against the Force Element by reporting on Force Element movements and that it was likely that the individual was manoeuvring between tactical weapon caches. The Force Element called to the individual to stop and pursued him into the cornfield. The manner in which he manoeuvred (deliberate rapid movement followed by ignoring clear and repeated warnings from the Force Element) was consistent with the application of this insurgent TIP [tactics, techniques and procedures]. The Force Element assessed that they would not be able to apprehend the individual before he reached a potential weapons cache. A military working dog was not immediately available in order to effect detention. The Force Element engaged the individual resulting in 1 x EKIA. “BDA OF THE EKIA RECOVERED 1×ICOM”.

763    Substantially the same account appears in the Sametime chat at 1437DE as a report of “Post-brief consolidation of 5W”.

764    The primary judge said (at J[668]), albeit in the context of his consideration of the Whiskey 108 mission, that “it seems that the usual procedure was that there was a Patrol Debrief involving the patrol commander and members of his patrol and then the patrol commanders met with each other and the troop commander and troop sergeant”.

765    The appellant’s evidence was that, apart from himself, the patrol commanders who were present at the debrief were Persons 7, 31, 32, 35, 55 and 57. Person 7’s recollection was that the debrief was limited to the appellant saying: “we killed one EKIA” or “we killed one spotter”. Person 31 gave similar evidence. Evidently there was no evidence that the appellant’s account was challenged at the debrief.

766    The appellant submitted that it is “improbable” that he was able to provide an unchallenged false account of the killing of EKIA4 at the debrief in the presence of the other patrol commanders, the troop commander, and the commanding officer when, on the respondents’ case it would have been improbable for a spotter to remain undetected in a cornfield for a period of five or more hours and when multiple Australian soldiers would have been in a position to observe an assault and execution.

767    There are several problems with this submission.

768    First, the underlying premise for it is not made out. The effect of the evidence of the patrol commander witnesses was that they were not in a position to contradict the appellant, not because they knew his account to be true, but because at that time they did not know anything different. None of them was alleged to have been an eyewitness.

769    At the time the cliff kick was said to have occurred, Person 7 was at the Stream 6 helicopter landing zone located in the dry riverbed opposite the middle compounds waiting for extraction. Person 7 testified that about 10 seconds after he received the three minute call to board the helicopter, he heard a number of shots and then heard the appellant’s voice over the radio saying: “Alpha, this is 2–1. That’s one EKIA. We just engaged a spotter”. 2–1 was the appellant. Person 31 gave evidence to the same effect. Persons 55 and 57 did not give evidence. Person 35, who was called by the appellant, did not purport to have seen the killing or even to have heard the shots. He was apparently not in the vicinity. He claimed to have no recollection of anything being discussed in the debrief.

770    The appellant submitted that at least 20 SASR soldiers were still in Darwan at the time of the alleged cliff kick and the subsequent killing and that a majority of them “must have been in a position to witness the assault and the engagement”. But this is nothing more than speculation. Whether any of them was in a position to witness either event depends on what they were doing at the precise time. The submission is also inconsistent with the proposition that Shahzada’s evidence that he saw “many soldiers” was “inherently improbable”.

771    The appellant made no attempt to support his submission by reference to direct evidence. None of Persons 32, 35 or 38, who were called as witnesses for the appellant, was asked by his counsel whether they could see the end compound from their extraction point or where they were looking in the minutes before extraction. Where counsel refrained from asking any questions of his witnesses on this topic an inference favourable to the appellant should not be drawn: Ferrcom at 418–419 (Handley JA). No member of the overwatch team was called to give evidence and there was no evidence that any member of the overwatch team was looking at the southernmost compound or the cornfield at the relevant times. The killing occurred within minutes of extraction. It was common ground that visibility into the cornfield was limited. Person 56, who was close by at the Eurodos 1 helicopter landing zone waiting for extraction, did not even hear the shots (or the radio call). On his return to Tarin Kowt, however, he was informed that a person had been kicked off a cliff and later shot.

772    Even if any of the SASR soldiers who were present in Darwan did see an assault or witness an unlawful killing, we are not persuaded that it is improbable that they would not speak out at the time to contradict the appellant for substantially the same reasons we give at [668].

773    Secondly, in evidence in chief the appellant was asked who was responsible for writing up what had been said after the debrief “or writing it up as a report”. He did not answer directly. Rather, he replied:

Typically, the after-action reports were written by the operations officer or one of his juniors, effectively – like, an operations sergeant. The information is captured in front of the OC and the troop commander. Any questions are asked by the operations officer to us while we’re there; for example, they will check on the real-time feed that has been sent back to confirm where and when the EKIAs were made, so it lines up with what they – what they think they know. And once that information is shared with them, they then go and write the report.

774    However, there is no dispute that the appellant was the exclusive source of the account in the OPSUM. The source of the account in the Sametime chat record is said to be FE-A, which is an acronym for Force Element Alpha (the troop commander) but it is clear from the evidence that the troop commander was merely reporting what the appellant had told him. The appellant testified that he “made a radio transmission to Alpha, which is the troop commander, saying that we had one EKIA, we have engaged a spotter — in very short terms, engaged a spotter in the cornfield and gave him a rough direction, I believe, which I now understand was recorded on the — on the mission chat …”.

775    In other words, the operational reports did not constitute independent evidence to support the appellant’s discredited account. They were no more than a repetition of his own self-serving statements.

776    The primary judge found that the appellant’s report that Ali Jan (“EKIA4”) was a spotter was false and that the appellant continued to spread false reports that Ali Jan was a spotter who had been engaged in the cornfield (J[1368(13)]). He also found that the appellant was dishonest in numerous other respects. The appellant did not challenge any of these findings. As the respondent submitted, a prior record of a false account is of no probative value.

777    Thirdly, the account provided in the operational reports is on any view unreliable. Not only did it emanate from a man whom the primary judge found to be “dishonest and unreliable” (at J[173]), but on this very subject that man gave evidence which was inconsistent with the account recorded in those reports.

778    The operational reports refer to a spotter “using” an ICOM radio while he was “moving through a thickly vegetated cornfield” and ignoring “clear and repeated warnings” to stop. In cross-examination at the trial, the appellant testified that he never heard the ICOM and that he first saw it “on the ground sort of underneath him” when Person 11 was “clearing the body” (during the SSE). And on his account Person 11 did not tell him that he had earlier seen the putative spotter using an ICOM radio in the cornfield:

Was it Person 11 or Person 4 who told you about the ICOM?---No. I remember seeing it.

But did they tell you first? Is that – how did you first come to learn of the ICOM and you see it?---I saw it when Person 11 was clearing the body.

All right. And that was the matter that made you think this was a spotter?---No. I thought he was a spotter because – primarily, because Person 11 had engaged, and because of all of the reasons that I had previously given in terms of we had – had ICOM traffic already, we had an individual who was behaving the way the enemy does by being in corn as opposed to being out in the open, which is what civilians do. And we had helicopters coming in, and the determination of Person 11 was the individual was acting with hostile intent. So, because he has engaged him, that is enough for me to believe that that’s what he believes, and I agreed with him because of the position we were in and the atmospherics, and also the intelligence. So knowing that we came here, which is a known Taliban village, which is what we get in the intelligence briefing prior to leaving, that a key target for Australia is there, that we’ve already had on that day three engagements of Taliban and the issue with the individual across the river, I think it was a more than reasonable assessment that he was showing hostile intent.

779    There is therefore a material inconsistency between the account in the operational reports and the appellant’s evidence about a critical matter. No attempt was made on the appeal to reconcile the conflict. Both were inconsistent with the evidence of Person 4 and the Afghan witnesses.

780    In his evidence in chief Person 11 claimed to have seen a person moving suspiciously among the corn and to have seen him with a radio. In his outline of evidence, however, he intimated that he had not seen the radio until the SSE. There, he stated that “EKIA4” was found during the SSE to be in possession of a radio and “[t]he presence of a radio confirmed he was a spotter and therefore a legitimate target”.

781    Further, there was no hint in the accounts given by the appellant or Person 11 that an assessment had been made that there were caches of weapons nearby and that the deceased was likely manoeuvring between them. No evidence was given that (or to the effect that) the Force Element called to the deceased to stop or that there were even clear, let alone repeated, warnings to stop. Nor was there evidence that “EKIA4” was pursued into the cornfield. The story Person 11 presented to the Court was that the spotter was moving in the cornfield in a suspicious manner. The appellant said he did not see the spotter moving before Person 11 engaged him. The representation in the OPSUM that “the FE assessed that they would not be able to apprehend the individual before he reached the weapons cache” was not advanced by either the appellant or Person 11 in evidence before the primary judge. And there was no evidence that anyone turned his mind to the availability of a military working dog.

782    Thus, even on the appellant’s case there is no reason to give any weight to the account in the operational reports.

783    Fourthly, as respondents pointed out, the attempt by the appellant to link his report of a spotter with the ICOM traffic on the day was contrary to the objective evidence of whether and where the ICOM traffic was detected. The primary judge held (at J[1325]) that a place other than the cornfield was identified as a source of the ICOM traffic and that other important evidence did not indicate any ICOM traffic at all in the vicinity of the cornfield that day. This matter is the subject of particular 24 and is also dealt with in the closed court judgment.

784    Particular 21 is not made out.

Did the primary judge err by giving insufficient consideration to an alleged inconsistency in the evidence of Person 4 concerning the ICOM radio (particular 22)?

785    Particular 22 indirectly challenges the findings of the primary judge that the man shot in the cornfield was Ali Jan, that he was not a spotter, and that he did not have an ICOM radio. Those findings were supported by the evidence of the Afghan witnesses and Person 4. This particular, however, is the only one which specifically challenges a finding about Person 4’s evidence.

786    Hanifa said he had never seen Ali Jan with a radio. Mangul said that he did not see Ali Jan carrying a radio that day and would not know how to operate one. Shahzada said he did not have one and had never seen him with one.

787    Person 4 testified that during the SSE, while Person 11 was taking photographs, he noticed an ICOM radio positioned next to the body of the deceased. He said he did not know how it came to be placed next to the body. To his knowledge, during the time the deceased had been placed under control, kicked off the cliff, and dragged across the riverbed, the deceased did not have an ICOM on his person. When asked whether he understood where the ICOM had come from, Person 4 replied: “I guess it dawned on me that [it had come] from the individual across the river”. The reference to “the individual across the river” was a reference to EKIA3. As we mentioned earlier, Person 4 testified that an AK-47 rifle, an ICOM radio and some other items, including a piece of det cord had been retrieved during the SSE conducted after EKIA3 had been killed, placed in an evidentiary or evidence bag, and handed over to troop headquarters. In his evidence in chief Person 4 said that he was unaware of the contents of the bag. That evidence was not challenged. In cross-examination he said that Person 11 had placed the items in the bag and later handed the bag to the troop sergeant. In cross-examination he did not repeat his earlier evidence that he had not seen the contents of the bag but his evidence must be read as a whole, particularly since that evidence was not challenged.

788    Person 4 also gave evidence which the primary judge accepted (which acceptance is not challenged on the appeal) that the appellant told him in 2012, possibly at the start of the deployment, that the patrol needed to carry items to validate engagements.

789    The primary judge first touched upon Person 4’s evidence about the ICOM radio he noticed for the first time during the SSE at J[1117–[1119] in the course of his Honour’s assessment of the respondents’ witnesses. His Honour appears to accept that there was an inconsistency in Person 4’s account.

790    His Honour said at J[1119] that “it is highly unlikely that the ICOM radio found with the insurgent killed near the Helmand River was both handed into troop headquarters and placed on the man who was killed in the cornfield”. He concluded that Person 4 had to be mistaken about at least one of those matters and that was something he had to take into account.

791    His Honour returned to the subject at J[1303]–[1306]:

1303    The applicant submits that the appropriate finding is that EKIA4 (the man the respondents say was Ali Jan) had an ICOM radio. The photographs of the body show that. Neither the applicant nor Person 11 or Person 56 could recall the recovery of an ICOM radio from EKIA3, that is the man the applicant shot on the other side of the Helmand River. It is true that Person 4 referred to the recovery of an ICOM radio and the OPSUM for the mission refers to the recovery of an ICOM radio. However, it is reasonable to conclude that the OPSUM is in error in this respect. The applicant and Person 11 referred to the recovery of detonators and Person 4 referred to the recovery of a piece of det cord. There is no reference in the OPSUM to the recovery of a detonator cord. This is an illustration of the fact that the OPSUM can be in error in certain respects. Furthermore, a Sensitive Document makes no reference to the recovery of an ICOM radio (see exhibit A10 Tab 33 para 6).

1304    It is true that Person 4 considered that the ICOM radio on EKIA4 was waterlogged and was the ICOM radio recovered from EKIA3, but Person 4 gave evidence inconsistent with that possibility because he gave evidence that the ICOM radio, other items and a piece of det cord were placed in an evidentiary bag and with the weapon handed to the troop sergeant.

1305    The respondents’ case is that the man killed was Ali Jan and he was not a spotter and did not have an ICOM radio. First, if the evidence of Mohammed Hanifa, Mangul Rahmi and Shahzada Fatih and Person 4 (and to a lesser extent Person 56) is accepted, then the man in the cornfield who was detained in the compounds at the southern end and then kicked off a cliff did not have an ICOM radio. Secondly, it would seem from the defence documents that two ICOMs were apparently recovered, but only one was returned to Tarin Kowt. Thirdly, the respondents refer to closed Court documents and they submit that if there was a Taliban spotter hiding in the cornfield with an ICOM radio, it is highly improbable that it was not activated at any time during the entire mission, notwithstanding multiple helicopter insertions and extractions.

1306    In my opinion, there is a good deal of force in the respondents’ closed Court submissions. I refer to the closed Court reasons (at [89]–[90]). Further, the OPSUM for the mission does refer to two ICOM radios, one in connection with the engagement with EKIA3 and the other in connection with the engagement with EKIA4, but only one being recovered and returned to Tarin Kowt. The fact is that I am satisfied that the man in the cornfield was Ali Jan and that he was not a spotter and did not have an ICOM radio.

792    His Honour returned again to the subject of the ICOM at J[1332]–[1340]. Only one of the matters considered in those paragraphs is relevant to this particular. That is the submission recorded at J[1327] that it is improbable that the appellant or Person 11 chose to keep a throwdown for later use and at J[1132] that it is improbable that no-one saw the appellant or Person 11 carry an ICOM radio as a throwdown.

793    The appellant submitted that there were four errors in the treatment by the primary judge of the origin of the ICOM radio and his Honour should have concluded that the ICOM photographed with the body of EKIA4 had not been planted on him .

794    First, the appellant alleged that there was a problem with the reasoning. He claimed that the failure to make an express finding concerning the origin of the ICOM photographed with the body of “EKIA4” “deprived the [a]ppellant of understanding clearly how his Honour resolved the irreconcilable inconsistency in Person 4’s evidence that the ICOM placed on the body of EKIA4 had been recovered from EKIA3 notwithstanding that the same ICOM was handed over to the Troop sergeant prior to the engagement of EKIA4”.

795    Secondly, the appellant alleged that the “apparent finding” by the primary judge that the ICOM was recovered from EKIA3 — a necessary step in forming a conclusion on the ultimate issue, namely, that the ICOM was used as a “throwdown” — was made despite the respondents’ failure to cross-examine the appellant about the origin of the ICOM or the inconsistency in the OPSUM about the number of ICOMs recovered. Given the serious nature of the allegation, in determining whether the evidence was sufficient to support this “apparent finding” to the requisite standard, the Court is entitled to take into account the failure to cross-examine him on the point: Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 at [73]–[79]; [85] (Allsop P, Giles JA and Tobias AJA).

796    However, this submission was formally abandoned in the appellant’s submissions in reply.

797    Thirdly, the appellant alleged that the primary judge erred by relying on the reference in the OPSUM to the recovery of two ICOMs and only one being returned to Tarin Kowt to support the respondents’ case that the ICOM photographed with “EKIA4” was a throwdown that had been recovered from EKIA3. The appellant submitted that the inference the primary judge drew from the OPSUM that an ICOM had been associated with two separate engagements was speculative, the author of the OPSUM was not called to give evidence about its contents, and there was an alternative possible explanation. The alternative possibility was that the reference to one ICOM being returned to Tarin Kowt was that there was an error in the OPSUM, assuming that two ICOMs were in fact recovered during the mission, and the primary judge failed to consider that possibility as “an equally likely, if not probable, explanation for the inconsistency”. The appellant notes that none of the appellant, Person 11 or Person 56 said that an ICOM had been recovered from EKIA3 and the OPSUM also refers to the recovery of two Chicom Type 56 assault rifles during two separate engagements when three such weapons are recorded as having been returned to Tarin Kowt. In oral argument Mr Walker SC included Persons 4 and 56 in that list but at least in the case of Person 4 that is an obvious mistake. Person 4 testified that EKIA3 had been found with an ICOM. Person 56 gave no evidence about the circumstances surrounding the killing of EKIA3 or the sensitive site exploitation carried out in its wake. It is apparent from his evidence that he was not involved in the SSE and, he testified that when he saw the appellant on his return to the other side of the river, he had a weapon with him (“some form of AK variant”). That evidence is not inconsistent with an ICOM having been recovered from EKIA3.

798    Fourthly, the appellant alleged that the primary judge erred by failing to consider the significance of the fact that none of Persons 4, 7, 16, 35 or 56 testified that he had observed the appellant or Person 11 carrying an ICOM radio in the light of the evidence of Person 4 that the patrol had earlier handed in an ICOM recovered from EKIA3 to the troop sergeant in an “evidentiary bag”. He submitted that ICOM radios are not inconspicuous because the antenna is “protuberant”.

799    It will be recalled that all the Afghan witnesses testified that Ali Jan was not carrying a radio, that he was in Darwan for an innocent purpose and that he was not Taliban. In the absence of a challenge to their honesty, it is difficult to see how the appellant’s arguments are tenable. Be that as it may, we are not persuaded by them.

800    First, in circumstances in which the appellant and Person 11 had given a false account and his Honour’s findings in that regard are not challenged, his Honour could do no more than conclude that Person 4 was mistaken in one or other respect and to take that matter into account.

801    Secondly, and in any event, the appellant overstates the effect of Person 4’s evidence about the source of the ICOM radio photographed beside the body of the deceased. It could only have been an assumption on his part that it was the radio taken from EKIA3 since he did not profess to see how it came to be in the position in which it was photographed. Also the appellant neglected to mention Person 4’s evidence that he did not see the contents of the evidentiary bag which Person 11 put together and handed to the troop sergeant. The effect of his evidence, then was that when the evidentiary bag was handed over to the troop sergeant he merely assumed that it contained the ICOM radio which had been retrieved from EKIA3 during the SSR process. The inconsistency in his evidence, then, was more apparent than real.

802    Thirdly, his Honour did not make “an apparent finding” that the ICOM came from EKIA3. He did not resolve the apparent inconsistency. Contrary to the appellant’s submission, that was not a necessary step in reasoning toward the conclusion that the ICOM radio was a throwdown. His Honour came to that conclusion based on the whole of the evidence, including the accounts of the Afghan witnesses, the evidence about the need to carry items to validate engagements and the instruction during pre-deployment training, and the failure to detect any radio communications where the deceased was allegedly hiding.

803    Fourthly, we reject the assertion that the primary judge did not consider the possibility of error as an explanation for the reference in the OPSUM to only one ICOM radio being returned to Tarin Kowt when two were recovered during the mission. His Honour referred to the appellant’s submission on this matter at J[1303] and rejected it at J[1306]. The assertion that the author of the OPSUM was not called to give evidence about its contents is baffling. As we have already observed, the appellant was the sole source of the account in the OPSUM about the killing in the cornfield and the only possible sources of the account in the OPSUM about the killing of “EKIA4” at about 1108DE and the SSE that followed are the appellant, Person 11 and Person 4, as there was no evidence to suggest that anyone else witnessed these events.

804    Fifthly, the fact that other soldiers did not testify that they had seen the appellant or Person 11 carrying an ICOM radio is unsurprising. Whether the ICOM radio was visible depends on where it was carried and whether the carrier wanted it to be seen. There is no reason to think that the antenna could not be hidden in clothing on the person of the appellant or Person 11. Furthermore, the appellant’s own evidence was that he did not see the ICOM radio until Person 11 was “clearing the body” during the SSE process. As the respondents’ submitted, the notion that an Afghan spotter could successfully conceal an ICOM on his person but an Australian soldier could not need only be stated to be rejected.

805    In any event, there is no reason to think that anyone would have commented on the presence of the ICOM radio if they had seen the appellant or Person 11 carrying an ICOM radio, having regard to the pre-deployment instructions they had received and the appellant’s remark to Person 4 at the beginning of rotation 18.

806    Sixthly, the appellant and Person 11 relied on the photograph of the ICOM radio on the body of the deceased to support their case that he was a spotter. There was no other evidence to support it apart from the operational reports which the appellant generated. Although the appellant’s evidence was that he did not see the radio until after the deceased was killed, which was consistent with what Person 11 had stated in his outline of evidence, Person 11’s evidence deviated from the outline. The fact that in their evidence neither the appellant nor Person 11 said that a “personal communication device” was recovered from EKIA3 is immaterial since neither of them was accepted as a witness of truth and the primary judge’s conclusions in that regard are not challenged.

807    Once the accounts of the appellant and Person 11 were rejected, there were “no positive proved facts” from which an inference could be drawn that the deceased was a spotter (Baden-Clay at [55]) but a wealth of other evidence pointing to the conclusion that the man they referred to as EKIA4 was Ali Jan and Ali Jan was not a spotter. The third hypothesis raised by senior counsel in argument — that the ICOM radio was a throwdown used to legitimise a lawful killing — is not a reasonable one, since the only witnesses who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility (see Baden-Clay at [57]). It was not incumbent on the respondents to rebut the possibility.

Did the primary judge err by failing to accept the evidence of Person 100 that no complaints had been made concerning war crimes at meetings in 2013 and speculating as to the reasons for his evidence (particular 23)?

808    At trial the appellant accepted that Person 4 had complained that the appellant had killed a detainee after kicking him off a cliff but submitted that he did not do so until, at the earliest, late 2016 when, on his own account, he first spoke to Person 7 about it. The appellant submitted that the Court should find that there was a substantial delay of “approximately a number of years” before the first complaint, the delay was unexplained, and therefore Person 4’s evidence was unreliable (see J[1125]). In support of that submission the appellant relied on evidence given by Person 100 that “the cliff kick incident” was not raised at a meeting of sergeants in or about early 2013, which Person 7 attended, or at a meeting of corporals the same year, which was attended by Persons 4 and 18 (and, according to Person 100, also Person 14) (J[1141]), although various other complaints had been made about the appellant at those meetings. The appellant also argued that, if Person 7 had been told of the incident when he said he had (in 2013), it would have been mentioned in a letter prepared by Person 6 and signed by him and Person 6 in 2014 complaining about the appellant’s Commendation for Distinguished Service (Commendation).

809    The reasons the primary judge gave for not accepting Person 100’s evidence appear at J[1142]. There, his Honour said:

Person 100 was the RSM in 2013. He was called by the applicant. He gave evidence that various complaints about the applicant relating to his Victoria Cross, bullying and claiming he killed various EKIA when others were responsible, were made at the sergeants’ meeting and at the corporals’ meeting, but no complaints were made about war crimes, either at W108 or involving a PUC being kicked off a cliff. I reject that evidence. I accept Person 7’s evidence that he was told of the cliff kick allegation by Person 4 in 2012 and he raised the allegation at the sergeants’ meeting. I have no doubt that if Person 7 knew about the allegation he would have raised it and I find that he did know of the allegation. It seemed to me that Person 100’s memory of the meetings was not particularly good, including as to what was said and who was present and he had plainly reinforced his memory by discussions with Person 51. Whether Person 100 has had a genuine memory failure, perhaps aided by the allegation being a somewhat sensational one and one which he shut down quite quickly, or he was consciously covering up his own failure to act at the time because he did not want to create a scandal within the unit, or engender the animosity of the applicant’s powerful friends and associates, as the respondents allege, is difficult to determine. One thing is clear and that is that the allegation was raised and I reject Person 100’s evidence to the contrary. The applicant seemed to submit that Person 100 appeared impartial, but I did not find anything in his demeanour to be a reason to either accept or reject his evidence.

(Emphasis added.)

810    In the following paragraph the primary judge said that he accepted Person 7’s explanation for the absence of a reference to the incident in the letter of complaint about the Commendation. That was that the letter was prepared “by reference to the statements in the Commendation” (and addressed only those statements) and that Person 7 had already raised the matter in a meeting with Person 100.

811    The emphasised part of J[1142] is the passage the appellant submitted discloses error. He argued that, despite making no findings about why Person 100 would give unreliable evidence, the primary judge speculated about Person 100’s reasons for doing so, “presumably to explain the basis for rejecting his evidence and preferring the accounts of Persons 7 and 18”. He also argued that his Honour placed insufficient weight on three contemporaneous documents. Those documents were Mr Masters’ notes of the conversations with Person 7 in late 2015 and early 2016 and the letter of complaint about the Commendation, none of which referred to the cliff kick, and notes made by Mr McKenzie of a conversation with Person 7 in 2018, which do. The appellant contended that the finding that Person 7 raised the cliff kick incident at the sergeants’ meeting in 2013 is against the probabilities and the error apparently arises because his Honour focused on the honesty of the witnesses rather than the reliability of their evidence. He said this is significant for two reasons. The first is that, if the evidence of Person 100 were accepted, as it should have been, Persons 7 and 18 (who both said they had reported the allegation to Person 100) were either lying or giving false evidence due to reconstructed memory, which reflects adversely on their credibility in general. The second is that the chief witness (Person 4) made no report of his allegation for years and, absent sufficient reason to explain the delay, the inference is that the alleged incident did not happen.

812    We reject the appellant’s argument.

813    First, it is implicit from his Honour’s reasons that he did not accept Person 100’s account. He was not bound to accept it. It was inconsistent with the evidence of Persons 7 and 18, whom the primary judge found to be both honest and reliable (at J[1130] and [1140]). While his Honour did not find that Person 100’s denials were dishonest, he plainly did not think they were reliable. In coming to that view it is evident that he formed a favourable impression of Person 7 and took into account Person 31’s unchallenged evidence that Person 7 had reported the matter to him in late 2012 or early 2013. The primary judge had a clear advantage over this Court in assessing his evidence.

814    As we mentioned in our introductory remarks, it is well established that “a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact” (Devries at 479 per Brennan, Gaudron and McHugh JJ). Rather, in any case in which such a finding “depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’” (Ibid). These principles apply to “factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence” including findings of secondary facts based on a combination of such impressions and other inferences from primary facts: Lee v Lee [2019] HCA 28; 266 CLR 129 (Lee v Lee) at [55] (Bell, Gageler, Nettle and Edelman JJ).

815    The evidence Person 7 gave was not glaringly improbable. Nor was it inconsistent with facts which were incontrovertibly established. And there is nothing to suggest that his Honour failed to use, or palpably misused, his advantage.

816    Secondly, the emphasised passage at J[1142], which the appellant impugns, amounts to no more than musings. His Honour did not resort to speculation in rejecting Person 100’s evidence. Indeed, he eschewed it. His Honour’s findings were based on the preponderance of evidence and his evaluation of the credibility of the witnesses. That evidence demonstrated that Person 100’s account was unreliable.

817    Person 18’s evidence was that in late 2012, at a function at the Gratwick Club on base (in suburban Perth), after the squadron had returned from Afghanistan, he had a conversation with Person 4 around one of the wine barrels. He said this was the first time he had caught up with Person 4 “in some time”. He said Person 4 “broke down” to him. He told him that “[s]omething very bad happened on the last job”, more particularly, Person 4 told him:

I was doing something. I turned around. I saw one of my teammates have hold of a detainee. I then saw Ben Roberts-Smith kick him off the cliff.

818    Person 18 said that he stopped the conversation at this point. He explained:

This was another night where watching friends break down over things that happened in Afghanistan, and I had a – I was sick of it. I had had enough of it, and that was for me going, “I don’t want to hear any more.”

819    While Person 18 volunteered that both he and Person 4 were intoxicated at the time of the conversation, he was not questioned about the extent of their intoxication and it was not put to him that his evidence was unreliable on that account.

820    Person 18 also testified that in early 2013 he told Person 7, among others, what Person 4 had told him.

821    Person 7 remembered that conversation. He said that at the SAS barracks in early 2013 Person 18 asked him about “the Hekmatullah mission”. Person 7 testified that Person 18 told him that “Ben Roberts-Smith kicked a man off a cliff”. Person 7 said he did not believe it and asked him to confirm what he had said and Person 18 replied: “Well, if you don’t believe me, go and ask [Person 4]”.

822    And he did. Person 7 said he spoke to Person 4 later that day or the next day while they were at work. He testified that when he saw Person 4 he approached him and asked: “Hey mate. I’ve got a question”. “Did RS kick a bloke off a cliff?” Person 4 replied: “Yeah, bro”. In cross-examination he affirmed that the conversation took place in early 2013 and when asked whether he was sure about that, Person 4 answered: “I’m positive about that”. It was put to him that he approached Person 4 in 2016, saying he wanted to know about the mission in Darwan. Person 7 denied that, saying it would have been impossible as he was not in Australia in 2016.

823    Person 7 testified that Person 4 also told him (in early 2013) that:

RS grabbed one of the PUCs, that he was walking around by – had him by the shoulder, walked him around, walked him to the edge of a cliff, and then he took a couple of paces away. He told me that he didn’t know what was going on: “What’s – what’s this all about?” And then he said that RS then turned around and did a kick and kicked the man in the – in the chest and kicked him off the cliff.

824    When asked whether Person 4 said anything else to him, Person 7 replied:

I said to him, “Was this man detained? Was he bound? Were – were his hands bound?” He said, “Yes. They were.” And I asked him, “Were they in front or behind his back?” And he said, “They were behind his back.”

…

He also told me that he got a wave of – or a wave of panic come across his – across his body, and he saw the man’s – the Afghan man’s head hit a rock, and a tooth flew out.

…

He said that he also – when he had this wave of panic – that he realised then that he had to get out of that patrol.

825    Person 7 said he stressed to Person 4 the seriousness of the allegation he was making and asked him more than once whether he was telling him the truth. Person 7 told Person 4 that the allegation could not be left there and Person 4 nodded his head. Person 7 said that he then met with a number of other sergeants and informed them of the allegation. He identified the other sergeants as Persons 43, 44 and 51. He also said that Person 105 heard the conversation. He said he and the other three sergeants arranged a meeting with the regimental sergeant major, Person 100, and informed him that he had been told of an allegation of a war crime.

826    Persons 44, 51 and 105 did not give evidence. Person 43 did. He was called before Person 7. He said that he recalled attending a meeting in 2013 at which Person 7 was present, but that he could not recall what matters Person 7 had raised at the meeting.

827    Person 7 said he raised the subject with Person 4 again in 2014 when they were at work but Person 4 did not want to talk about it. He also said that the same year he spoke to the new regimental sergeant major about it. That was Person 102. No-one else was present. It was not put to Person 7 in cross-examination that he did not mention the matter to Person 102. And Person 102 did not give evidence.

828    Secondly, the appellant ignored the evidence given by three other witnesses, which was not challenged (at least not directly), and which his Honour accepted. Those witnesses were Person 56, Person 31 and Mr Hastie.

829    Person 56 was a trooper in the appellant’s patrol in Darwan. It will be recalled that Person 56 testified that, in the ready room in Tarin Kowt on the very day the incident was said to have occurred, either Person 4 or Person 11 said that an individual had been kicked off a cliff and subsequently shot. The primary judge accepted that evidence (at J[1158]). Indeed, it was never put to Person 56 in cross-examination that this conversation did not take place.

830    Person 56 was a reluctant witness. The appellant submitted that an alleged inconsistency between his evidence and that of Person 4 about the presence of an interpreter was relevant to the overall reliability of the two men. But such an inconsistency does not undermine the reliability of other aspects of his evidence. The appellant did not submit that the evidence of Person 56 about the conversation in the ready room in Tarin Kowt was unreliable. The respondent asserted that his evidence about that conversation was unchallenged and the appellant did not contradict the assertion in his submissions in reply.

831    Person 31 was a patrol commander and a member of E Troop on the Darwan mission. He testified that in late 2012 or early 2013, while he was at work at the regiment in Australia, Person 7 told him that he had just heard from Person 4 that the appellant had “kicked a PUC off the cliff whilst we were on that job” in Darwan. As the primary judge observed (at J[1134]), Person 31’s evidence provided “clear corroboration” for Person 7’s account. Person 31’s account was unchallenged.

832    At the time he gave evidence, Mr Hastie was the Assistant Minister for Defence. He was formerly a commissioned officer in the ADF who served in the SASR from January 2010 to August 2015. He testified that in the second half of 2014 when he was briefly back in Perth he attended a meeting at the 4 Squadron troop office with Person 7 and the troop sergeant in which Person 7 said that “a PUC had been kicked off a cliff” by the appellant. He described the occasion as “a pastoral meeting with Person 7 who was greatly vexed about his concerns around certain incidents overseas [which] had not been dealt with by the chain of command”. Mr Hastie said that by that time he had already heard about the appellant kicking an Afghan farmer off a cliff. None of this evidence was challenged.

833    Thirdly, the absence of a reference to the appellant’s treatment of a PUC in either Mr Masters’ notes or the letter of complaint about the Commendation is far from decisive. As the respondents submitted, the fact that Mr Masters did not make a written record does not prove that Person 7 did not tell him, let alone prove that Person 4 and/or Person 18 did not tell Person 7. The unchallenged evidence of Person 31 and Mr Hastie makes it abundantly clear that Person 7 knew of the allegation well before 2016. Person 7 testified that Mr Masters asked him about an allegation that the appellant had kicked a detainee off a cliff and he confirmed to Mr Masters that he had heard such an allegation.

834    Fourthly, there is no foundation for the proposition that the primary judge was focussed on honesty as opposed to reliability. His Honour found that the evidence of Person 4 was honest but his memory about when he told Persons 7 and 18 was “faulty” (J[1144]).

835    It was common ground that Person 4 had memory problems. He admitted in cross-examination that he was taking prescription drugs which he had been told affected his memory and that he suffers from “memory impairment”. The primary judge discussed this matter at J[1094]-[1102]. At J[1099] his Honour noted that Person 4 admitted that media reporting of events in Afghanistan triggered memories for him of his service in Afghanistan and caused him to ruminate about it and that he experienced night terrors and severe anxiety with near panic episodes. His Honour also noted Person 4’s evidence that he had seen media reporting of the mission to Darwan and, in particular, a 60 Minutes television program containing a re-enactment of what was alleged to have occurred at Darwan which caused him to experience flashbacks and to ruminate about the Darwan mission. His Honour then went on to say at J[1102], in a passage of the reasons which is not challenged:

These matters must be taken into account. However, they are taken into account with the whole of his evidence. Clearly, I will have to return to this. At this point, I record that Person 4 was in the witness box over a number of days and I did not detect anything in his ability to comprehend the questions he was asked and the answers he gave or any suggestion that his mental health issues, including the medications he was taking, affected his ability to recount the substance of what he saw. Nor did I detect at any time an attempt by Person 4 to give deliberately false evidence. There is no medical evidence explaining how the memory problems Person 4 identified could result in his misremembering events at Darwan to the point of saying that the cliff kick incident occurred, the man was carried across the dry creek bed to the cornfield and subsequently shot. Nor is there any medical evidence to the effect that absent deliberate dishonesty (which is not present) Person 4’s mental health condition could lead to him, based on what he had heard, to forget not only certain matters that occurred in the past, but to substitute in his own mind (without dishonesty) an elaborate and relatively intricate false account. It may be noted in this context that even on his own account he told Person 7 about the cliff kick incident in 2016 which was before any media reporting of the incident. For reasons I will give, I find that he is mistaken about that and I accept Person 18’s evidence that Person 4 told him of the incident in late 2012 and Person 7’s evidence that Person 4 told him of the incident in early 2013. Although I must take into account Person 4’s mistake about that matter, the finding about when he told others of the cliff kick incident makes it most unlikely that a detailed false recollection was in some way implanted in Person 4’s mind by what he had seen or heard or both.

(Emphasis added.)

836    We are satisfied that the primary judge did not err by failing to accept the evidence of Person 100 that no complaints had been made concerning war crimes at meetings in 2013 and speculating as to the reasons for his evidence.

Did the primary judge err in finding that there was a high probability that, if there had been a spotter in the cornfield next to the helicopter landing zone, it would have been detected by the aerial scanning in the absence of expert evidence and when there was evidence that “scanning assets” had failed to detect insurgents on previous missions (particular 24)?

837    If the appellant’s account were correct, for the reasons his Honour explained in his closed court reasons, the alleged spotter managed to evade detection by any of the electronic warfare assets twice in the space of half an hour. As the respondents submitted, once is unlikely; twice is highly unlikely.

838    The primary judge found that it was improbable that a spotter entered the cornfield during the mission and was not observed and that it was equally improbable that he would have remained undetected in the cornfield for more than five hours which was the duration of the mission (at J[1233(3)]). Later, in the passage which is impugned in the notice of appeal, his Honour went so far as to find that “there is a high probability…that if there had been a spotter in the cornfield next to the HLZ, he would have been picked up by the scans” (J[1340]).

839    In our opinion, as we explain in the closed court reasons, the primary judge erred in admitting and then giving weight to evidence given by Person 7 about which he had no proven specialised knowledge but, for the reasons given in this judgment and in the closed court judgment, that error does not defeat the respondents’ defence.

Did the primary judge err by failing to give sufficient weight to the practice of the SASR to photograph and record PUCs and then release them or take them back to Tarin Kowt for questioning and the absence of such a record or photograph of Ali Jan, Hanifa or Mangul corroborating the claim that they had been placed under control during the mission (particular 25)?

840    Particular 25 is a challenge to the primary judge’s findings that Ali Jan, Hanifa and Mangul were found in the last two compounds, detained and placed under control. As the respondents submitted, the gravamen of this particular is that there was ample time for the appellant and his patrol to have complied with the “standard PUC handling practice”.

841    The appellant submitted that there was no evidence, photographic or otherwise, to suggest that any of Mangul, Hanifa or Ali Jan had been placed under control and no evidence that any photographs or records had been created and then deleted. The appellant said that there was unchallenged evidence in documentary form that earlier in the mission his patrol had taken a number of prisoners and photographed them in the usual course. He also said that he, Persons 32 and 35 gave evidence that a person who was placed under control would typically be returned to a centralised PUC holding area.

842    At the trial the appellant submitted that, if fighting age males had been located in the last set of compounds, there would have been no reason for him not to move them back to the PUC holding area. In other words, it was improbable that, contrary to the usual practice, he and his patrol would have retained PUCs for upwards of an hour at the end of the village close to the extraction zone.

843    The primary judge dealt with the matter at J[1351]–[1357], finding at [1357] that this was “a matter to take into account, although it is largely based on evidence of the applicant and Person 35 who are witnesses I do not accept”.

844    The appellant complained that this finding was erroneous for three reasons. First, he said it ignored the evidence of Persons 32 and 7, despite the fact that Person 7 was a witness the primary judge accepted. He submitted that Person 14 gave evidence to similar effect in relation to the Chinartu mission. Secondly, he said that his Honour ignored the fact that the respondents put to the appellant that the process for handling PUCs during the Darwan mission was that they were taken by the assault patrols, handed to Person 7’s patrol for photographing and processing, and then moved back to the PUC holding area. Thirdly, he said that the primary judge did not accord sufficient weight to the improbability that the appellant and his patrol elected to ignore the usual practice or to the absence of photographic or other evidence identifying the Afghan witnesses either by name or location as persons having been placed under control during the Darwan mission.

845    The respondents submitted that there was no typical procedure; alternatively, if there were a typical procedure, it was not followed. They pointed out that the evidence of the Afghan witnesses about their presence in the compounds on the day in question was corroborated, not only by Person 4 but also by Person 56 whose honesty was not impugned and who was not said to have been motivated by any personal animus towards the appellant.

846    It is not correct to say that the primary judge ignored the evidence of Persons 32 and 7. His Honour’s observation was that the appellant’s submission was largely — not exclusively — based on the evidence of the appellant and Person 35. He specifically mentioned Person 32’s evidence at J[1354].

847    The only part of Person 32’s evidence upon which the appellant relied was the evidence in which he identified a marking on a document as the place where they “married up with other callsigns and dropped PUCs off throughout [the time they were clearing the compounds]”. He said nothing about photographing or processing persons under control. Nor did Person 7.

848    Person 7 testified that his patrol had collected a lot of fighting age males and it became the PUC handling team. He said that other patrols would clear compounds and “bring out” more PUCs who they would add to the PUC “train”. His best recollection was that once the clearance was finished they would be placed in a central PUC area or compound (compound 43) near Stream 6, the helicopter landing zone his team was using when “extracting”. He said there was a good or large number of them there. It is true that his Honour did not mention this evidence but there is no reason to conclude that he ignored it. He may have overlooked it. It may not have been drawn to his attention. It is unlikely that he would not have mentioned it if the appellant had referred to it in his submissions. Indeed, the respondents submitted that the primary judge was summarising the appellant’s submission which made no reference whatsoever to Person 7’s evidence, a proposition which the appellant did not contradict in his submissions in reply or in oral argument. In these circumstances, any failure to take into account Person 7’s evidence does not give rise to an appealable error.

849    It is true that it was put to the appellant in cross-examination that during the mission PUCs were taken by the assault patrols, handed to Person 7’s patrol for photographing and processing and then moved back to the PUC holding area. It may therefore be taken that the respondents accepted that this was the procedure that was typically taken at Darwan and that should have been taken. Moreover, it is also true that Person 14 gave evidence that at Chinartu a number of PUCs were sent to a tactical questioning area.

850    But the mere fact that there was a typical, usual or proper procedure for handling PUCs does not mean that it was invariably followed. There was evidence that the procedure was deployed for other PUCs, but not for those captured in the southernmost compound.

851    The primary judge took into account the evidence about the procedures for handling PUCs and gave it the weight to which he considered it was entitled when regard was had to all the evidence. We are not persuaded that in doing so he fell into error. To the contrary, there was compelling evidence that there were fighting age males in the southernmost compound who were placed under control.

Did the primary judge err by taking into account the findings about the murders at Whiskey 108 and the pre-deployment training to infer that the appellant had a tendency to execute persons he thought were or were likely to be Taliban (particular 26)?

Did the primary judge err by taking into account the findings in relation to pre-deployment training to infer that the appellant had a tendency to use “throwdowns” to conceal an unlawful kill (particular 28)?

852    It is convenient to deal with particulars 26 and 28 together.

853    Particular 26 is an attack on the primary judge’s statement at J[1300] that the findings he had made in relation to pre-deployment training in 2012 and the murders at Whiskey 108 “provide support for a conclusion that the appellant would execute persons he thought were Taliban or likely to be Taliban”.

854    In particular 28 the appellant alleges that the primary judge erred (at J[1335]) by taking into account an irrelevant consideration, namely, his findings concerning the pre-deployment training to infer that the appellant had a tendency to use “throwdowns” to conceal an unlawful kill.

855    The appellant claims that “the error with respect to throwdowns is compounded by the primary judge’s finding at J[1331]” that the objective of the mission “did not make it more improbable that the appellant or Person 11 would keep a throwdown for later use” since “four Afghan males were killed and none of them was Objective Jungle Effect”. He argued that “the apparent logic of this statement is that the mere possibility of the death of an Afghan on the mission who was not on the JPEL [Joint Prioritised Effects List ] (and therefore a target who could be killed) did not make it more improbable that the [a]ppellant or Person 11 would keep a throwdown for later use”. He contended that the evidence did not support such a finding without resort to the findings about what occurred during pre-deployment training.

856    For the following reasons his Honour made no such errors. The findings relating to pre-deployment training and Whiskey 108 were plainly relevant and his Honour did not draw the alleged inferences. To understand why it is necessary to consider the context in which his Honour made the impugned statements.

857    At J[1300] his Honour was addressing a submission made by the appellant that the respondents had not discharged their burden of proof because it was improbable that he would have assaulted and killed a civilian as it was out of character (J[1293]–[1294]). The fact that the evidence disclosed to his Honour’s satisfaction that the appellant was involved in the killings of two civilians during the Whiskey 108 mission was an answer to that submission. So was the fact that in training the appellant made it clear that killing civilians was permissible.

858    At J[1335] his Honour was addressing the appellant’s submission that, if the appellant or Person 11 had planted the ICOM radio, it is improbable that no other member of the patrol (particularly Persons 4 and 56) saw it yet said nothing about it. His Honour accepted that this was “a matter to be taken into account” but said that so were the following matters: the evidence of the Afghan witnesses and Person 4 that Ali Jan did not have a radio; the fact that the OPSUM referred to the recovery of two ICOM radios but only one was returned to Tarin Kowt; and, relevantly, “the findings I have made in relation [to] what was said during pre-deployment training”.

859    At J[1331] his Honour was simply addressing a submission of the appellant summarised at J[1328]. That submission was that it was implausible that either he or Person 11, when handing over the items recovered from EKIA3, “opportunistically chose to retain one item of equipment on the chance that the [appellant] or someone in his patrol would need to conceal an unlawful execution of a civilian later in the mission”. The appellant argued that the process of reasoning was “inconsistent with the inherent probabilities of the situation”, the objective being “to capture or kill Objective Jungle Effect (Hekmatullah) and he was the Joint Prioritised Effects List (JPEL)”. His Honour’s response to this submission at J[1331] was merely that “the objective of the mission did not make it more improbable that the appellant or Person 11 would keep a throwdown for later use” because four Afghans were (and, by inference, could be) killed during the mission. By disposing of the submission in this way, the primary judge did not resort to tendency reasoning or refer to his findings about the pre-deployment training.

860    The findings about the pre-deployment training appear in more than one place in the judgment but principally in Section 3 of Part 3, which is the section immediately preceding the primary judge’s reasons about the conduct of the Darwan mission. None of those findings is challenged on the appeal.

861    The pre-deployment training was provided immediately before the rotation to Afghanistan that took place between about June to November 2012 (rotation 18), which included the Darwan and Chinartu missions. That training took place at the Lancelin Training Facility and the Bindoon Training Facility.

862    The training at Lancelin occurred towards the end of the pre-deployment training in 2012. The final exercise involved simulating the detention of a PUC.

863    Particulars 65–66 of the respondents’ truth defence read:

Mock execution in pre-deployment training for rotation 18

(65)    In or about May 2012 the Applicant and the troop of which he was a member engaged in a training exercise at the Lancelin Defence Training Area, Perth. At about the conclusion of that training exercise the exercise involved a scenario that a compound had been cleared and a detainee had been taken. The detainee, being played by Person 9, was squatted in a corner of the compound with handcuffs on. The Applicant then walked to the other end of the room, grabbed Person 10, who was preparing for his first deployment, and brought him back to where the detainee was squatting. The Applicant said to Person 10, in substance, “kill him”. Person 10 looked taken aback, however he complied with the order and jokingly simulated killing the detainee by gesturing and saying “bang” to indicate he had shot the detainee. The Applicant then grabbed Person 10 by the shoulder and said in substance “You good with that? Because that’s how it’s gonna be when we get over there.”

(66)    In the circumstances, in the event that this scenario was real, the Applicant’s conduct would constitute a breach of Common Article 3 in that it would constitute murder.

864    Several witnesses gave evidence about the training at Lancelin. They included the appellant and Persons 7, 10, 11, 19 and 31. Person 10 testified that he was given the job of security during a training exercise in which Person 9 was playing the role of a PUC. He said that Person 9 was bound and kneeling facing the corner or wall when the appellant told Person 10 to shoot him and informed him that that was how it was going to be “on the day”. The appellant denied saying the words attributed to him. Person 11 claimed never to have heard the appellant encourage a member of his patrol to simulate the execution of PUCs or to have received such a direction from him. But Person 19 corroborated Person 10’s account. So did Person 7. Person 7 mentioned the appellant’s comments to Person 31, who confronted the appellant about it. The primary judge accepted this evidence and rejected the evidence from the appellant and Person 11 about the matter. Consequently, at J[915] his Honour found that:

[A]t Lancelin during pre-deployment training in about May 2012, the applicant ordered Person 10 to carry out a mock execution of Person 9 was playing the role of a PUC and said to Person 10 words to the effect that that was how it was going to be in Afghanistan.

865    The training at Bindoon occurred in May or June 2012. Person 19 testified that, during the pre-deployment training there, Person 35 and the appellant discussed the use of “a throwdown weapon”. As he explained it, “if the requirement arose” during the SSE process, “you could put down a throwdown weapon on a body and photograph them and it could be submitted as evidence that [suspected enemy combatants] were killed in the conduct of the assault”. The primary judge referred to this evidence at J[923]. He accepted it over the denials of the appellant, Person 11 and Person 35, whose evidence he generally did not accept, noting that Person 19’s evidence was supported by evidence given by Person 4 (J[923]–[924]). Person 4 testified that in 2012, possibly at the start of the deployment, they were told that they “needed to carry items on our equipment to validate engagements”.

866    In particulars 66A–66C of the third further amended defence, the respondents alleged:

Informal discussion about SSE during pre-deployment training for rotation 18

(66A)    In or about June 2012 in a short period of time between mock attacks in a training exercise there was an informal discussion between the Applicant’s patrol and a patrol under the command of Person 31, and one of the fake “Afghan compounds”. The discussion involved general conversation about the process involved in conducting such attacks. Part of the discussion involved discussion of the process for gathering evidence where a “bad guy” had been killed. The Applicant did most of the talking in this part of the discussion. During the discussion the Applicant said words in substance:

“If we catch someone who is guilty we will shoot them. We will place weapons on them and take photos. Officers should be kept away from the compounds until we have set up the crime scene and the photos have been taken. Then once everyone is happy, that’s when the officers will be brought in and told what happened.”

(66B)    The ROE [rules of engagement] would not allow someone who had been “caught” to be shot in the sense that that person was not playing an active part in hostilities. In the circumstances, in the event that this scenario was real, the Applicant’s conduct would constitute a breach of Common Article 3 in that it would constitute murder.

(66C)    The weapon of the kind referred to in the statement in (66A) is sometimes referred to as a “throw-down”. A “throw-down” is an item of military equipment including a weapon, radio or chest webbing carried by a friendly force or found on-site and placed with the body of the deceased during SSE to use as evidence that the deceased was armed or otherwise an active participant in hostilities. This practice was used in an attempt to make a killing look legitimate within the ROE and the Geneva Conventions.

867    The primary judge found that during a pre-deployment training exercise at Bindoon in May or June 2012, in the course of the discussion involving Persons 4, 10, 11, 19, 31, 35 and 56, the appellant said that “any unmanned aerial vehicles would be pushed off station so they weren’t observing the target area”; “you will shoot the bad cunts”; that officers would be kept outside the compound until they were ready to receive them; and “that’s when any people that we suspect of being enemy combatants, we take them into a room and shoot the cunts” (J[918]). In doing so his Honour rejected the appellant’s denials.

868    Notably, the primary judge observed (at J[928]) that the appellant did not object to the evidence about his conduct during the training exercises at Lancelin and Bindoon at the time it was adduced on the basis that it was tendency evidence or irrelevant. Rather, he contended in final submissions that, by reason of ss 97 and 99 of the Evidence Act, the evidence could not be used as tendency evidence in the absence of a notice from the respondents that they intended to adduce the evidence to prove the particular tendency. On a fair reading of his Honour’s reasons, it is apparent that he accepted the respondents’ contention that the evidence about these matters was relevant and admissible as evidence of “preparatory conduct” in relation to the alleged murder at Darwan concerning the participation of Person 11 and the placing of a radio on the body of the deceased (J[929]–[931]).

869    At J[932], his Honour said that he “propose[d] to take a cautious approach to this evidence to avoid an unintended tendency use”. The appellant complains that his Honour did not do as he said. The complaint is unfounded.

870    His Honour did not infer from any of those findings that the appellant had a tendency to kill persons he suspected were Taliban or a tendency to use throwdowns to conceal an unlawful kill. He merely reasoned that the appellant’s conduct as described by the respondents’ witnesses was consistent with what he had found had occurred during pre-deployment training in that by behaving as he did on the mission he was implementing his own instructions. His Honour was entitled to reason in this way.

871    The critical issue in a case in which the tendency rule stated in s 97(1) is said to apply is whether the evidence in question is relevant to a fact in issue because it shows that a person has a tendency to act in a particular way: Jacara v Perpetual Trustees WA [2000] FCA 1886; 106 FCR 51 at [63] (Sackville J), with whom Whitlam J and Mansfield J agreed at [1] and [108] respectively.

872    The fact that the appellant had trained members of the SASR to kill “bad guys” even if they were detainees and to make the killings appear legitimate by, among other things, the use of throwdowns was evidence capable of bearing on what the appellant did or authorised during the mission. As Mr Walker SC observed in argument, “you presumably don’t train people to do something you would not do” yourself. The evidence about what was said and done during pre-deployment training was not relevant to a fact in issue because it showed that the appellant had a tendency to act in a particular way. Rather, it was evidence of, or relevant to, his intention or motive. Indeed, the respondents made a submission to that effect at the trial (see J[160]), noting that Ali Jan was revealed by questioning to be someone who was not from the village and the village was thought to be harbouring Taliban fighters. It was also an answer to the appellant’s argument that it was improbable and out of character that he would assault and kill a person under control or use a throwdown to conceal an illegitimate killing.

873    In any case, even if the conduct of the appellant during pre-deployment training was tendency evidence it would not have been inadmissible and even if tendency reasoning were deployed it would not have been impermissible. That is because, as the particulars to the truth defence make clear, the appellant’s conduct during pre-deployment training was a fact in issue and the restrictions on the admissibility and use of tendency evidence do not apply to conduct which is a fact in issue: see Evidence Act, s 94.

874    Finally, since no objection was taken to the evidence about the appellant’s conduct during the pre-deployment training and no application was made under s 136 of the Evidence Act to limit the use to which the evidence could be put (because its use for a tendency purpose might be unfairly prejudicial to the appellant or misleading or confusing), it is difficult to see how the appellant was entitled to complain about the primary judge’s use of it. It is not as though he had no notice of it. After all, even where evidence is irrelevant to the issues actually raised by the pleadings, it is admissible if it is not the subject of objection and is relevant to an issue which might have been raised by the pleadings for the purpose of supporting a claim made or a defence raised, where no party is surprised and all have had an opportunity to give evidence about it: Miller v Cameron (1936) 54 CLR 572 at 577 (Latham CJ). In that case the High Court upheld a decision to remove a trustee. The pleadings did not allege misconduct on the part of the trustee but evidence tending to establish misconduct was admitted without objection at the trial. Dixon J, with whom Evatt J and McTiernan J agreed, said at 582:

During the trial not only the good faith of the trustee towards his partner in reference to the amount of his drawings from the firm but also the propriety of his use of funds to answer those drawings were brought into question. The pleadings did not allege as grounds for the removal of the trustee any dishonesty or misbehaviour on his part in relation to his partner or otherwise. But no objection was taken at the trial to the evidence, and, apart from any question of pleadings, its relevance to the question before the Court could not be denied. I think the primary Judge was fully entitled, if not bound, to take it into account.

875    In Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 219 Samuels JA observed that in civil proceedings, evidence admitted without objection can be used “as proof to the extent of whatever persuasive power it may have”.

876    The position is no different under the Evidence Act. When the Evidence Act speaks of evidence as not being admissible, in the ordinary course “not admissible” means “not admissible over objection”: Federal Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74; 193 FCR 149 at [26] (Ryan, Jessup and Perram JJ) and Mayfair Wealth Partners Pty Ltd v Australian Securities and Investments Commission [2022] FCAFC 170; 295 FCR 106 at [30] (Jagot, O’Bryan and Cheeseman JJ), following Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [149] (Spigelman CJ). See also Gonzales v The Queen [2007] NSWCCA 321; 178 A Crim R 232 at [22]–[26] (Giles JA), Howie J and Fullerton J agreeing at [178] and [179] respectively; Perish v The Queen [2016] NSWCCA 89; 92 NSWLR 161 at [253]–[271] (Bathurst CJ, Hoeben CJ at CL and Bellew J) and Islam v Director-General, Justice and Community Safety [2022] ACTSC 124; 369 FLR 417 at [36] (Kennett J).

Did the primary judge err by finding that the appellant’s motive for killing Ali Jan was that he would execute persons he thought were Taliban or likely to be Taliban when it was not put to the appellant and the respondents’ case was that Ali Jan was a farmer and not a member of the Taliban (particular 27)?

877    The complaint in particular 27 picks up on another part of the primary judge’s reasons in J[1300] where his Honour was addressing the respondents’ submission that, although they did not need to prove motive, it was open to the Court to infer motive from the evidence adduced in relation to the pre-deployment training, namely his statements that bad people will be taken away and shot (recorded at J[1296]).

878    This is what the primary judge said at J[1300]:

The respondents submit that it is open to infer motive and that is that the applicant would execute or participate in the execution of persons he considered were Taliban and more “bad guys”. The findings I have made in relation to pre-deployment training in 2012 and the murders at W108 provides support for a conclusion that the applicant would execute persons he thought were Taliban or likely to be Taliban. This motive, if it be such, was not specifically put to the applicant in relation to the murder of Ali Jan, but the pre-deployment statements were put to him and the applicant must have appreciated that that was what was said to be his method of operation.

(Emphasis added.)

879    Particular 27 reads as follows:

At J[300], the primary judge erred in finding that the Appellant’s motive for killing Ali Jan was that he “would execute persons he thought were Taliban or likelty to be Taliban” notwithstanding that:

a.    this motive was not put to the Appellant as the reason for killing Ali Jan; and

b.    the Respondents’ case was that Ali Jan was a farmer and not a member of the Taliban.

880    In his written submissions the appellant claimed that the “finding” was erroneous for three reasons. They were first, that the respondents’ case was that Ali Jan was not a member of the Taliban and it was not put to the appellant that he was or that he suspected that he was; nor was there any reason for him to assume that was so; secondly, that despite statements to the contrary at J[930]–[932], his Honour “had effectively used the pre-deployment findings as tendency evidence”; and thirdly, in making the finding his Honour had “cherry picked” the pre-deployment findings because he did not refer to another finding that the appellant had also said (during pre-deployment training) that before murdering Taliban “unmanned aerial vehicles would be pushed off station” and that did not happen.

881    There are two fundamental problems with particular 27 and the submission in support of it which is captured by the first reason.

882    The first problem is that the primary judge stopped short of making such a finding. The second is that, if his Honour did err as alleged, it is an immaterial error because, as his Honour said at J[1301], “even if … the respondents were precluded from advancing their ‘motive’, their case is established in the absence of proof of motive”.

883    The second reason must be rejected for the reasons given above in relation to particulars 26 and 28.

884    As to the third reason, the absence of a reference to another finding that had no bearing on the facts his Honour was called upon to decide does not amount to “cherry picking”. His Honour’s failure to refer in this context to the appellant’s remark about pushing unmanned aerial vehicles off station does not signify that he “cherry picked” the pre-deployment findings. The remark was irrelevant.

885    The appellant also submitted that there was “simply no evidence of motive” for assaulting and killing Ali Jan except for a suggestion that Ali Jan had smiled at the appellant and that the primary judge failed to take into account the improbability that the appellant would act with such extreme cruelty in response to such a slight provocation. The problem with this submission is that the primary judge did not find that the appellant was motivated to assault and murder Ali Jan because he had smiled at him. In any case, while the absence of any discernible motive may be an important consideration in a wholly circumstantial case, it is of little probative value in the face of direct evidence of the kind that was adduced in the present case.

886    It follows that particular 28 is not made out. The primary judge did not err as alleged.

Did the primary judge err by making adverse credit findings about Persons 11 and 100 on the basis that, because they were unreliable witnesses about some specific matters, they were unreliable about all matters relating to Darwan (particular 29)?

887    Insofar as particular 29 seeks to impugn the adverse credit findings concerning Person 11, it was not pressed. In relation to the Darwan mission, Person 100 only gave evidence about one specific matter, namely whether in 2013 he was told of an allegation about a person under control being kicked off a cliff. In these circumstances particular 29 cannot succeed. The primary judge did not reason that, because he was unreliable about some specific matters, he was unreliable about all matters relating to Darwan.

Did the primary judge fail to properly apply s 140 and Briginshaw (particular 30)?

888    The appellant’s submissions on this question were conclusory. That is to say they were essentially based on the premise that his complaints as particularised in the notice of appeal would be upheld. He submitted that, based on the principles in Briginshaw and the importance of the presumption of innocence, the primary judge’s finding that Ali Jan was murdered “could not be justified” because:

(a)    The evidence of the Afghan witnesses was unreliable.

(b)    The evidence of Person 4 contained an inconsistency so significant that it materially damaged the reliability of the whole of this account.

(c)    The evidence of the Afghan witnesses contained material inconsistencies with the evidence of person 4; and

(d)    The contemporaneous documentary record squarely contradicted the Respondents’ case and no satisfactory evidence was adduced to explain why and how it had been so entirely corrupted.

(e)    Particularly in the light of all of the above, the sheer improbability of such a violent killing occurring for no apparent reason – in sharp contradiction to the behaviour of the Appellant and his patrol in relation to the taking an processing of PUCs earlier in the day – and in ostentatious view of an veritably [sic] packed amphitheatre of Australian soldiers and airborne assets, was not accorded proper weight by the primary judge.

889    It follows from our conclusions on the other particulars that we do not accept that the primary judge failed to properly apply s 140 of the Evidence Act or the principles in Briginshaw.

890    Before discussing the evidence, the primary judge observed again that the respondents carried the burden of proof and that it was necessary to bear in mind the matters “set out in Section 1” (at J[941]). That can only be a reference to the seriousness of the allegations and the cogency of proof required before a finding of criminal conduct could be made, matters his Honour had discussed at length at J[95]–[126]. His Honour reminded himself that the mere rejection of the appellant’s case does not establish the respondents’ case and it was open to him to reject both cases. We have no doubt that his Honour did not lose sight of these principles at any time.

Conclusion

891    The appellant has failed to establish appealable error in the impugned findings Accordingly, grounds 5 to 9 of the notice of appeal must be rejected.

CHINARTU

Introduction

892    Chinartu is an area in Uruzgan Province, Afghanistan, where elements of the SASR including the appellant conducted a mission on 12 October 2012. The respondents’ particulars of truth in relation to the mission to Chinartu were as follows.

(119)     Towards the end of the mission the Applicant, together with his patrol, the interpreter Person 13 and a number of members of the Afghan Partner Force including Person 12 were questioning an Afghan male in a compound (Afghan Male 6) as they were waiting for the helicopters to extract them from the mission. Afghan Male 6 was not exhibiting any signs of being a threat or violent. Whilst the Applicant was questioning Afghan Male 6, Person 14, a member of the Applicant’s patrol noticed an area in the wall of the compound which looked like a wall cache (being a false wall with a cavity behind it where items can be hidden). Person 14 kicked the wall cache and a number of weapons including rocket propelled grenades and warheads fell out. The Applicant saw the weapons fall out. He then said to Person 13, in substance “tell him [referring to Person 12] to shoot him or get his men to or I’ll do it”. Following instructions from Person 12, a member of the Afghan Partner Force then shot Afghan Male 6 four to six times.

(120)     It may be inferred that the Applicant was able to detain Afghan Male 6 in circumstances where:

(a)     Afghan Male 6 was not exhibiting any signs of being an imminent threat or violent;

(b)     Afghan Male 6 was seriously outnumbered; and

(c)     the Applicant had enough time to issue the direction referred to in the preceding paragraph.

(121)     In the circumstances, by his conduct with respect to Afghan Male 6, the Applicant breached Common Article 3 in that he was complicit in and responsible for murder.

(a)     [deleted]

(b)     [deleted]

(122)     In the circumstances, by his conduct with respect to Afghan Male 6 the Applicant was complicit in and responsible for murder.

(Emphasis in original.)

Uncontroversial facts relating to Chinartu

893    The mission to Chinartu was a kill/capture mission with respect to a high value target known as Objective Stolen Idea.

894    The task force for the mission involved 2 Squadron, which comprised G Troop and E Troop. The appellant was one of the patrol commanders in G Troop. The other patrol commanders were Persons 7, 55 and 57. E Troop comprised three patrols (led by Persons 6, 31 and 35), each of which had attached to it a number of Afghan Partner Force soldiers.

895    The appellant’s patrol comprised himself, Person 4 (who was 2IC) and Persons 11, 14 and 27. Persons 14 and 27 were not normally part of the appellant’s patrol, but had been brought in to bring it up to full strength. The primary role allocated to the patrol was to be part of a “cordon” team. The role of the cordon was to prevent movement into the mission area and movement out of the high value target area.

896    Events on the day of the mission were recorded in Sametime chat records, which were accepted as accurate as far as they went. Two of these records were in evidence, one of which was tendered only in closed court (Tab 51 of Exhibit 10) and the other in open court (Exhibit R36). These records are not inconsistent but there are some differences between them as to what is included and what is not, which reflects various messages being copied to the personnel who had an interest in them and not to others. In these reasons we confine ourselves to events recorded in the non-sensitive version.

897    The Sametime chat record indicates that Objective Stolen Idea was being tracked in the Chinartu area from around 0750DE. At 1114DE Force Element Alpha was waiting for him to present in a more targetable location. At 1159DE the Force Element (FE) was committed and preparing to launch based on “last VRI”. VRI stood for “very reliable intelligence”, but there are indications that it was sometimes used to designate other things (for example, a particular compound, presumably selected for attention on the basis of “very reliable intelligence”, might be referred to as the “VRI compound”).

898    The appellant’s patrol, along with those led by Persons 31 and 35, were on the helicopters which were part of Turn 1. They left Tarin Kowt at 1317DE and arrived at Chinartu at 1329DE. Turn 2 left Tarin Kowt at 1341DE and arrived at Chinartu at 1353DE. In total the FE comprised 28 Coalition Force members and 16 Afghan Partner Force members, including three interpreters.

899    Around 1358DE, a military working dog which was involved in the mission suffered an injury. The Sametime chat records that at 1400DE a helicopter from Turn 2 was “loitering” with a view to evacuating the injured dog. The helicopter arrived at Chinartu at 1418DE and took the dog to Tarin Kowt for treatment.

900    At 1408DE the Ground Force Commander advised that the Objective compound had been secured and the SSE process was ongoing.

901    At 1414DE one EKIA was recorded in the Sametime chat. There is an entry in the OPSUM for the mission as follows.

APPROX 12 1410DE OCT 12. FE MOVING TO CONDUCT A COMPOUND SEARCH IVO MGRS 42S TB 3765 1512 PID 1 X INS ARMED WITH AN AK47. THE FE ASSESSED THAT THEY WOULD BE UNABLE TO SAFELY DETAIN THE INS AND, DUE TO THE IMMEDIATE THREAT TO FORCE, ENGAGED THE INS WITH SAF. THE INS CONTINUED TO MANOEUVRE TO AND THEN TAKE COVER IN A NEARBY COMPOUND. THE FE CONDUCTED A CALL-OUT OF THE COMPOUND WITH NO RESPONSE. FE ASSESSED THAT THE INS HAD LIKELY MOVED INTO THE COMPOUND IOT GAIN TACTICAL ADVANTAGE AGAINST THE PURSUING FE AND WAS LIKELY TO ENGAGE THE FE AS THEY MADE ENTRY. DUE TO THE SIZE OF THE COMPOUND, ACTY OBSERVED IN THE VICINITY AND NIL RESPONSE TO FE CALL-OUT, THE FE ASSESSED THAT THE INS WAS THE ONLY OCCUPANT OF THE STRUCTURE AND EMPLOYED A FRAGMENTATION GRENADE IOT NEUTRALISE THE THREAT. FE THEN MADE ENTRY AND PID 1 X EKIA. BDA RECOVERED 1 X AK47 WHICH WAS RETURNED TO MNB-TK FOR TECHNICAL EXPLOITATION. THE GRENADE DETONATION ALSO STARTED A SMALL STRAW FIRE IVO THE COMPOUND. NEITHER THE SMALL FIRE NOR THE GRENADE DETONATION CAUSED SIGNIFICANT DAMAGE TO THE COMPOUND.

(Emphasis in original.)

902    The accuracy of the OPSUM is controversial in some respects, but it does not appear to be in doubt that the engagement described in this entry occurred. The appellant gave evidence that he walked past this compound on the way to extraction and was told what had happened there.

903    After the engagement recorded in the OPSUM at 1410DE, there was a lengthy period where it appears that SSE and tactical questioning were being carried out. At 1512DE the FE requested extraction. The aircrew was briefed and departure was planned for 1545DE.

904    At 1530DE a message was sent that there would be “POI [persons of interest] coming off tgt”. Numbers were to be confirmed but “planning on 3-4 ATT [at this time]”.

905    The “extraction package” left Tarin Kowt at 1534DE.

906    At 1539DE the FE reported another EKIA. The area of controversy in relation to Chinartu concerns how and when this man was killed.

907    The helicopters on Turn 1 left Chinartu at 1551DE. They were again carrying the patrols led by the appellant and Person 35. They were also carrying POIs. The OPSUM records (and it is not controversial) that two POIs were taken. Turn 1 arrived at Tarin Kowt at 1601DE. The helicopters returned to Chinartu on Turn 2 and returned to Tarin Kowt at 1617DE.

The challenged findings

908    The primary judge accepted the evidence of Person 14, who was the respondents’ main witness in this part of the case.

909    Person 14 said that, after being called to the room where tactical questioning was occurring (the TQ room), where he had noted the appellant involved in questioning PUCs and spoken briefly with him, he returned to a location where he had previously been chatting to Person 13. Person 13, an Afghan interpreter, was no longer there. Person 14 sat down in the shade for a while. He then heard a radio call to the effect that the helicopters on Turn 1 had left Tarin Kowt and it was therefore necessary to prepare for extraction. By reference to the Sametime chat, this must have been around 1534DE. He knew that extraction would occur in about 20 to 30 minutes. It was therefore a point when the FE would start collapsing in from its positions and moving to the extraction point.

910    Person 14 said that he then went back up to the TQ room in order to rejoin the appellant’s patrol. The appellant was not there and Person 14 was told that he had gone further up the hill. He went up the hill (which he described as “quite a steep hill”) to where the terrain became more open, then to a compound which he saw about 80 to 100 metres away.

911    Arriving at the compound on the hill, he entered a kind of outdoor area within a perimeter wall where he found Person 32 and two combat engineers. One of the combat engineers was Person 34. He did not know the name of the other.

912    Looking through a window into the compound, Person 14 could see the appellant, Person 11, Person 13 (the interpreter mentioned earlier), Person 12 (an NDS officer) and at least four other NDS soldiers. He also saw an Afghan male, who he described as slender, middle aged, bearded and in a white robe (the middle-aged man).

913    Person 14 said that he asked Person 32 what was going on and was told “[t]hey’re just questioning—questioning this bloke”. He leaned back against the window of the compound and looked towards the perimeter wall, whereupon he noticed a “massive discolouration” at around shin height “like it had been, like, recently plastered with mud”. He thought that it was a cache and therefore gave that part of the wall two kicks. He discovered a cache:

There was, like, bags. Like, they were rice bags. Like, white and pink rice bags, I think, of bullets, 7.62 short. There was binoculars; there was RPG warheads with the boosters and some rifles.

914    He started removing the items, but stepped back when the combat engineers came over and “went straight onto it”.

915    Looking into the compound again, Person 14 noticed that the mood had changed. He observed the appellant say to Person 13, while pointing at Person 12:

Tell him to shoot him or I will.

916    Person 13 looked at the appellant “like, insinuating, ‘What?’”, and the appellant repeated the instruction. There was then a short exchange in an Afghan dialect (which according to the witness, who said he could understand basic Pashto, was not that language) between Persons 12 and 13, followed by a discussion between Person 12 and the other Afghan soldiers. One of the soldiers, who had a balaclava or wrap around his face, stepped forward and shot the middle-aged man multiple times (unloading around five to eight rounds, followed by at least another two) with his suppressed M4.

917    In Person 14’s account, the next thing that happened was that they moved back down to the VRI compound. There he saw Person 26, the troop sergeant, who was not happy. He said “What happened – what happened to the fucking PUC?” and then, when no one responded, “The PUC count has already gone in and the helos are – helos are coming in”.

918    As noted earlier, the appellant’s patrol left Chinartu in Turn 1 at 1551DE.

919    The primary judge accepted Person 14’s evidence (J[1536]) and therefore found as follows (at J[1537]):

I find that in a compound in Chinartu on 12 October 2012, the applicant, through an interpreter (Person 13) ordered Person 12 to shoot an Afghan male who was under detention. That occurred shortly after a cache was found by Person 14. Person 12 then gave instructions to an NDS-Wakunish soldier who then shot the Afghan male in circumstances amounting to murder. The applicant was complicit in and responsible for murder.

The issues on the appeal

920    The following aspects of the reasoning leading to this conclusion are challenged by the notice of appeal.

921    At J[1522]–[1525], his Honour in effect rejected a submission that Person 14’s account of discovering a cache was improbable. It was common ground that the contents of a cache discovered during the mission were photographed and documented in a report. It is clear, however, that this was not the cache that Person 14 said he discovered towards the end of the mission. The respondents’ case, which his Honour accepted, thus involved the discovery of two caches, one of which was documented and the other not. Particular 31 in the notice of appeal attacks what is described as a “finding” that a second cache was discovered. It may be more accurate to say that his Honour noted the discovery of two caches (one of them undocumented) as a corollary of the respondents’ case, but did not regard this as a reason to reject that case. The appellant complains that the “finding” that two caches were discovered, one by the engineers and one by Person 14, was “glaringly improbable” or, at least, based on evidence insufficient to discharge the respondents’ burden of proof having regard to s 140 of the Evidence Act and the principles in Briginshaw.

922    At J[1531] the primary judge rejected a submission that Person 14’s account of the killing of the middle-aged man was improbable because it involved Person 14 doing several things in the space of around five minutes, between 1534DE (when the helicopters left Tarin Kowt) and 1539DE (when the second EKIA was recorded in the Sametime chat). This conclusion is attacked in particular 32 as also “glaringly improbable” or failing that, insufficient to discharge the respondents’ burden of proof, having regard again to s 140 of the Evidence Act and the principles in Briginshaw.

923    At J[1536] the primary judge expressly accepted Person 14’s evidence that the last-minute change to the number of POIs to be taken to Tarin Kowt annoyed the troop sergeant, and observed that this “provides clear and strong support for the account by Person 14”. This conclusion is attacked in particular 33.

924    In particular 34 the appellant alleges that the primary judge made “global findings” about the credibility of Persons 11, 32 and 35 (who were called by the appellant) and contends that this constituted “approaching the fact-finding process on the basis that because [his] witnesses were unreliable about some specific matters, that they were unreliable about all matters concerning Chinartu”.

925    It follows that the issues for resolution are whether the primary judge fell into appealable error by:

(a)    finding that two caches were discovered (particular 31);

(b)    accepting Person 14’s evidence about what occurred in the five minutes from when the helicopters left Tarin Kowt to the time of the report of the killing (particular 32);

(c)    relying on Person 14’s evidence about the reaction of the troop sergeant to the last-minute reduction in prisoner numbers (particular 33);

(d)    the way in which he dismissed the evidence of Persons 11, 32 and 35 (particular 34).

926    Before addressing these issues, it is useful to say something concerning the OPSUM.

The contested aspects of the Chinartu OPSUM

927    It will have been noted that Person 14’s account, summarised above, was consistent with the reporting of a second EKIA at 1539DE which is noted in the Sametime chat (except in that the designation “EKIA” was clearly not appropriate if the person who was killed was actually under control at the time). The summary of events in the OPSUM did not contain any entry proximate to 1539DE referring to a person being killed. It did, however, contain an entry as follows.

APPROX 12 1405DE OCT 12. FE APPROACHED A COMPOUND OF INTEREST IVO MGRS 42S TB 3763 1521 IOT CONDUCT A CLEARANCE. NDS-W CONDUCTED A CALL-OUT OF THE COMPOUND WITH NO RESPONSE. AN NDS-W TEAM THEN MADE ENTRY TO THE COMPOUND. THE LEAD NDS-W MEMBER IMMEDIATELY PID 1 X INS ARMED WITH AN AK47. DUE TO THE IMMEDIATE THREAT TO FORCE, THE NDS-W MEMBER ENGAGED THE INS WITH SAF RESULTING IN 1 X EKIA. BDA OF THE COMPOUND RECOVERED 1 X AK47, 1 X BINOCULARS, 3 X RPG-7 ROCKETS AND 4 X RPG-7 ROCKET MOTORS. ALL ITEMS WERE RECOVERED TO MNB-TK FOR TECHNICAL EXPLOITATION.

(Emphasis in original.)

928    The primary judge held at J[1438] that there was no engagement at 1405DE as referred to in this entry.

929    This finding was not the subject of any express challenge in the notice of appeal or the appellant’s written submissions in chief, but was challenged in the reply submissions. In oral submissions it was observed that the primary judge did not have before him any evidence concerning the preparation of the OPSUM, and it was suggested that the only possible basis for discounting the OPSUM (which is an official government record) was an anterior acceptance of the evidence of Person 14. It was also observed that accepting Person 14’s account, in the face of the OPSUM, appeared to involve a conclusion that the records were wrong in a “sinister” way.

930    At the trial the respondents did not positively contend that the OPSUM was the product of a deliberate attempt to mislead. It was sufficient for their purposes to show that the contents of the OPSUM were not correct or at least not complete (J[1430]). The position is the same in the appeal, although the respondents’ written submissions did refer to the 1405DE entry as a “deliberate falsehood”. Given the way the evidence emerged, the possibilities appear to be as follows.

(a)    The OPSUM is correct and complete. There was an engagement at 1405DE in which an Afghan Partner Force soldier killed an insurgent armed with an AK-47, and that weapon and the other items listed were recovered. That engagement was not reported (and therefore did not appear in the Sametime chat) until 1539DE. The killing purportedly witnessed by Person 14 did not occur.

(b)    The OPSUM is correct but not complete. There was an engagement at 1405DE as described in (a), which was for some reason not picked up in the Sametime chat. There was another engagement around 1539DE which was recorded in the Sametime chat but for some reason not included in the OPSUM.

(c)    The OPSUM is incorrect. There was no engagement at 1405DE. The person purportedly killed at that time was actually killed just before 1539DE when the killing was recorded in the Sametime chat. The AK-47 and other items referred to in the 1405DE entry were recovered either following the killing just before 1539DE or at some other time during the mission.

931    Either (b) or (c) is consistent with the acceptance of Person 14’s evidence. However, (b) does not appear to have been advanced by any party and can be discounted. It involves both the Sametime chat and the OPSUM being wrong, but in different ways, about the number of people killed during the mission. It is also difficult to square with there being two, and not three, photographs of EKIAs in the records for the mission that were tendered, in the light of what appears to have been a consistent practice of photographing EKIAs (or purported EKIAs) in situ.

932    The primary judge, as noted earlier, expressly found that the purported engagement at 1405DE did not occur. His Honour’s ultimate acceptance of Person 14’s evidence entails that the purported EKIA reported at 1539DE in the Sametime chat was the middle-aged man whose killing Person 14 witnessed and that this killing was either omitted from the OPSUM or sought to be sanitised by a bogus entry purporting to show an engagement earlier in the afternoon.

933    There was no evidence specifically concerning the preparation of the OPSUM for this mission. The primary judge recorded some evidence concerning the preparation of these documents more generally at J[1431], namely, that they were prepared after missions by “ops staff” at headquarters following a post-mission meeting of the troop commander, troop sergeant and patrol commanders. Patrol commanders would provide what the appellant described as a “debrief” on what their teams had done. Self-evidently, debriefs must have been very important sources of information for the staff compiling an OPSUM, including for the mission to Chinartu. The troop commander and troop sergeant would be very unlikely to be able to observe and recall more than a fraction of the individual engagements during a mission. It will be recalled that the appellant was a patrol commander on this mission. It follows that his dishonesty, as found by the primary judge and not challenged on the appeal, plainly bears on the reliability of the contents of the OPSUM for the Chinartu mission.

934    The Sametime chat summarises a “post-debrief 5W consolidation” at 1743DE (that is, around one hour 15 minutes after the last helicopters returned to base). “5W” refers to who, what, when, where and why. That consolidation includes an account of the purported engagement at 1405DE which is materially identical to the one in the OPSUM. However, as the primary judge noted in his closed court reasons, this does not advance matters very far: it would be surprising if the accounts compiled from debriefing after the mission differed.

935    The following matters, referred to by the primary judge at J[1434]–[1447], supported the finding that his Honour made.

(a)    There was no suggestion that the engagement at 1410DE did not occur as reported. Hence the engagement at 1405DE, if it occurred, was not reported for around one and a half hours after it occurred (and also one and a half hours after the Objective compound had been declared secure and the SSE process had begun). It was also not reported until nearly half an hour after the FE had requested extraction.

(b)    Normally (according to the appellant’s evidence) an engagement resulting in an EKIA would be promptly reported. There could be a number of reasons why that might not occur (such as lack of radio contact due to the terrain, or the person who had the engagement still being involved in a task), but there is no indication that any of these was present.

(c)    No reason for not reporting an EKIA promptly was apparent here. As at 1408DE, the Objective compound was declared secure. What was happening thereafter appeared to be tactical questioning and SSE.

(d)    A further important point was that at 1512DE the call was made for extraction and at 1530DE an estimate was given of the number of POIs to be transported. This would ordinarily not be done until the Ground Force Commander had spoken to all patrol commanders to check that they were ready for extraction (in particular, not in contact with enemy forces) and how many PUCs were expected to be taken to Tarin Kowt. These conversations took place without any EKIA from an engagement at 1405DE being mentioned.

(e)    Records tendered in closed court identified one NDS soldier who shot an Afghan male on 12 October 2012. On that day he was attached to Person 35’s patrol. Person 35 and his 2IC on that day (Person 32) both gave evidence that they had no engagements during the clearance of compounds. This indicates fairly strongly that there was no engagement in which an NDS soldier shot an Afghan man during that phase of the mission.

(f)    The killing of a POI between 1534DE and 1551DE is consistent with (and may explain) two POIs being taken to Tarin Kowt (as recorded in the OPSUM, and obviously likely to be accurate) when the estimate given at 1530DE had been three or four.

(g)    The 1405DE entry in the OPSUM says that the insurgent engaged at that time (and killed) was armed with an AK-47, and other items were also recovered from the compound including a pair of binoculars. Two photographs of dead Afghan men were taken on the day of the mission, one of whom can be taken (from facial wounds) to have been the man killed by a fragmentation grenade in the engagement at 1410DE. Neither photograph includes any weapon. His Honour noted at J[1446] that there was a practice at the time of photographing an EKIA with any weapons found in the vicinity. There were photographs of an AK-47 and a pair of binoculars, apparently part of the contents of a cache, in a SSE report that was discussed in more detail in his Honour’s closed court reasons and is also discussed in our closed court reasons in the appeal (the SSE report). Non-sensitive versions of the photographs, and an additional photograph apparently taken around the same time, were tendered in open court and became Exhibit R100. One aspect of this that is (as his Honour put it) curious is that the SSE report refers to limitations of time. It is hard to see how such limitations could have arisen if the items were recovered by a battle damage assessment of a compound following an engagement at 1405DE, given that the FE was on the ground at Chinartu until 1551DE. The most likely explanation is that no AK-47 and binoculars were recovered around 1405DE. The items shown in the photographs were part of a cache discovered later, while another AK-47 was recovered following the separate engagement at 1410DE (the OPSUM records “2 x AK47” and “1 X BINOCULARS” in the section entitled “FINDS”).

(h)    Finally, his Honour observed at J[1447] that there was “a possible motive for a false entry in the OPSUM as to the time of the killing”. If the unlawful killing of a PUC occurred towards the end of the mission, a person who wanted that event to appear as a legitimate engagement would have strong reasons to try to place it during the clearance of the compounds (and not at a time when it might be linked with the reduction in the number of POIs to be taken to Tarin Kowt). His Honour did not find that the deliberate creation of a false entry had occurred (and there is no notice of contention). However, the fact that this would have been a logical thing for somebody in the appellant’s position to try to bring about, if he had been involved in an unlawful killing as alleged, does make it easier to accept that the discrepancies between the OPSUM and other evidence are explained by the OPSUM being incorrect.

936    Each of these matters detracted from the plausibility of the 1405DE entry in the OPSUM, and together they justified giving the OPSUM little or no weight to the extent that it contradicted the evidence of Person 14. It may be that the finding expressed by the primary judge, that the engagement at 1405DE referred to in the OPSUM did not occur, implicitly involves an endorsement of Person 14’s evidence (in that it entails that the second EKIA was killed around 1539DE and therefore not at the earlier time). However, this is not a case of rejecting evidence simply because it contradicts evidence which the judge is inclined to accept. It is a case of considering all of the evidence together.

937    We add that photographs contained in Exhibit R100 further undermine the 1405DE entry. Those photographs show a cache in situ and then one AK-47, a pair of binoculars and three RPG warheads with what appear to be four boosters. It is tolerably clear that these items were found as part of the cache (secreted in a structure in the open air, which we were informed was a feed trough), then laid out on the ground and photographed by combat engineers (for example, the AK-47 shown in one of the photographs has a plastic bag tied over its muzzle). If the single AK-47 recovered after the 1410DE engagement is added to this tally, it matches the list of weapons and other items recovered that appears on page 4 of the OPSUM. It follows that, if the 1405DE entry is correct, then: (a) the items recovered after that engagement (which coincidentally matched the items in the cache) were not photographed; and (b) the OPSUM’s list of items recovered is wrong. In a document such as the OPSUM, a natural expectation is that one of the things most likely to be recorded correctly is the inventory of physical items brought back to base.

938    In two specific respects which we have not yet mentioned, the primary judge’s consideration of the OPSUM did refer to evidence of Person 14.

939    First, at J[1432]–[1433] his Honour observed that there were two photographs of deceased Afghan males taken on 12 October 2012; having regard to the facial injuries, one was evidently of the man killed by a fragmentation grenade in the engagement around 1410DE; and the other was identified by Person 14 as the middle-aged man he saw shot. His Honour then said:

Although identification from a photograph many years after the event (although Person 14 had seen the photograph in 2012) is to be approached with considerable caution, as I will explain, I accept Person 14’s evidence. Even if that be wrong, that is not fatal to the respondents’ case because I accept that the other photograph relates to the EKIA killed in the grenade attack.

940    Secondly, at J[1443], his Honour clearly brought Person 14’s evidence to account as something contradicting the contested aspects of the OPSUM. He said:

Thirdly, there is the evidence of Person 14 that the incident he witnessed in the compound happened shortly before, or at the time the Task Force was preparing for extraction and “the helicopters were close”. Person 14’s statements to Mr Masters are to the effect that the incident occurred late in the mission as Mr Masters records that Person 14 spoke about “a problem with recording the man as a PUC and/or EKIA as the count had already gone in over the radio”. There is no suggestion that Person 14 had seen any ADF documents – produced much later pursuant to a Subpoena to produce documents – at that time.

941    The passage at J[1432]–[1433] looked ahead to the discussion of Person 14’s evidence later in the reasons. Acceptance of Person 14’s evidence in relation to identification is one reason why it cannot be accepted that an EKIA was killed in an engagement at 1405DE. That is because there were only two EKIAs and the other is accounted for. But his Honour makes it clear that this is not decisive to the rejection of the OPSUM account. Further, the discussion of Person 14’s evidence occurs later in the reasons and after the OPSUM has been dealt with. The anticipatory reference to that discussion at J[1433] is one of many examples in the primary judge’s reasons of different strands of evidence being drawn together and considered as a whole.

942    At J[1443] his Honour weighed the competing accounts of the OPSUM and Person 14 and mentioned one reason why the latter may be taken to be credible (or at least honest). The statements to Mr Masters being referred to here took place in 2018. Other reasons why Person 14 was found to be a credible witness as to the events at Chinartu are discussed elsewhere in his Honour’s reasons. This is a conventional example of contradictory evidence being weighed and findings made as to which is preferred.

943    There was no error in his Honour’s treatment of the OPSUM.

Did the primary judge err by finding that two caches were discovered (particular 31)?

944    Person 14’s discovery of a cache is important to his account of events at Chinartu, because it led to the change of mood in the compound which preceded the shooting of the middle-aged man. If it were not persuaded that Person 14 discovered a cache in the perimeter wall outside the compound, the Court would not be satisfied to the relevant standard that the appellant was involved in a murder on the day of the mission to Chinartu. The respondents accepted as much.

945    The primary judge noted the following important points at J[1523].

946    First, the OPSUM records one AK-47, one pair of binoculars, three RPG-7 rockets and four RPG-7 rocket motors as having been recovered in a search of the compound following the engagement that occurred at 1405DE. We interpolate that his Honour found elsewhere that this engagement did not in fact occur, and we have discerned no error in that finding. No other weapons or other items recovered are mentioned in the OPSUM. We interpolate that in fact one other weapon is mentioned. That is another AK-47, which can be taken to be the one mentioned in the account of the engagement at 1410DE.

947    Secondly, a bundle of six photographs was produced by the Department of Defence. Two showed a cache in situ and the remainder showed its contents (being weapons, binoculars and other items).

948    Thirdly, six photographs were tendered and became Exhibit R38 (sensitive) and Exhibit R100 (non-sensitive). We have discussed these photographs above in connection with the disputed entry in the OPSUM.

949    Fourthly, five of the six photographs were the same as those included in the SSE report and the metadata indicates that they were taken between 1524DE and 1526DE. (We note that the latter time included a typographical error. The metadata actually indicates they were taken between 1524DE and 1528DE. But nothing turns on this error.)

950    Fifthly, when the appellant gave his evidence (in June 2021), it was put to him that the six photographs showed the cache found by Person 14. He denied this.

951    Sixthly, a different position emerged in Person 14’s evidence in chief. He said that the items shown in the six photographs in Exhibit R100 were not the contents of the cache he found.

952    Seventhly, in cross-examination Person 14 testified that he found “an AK variant and two bags, bullets, RPG warheads, boosters which were separate and a pair of binoculars”. He also described the cache in another part of his evidence as containing “2 AK variants, 2 bags of bullets, 1 set of binoculars and ‘RPG with boosters, two’”. He said that he had never seen photographs of the cache that he found, and agreed that he could not comment on the SSE report.

953    There are some minor discrepancies between his Honour’s summary of Person 14’s evidence about the cache and our reading of the relevant parts of the transcript. Person 14’s first version, according to the transcript, included a “couple of weapons. AK variant.” Thus, on one view at least, he was consistent in his descriptions in this respect. Nothing turns on this.

954    The result, noted by his Honour at J[1524], was that on the respondents’ case two caches were discovered during the mission: one by combat engineers (photographed around 1524DE – 1528DE) and the other by Person 14; one documented in the SSE report and the other not documented in any way.

955    The appellant submitted that the primary judge, in accepting Person 14’s evidence, failed to assess properly the significance of this point. He contended that the discovery of two “such similar” caches on a single mission was unlikely, indeed, “glaringly improbable” or at least insufficient to enable the respondents to discharge their burden of proof; and that it was improbable that one cache was photographed and documented while the other was not, especially as Person 14 referred in his evidence to the presence of combat engineers and their having taken over from him in extracting items from the cache he found.

956    We are not persuaded that there is anything inherently unlikely about two caches being discovered during a mission. There are obviously sensible reasons why insurgents might secrete weapons and other items in two or more small caches rather than one larger one. Between them, the cache shown in the photographs and the cache described by Person 14 do not amount to an implausibly large stock of materiel. Nor do we think anything arises from the similarity between the two. If anything, they were complementary in that one contained bags of bullets and the other did not.

957    Evidence of the discovery of a cache at some time before 1524DE is therefore neutral as far as the veracity of Person 14’s account is concerned. We were not referred to, and have not identified, any open court evidence about the discovery of the earlier cache. Its contents match the items listed in the bogus 1405DE entry in the OPSUM. Of more potential interest is the point that the cache discovered by Person 14 was not documented whereas the earlier cache had been, and despite his evidence that combat engineers were present when he discovered it. But this is not sufficiently improbable to indicate that the primary judge erred in accepting Person 14’s evidence. There are two points to note.

958    The first point relates to the scope of what Person 14 claimed to have observed. Person 14 gave evidence in chief that two combat engineers were close by when he discovered the cache and that, when he began removing its contents from the cavity in which they were secreted, the engineers “went straight onto it” and he took a step back. Later, when describing what happened after the shooting, he said:

So now we were preparing for extraction as the helicopters were close. I moved – we moved out of that compound, and obviously the engineers had finished what they needed to do.

959    We do not consider that, in this passage, Person 14 was claiming to have observed the engineers carrying out their process of documenting the contents of the cache. Nor was he claiming any expert knowledge of what the engineers’ processes entailed or whether they were complete. We take this passage to mean that all personnel left the compound and he assumed that the engineers had finished their work. Cross-examination gave him the opportunity to clear this up:

You say that the two engineers documented the cache; correct?---They were definitely working on it. I don’t know if they documented it.

Okay. And photos were taken, you say, or you don’t know?---Don’t know. Soon as they got on it - - -

Yes?--- - - - I just took a massive step back and let them have it.

You left?---Yes. I went back to the window.

960    Person 14 also said during cross-examination that he did not think there were any photographs of the cache he discovered.

961    The absence from the documents produced by the Department of Defence of any record of the cache discovered by Person 14 was therefore not directly inconsistent with anything in his evidence, although it does raise the question whether it is improbable that a cache discovered in these circumstances would not be documented.

962    That brings us to the second point. The second point concerns the argument that it was improbable that a cache would be discovered on a mission of this kind and not documented. The argument involves an assumption as to the existence of a universal or near-universal practice of documenting such things. We were not referred to, and have not found, any evidence of such a practice. While the assumption is not an unreasonable one, there is nothing surprising in such a practice not being followed in the circumstances described by Person 14. On his account, the second cache was discovered after the call at 1534DE that the helicopters on Turn 1 had left Tarin Kowt (which, based on the times recorded in the Sametime chat for the earlier trip, was less than 15 minutes away). It was most likely some minutes after that call, because Person 14 had had time to walk via another location to the compound where the shooting occurred, observe what was happening, see a discolouration in the perimeter wall and investigate it. The notification of a second EKIA at 1539DE gives an indication of the timing. Thus, when the combat engineers first had access to the cache, the appellant’s patrol needed to be at its extraction point in around 10 minutes. Even if some of the personnel at the compound were not due to leave on Turn 1, there were obviously sound reasons for them to be collapsing in to their extraction point and preparing to be extracted. In short, there was very little time for any process of documentation to occur.

963    What we have said in the previous paragraph might be criticised as speculative. But it is not. In connection with another topic, Person 14 gave the (completely unsurprising) evidence that:

When extraction was coming inbound. If it was helicopter we were – SSE would be dropped before the extraction.

964    In any case, what the combat engineers did or did not do was not part of the case that the respondents had to prove. The respondents had to answer a submission that Person 14’s account was implausible because it was improbable that a second cache would not be documented. It was open to them to attempt to meet that submission by suggesting reasons, based on the existing evidence, why the lack of documentation should not be thought to be improbable. They did not bear a separate onus in that respect. To the extent that it is suggested that it was incumbent on the respondents to call Person 34 (or the other combat engineer) to give evidence on this issue, we reject that suggestion.

965    In closed court, submissions were made about certain aspects of the contents of the SSE report. This issue is discussed in our closed court reasons.

966    It was not submitted at trial or in the appeal that Person 14 was honest but mistaken. The question therefore was (and is) limited to whether he dishonestly invented the second cache as part of a fabricated account. At least two consequences follow. One is that it is not necessary to canvass any suggestion that Person 14 was confused — for example, that he discovered the first cache and mistakenly bifurcated it into two caches. The other is that the primary judge’s overall impression of Person 14’s honesty was necessarily relevant. It was relevant that his Honour accepted the evidence of Person 14 concerning the location of his patrol at Whiskey 108 (at J[324]–[331], [350]) and rejected evidence to the contrary, findings which are not challenged in the appeal. The findings based on acceptance of Person 14’s account depended on an assessment of his credibility, made after seeing him give his evidence and considering his testimony in the context of the whole trial. They are thus not to be interfered with unless they are “glaringly improbable” or “contrary to compelling inferences”: Lee v Lee at [55] and the cases cited there.

967    At the trial, the appellant submitted that Person 14 had invented the story about a second cache after discovering that the SSE report showed features inconsistent with his account of the cache and the photographs therein had been taken at 1524DE–1528DE. On the appeal the appellant submitted that the primary judge did not deal with that submission.

968    The argument that Person 14 engaged in invention is said to be supported by the fact that a different version of events had been put to the appellant, presumably based on instructions from Person 14.

969    While it was put to Person 14 in a global way that his narrative about discovering a cache was “just a lie”, it was not put to him that he had changed his story after seeing the SSE report or after learning about the metadata of the photographs of the first cache. Nor was there any clear evidence that he did change his position. There is no evidence that Person 14 had even seen the photographs or their metadata before he gave his evidence. The only basis for suggesting a change of position on the part of Person 14 appears to be an assumption that the different position put to the appellant by counsel for the respondents came from Person 14. That proposition was not tested by putting it to the witness. Nor is it self-evidently right. Person 14 gave evidence pursuant to a subpoena and we would therefore not assume that he made himself available for conferences with the respondents’ lawyers beforehand.

970    Notes by Mr Masters of a discussion with Person 14 in 2018 recorded the latter telling him about discovering a cache, shortly before the appellant ordered the shooting of an Afghan male. He did not waver from that account. We were not referred to anything indicating that he ever claimed that the cache he discovered was the only one discovered that day. To the extent that the primary judge failed to deal with a submission that Person 14 did make such a claim and then changed his position, that failure is immaterial.

971    Particular 31 is not made out. There was no relevant error in the primary judge’s finding in relation to the cache discovered by Person 14. As to the first limb of this particular, the finding was based on an assessment of credibility and is neither “glaringly improbable” nor contradicted by any inference that can be described as “compelling”. As to the second limb, we do not accept that s 140 of the Evidence Act and the principles in Briginshaw apply separately to every fact relied on by the respondents to prove the substantial truth of the imputations in relation to Chinartu. In any event, once Person 14’s evidence was accepted, it was plainly sufficient to justify the finding that the primary judge made in relation to the discovery of the cache.

Did the primary judge err by failing to find that there was insufficient time for the events as related by Person 14 to have occurred (particular 32)?

972    Person 14’s account of the critical events at Chinartu clearly involved several things happening in a short space of time.

973    The times set out in the Sametime chat can be taken to be reasonably accurate. It is apparent that they were being typed into the document rather than automatically generated, but they are close in time to what are apparently automated time stamps in the left hand margin of the document. Their veracity was not challenged.

974    Person 14 heard the call that the helicopters were leaving Tarin Kowt (which, according to the Sametime chat, was around 1534DE). This was what prompted him to go and look for the appellant and the other members of his patrol. The helicopters on the first turn left Chinartu, with the patrol on board, at 1551DE. These are the outer limits of the period in which the events occurred.

975    Before 1551DE, the members of the patrol needed to leave the compound where the shooting occurred, move down the hill to the extraction point and prepare for the arrival of the helicopters. On the way, there was time for a short conversation with the troop sergeant. This would have taken some minutes. It will be recalled that the Sametime chat records a second EKIA being reported at 1539DE. It is practically certain, if Person 14’s account was true, that the “EKIA” reported at 1539DE was the middle-aged man whose shooting he had witnessed.

976    Accordingly, between roughly 1534DE and 1539DE, Person 14 on his account:

(a)    walked from where he was relaxing up to the TQ room;

(b)    had a short conversation about where to find his patrol;

(c)    walked further up the hill (which he described as quite steep) and then to another compound about 80 to 100 metres away;

(d)    looked through the window and noted that the appellant and other people were inside;

(e)    spoke briefly with Person 32;

(f)    observed discolouration on the perimeter wall, moved over to it and kicked it twice;

(g)    bent down and began removing items from the cache that had appeared; and

(h)    returned to the window, where he observed:

(i)    the appellant give the order to Person 13 and, receiving no reply, repeat the order;

(ii)    conversations between Person 13 and Person 12, then Person 12 and his soldiers; and

(iii)    one of the soldiers shooting the middle-aged man.

977    For clarity, we note that what must have happened before 1539DE does not include the combat engineers completing their analysis of the contents of the cache or any particular aspect of it. As we have explained above, Person 14 did not claim to have seen them complete the process or to know whether it had been completed. There was also a further period (of unexplored duration, possibly a few minutes) between the shooting of the middle-aged man and the departure of the Australian and NDS personnel from the compound.

978    According to the primary judge (at J[1531]), the appellant submitted that:

(a)    “it is improbable that events occurred as they were recounted by Person 14 because the timing becomes very tight, if not, impossible”; and

(b)    “it is most unlikely that all those events could have occurred in such a short period of time”.

979    This summary of the submission was not criticised. His Honour’s finding was:

It is true that, on Person 14’s account, the events happened within a short period of time, but it is not impossible that they would have happened within that time.

980    It will be noted that the submission was summarised using the language “most unlikely”, while the primary judge’s finding was that the events recounted by Person 14 were “not impossible”. However, on slightly closer inspection, the submission was that it was unlikely that the events “could have occurred”. There was some discussion during the hearing of the appeal about whether his Honour had dealt with the submission that was put. This does not assist the appellant, in circumstances where a failure to address the submission was not alleged in the notice of appeal. In any case the proposition in the appellant’s written submissions to the primary judge [at [8(d)]] was that “the timeline is not feasible”. His Honour’s finding answered that submission.

981    Before us, the appellant submitted in writing that:

(a)    his Honour’s reasoning was “speculative” and “inverts the burden of proof”; and

(b)    Person 14’s evidence is “improbable and uncorroborated” and therefore an insufficient evidentiary basis for a finding of murder.

982    For the respondents to make out their defence of truth in relation to Chinartu, the primary judge needed to be satisfied to the relevant standard that the events described by Person 14 occurred. Obviously, his Honour could not be so satisfied if he was not satisfied (to the relevant standard) that there was enough time between fixed points in the chronology (around 1534DE and around 1539DE) for Person 14 to have done the things he testified to doing during this five minute period. Thus, if there was sufficient doubt that it was physically possible for Person 14 to do all of these things in such a short time, the defence would not be established. Otherwise, the question of timing seems to fall away. The primary judge’s finding at J[1531], that it was “not impossible” for the events to have occurred within that short space of time, answers the question that arises.

983    In context, his Honour’s conclusion is to be understood as a positive finding that the events as claimed were possible, and a rejection of the submission that there was enough doubt about this point to call for the rejection of Person 14’s account. It does not imply any reversal or inversion of the onus of proof.

984    The feasibility of Person 14 doing everything that he claimed to have done within around five minutes was not the subject of any specific evidence, other than Person 14’s own sworn testimony that he had done these things. Although (as noted earlier) it was put to Person 14 that his account was a lie, it was not specifically put to him that there was not enough time for the events he described to have occurred. His account was not tested in this way and whatever further explanation he might have given is not known. The primary judge therefore had to deal with the submission by reference, in large part at least, to common sense and human experience. His Honour’s reasoning can be described as “speculative” in this regard, but an acceptance of the appellant’s submission would also be described in that way.

985    The events that Person 14 described as occurring after he reached the compound where he said the shooting of the middle-aged man occurred were capable of unfolding in a minute or two. To the extent that there is scope for doubt as to whether all of the events could have occurred within around five minutes, it relates to his movement up a hill and across a horizontal distance. It is therefore not insignificant that there was no exploration of what Person 14 meant by the hill being quite steep, no attempt to test his estimation of distance, no questioning to suggest a lack of agility or fitness, and no exploration of what he meant when he said he was walking. There was not, for example, any satellite image or map of Chinartu that showed the distances involved or the terrain in any useful way. It is proper to bear in mind that Person 14 was at the time a serving trooper in the SASR (and thus very likely fitter than the average person), was on a mission in potentially hostile territory, and had good reasons to find the other members of his patrol as quickly as possible. It would be wrong to imagine him as a flaneur. In our view, the tight timing involved in Person 14’s account of events does not raise such a level of doubt as to whether the events could have occurred as to make the primary judge’s acceptance of the account erroneous.

986    Consequently, particular 32 is not made out.

Did the primary judge err by relying on Person 14’s evidence about the troop sergeant’s reaction (particular 33)?

987    As noted earlier, Person 14 gave evidence that his patrol encountered the troop sergeant (Person 26) a short time before the helicopters arrived to extract them. He recalled Person 26 saying “What happened—what happened to the fucking PUC?”, and then, when no one responded, “The PUC count has already gone in and the helos are — helos are coming in”. Person 14’s evidence was that Person 26 at this point was “very annoyed”.

988    The primary judge treated this as supporting the acceptance of Person 14’s evidence. He said (at J[1536]):

At about 1530DE, the estimate of persons of interest being taken back to Tarin Kowt was three to four persons. The number taken back was two. I accept Person 14’s evidence that this last minute change annoyed the troop sergeant. This provides clear and strong support for the account by Person 14.

989    The appellant makes three points in relation to this passage.

990    First, the estimate at about 1530DE was tentative (“TBC”). Secondly, there was no “apparent logical reason” for Person 26 to be troubled by a reduction in the number of prisoners to be transferred to base. And thirdly, in giving weight to this episode the primary judge was using Person 14’s own evidence to corroborate Person 14’s account.

991    The first point appears to be in truth an aspect of the second. The second point assists the appellant only if he goes so far as to submit that it is implausible that Person 26 would be annoyed, indeed, so implausible that the suggestion (which is neither supported nor contradicted by any other evidence in the case) detracts from the plausibility of Person 14’s account. Otherwise, it is an unnecessary detail. It was clearly not essential to the respondents’ case.

992    The fact that the evidence does not make clear why Person 26 was annoyed does not establish that he was not or that no such reason existed. Still less does it make his purported annoyance so implausible as to undermine Person 14’s account. It was reasonable to infer that troop sergeants on missions of this kind have a range of things to be annoyed (or appear annoyed) about. As the respondents pointed out in submissions, having fewer persons than anticipated did not only mean less weight for the helicopters to carry, it potentially required last-minute changes to a seating plan so that each aircraft would be properly balanced. The estimate provided at 1530DE had been three or four POIs for transport to Tarin Kowt and now it appeared there would only be two. Another possibility was that Person 26 anticipated having to explain the late reduction in the number of POIs and this meant more work for him. His question “what happened to the fucking PUC?” might indicate that he was worried about a possible link between the reduction in numbers and the notification of a second EKIA a few minutes earlier. These possibilities are speculative, but they illustrate that possible reasons existed for Person 26 to display annoyance or to account for his annoyance.

993    As to the second point, while the annoyance of Person 26 was in no way essential to the respondents’ case, nor was it a piece of completely irrelevant detail of the kind that is sometimes (controversially) thought to add verisimilitude to a witness’s account of events. Treating detail per se as tending to confirm the honesty of a witness’s account is dangerous because the detail may have been woven into a fictional account in an attempt to give it plausibility. However, that is not necessarily always the case. Here, the piece of detail being added was not something otherwise irrelevant purporting to give an impression of plausibility (such as the troop sergeant had new boots). It was a detail that, as the respondents put it, harmonised with the objective facts and thus increased the likelihood that Person 14’s account was true.

994    As to the third point, for our part, based on our review of the transcripts and documentary material, we would hesitate to describe the evidence of Person 26’s annoyance as giving “clear and strong” support to the account of Person 14. However, his Honour’s finding to that effect may well be a consequence of having seen Person 14 give his evidence in the context of the whole trial, while we have not. The detail of the troop sergeant’s reaction did provide some support for Person 14’s account. Even if this part of the appellant’s argument is correct, this point appears to be something of an afterthought in his Honour’s reasons (appearing under the heading “Conclusions” and after his Honour’s finding that the second engagement of the day occurred at around 1539DE). There were several other reasons to accept the evidence of Person 14 and we do not consider that his Honour erred in doing so.

995    It follows that particular 33 is not made out.

Did the primary judge err in the manner in which he dismissed the evidence of Persons 11, 32 and 35 (particular 34)?

996    Particular 34 takes issue with the primary judge’s treatment of the evidence given by Persons 11, 32 and 35. The appellant alleges that his Honour erred by making global credit findings about Persons 11, 32 and 35, reasoning that, because they were unreliable witnesses about certain specific matters, all their evidence about Chinartu was unreliable.

997    Person 11 was a member of the appellant’s patrol on the mission to Chinartu. Person 14’s account of events placed Person 11 in the room at the time the appellant ordered Person 12 to shoot the middle-aged man. Person 11 remembered the injury to the military working dog described earlier but otherwise said that he did not have a detailed recollection of the mission. He said that he had no engagements during the mission and did not see any members of his patrol have any engagements. He denied that there had been an unlawful killing during the mission (J[1515]–[1516]).

998    It will be recalled that Person 11 was also on the mission to Darwan where, the primary judge held, he shot Ali Jan following a discussion with the appellant. In that context, the primary judge rejected Person 11’s account for the reasons set out at J[1265]–[1283], and concluded “I do not accept him as an honest and reliable witness” and this finding is not challenged. Elsewhere, his Honour found that Person 11 had strong ties of friendship with the appellant, had discussed his recollection of events with the appellant (including in the context of his evidence to the IGADF Inquiry), and had had legal fees paid for him by the appellant (J[2401], [2466]–[2467]).

999    As to Chinartu, at J[1535] his Honour said:

I do not accept the evidence of the applicant or Person 11 for reasons already given. I do not accept either of them as an honest and reliable witness. I refer to the findings in Section 12 of this Part and, indeed, the other adverse credit findings in relation to the applicant and Person 11 in other Sections of this Part.

1000    Person 35 led a patrol in E Troop on the mission to Chinartu. Several of the NDS members (including Person 13 and the NDS soldier recorded as having shot somebody on 12 October 2012) were attached to his patrol, as was Person 32. Person 35 had also been on the Whiskey 108 and Darwan missions. His evidence was not accepted in relation to either [see J[879]], and, as to the latter, the primary judge described his evidence concerning the role of Person 13 (the interpreter) as deliberately false and did not accept him as an honest and reliable witness (at J[1286]-[1287]). That conclusion in relation to Darwan was reached in part because Person 35, a close associate of the appellant, had played a key role in propounding what his Honour described as the “Person 12 lie”: that is, a web of false evidence to the effect that Person 14’s account of events at Chinartu could not be true because Person 12, having been removed or stood down from the NDS force for misconduct, was not on the Chinartu mission.

1001    During his opening at the trial Mr McClintock SC submitted:

Your Honour will recall that the original allegation by Fairfax in the defence was that Person 13 translated an order to Person 12, a member of the partner force, to kill the detainee in question. As it turned out – and your Honour knows this from the argument carried before – Person 13, as I said, is an out-and-out liar and a fabulist. Person 12 wasn’t there on the day in question, a matter that my client pointed out, although the reason why he wasn’t there expressed in my client’s outline and some of the other outlines needs modification. But there’s no question that Person 12 wasn’t there, that the – and Person 13’s version, as I said, was fabricated.

1002    The primary judge discussed the Person 12 lie in detail at J[1448]–[1511]. It is not necessary to go into any of that detail because the findings in relation to the lie are not challenged. His Honour concluded as follows at J[1509]–[1510].

The applicant and Person 35 colluded to put forward a false story that Person 12 had been removed or stood down following a shooting incident on 31 July 2012. They did that following discussions between themselves with a view to the applicant defeating the respondents’ case with respect to the mission to Chinartu and, at that point in time, the mission to Darwan …

These findings clearly have an adverse impact on the credit of the applicant and Persons 35, 27, 32 and 39.

1003    Person 35 was also a friend of the appellant, who had received assistance in paying legal fees about which the primary judge considered that he was not frank and forthcoming (J[2407]).

1004    Person 35 was not alleged to have been in the area at the time of the alleged execution at Chinartu and he did not claim to have a detailed recollection of events that day. The findings summarised in the previous paragraph therefore did not lead to a credit-based rejection of any evidence of Person 35 concerning events at Chinartu (other than as to the presence of Person 12). However, Person 35 did give evidence that his patrol had had no engagements during the clearance of the compounds on that day, which the primary judge treated as undermining the entry in the OPSUM concerning an engagement at 1405DE.

1005    Person 32 was part of Person 35’s patrol at Chinartu. As noted above, Person 14’s account of events placed Person 32 in the outdoor area immediately outside the compound when Person 14 discovered a cache and when the middle-aged man was shot on the orders of the appellant. Person 32’s evidence was that he did not recall the mission. He denied the respondents’ case when it was put to him in cross-examination (J[1517]). Person 32 was also involved in the Person 12 lie (as the quotation at [1002] above indicates), and his credit was adversely affected by it. His evidence about Person 12 being stood down was found to be “false” (at J[1509]). Thus, at J[1535], the primary judge said in relation to Person 32’s evidence:

… I do not accept the evidence of Person 32. He is a close friend of the applicant and he persisted with his account of Person 12 being stood down towards the end of July 2012 in the face of overwhelming evidence to the contrary.

1006    Nevertheless, Person 32’s evidence was also accepted to the extent that he said that the patrol led by Person 35 had no engagements during the clearance of the compounds (at J[1442]).

1007    No submission appears to have been advanced in relation to Person 35, despite the terms of particular 34. This is perhaps unsurprising, given that no evidence placed him at the scene of the crime and he did not claim any detailed recollection of events. The submission made in writing was as follows.

The Appellant submits that the matters relied upon by the primary judge for his adverse credit findings as to Person 32 (see especially J[1495]) and for Person 11, even if accepted, are insufficient to justify the wholesale rejection of their evidence, particularly when it was uncontradicted or corroborated by the evidence of other witnesses (not placing reliance on the Appellant in this context) or documents. Quite apart from the submissions above concerning the cache and the timing, this finding involved an allegation of an execution carried out in front of an audience of Australian soldiers (Persons 11, 14, 32 and two engineers) as well as many partner force soldiers. The finding is inconsistent with the contemporaneous operational reporting in circumstances where no findings were made as to how the operational reporting came to be falsified.

1008    A number of points should be made about this.

1009    First, the effect of the evidence of Person 11 and Person 32 was, relevantly, simply to deny that the events recounted by Person 14 happened. Their denials were neither “uncontradicted” nor corroborated by the other witnesses (apart from the appellant himself, whose evidence is expressly not relied on). The rejection of Person 11 and Person 32 depended on the weight of Person 14’s evidence as well as their own profoundly damaged credibility.

1010    Secondly, the attacks on Person 14 contained, or alluded to, in this paragraph have been discussed elsewhere in these reasons and raise separate points from the issue of the credibility of Person 11 and Person 32. They add no weight to this argument.

1011    Thirdly, it is far from clear what, if any, issue of principle is raised by the submission that Person 11 and Person 32 should not be wholly rejected. It was open to the primary judge, having assessed the evidence as a whole, to find that they should be. His findings about the credibility of these witnesses were of the most serious kind.

1012    Fourthly, it is also difficult to understand how the evidence of Person 11 and Person 32 concerning the key events at Chinartu could have been rejected in less than a “wholesale” manner. Each, relevantly, did no more than deny a case that was put to them.

1013    Fifthly, no particular error appears to be alleged to reside in the fact that the primary judge made some use of evidence given by Persons 32 and 35 that their patrol had no engagements during clearance of the compounds at Chinartu. This evidence went to the falsity of the 1405DE entry in the OPSUM and, coming from witnesses who otherwise were prepared to give false evidence to assist the appellant, was (as the respondents put it) akin to admissions against interest. It was clearly probative in that regard, given that the only Afghan soldier identified as having shot an Afghan male on that day was attached to Person 35’s patrol.

1014    Particular 34 is not made out.

Conclusion

1015    No error has been established in the primary judge’s treatment of events at Chinartu. Grounds 10 to 13 of the notice of appeal must be rejected.

DISPOSITION

1016    While we have detected two errors in his Honour’s reasons, those errors are immaterial. They do not affect his Honour’s conclusions on any of the critical questions. We endorse the following observations made by the respondents about his Honour’s judgment. In a long, careful and clear judgment the primary judge correctly identified and applied the relevant legal principles and paid close attention to the serious nature of the allegations and the standard of proof. His Honour repeatedly reminded himself that the respondents bore the onus of proving the substantial truth of the imputations and of the cogency of the evidence necessary to discharge it.

1017    The burden of proving that his Honour erred on appeal rested with the appellant. The appellant has not discharged that burden. What is more, we are satisfied that his Honour’s conclusions with respect to the substantial truth of the relevant imputations conveyed by the respondents’ articles were correct.

1018    Consequently, the appeals must be dismissed. Costs should follow the event.

Associate:

Dated:    16 May 2025

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