Page:Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA).pdf/124

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would be cleared by an entire patrol and not just two men, particularly in circumstances in which the presence of insurgents in the area was well known. It was put to Person 38 that a decision to clear an orchard would be the subject of orders from the commander of the patrol and a decision to clear an orchard would not be made by the most junior member of a patrol. Nor would the most junior member of a patrol be telling the 2IC of his patrol (Person 40) to come with him to do that. It was also put to Person 38 that he did not know where the cordons were located and that clearing the orchard on his hands and knees which he said he did would involve a significant risk of him being mistaken by a member of the cordon for an insurgent.

422 In my opinion, these matters strongly suggest that Person 38's account of clearing the orchard is implausible. A further matter suggesting that Person 38's evidence about clearing the orchard is implausible is the evidence of Person 29 to the effect that once the troop had cleared the tunnel courtyard area, that was the limit of exploitation for the clearance. Person 29 explained the concept of the limit of exploitation for a clearance in the following way:

So generally, we would, you know, designate a stop point for where we, you know, finish our actual clearance or actual assault so we just don't continue, you know, overextending. And at this point in time, you know, the compound and any affiliated courtyards or outbuildings to that compound would have, you know, been designated as that limit of exploitation just as a – as a physical barrier.

423 Counsel for the applicant recognised that no part of Person 38's account of clearing the orchard with Person 41 was put to Person 41 when the latter gave evidence at the beginning of February 2022. In closing submissions, counsel for the applicant said that no part of the evidence from Person 38 about clearing the orchard was relied upon by the applicant to impugn the credit of Person 41 in these proceedings and that that particular evidence was not deployed by the applicant in the proceedings. Counsel for the applicant made it clear that he was not submitting that Person 38 should not be accepted as a witness of credit, and he said that the applicant relies on Person 38's evidence in respect of other issues, such as blooding the rookie and whether the tunnel was discovered before the compound was declared secure. I presume the applicant also relies on Person 38's evidence that he did not see any men come out of the tunnel. Counsel for the applicant submitted that Person 38 was an impressive witness. Counsel explained that the reason the applicant was not relying on Person 38's account in relation to clearing the orchard is because the applicant accepts that it would be contrary to the principle in Browne v Dunn to deploy that evidence in circumstances where Person 41 was not given an opportunity to address it. Counsel for the applicant also noted that the applicant did not give evidence that Person 38


Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555
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