Page:Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA).pdf/167

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entry point. Person 5's patrol pushed through in a northerly direction to the courtyard. The applicant said that he did not know whether Person 6's cordon moved during the course of the assault. The applicant described the tunnel courtyard as "effectively an animal pen". The courtyard was enclosed by walls, but there was a gap on the north-eastern side (assuming the correct cardinal points) where it joined the wall of the compound.

619 Person 29's patrol joined Person 5's patrol in the tunnel courtyard, but the applicant did not recall whether "all of them were there". The applicant recalled someone moving grass out of the way and removing the grate. There was a discussion and Person 35 was chosen to clear the tunnel. The applicant remembered women and children, not necessarily being around when the tunnel was found, but potentially being with Person 29's team. He did not recall whether the women and children were in the tunnel courtyard. He did not recall whether anybody conducted a callout. He was in the tunnel courtyard when Person 35 went in. Once Person 35 went into the tunnel, the applicant went outside. He moved to the north-eastern corner of the compound, assuming the correct cardinal points. The applicant said that part of the reason he went outside was because the machine-gun he was carrying was not conducive to room combat. He decided to push to that corner of the compound and hold a security position. He was providing security in the area so he was doing something, rather than not doing something. He walked along the edge of the compound wall and wanted to have a look and assess what was out there. He had no idea whether the compound had been declared secure at that point, although he did not consider that likely in view of the fact that the troop was still searching the tunnel. For the same reason, he did not think it likely that the SSE process had commenced. As soon as he went out, he saw an insurgent moving and he had the engagement. He said that he had taken a few steps "down the wall". He considered that he was halfway down the wall when it happened. He described the manner in which the insurgent was holding his weapon as an "admin" carry.

He wasn't patrolling with it. He was holding the top of it.

620 At that point, the applicant was not aware or conscious of the presence of another SASR soldier. He fired a two or three round burst and the insurgent basically fell instantly. He then had a stoppage in his weapon. Again, at this point he was not aware of another SASR soldier in his vicinity. He estimated that there was a distance of approximately three metres between the two insurgents.

621 He assumed that the person behind him was someone in his patrol:


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