Page:Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA).pdf/176

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661 With respect to the applicant's fourth point, my findings with respect to the honesty and reliability of the applicant and Persons 5 and 35 are set out elsewhere.

662 With respect to the fifth point, I do not accept that the circumstances surrounding the preparation of the Exploitation Report or the errors which were identified and the fact that SSE Reports were not designed to be evidentiary documents, leads to the conclusion that the location of the body was incorrectly marked on the Exploitation Report, particularly when one has regard to the evidence of Person 18 and the contemporaneous and on the ground notations on the evidence bags.

663 A number of challenges were made by the applicant to the Exploitation Report and the SSE process in closed Court. I consider and reject those challenges in the closed Court reasons (at [17]–[38]).

664 With respect to the final collection of points concerning the evidence of Person 42 about the area, the evidence about the grass shown in the photographs, the presence of the yellow palm oil container and the time-stamps on the photographs and whether they show the body of EKIA56 in the courtyard, I would not be prepared on the basis of that evidence to conclude that they do show the courtyard. It is simply too slender a basis to reach that conclusion. I have reached the conclusion that the photograph of EKIA56 shows his body in the courtyard based on all the evidence and there is nothing in the final collection of points which dissuades me from reaching that conclusion.

665 The applicant relies on the contemporaneous records (see at [584]–[592]). He submits that the respondents are, in effect, seeking a finding that the records are inaccurate. The assertion in the Patrol Debrief is that two squirters were killed. The background to this submission is a contention by the applicant that the respondents do not allege that anyone other than Person 5 and/or the applicant had any involvement in the fabrication or falsification of the accounts in the contemporaneous meeting and yet the evidence establishes that the documents were the result of the input of a number of persons. In those circumstances, the allegation that the reporting is false cannot be made out.

666 The applicant points to his own evidence about how After Action Reports or Patrol Debriefs are prepared. The applicant said:

… As we evolved into strike operations, the debriefing remained in a similar – a similar way, but the patrol commanders would typically have to take – or do a debrief with their team, then they would leave the team, they would go to the officer commanding

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