879 Person 35's evidence was unsatisfactory as to whether the tunnel was found during the clearance of the compound or while the SSE process was being undertaken. He gave evidence about the location of the interpreter on the mission to Darwan which was untrue and he was a prominent figure in the Person 12 lie. I also refer to my credit findings in Section 12 of this Part. I do not accept Person 35's evidence.
880 For reasons previously given, I do not accept any of Person 38's evidence unless it is corroborated by evidence I do accept.
881 I have set out above findings in the course of these reasons, including findings concerning the involvement of Person 5. I am satisfied of the following and make findings accordingly:
- (1) that two Afghan males who were later designated EKIA56 and EKIA57 came out of the tunnel in the courtyard at W108 and were placed under confinement by Australian soldiers;
- (2) that EKIA56 was executed by Person 4 in the tunnel courtyard at the direction of the applicant; and
- (3) that EKIA57 was executed by the applicant outside the north-western corner of W108.
882 These findings mean that the respondents have established the substantial truth of Imputations 2, 3, 4, 5, 6 and 9 (as reformulated).
883 Imputation 6 includes an allegation that the applicant took the prosthetic leg back to Australia. It is not known on the evidence who took the prosthetic leg back to Australia. The applicant did encourage his soldiers to use it as a novelty beer drinking vessel and that is the sting of the imputation.
Section 3 — Incidents involving the Applicant during Pre-Deployment Training in 2012
884 The applicant was deployed to Afghanistan on Rotation 18 from about June to November 2012. He was a patrol commander on that deployment and in the pre-deployment period, his patrol consisted of Persons 4, 11, 19 and 10. Person 4 was the 2IC of the patrol. It transpired that Person 19 did not deploy to Afghanistan on Rotation 18.
885 Prior to the deployment on Rotation 18, the applicant's patrol and other patrols were involved in pre-deployment training in Australia at the Lancelin Training Facility (Lancelin) and at the Bindoon Training Facility (Bindoon).
