found that odd. That evidence from Person 4 was objected to on the basis that it was hearsay. It was admitted on the basis that Person 9 "is to be called to give evidence" within the terms of's 64(3) of the Evidence Act. The applicant submits that Person 4's evidence on this topic should be excluded because Person 9 was not called as a witness in the circumstances set out above. I do not need to consider this point because in their closing oral submissions, the respondents made it clear that they do not rely on Person 4's evidence in this respect and I exclude it from my consideration.
915 I find that at Lancelin during pre-deployment training in about May 2012, the applicant ordered Person 10 to carry out a mock execution of Person 9 who 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.
916 The Particulars of Truth in relation to the alleged incidents at Bindoon are as follows:
(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, in one of the fake 'Afghan compounds'. The discussion involved general conversation about the process involved in conducting such attacks. Part of that 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 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 a 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.
917 Person 19 was the key witness for the respondents in relation to the incidents. He described the incidents in the following way.
918 In May or June 2012, troop training exercises were being carried out at Bindoon. On one occasion, an exercise was being carried out by the applicant's patrol and a patrol commanded
