Heydon JD, Cross on Evidence (13th ed, Lexis Nexis, Australia, 2021) at [21252]; Odgers S, Uniform Evidence Law (17th ed, Lawbook Co, 2022) at p 745).
931 As far as the alleged murder at Darwan is concerned involving, as the respondents allege, the participation of Person 11 and the placing of a radio on the body, it is possible to see the evidence as preparatory conduct. It is more difficult to see the conduct in that light in the case of Chinartu where the alleged murder was committed by a NDS-Wakunish soldier on the alleged order of the applicant and Fasil where the alleged murder was committed by the applicant himself.
932 I propose to take a cautious approach to this evidence to avoid an unintended tendency use of the evidence. As I will explain, I find that the murders at Darwan and Chinartu took place irrespective of the findings in this Section and the alleged murder at Fasil not made out, even if I was to take the findings in this Section into account. If this be an overcautious approach, then the findings in this Section provide additional support for conclusions already reached in relation to the murders at Darwan and Chinartu respectively.
Section 4 — Darwan
Introduction
933 The Particulars of Truth with respect to the mission to Darwan on 11 September 2012 are as follows:
Darwan mission – 11 September 2012
(93) On or about 11 September 2012 intelligence had been received to the effect that Hekmatullah was in, or had been at, a village named Darwan.
(94) On or about 11 September 2012 the Applicant and the troop of which he was a member conducted a mission in Darwan in search of Hekmatullah (the Darwan mission).
(95) Shortly after the commencement of the Darwan mission a member of the overwatch patrol, being a patrol stationed at a higher position to keep a watch over the mission, sent a message over the radio to the effect "We've got a squirter, he just ran out of the green and crossed the river and we can't see him anymore, he is on the other side to us." The message did not indicate that the 'squirter' was armed or (explicitly or impliedly by its terms or tone) that he was a threat. A 'squirter' is a person who leaves the scene of the mission when soldiers approach.
(96) The Applicant responded to that message, in substance "Roger that, I'll look after it".
(97) At some time after that radio communication the Applicant crossed the Helmand River in search of the 'squirter'. The Applicant located an Afghan
