Page:Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA).pdf/240

male (Afghan Male 5) hiding amongst the rocks on the other side of the Helmand River, stood over him and shot him in the head from close range. At the time the Applicant shot Afghan Male 5 he was standing so close to Afghan Male 5 that the Applicant was splattered with his brain matter and some of it entered the Applicant's mouth.

(98) [Deleted]

(99) [Deleted]

(100) [Deleted]

(101) [Deleted]

Murder of Ali Jan

(102) [Set out in the Confidential Annexure to the Defence].

(102A) Towards the end of the mission the Applicant and a number of soldiers including members of the Applicant's patrol were clearing compounds at the South-East end of the village. In one compound they located and detained (placed under control) three fighting aged males. The detention of these males rendered each of them hors de combat. One of them was an Afghan male named Ali Jan (Ali Jan). The other two were Person 62 and Person 63. The three Afghan men, including Ali Jan, were handcuffed and questioned. The Applicant questioned Ali Jan and Person 62.

(103) Once the mission was complete a request for extraction (helicopters) was communicated.

(104) [Set out in the Confidential Annexure to the Defence].

(105) [Set out in the Confidential Annexure to the Defence].

(106) [Set out in the Confidential Annexure to the Defence].

(107) Towards the end of the interrogation referred to in (102A) above the Applicant moved Ali Jan, who was still handcuffed, to outside the compound. The Applicant caused Ali Jan to be placed at the edge of a small rocky cliff which was greater than 10m high, and forced him into a kneeling position. The Applicant then took a number of steps back before he moved back towards Ali Jan and kicked him hard in the midriff/abdomen causing him to fall back over the cliff and land in the dry creek bed below. The impact of the fall to the dry creek below was so significant that it knocked Ali Jan's teeth out of his mouth.

(107A) It may be inferred from the Applicant's conduct in placing Ali Jan at the edge of the cliff and in kicking him off the cliff as particularised at paragraph 107 above, that the Applicant:

(a) intended to kill Ali Jan; and/or

(b) acted with reckless indifference to Ali Jan's life.

(107B) After Ali Jan had fallen the full height of the cliff down to the dry creek bed he was moved by two soldiers whose identity the Respondents do not know to the other side of the creek bed where there was vegetation. After he had been moved to that location Ali Jan was shot multiple times in the presence of the Applicant and Person 11. The shots were fired by either the Applicant or Person 11 (a soldier under the Applicant's command), or alternatively by both

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