Page:Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA).pdf/242

body, before he and the Applicant returned to their patrol's helicopter landing zone for extraction. During the process of SSE Ali Jan's handcuffs were cut off him and a throw-down ICOM radio was placed next to Ali Jan for the purpose of the photographs, in an attempt to make it appear that Ali Jan was a spotter who was killed legitimately.

(110) The Applicant sent a signal over the radio, in substance, "11, this is 211, we've just engaged a spotter, that is 1 EKIA" (enemy killed in action).

(110A) The Applicant, Person 4 and Person 11 covered up the unlawful killing of Ali Jan by falsely alleging that Ali Jan was a spotter. The Applicant falsely alleged that Ali Jan was a spotter on at least the following occasions, relying upon the ICOM radio he knew had been placed next to Ali Jan as particularised in paragraph 109 above as the basis for his allegation that Ali Jan was a spotter:

(a) in the radio communication referred to in paragraph 110 above;

(b) in post mission de-briefs and reports; and

(c) in his outline of evidence in reply in these proceedings (filed 12 July 2019).

(110B) It may be inferred from the Applicant's conduct in falsely alleging that Ali Jan was a spotter that he was conscious that the killing of Ali Jan was unlawful.

(111) It may be inferred that Ali Jan was not a spotter in circumstances where:

(a) he had been located by the Applicant and his patrol in a compound and then detained and handcuffed by the Applicant or a solider in his patrol, and consequently was hors de combat, and had been questioned by the Applicant;

(b) his hands were hand-cuffed when he was retrieved from the holding compound and kicked off the cliff;

(c) he was not seen to be using any mobile telephone or radio (which is a common feature identifying a spotter);

(d) no spotter was seen by the Apache helicopter or overwatch patrol;

(e) prior to Ali Jan's death the Applicant did not send any message to the effect that a spotter had been located so that the extraction could be aborted until it was safe;

(f) in his radio communication sent after Ali Jan was killed the Applicant did not indicate any concern for who Ali Jan may have passed a message to (which is the threat a spotter poses) or give any indication that there was a threat such that the extraction should be aborted until it was safe;

(g) the mission was complete and it was unlikely a spotter would have approached the village or the compounds, which were under the control of Australian SAS soldiers, at that time;

(h) it was unlikely a spotter would have come within such a short distance of the village such that he was able to be killed in the manner he was (spotters ordinarily operate from several hundred (500-1000) metres away);

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