- (i) it was unlikely a spotter would have come within such a short distance of the village such that the Applicant or any member of his patrol could get to his body to perform SSE and return to his patrol's helicopter landing zone within three minutes.
(112) Further, whilst it is permissible to kill a spotter under the ROE, it is not permissible to kill any spotter in an inhumane manner such as kicking them off a cliff.
(113) Further, whilst it is permissible to kill a spotter under the ROE, it is not permissible to kill the spotter if the spotter is detained, hand-cuffed, unarmed and poses no threat or danger.
(114) In the circumstances, by his conduct with respect to Ali Jan, the Applicant breached Common Article 3 in that his conduct constituted violence, cruel treatment and murder.
(115) [deleted]
(116) In the circumstances, the Applicant's conduct with respect to Ali Jan constituted murder.
(117) Alternatively, by his conduct with respect to Ali Jan the Applicant was complicit in and responsible for murder.
934 The Particulars which are set out in the Confidential Annexure to the Defence relate to the PUCing of fighting age males and the surveillance of areas adjacent to extraction zones.
935 The applicant alluded to an argument that in some way the respondents had altered their case from the case identified in the Particulars by "now" alleging that Person 11 had shot Ali Jan. This argument was not developed by the applicant and, in any event, must fail because there is a clear plea in para (107B) of the Particulars of Truth that Ali Jan was shot by either the applicant or Person 11.
936 The point of substance made by the applicant seemed to be that there is no evidence of an alleged agreement between the applicant and Person 11 that Person 11 shoot Ali Jan. The understanding or arrangement said to constitute the joint criminal enterprise as pleaded was between the applicant and Person 11 and was to ensure Ali Jan was dead following the cliff kick (para (108) of the Particulars of Truth).
937 Although the respondents pointed out that this is different to an agreement that Person 11 shoot Ali Jan, their principal submission is that the matter is to be judged through the eyes of the ordinary reasonable reader and not by having regard to the technicalities of the criminal law. In other words, the question is judged by reference to the ordinary reasonable reader's understanding of "murder" and not by reference to the statutory definitions of the offence.
