- (6) The applicant or Person 11 placed an ICOM radio on the body before it was photographed and that was done to create the impression that the engagement was a lawful one; and
- (7) The applicant falsely reported over the radio a lawful engagement of a spotter as he also did in the Patrol Debrief. He also told his patrol at the base that the story would be that a spotter had been engaged.
940 It is clear that those findings, if made, establish a joint criminal enterprise within s 11.2A of the Criminal Code or aiding, abetting, counselling or procuring by the applicant within s 11.2 of the Criminal Code.
941 The respondents bear the onus of proof and I must bear in mind the matters set out in Section 1 of this Part. I remind myself that mere rejection of the applicant's case does not establish the respondents' case and that it is open to me to reject both cases.
942 For the reasons which follow, the respondents have established their case. I reject the applicant's case.
943 The approach I will adopt is to summarise the evidence of the various witnesses by reference to events set out in chronological order during the mission to Darwan and thereafter. To the extent the evidence permits, I will identify the time at which various events took place. Having done that, I will address the challenges made to the evidence of each witness. I will then set out my findings of fact. I repeat the point I made in my discussion of the mission to W108 about the approach to a sequence of events.
Background
944 I start with a number of general matters.
945 The principal witnesses called by the respondents with respect to the mission to Darwan were two members of the applicant's patrol on 11 September 2012, Persons 4 and 56, both of whom appeared to give evidence pursuant to a Subpoena to give evidence, and three Afghan farmers who lived in the village of Darwan in September 2012. None of the Afghan farmers could read or write.
946 The principal witness called by the applicant other than himself was a member of his patrol, Person 11. Person 35 was also on the mission and he was called by the applicant.
