48 I do not accept the respondents' submissions. The articles identified a small group of soldiers of which "Leonidas" is a member. He is the only man "identified" and it is said that he is given a pseudonym for legal reasons. He killed the man with the prosthetic leg and, as the respondents admit, the articles convey or communicate an imputation that he murdered an unarmed and defenceless Afghan civilian by kicking him off a cliff and procuring the soldiers under his command to shoot him (Imputation 1). Furthermore, if as I find to be the case, Imputation 5 is made out, Leonidas is said to have committed two murders and to be part of "a rogue SASR team". One of the two murders happened on the same mission as the execution of the elderly detainee.
49 In my opinion, Imputation 4 was conveyed or communicated by the Group 2 articles. The ordinary reasonable reader would assume that the applicant was one of the "two more senior soldiers".
Imputation 5 - The applicant while a member of the SASR, committed murder by machine gunning a man with a prosthetic leg
50 It is clear that the ordinary reasonable reader would conclude from the articles that it was Leonidas who "machine-gunned" the man with the prosthetic leg and killed him. However, the respondents submit that there is no statement in the articles to the effect that the killing of the man with the prosthetic leg was unlawful or indeed, constituted murder. In that respect, it is important to bear in mind, so the respondents submit, that the context in which the killing occurred is clearly the war in Afghanistan.
51 In my opinion, the respondents' argument must fail in the case of the online article because of the caption under the photograph suggesting that the man with the prosthetic leg was killed in an incident that involved an alleged war crime. I reject the submission by the respondents that the alleged war crime is a reference to the souveniring of the prosthetic leg. It is the killing that involved the alleged war crime and that would be the understanding of the ordinary reasonable reader. In the case of the newspaper article where this caption did not appear, I consider that the same conclusion should be reached when the context is considered. Clearly, the articles convey the meaning that the summary execution of the elderly detainee (which was said to be one of several incidents) and the execution of the man in Darwan three years later were unlawful executions. As to the former, the sources are identified as "defence insiders who were witnesses at the scene". As to the latter, the claims were said to have been backed by relatives of Ali Jan and now corroborated by various sources across the globe during a six
