that Person 4 murdered someone at W108. It is a question of considering the statements in the context in which they were made and having regard to other facts as found, a matter that I will address.
285 I note at this stage a submission by the respondents that the false denials by the applicant and Person 5 of having made the statements is suggestive of a consciousness by each of them of a meaning of unlawfulness. I would not go that far, although clearly the false denials are relevant to credit.
286 I also note that it was in this context that the applicant made a broader submission that the respondents have not put forward a case theory as to why in 2009, Person 5 would "all of a sudden" become a patrol commander who would give directions to members of his patrol to engage in unlawful killings. Certainly, motive or absence of motive is a factor to take into account but, as the respondents submit, it is not decisive.
The Mission to W108 on 12 April 2009
287 On 12 April 2009, G Troop consisted of five patrols and the names and composition of those patrols was as follows:
- (1) Gothic 1: Person 44 (PC), Person 45 (2IC), Persons 27, 46, 47 and 48;
- (2) Gothic 2: Person 29 (PC), Person 40 (2IC), Persons 35, 38, 41, 42;
- (3) Gothic 3: Person 43 (PC), Person 72 (2IC), Persons 3, 98, 108, and 109;
- (4) Gothic 4: Person 6 (PC); Person 73 (2IC), Persons 14, 24, 68 and 80; and
- (5) Gothic 5: Person 5 (PC); the applicant (2IC), Persons 4, 18 and 52.
288 The "Headquarters" element of the G Troop consisted of Person 81 who was the troop commander, Person 82 who was the troop sergeant, and an interpreter.
289 It is not in dispute that G Troop established an overwatch position a short distance from the green belt on the western side of the Deh Rafshan River. An element of the MRTF, the 7th Battalion of the Royal Australian Regiment, was on the eastern side of the river and was being engaged by insurgents who appeared to be operating out of a number of compounds on the western side of the river, including W108 and W109.
290 G Troop could observe insurgents manoeuvring against the MRTF and engaged some with sniper fire. Three insurgents were identified entering W108. Person 81 said and I accept that
