Page:Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA).pdf/169

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said that he may have contacted Person 5 by radio or he may have spoken to Person 5 in person. He may have spoken to Person 29. He could not remember.

625 When the applicant went back inside, he noticed that the SSE process had or was about to start. As the 2IC of his patrol, one of his responsibilities was to initiate that process. The applicant said he assisted with the SSE process with respect to the insurgent he had killed; he is not sure who assisted with the SSE process with respect to the other body. The applicant said that the machine-gun which the second insurgent had was placed at the wall where the bolt action rifle was. He does not know who placed it there.

626 The applicant's recollection was that he was present when the SSE process was carried out with respect to the insurgent he had shot and Person 18 was also present. He said that he would probably have noticed the prosthetic leg in the initial search, although he does not recall whether it was the first search or during the SSE process that he realised the insurgent had a prosthetic leg. The applicant's recollection was that he removed the prosthetic leg when he was undertaking the SSE process. It was left somewhere near the body. He was not aware of putting it back on the body. The applicant identified the man with the prosthetic leg as the man he shot. The evidence bag refers to the northwest corner of the compound. The applicant agreed that there was a lot of confusion about the cardinal points because of the way the patrols had entered the building. He agreed that the reference to the northwest corner, now that it is known precisely which way north is, should be understood to be a reference to the northeast corner. The applicant agreed that he may have assisted with the SSE process in relation to the body designated EKIA50. He took the photograph of Person 18 kneeling near the wall with the dead body of EKIA50 next to him (exhibit R18 p 34).

627 The applicant said that it was his understanding that the elderly Afghan male (EKIA56) was shot by the second operative. The evidence bag for that EKIA contains the following notations:

56

108

NW corn

Tunnel

The applicant said that he did not write the notation and that he had no explanation for why the author did that.

628 Some of the photographs showing weapons which are in evidence were taken inside the tunnel courtyard. The applicant said that he did not know where Person 6's patrol was at or about the time he was in the tunnel courtyard. The insurgent he shot was not moving to attack and, as


Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555
159