886 The respondents' case is that the applicant did and said certain things during the training exercises at Lancelin and Bindoon respectively which are probative in the sense of making it more probable that the alleged murders at Darwan, Chinartu and Fasil in 2012 occurred (s 55(1) of the Evidence Act). The respondents' case is that the applicant's conduct constituted preparatory conduct for the later murders in that the conduct involved him in specifically training and preparing members of his patrol to carry out and then cover up extra-judicial killings. Although the alleged incident at Lancelin is referred to in the Group 3 articles, the applicant has not sued on any imputation in relation to that alleged incident. The respondents accept that the alleged incidents at Lancelin and at Bindoon are not directly relevant to any imputation in issue. However, they submit that the alleged incidents are relevant to the substantial truth of at least Imputations 1, 2, 3, 11 and 14. These imputations are set out above.
887 The applicant denies that the alleged incidents took place. He submits that even if the Court finds that the incidents, or some of them, did in fact occur, they cannot be relied on by the respondents for the purpose the respondents advance because, properly analysed, the respondents are seeking to rely on the evidence as tendency evidence and the evidence is not admissible on that basis (s 97 of the Evidence Act). The respondents in their closing oral submissions made it crystal clear that they do not rely on the evidence as tendency evidence. In other words, as I understand it, if the only possible use of the evidence is as tendency evidence, that is not a use to which the respondents seek to put the evidence.
888 I will make my findings of fact and then address the question of whether the respondents can rely on those facts for the purpose they advance.
889 The Particulars of Truth in relation to the incident at Lancelin are as follows:
(65) In or about May 2012 the Applicant and the troop of which he was a member engaged in a training exercise at the Lancelin Defence Training Area, Perth. At about the conclusion of that training exercise the exercise involved a scenario that a compound had been cleared and a detainee had been taken. The detainee, being played by Person 9, was squatted in a corner of the compound with handcuffs on. The Applicant then walked to the other end of the room, grabbed Person 10, who was preparing for his first deployment, and brought him back to where the detainee was squatting. The Applicant said to Person 10, in substance, "kill him". Person 10 looked taken aback, however he complied with the order and jokingly simulated killing the detainee by gesturing and saying "bang" to indicate he had shot the detainee. The Applicant then grabbed Person 10 by the shoulder and said in substance "You good with that? Because that's how it's gonna be when we get over there."
(66) In the circumstances, in the event that this scenario was real, the Applicant's conduct would constitute a breach of Common Article 3 in that it would
