Page:Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA).pdf/241

the Applicant and Person 11.

(107C) Ali Jan died as a result of injuries sustained from the cliff fall particularised at paragraph 107, or the gunshot wounds particularised at paragraph 107B, or both.

(108) The shooting of Ali Jan was a result of an understanding or arrangement, amounting to an agreement between the Applicant and Person 11, to ensure that Ali Jan was dead following the cliff kick. The existence of the agreement between the Applicant and Person 11 to kill Ali Jan may be inferred from all of the facts and circumstances, including:

(a) Person 11, as a member of the Applicant's patrol, was stationed near the cliff before, during and after the kick particularised at paragraph 107, and was in a position to see any or all of the following:

(i) Ali Jan being placed in a kneeling position at the top of the cliff;

(ii) the Applicant kicking Ali Jan off the cliff;

(iii) Ali Jan falling down the cliff; and/or

(iv) Ali Jan's body resting at the base of the cliff;

(b) after Ali Jan had fallen the full height of the cliff down to the dry creek bed, the Applicant and Person 11 walked down the cliff and conferred. The Respondents do not know the contents of the conversation;

(c) the Applicant and Person 11 both observed Ali Jan's body after the cliff kick and were in a position to see the serious injuries Ali Jan had sustained including that his teeth had been knocked out as particularised at paragraph 107;

(d) the Applicant and Person 11 both knew that Ali Jan was hors de combat at the time of the cliff kick particularised at paragraph 107, by reason of the matters particularised at paragraph 102A;

(e) the Applicant and Person 11 were both present when Ali Jan was shot as particularised at paragraph 107B; and

(f) the Applicant and Person 11's conduct in covering up the killing of Ali Jan as particularised in paragraphs 109 to 110A below.

(108A) The shooting of Ali Jan particularised in paragraph 107B was carried out pursuant to a joint criminal enterprise, being the understanding or arrangement amounting to an agreement between the Applicant and Person 11 to kill Ali Jan as particularised in paragraph 108 above.

(108B) The shooting of Ali Jan was carried out in furtherance of the Applicant's intention that was formed as set out in paragraph 107A above.

(108C) Further or alternatively to paragraphs 107A and 108B, the Applicant's intention to kill Ali Jan may be inferred from the Applicant's presence and/or conduct particularised in paragraph 107B and the agreement, knowledge and conduct referred to in paragraph 108 above.

(109) Person 4, a soldier under the Applicant's command and in Person 11's patrol, performed SSE (sensitive site examination), that is, took photos of Ali Jan's

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