996 The applicant's patrol, Gothic 2, consisted of Person 4 (2IC), Person 56, Person 11 and Person 47. Person 47 was a military working dog handler. All the members of the applicant's patrol gave evidence other than Person 47.
997 Except for two matters, there did not appear to be any issues in dispute concerning the engagement by the applicant of EKIA3 in the area adjacent to the Helmand River.
998 The two matters are first, whether the applicant used his foot to roll the body of EKIA3 down a slope adjacent to the Helmand River and, if he did, the significance of that fact and secondly, whether an ICOM radio was recovered from EKIA3 and, if so, what became of the ICOM radio.
999 The background to the first issue is that in the opening of counsel for the applicant, he addressed the engagement and, in the course of describing its aftermath, he described the applicant as having dragged the body down to the river. After a short adjournment on the same day, counsel for the applicant sought to clarify what he said about moving the body of the insurgent. Counsel said:
MR McCLINTOCK: Could I clarify two matters, your Honour, that I dealt with this morning. The first is the – relates to what occurred across the Helmand River after my client killed the insurgent there. I said he dragged him down – or I may have said that he dragged – in fact, he kicked him down. It's a more complex situation than that reveals, actually, your Honour. My client will deal with it in evidence. The insurgent was in a cleft in the rocks and there were difficulties getting him out of their pathway because of the nature of moving a literally dead weight. I won't detract from the force of my client's evidence by actually going – explaining what happened, but the culmination of it was that he did roll the insurgent down the slope, where he ultimately sat him up – and he did say, by kicking him with his boot or pushing him with his boot. Whether that had a knock-on effect to other events that day or perceptions of other vents that day is a matter that can wait till later.
I will return to the two answers I have identified.
1000 I turn now to the evidence dealing with the engagement. I start with the evidence of the applicant. He was the first to give evidence on this issue at the trial.
1001 The applicant said the role of his patrol was to act as, or to conduct, a blocking force to the north of the assault force. The applicant's patrol needed to move down towards the Helmand River in order to cut off any potential squirters from crossing the river in that location. The applicant's patrol went into the green belt which was thick near the river. The patrol pushed forward through the green belt until it arrived at a point where it could see across the river. The applicant said that Person 11 identified an insurgent across the other side of the river on what
