Page:Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA).pdf/255

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looked to be a foot track or a foot pad running along the base of a cliff. The applicant described the "cliff" by saying that on the other side of the river, the terrain was very steep and there was a road cut into the side with a large monee drain on the river side. The applicant saw an insurgent with a weapon slung on his back and both he and Person 11 began to engage the insurgent. The insurgent disappeared behind some large boulders. The applicant's patrol engaged in enfilade fire and the applicant and Person 11 moved up the river. The applicant decided to swim across the river.

1002 The applicant described a monee drain as an irrigation ditch that typically runs either through fields or alongside of rivers. It is used by the local nationals to irrigate their fields. They are often next to rivers. The river water will overflow into the monee drain and then it is farmed out into the rest of their fields. They can be reasonably deep and up to knee level. The applicant found the insurgent and engaged him from a distance of approximately two metres. The insurgent was killed instantly. The applicant dragged the insurgent out into the irrigation ditch that he had walked through initially and held him up on the bank. He discovered that the insurgent had an AK variant rifle and the rifle itself had a bullet hole at the top of the rifle. There were magazines within a dark coloured shawl and a small box of detonators wrapped in plastic. They were, in the applicant's opinion, high end detonators having regard to what was typically seen in Afghanistan.

1003 The applicant decided that some photographs should be taken of the dead insurgent in case the insurgent was Objective Jungle Effect. The applicant said that he took the body to the side of the monee drain and dragged it over the drain to the top which was closest to the river. He put his foot in the back of the insurgent's body and pushed the body down the embankment so it rolled down to the base. The applicant's intention was to hold him up at the base and ask Person 4 to take photographs with a digital camera. That occurred and Person 4 took photographs. The applicant left the body at that point, gathered up the insurgent's equipment and swam back across the river. He and Person 11 moved back to the rest of his patrol and at that point, the role of the applicant's patrol as a blocking force had become redundant because the assault force had started to sweep through the village. The applicant's patrol then took on the role of a reserve assault team.

1004 Person 4 said that as the applicant's patrol moved towards the river, the patrol identified an individual on the opposite side of the river walking away from the target area. The applicant and Person 11 fired a number of shots at the individual. The patrol moved into an extended


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