the bomb had struck the compound (Annexure G). The evidence is that the bomb did considerable damage to W108.
212 There was a misunderstanding on the day of the mission by those recording events concerning the cardinal points and that led to the location of areas, bodies and objects not being correctly described. The location of north is correctly shown on the attached photographs and the courtyard which was the focus of a great deal of evidence is at the north-eastern end of W108. On the day, north was thought to be more towards the bottom right hand corner of the photograph placing the courtyard at the north-western end of W108. This misunderstanding did not cause any confusion in the evidence. There was only ever one courtyard referred to in the evidence and it was agreed on all sides that a tunnel was found in that courtyard. Except where otherwise indicated, I will refer to locations by reference to the cardinal points as they were understood on the day.
213 It will be necessary to refer to the time at which various events occurred. A number of Australian Defence Force (ADF) records were tendered in evidence and in those records, DE (Delta Echo) refers to the local time in Afghanistan. Local time is four and-a-half hours ahead of Zulu (Z) time which is also referred to in some of the records. Zulu time is Greenwich Mean Time.
214 Finally, Afghan Male 1 referred to in the Particulars was referred to in the evidence as the old or older Afghan male or EKIA56. EKIA is the abbreviation for enemy killed in action. Afghan Male 2 was referred to in the evidence as the man with prosthetic leg or EKIA57. For convenience, I will continue to describe those two men as EKIA56 and EKIA57 respectively, although whether they were, in fact, killed in action is the key issue. There are photographs of both deceased men and those photographs are the subject of non-publication orders. Exhibit R6 comprises five photographs of EKIA56 and exhibit R7 comprises six photographs of EKIA57.
The Applicant's Contention that the Pleaded Allegations are Insufficient in Law and that there has been a Departure in the Evidence from the Pleaded Allegations
215 The applicant contends that there are two difficulties facing the respondents with respect to their pleading of the alleged murder of EKIA56. The first is an argument of an insufficiency in law and the second is an argument of an impermissible departure from the Particulars.
216 The first argument is as follows. First, it is clear from the respondents' Particulars of Truth that the allegation is that Person 4 murdered EKIA56 and that the applicant's responsibility is
