# Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA)/Part 3/Section 1

​PART 3 — SUBSTANTIAL TRUTH AND CONTEXTUAL TRUTH
Section 1 — Issues Relating to the Fact Finding Exercise in these Proceedings
92 There are a number of principles which I must apply and take into account in approaching the fact finding exercise involved in the consideration of the respondents' defences. They are addressed in this Part.
The Onus of Proof
93 As I have said, the respondents have pleaded a defence of justification or substantial truth under's 25 of the Defamation Act in relation to each of the imputations. Section 4 of that Act contains a definition of the words "substantially true" and it is "true in substance or not materially different from the truth". The respondents have also pleaded a defence of contextual truth under's 26 of the Defamation Act.
94 The respondents carry the onus of proof with respect to their defences. The respondents must establish that every material part of an imputation is true and the defence of substantial truth is concerned with meeting the sting of the defamation. In Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 (Channel Seven Sydney v Mahommed), the New South Wales Court of Appeal said the following (at [138]):
   In order to establish imputation 12 was substantially true, the appellant had to establish that every material part of it was true: Howden v Truth & Sportsman Ltd [1937] HCA 74; (1937) 58 CLR 416 (at 419) per Starke J; (at 420) per Dixon J; (at 424 - 425) per Evatt J. However this does not mean the appellant had to prove the truth of every detail of the words established as defamatory (Li v The Herald & Weekly Times Pty Ltd [2007] VSC 109 (at [85]) per Gillard J), rather the defence of substantial truth is concerned with meeting the sting of the defamation: Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 (at [274]) per Gillard AJA (Winneke ACJ generally agreeing and Warren AJA agreeing). As Lord Shaw of Dunfermline explained in Sutherland v Stopes [1925] AC 47 (at 79):
      "It remains to be considered what are the conditions and breadth of a plea of justification on the ground of truth. The plea must not be considered in a meticulous sense. It is that the words employed were true in substance and in fact. I view with great satisfaction the charge of the Lord Chief Justice when he made this point perfectly clear to the jury, that all that was required to affirm that plea was that the jury should be satisfied that the sting of the libel or, if there were more than one, the stings of the libel should be made out. To which I may add that there may be mistakes here and there in what has been said which would make no substantial difference to the quality of the alleged libel or in the justification pleaded for it." (emphasis added).
(See Gatley et al (2022) at 12.003.)
The Standard of Proof
95 The Evidence Act 1995 (Cth) applies to these proceedings and s 140 of that Act is in the following terms:
   (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
   (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
       (a) the nature of the cause of action or defence; and
       (b) the nature of the subject matter of the proceeding; and
       (c) the gravity of the matters alleged.
96 The matters set out in subsection (2)(a), (b) and (c) are mandatory considerations. They are not exhaustive. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 (CEPU v ACCC), the Full Court of this Court said (at [30]):
   The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context informing an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.
​97 It is well established that other matters may be taken into account. In Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537 (Gama) at [138], Branson J (with whom French and Jacobson JJ agreed on this issue) identified two other matters which may be taken into account. One of those matters was identified by reference to the well-known decision of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) being the inherent unlikelihood, or otherwise, of the occurrence of the matter of fact alleged. The other matter identified by Branson J in Gama is the common law rule that evidence is to be weighed according to the proof which it was in the power of one party to produce and the power of the other party to contradict. The examples given by Branson J in Gama of the "other matters" which may be taken into account are not exhaustive.
98 It has been said that as a general proposition the statute, that is, the Evidence Act, made changes to the common law and is not to be approached as involving an attempt to codify the common law. Gleeson CJ and Hayne J in Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 said the following (at [10]):
   … It is the language of the statute which now determines the manner in which evidence of the kind presently in question is to be treated. …
99 Nevertheless, s 140(2) of the Evidence Act has been treated as reflecting, in part at least, the common law. In Morley v Australian Securities and Investments Commission [2010] NSWCA 331; (2010) 247 FLR 140 (Morley v ASIC) (there was an appeal to the High Court: Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 (ASIC v Hellicar), but not on this point), the New South Wales Court of Appeal said that s 140, while superimposing a mandatory statutory requirement, reflects the common law as stated in Briginshaw and as explained and applied in subsequent authority. In Musa v Alzreaiawi [2021] NSWCA 12 at [40], the New South Wales Court of Appeal referred with apparent approval to authorities which have said that s 140(2) provided for no new principle and reflected the principles stated in Briginshaw (see also the discussion in Commonwealth of Australia v Fernando [2012] FCAFC 18; (2012) 200 FCR 1 at [128] and Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 358 at [24]–[29] per Wheelahan J).
100 In a well-known passage in Briginshaw, Dixon J (as his Honour then was) said the following (at 361–362):
   Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the ​tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
101 The other members of the High Court also referred to the relevance of the seriousness of the allegation to whether or not the court or tribunal could be satisfied of the fact alleged (at 347 per Latham CJ; at 350 per Rich J; at 353 per Starke J; and at 372 per McTiernan J).
102 Various members of the Court identified the strength of the evidence required or, approaching the matter from the other direction, the evidence which would be insufficient in the case of serious allegations. Justice Dixon said that reasonable satisfaction would not be reached "by inexact proofs, indefinite testimony, or indirect inferences" (at 362). Justice Rich said that reasonable satisfaction could not be reached "by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion" (at 350). Justice McTiernan referred to the need for strictness of proof (at 372).
103 Another important point made in Briginshaw is that actual persuasion is required and Dixon J said that it could not be found "as a result of a mere mechanical comparison of probabilities independently of any belief in its reality" (at 361).
104 Chief Justice Latham said (at 343):
   There is no mathematical scale according to which degrees of certainty of intellectual conviction can be computed or valued. But there are differences in degree of certainty, which are real, and which can be intelligibly stated, although it is impossible to draw precise lines, as upon a diagram, and to assign each case to a particular subdivision of certainty.
105 Finally, Dixon J said that where there is an issue in a civil proceeding as to whether a crime has been committed, the standard of proof is the same as upon other civil issues, but weight is to be given to the presumption of innocence and exactness of proof is required (at 363; see also McTiernan J at 372).
106 In Khan v State of Trinidad and Tobago [2004] 2 WLR 692 (PC) Lord Bingham of Cornhill described the presumption of innocence in the following terms (at [14]):
   The presumption of innocence is perhaps the most fundamental principle underlying the administration of the criminal law. It places on the prosecution, fairly and squarely, the duty of proving guilt. …
108 Briginshaw has been followed in subsequent High Court cases. The civil standard of proof applies, but the degree of satisfaction required may vary according to the gravity of the facts to be proved (Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521–522). In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 (Neat Holdings); the plurality said (at 449–450):
   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
(Citations omitted.)
109 Authorities applying Briginshaw have emphasised, among other things, the requirement that actual persuasion on the part of the fact finder is required (NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618 at [123]; Morley v ASIC at [749]–[751]; and Citadel Financial Corporation Pty Ltd (Administrator Appointed) v Action Scaffolding & Rigging Pty Limited (In Liq) [2019] FCAFC 145 at [57]).
110 With respect, a helpful statement of the application of Briginshaw to a defamation proceeding appears in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 per Mahoney JA (at 226):
   In approaching this question it is, as the plaintiff urged, proper at the outset to bear in mind the gravity of that which was alleged against the plaintiff, and, correspondingly, the nature of the proofs required to establish it. No objection has been taken in this Court to the directions given by the learned trial judge to the jury in this regard, nor could it have been. But the gravity of the allegations bears peculiarly upon the defendant's defence of truth and public interest. For the defence as to truth was based upon circumstantial evidence: it depended upon the existence of the plaintiff's association with the fraudulent scheme being derived as a "reasonable inference" from the facts: Director of Public Prosecutions v Kilbourne [1973] AC 729 at 758. This, as the plaintiff has urged, is of particular significance. The allegations and their consequences are very serious. If the plaintiff was a principal in the fraud, he was guilty ​both of a civil fraud and of a crime of some seriousness. The process of decision does not involve a "mere mechanical comparison of probabilities, independent of any belief in" the truth of the matters in issue; "the tribunal must feel an actual persuasion of its occurrence or existence": Briginshaw v Briginshaw (1938) 60 CLR 336 at 361. In matters of such gravity, the plaintiff urged, "the Briginshaw test" applies: "'reasonable satisfaction' should not be produced by inexact proof, indefinite testimony, or indirect inferences": at 361-362; (1940) 63 CLR 691.
(See also Sands v State of South Australia [2015] SASCFC 36; (2015) 122 SASR 195 at [253].)
111 The nature of the cause of action in this case is a claim for damages and injunctive relief based on the tort of defamation. The defences are substantial truth and contextual truth. Those defences include allegations of very serious criminal conduct. The nature of the subject matter of the proceedings is the widespread publication of highly defamatory imputations of and concerning the applicant which, absent established defences, have caused him substantial damage, both in terms of his reputation and in terms of his earning capacity.
112 The allegations in this case are extremely serious. They include the murder of an unarmed and defenceless Afghan civilian and machine-gunning a man with a prosthetic leg. It is alleged that the applicant has acted in breach of the Geneva Conventions. The allegations of domestic violence and assault are also serious. The consequences to the applicant of findings that he has committed murder and domestic violence are very significant. The applicant described them as life changing and as including reputational repercussions and that is not overstating the position. Reputational harm is a relevant matter to be taken into account (Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 at [68]). The applicant is a Victoria Cross recipient who is known both nationally and internationally.
113 As I understand it, the applicant also submits that I should take into account that a serious consequence of findings adverse to him is that the making of such findings will result in it being more likely that the applicant will be charged with war crimes. He submitted that that was, in fact, a submission made by the respondents themselves. In that regard, the applicant referred to submissions made by the respondents concerning the alleged involvement of some of the applicant's witnesses in the alleged murders, arrangements between the applicant and some of his witnesses concerning the payment of legal fees and the motive to lie of some of the applicant's witnesses. It is not clear to me that the respondents are making the submission or perhaps more accurately, accepting that findings adverse to the applicant make it more likely that the applicant will be charged with war crimes. Putting that particular issue to one side and dealing with the applicant's submission, it might be said that at a general level it is inherent in the finding of criminal conduct that that may increase the likelihood of the alleged actor being ​charged. I take that matter into account at that general level. I do not think that it is permissible to go beyond that general level and, even if it is, it would not be permissible to go beyond that general level in the absence of evidence and there is no evidence here bearing on the extent of the increase in the likelihood in this particular case.
114 The applicant submits that the Court should also have regard to the following matters. First, he submits that the Court does not have "all the evidence available, that would ordinarily be available in a criminal trial, including a prosecutor with duties of disclosure and fairness". I address this submission in detail below. Secondly, he points to the fact that the Court is also being asked to find that Person 4 committed murder and that Person 11 committed murder. I take those matters into account. He also asks the Court to take into account that it is being asked to find that Person 12 gave an order that an Afghan male be shot. I take that matter into account. The applicant asks the Court to take into account the inherent unlikelihood of him committing murder and that that inherent unlikelihood increases when regard is had to the fact that the respondents' case is that he committed six murders. I take that matter into account. Finally, the applicant reminds the Court of the strength of evidence required and the presumption of innocence (Morley v ASIC at [752]; Neat Holdings at 450).
115 In the sections which follow, I have made a number of findings against the applicant which are extremely adverse. I am satisfied that the proof is clear and cogent and I have applied the above principles.
116 I address next two matters which are related to the applicant's submissions concerning the onus of proof with respect to the respondents' defences and the standard of proof. Those matters are that the Court is not bound to make findings one way or the other and that (so the applicant contends) there is such limited material before the Court that there is no appropriate basis upon which to reach a reasonable decision.
The Court is not bound to make findings one way or the other
117 There is no doubt that a court is not bound to accept the case of one or other of the parties. It may reject the case of both parties. In Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363, the High Court said (at [60]):
   In general, disbelief in a witness's evidence does not establish the contrary. Similarly, disbelief in the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct. In particular cases it may not be possible to reach a conclusion either way:
      [T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden.
      [Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR 948 at 955; [1985] 2 All ER 712 (Rhesa Shipping v Edmunds) at 718.]
   A failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. …
(Citations omitted; see also Hobbs v Tinling (CT) & Company, Limited [1929] 2 KB 1 at [21] per Scrutton LJ.)
118 With respect, Lord Brandon of Oakbrook (with whom the other members of the House of Lords agreed) in Rhesa Shipping v Edmunds stated the point with great clarity when he said the following (at 718):
   My Lords, the late Sir Arthur Conan Doyle in his book The Sign of Four, describes his hero, Mr Sherlock Holmes, as saying to the latter's friend, Dr. Watson: "How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?" It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J decided to accept the shipowners' submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable.
   In my view there are three reasons why it is inappropriate to apply the dictum of Mr Sherlock Holmes, to which I have just referred, to the process of fact-finding which a judge of first instance has to perform at the conclusion of a case of the kind here concerned.
   The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.
   In my opinion Bingham J adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship's hull, and that, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them.
(See also Jackson v Lithgow City Council [2008] NSWCA 312 at [9]–[10] per Allsop P with whom Basten JA and Grove J agreed.)
​The material before the Court may be so limited that it does not form an appropriate basis upon which to reach a reasonable decision
119 In the course of their respective submissions, both parties refer on a number of occasions to the principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (Jones v Dunkel) in connection with evidence not called or adduced by the other party. That is one point. The other is that in the applicant's written submissions, he submits that both he and the Court were precluded from having access to the transcript of the interviews of some of the respondents' witnesses because of the operation of, among other things, s 21 of the Inspector-General of the Australian Defence Force Regulation 2016 (Cth) (IGADF Regulation). He made the submission that the Court did not have before it the entirety of evidentiary material upon which it could otherwise assess the reliability of the oral testimony of these witnesses. This gave rise to what the applicant said was a vacuum in the evidence before the Court.
120 By the time he came to make his oral submissions, the applicant broadened his submission about the vacuum in the evidence before the Court. I have already referred to the applicant's submission that this Court does not have all the evidence available that would ordinarily be available in a criminal trial, including that provided by a prosecutor with duties of disclosure and fairness. The applicant also submitted in the course of his submissions that the Court had to approach the respondents' allegations with caution because they are not war crimes investigators and they are not the police and they do not have access to all the evidence. They do not have powers of law enforcement and they do not have access to all the Defence Force material "to present a case such as this". The applicant submitted that the Court had none of the evidence that one would expect in a war crimes trial. He submitted that the respondents were not assisted by war crimes investigators. He submitted that there was no forensics and ballistics evidence, no access to prior versions of events given by witnesses and no access to footage "which one would expect would ordinarily be available when missions are being conducted".
121 These submissions by the applicant seem to give rise to an overarching or general submission that even if the Court was persuaded by the respondents' case, the Court would not be satisfied to the relevant standard by reason of the known vacuum in the evidence before the Court.
122 In Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 (Ho v Powell), Hodgson JA (with whom Beazley JA agreed) made the following two points. First, Lord Mansfield's maxim in Blatch v Archer (1774) 1 Cowp 63 at 65; (1774) 98 ER 969 at 970 that all evidence is to be ​weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted, may affect the assessment of matters which are relevant to whether the limited material before the Court is an appropriate basis on which to reach a reasonable decision. Secondly, the principle in Jones v Dunkel is a particular application of Lord Mansfield's maxim. Hodgson JA said the following (at [14]–[16]):
   14 There is a long-standing controversy whether the civil standard of proof requires a numerical probability in excess of 50 per cent (see Davies v Taylor [1974] AC 207 at 219), or belief amounting to reasonable satisfaction (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–362). My own opinion is that the resolution of the controversy involves recognition that, in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision. I discussed this in some detail in an article published at (1995) 69 ALJ 731 (D H Hodgson, "The Scales of Justice: Probability and Proof in Legal Fact-finding").
   15 In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so: cf 69 ALJ at 732–733, 736, 740. As stated by Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970: "… [A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted". See also Azzopardi v The Queen (2000) 75 ALJR 931 at 935 [10]; 179 ALR 349 at 353 [10].
   16 The case of Jones v Dunkel (1959) 101 CLR 298 is a particular application of this principle. That case itself related to a situation where there was evidence supporting an inference against a party, and that party did not give or call evidence, which that party was plainly in a position to have given or called, in order to explain or contradict the material presented. In my opinion, a similar principle applies where a person bearing the onus of proof does not give or call evidence which that person is plainly in a position to give or call; and unless some explanation is given of this failure, the tribunal of fact is entitled to infer that this evidence would not have assisted that person's case: cf Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389.
123 In Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 (Coshott v Prentice), the Full Court of this Court referred with approval to Lord Mansfield's maxim and the observations of Hodgson JA in Ho v Powell (at [80]) and went on to say the following (at [81]–[82]):
   81 Thus, where the evidence relied upon by a party bearing the onus of proof does not itself clearly discharge the onus, the failure by that party to call or give evidence that could cast light on a matter in dispute is relevant to determining whether the onus is being discharged: Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371 (Dixon CJ); Shalhoub v Buchanan [2004] NSWSC 99 at [71] (Campbell J). This principle is therefore wider than that in Jones v Dunkel (1959) 101 CLR 298. As Austin J in Australian Securities and Investments Commission v Rich (2009) 236 FLR 1 explained at 93 [440], "[w]hereas Jones ​v Dunkel reinforces an inference drawn against the party who has not called evidence, to the effect that the evidence would not have assisted that party's case, Blatch v Archer leads either to the drawing of such an inference, or to some other assessment of the weight of evidence, unfavourable to the party against whom the principle is applied." (emphasis added).
   82 In short, the Coshott parties bore the onus of proving the trust over Robert's interest but failed to call or give evidence explaining the documents and transactions on which they rely. Yet Robert, in particular, was in the best position to explain them. This cannot be ignored when weighing the limited evidence they relied upon to support their case with all the other evidence which tended to undermine it.
124 In Heydon JD, Cross on Evidence (13th ed, LexisNexis Australia, 2021), the learned author states (at [1215]):
   Lord Mansfield CJ's maxim is wider than the rule in Jones v Dunkel because the rule is available against a party not bearing the onus of proof. But the maxim is also available against a party bearing that onus — in permitting a conclusion that uncalled evidence would not have helped the case of a party not calling it, or permitting inferences against the party to be more strongly drawn, or assisting in deciding whether the party bearing the onus has discharged it.
125 The applicant seemed to rely on eight matters in the course of his closing submissions in support of a submission that the material is so limited that there is no appropriate basis on which to reach a reasonable decision. As I will explain, I reject each of these matters, either on the ground that the matter does not indicate that the material is limited, or because the respondents did not have it within their power to adduce the material or the material is not so limited that it is insufficient to make a reasonable decision.
126 I make two matters clear. First, the conclusion I have just expressed does not mean a particular matter is not relevant in assessing the findings to be made. I deal with that when I address the particular allegations later in these reasons. Secondly, I am not at this point dealing with the particular Jones v Dunkel submissions made by one or other of the parties. They are dealt with in the particular context in which they were made.
1. The transcripts of the evidence given to the IGADF Inquiry
127 The applicant submits that the Court is being asked to make assessments of the honesty and reliability of a number of witnesses without access to their previous version of events or information as to how their evidence may have been shaped by their contact with the IGADF Inquiry. He submits that the parties have not been permitted to look at the material because of the operation of the IGADF Regulation. This means that the parties and the Court do not know what previous versions of the events they gave, what they were shown, what was suggested to ​them and what might have triggered a particular recollection. The applicant submits that that is "a missing piece" and this is relevant to the standard of proof and the presumption of innocence. The applicant submits that what the respondents were urging upon the Court without all of the material was "a pretty big call".
128 It is necessary to say something about the Inquiry conducted by the IGADF. In 2020, Colvin J described the background to the IGADF Inquiry in his reasons in Roberts-Smith v Fairfax Media Publications Pty Ltd (No 6) [2020] FCA 1285 (at [3]–[10]):
   3 Before those events, in May 2016, at the request of the Chief of Army, the Inspector-General of the Australian Defence Force (IGADF) had commenced an inquiry to ascertain whether there is any substance to rumours and allegations of breaches of the Laws of Armed Conflict by elements of the Special Forces in Afghanistan (Inquiry). The Inquiry is ongoing and is being conducted by the Honourable Paul Brereton AM RFD, a Justice of the Court of Appeal of the Supreme Court of New South Wales who has been appointed to the statutory position of Assistant IGADF. It is being conducted under the provisions of the Inspector-General of the Australian Defence Force Regulation 2016 (Cth) (Regulation), having been established under a previous regulation.
   4 When established, the Inquiry was required to be conducted in private. In the manner described below, the Inquiry has continued to be conducted in private. It has now reached a point where notices are being issued to persons who might be adversely affected by the Inquiry's findings and recommendations (described by the Inquiry as Potentially Affected Persons). A number of notices have been issued to Potentially Affected Persons that contain the details of potential findings or recommendations that the Inquiry is considering whether to make that may affect the individual person to whom the notice is addressed. In addition, each notice sets out relevant factual background and a summary of relevant evidence (PAP Notices).
   5 On 3 July 2020, the respondents served a notice to produce in the defamation proceedings requiring production by Mr Roberts-Smith of the following documents:
      1. Any notice received from the Inspector General of the Australian Defence Force (IGADF) indicating that the Applicant is a potentially affected person (PAP notice);
      2. All documents accompanying the PAP notice; and
      3. Any response by the Applicant to the PAP notice.
   6 In addition, after being pressed by the respondents to discover documents concerning the Inquiry, Mr Roberts-Smith filed an amended list of discovered documents dated 13 July 2020. In the part of the list setting out the documents in respect of which privilege is claimed, the following description was stated at paragraph 67:
      Documents to which the Inspector General of the Australian Defence Force Regulation 2016 applies.
   ​7 The dates of the documents described at paragraph 67 were said to be 'various' and the grounds of the privilege claim were expressed in the following terms:
      Production of the documents would constitute an offence under s21 of the Regulation.
   8 Section 21(3) of the Regulation provides that it is an offence to contravene a direction given under s 21(1) which in turn provides:
       If the Inspector-General ADF is satisfied that it is necessary to do so in the interests of the defence of the Commonwealth, or of fairness to a person who the Inspector-General ADF considers may be affected by an inquiry, the Inspector-General ADF may give a direction restricting the disclosure of the following:
      (a) information contained in oral evidence given during the inquiry, whether in public or in private;
      (b) all or part of any document received during the course of the inquiry;
      (c) information contained in a report about the inquiry that is given to a person under section 27.
   9 Section 28E of the Regulations provides that an Assistant IGADF who is a judicial officer with the conduct of an inquiry may exercise the power under s 21(1) without being authorised to do so by the IGADF. Directions of the kind described in s 21(1) have been made in the Inquiry.
   10 Relevantly for present purposes, s 27 provides that the IGADF must give to the Chief of the Defence Force a report about the Inquiry if an Assistant IGADF has given the IGADF a report as required by the Regulation. So, when concluded, the Inquiry will result in the delivery of a report to the Chief of the Defence Force.
129 The IGADF claimed public interest immunity over the documents sought in the respondents' Notice to produce and described in para 67 of the applicant's amended list of documents. The applicant supported the position of the IGADF. Justice Colvin ruled that the PAP documents sought by the respondents should be produced, subject to restrictions under s 38B of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).
130 As the respondents correctly point out, if their application had been unsuccessful the trial would nevertheless have proceeded without the respondents having access to the material in the PAP Notice and that would not have made the trial unfair (see Church of Scientology Inc v Woodward [1982] HCA 78; (1983) 154 CLR 25 at [61]).
131 As the respondents also point out, the applicant was supporting the public interest immunity claim and had that been successful, he would have had information that the respondents did not have. Furthermore, the PAP Notice produced had redactions which meant that the respondents did not have information that the applicant had.
​132 The parties were not given access to the transcripts of the witnesses at that point. However, there were applications for access to the transcripts of witnesses during the course of the trial and that access was granted upon proper grounds being shown. Access to the transcripts of the Afghan witnesses who were in Darwan in 2012 and Persons 24 and 27 was granted and, in part, to the transcripts of Persons 5, 11, 29 and 35.
133 The applicant has had access to an unredacted copy of the PAP Notice and he has had a summary of the evidence of the witnesses. Both parties have been able, if so advised, to make an application for access to the transcripts of the witnesses who have been interviewed by the IGADF Inquiry.
134 The applicant refers, in particular, to the lack of access to the transcript of the evidence of Person 41. The applicant made a submission that Person 41's evidence about lending his suppressor is incredible. They refer to the fact that he did not say anything about witnessing two executions at W108 until 2019. The applicant submits that he did not know what triggered Person 41's recollection, or whether it was something he raised, or whether it was something suggested to him, or whether he was shown something. The applicant also submits that neither he nor the Court has the material concerning Person 41's first interview by the IGADF.
135 The respondents made two submissions in response, both of which, in my view, are correct. First, if the applicant was concerned to find out what had triggered Person 41's recollection and that related to something outside the IGADF process, then the applicant could have asked Person 41. Secondly, the respondents point to the fact that at no time did the applicant make an application for access to the transcript of evidence of Person 41. He could have done that.
2. The notes of the journalists
136 The applicant submitted that the individual respondents may have a "treasure trove of documents" which indicate that some of the witnesses have said something different before their evidence in Court. In that context, he referred to the fact that there was no prosecutorial duty of disclosure. He pointed to what had occurred with respect to Person 14 who he described in his closing oral submissions as a perjurer and a straight out liar and perjurer. In Roberts-Smith v Fairfax Media Publications Pty Limited (No 3) [2020] FCA 2, I upheld the respondents' claim for journalist privilege under s 126K of the Evidence Act with respect to notes of the individual respondents. In the course of my reasons, I said the following (at [55]):
   Before leaving this summary of the applicant's submissions, I should mention a matter counsel for the applicant raised at the outset of his submissions. It is a matter which ​had occurred to me on reading the written submissions. It is whether the privilege, whatever its present status, would be destroyed at trial upon a source being called as a witness at trial and identified by a few simple questions as a source. The argument would be that the documents are relevant (they have been discovered) and should be produced. The potential for the disruption to the orderly progress of the trial should this occur is obvious. As I understood the respondents' reply to that submission, it was that no assumptions should be made as to what might occur at trial and, as far as the period before trial is concerned, if this potential for disruption is relevant, it can only be relevant as a public interest consideration on application under s 126K(2) of the Evidence Act. It seems to me that the fact that there may be disclosure of identity as an informant at trial cannot affect the determination of the privilege issue at this stage. The fact that as at the present time that may happen, or is likely to happen, at trial may be relevant to an application under s 126K(2), but, as I have said, thus far no such application has been made.
137 Person 14 gave evidence at the trial. He was asked about conversations with journalists. I ruled that the questions were not rendered impermissible by s 126K of the Evidence Act (see Roberts-Smith v Fairfax Media Publications Pty Limited (No 28) [2022] FCA 115). In the result, the notes of Mr Masters, the third respondent, were produced and Person 14 was asked about what was contained in the notes. Certain matters from the notes were put to him which the applicant contends show that Person 14 is a liar and a perjurer. The applicant gives this as an example of the possibility of important material existing which neither he nor the Court was aware until Person 14 was in the witness box and I made the rulings which I did.
138 The fact is I upheld the claim for privilege on the basis of s 126K of the Evidence Act. However, it did not apply to the source when the source was asked questions in the witness box. Person 14 was asked such questions as was Person 7. The journalists' notes were also produced in the case of Person 7.
139 The applicant's submission that there is potentially a treasure trove of undisclosed material is not made out. The evidence establishes that as far as the journalists are concerned, Persons 18 and 1 were not sources. Persons 24, 40, 41, 42 and 43 were not sources because, as the respondents submitted, those witnesses only came to their attention as part of the circumstances connected with the PAP Notice. The applicant does not suggest that Persons 4 and 56 were a source and the applicant himself has made the point that the respondents have had no relevant contact with Persons 4 and 56.
3. Person 12
140 Person 12 features in the alleged murder at Chinartu. He is also the subject of what the respondents call the Person 12 lie which they contend is part of the circumstantial evidence in the case and evidence which constitutes an admission against interest by the applicant. The ​respondents did not call Person 12 as a witness at the trial. The applicant makes a submission by reference to Jones v Dunkel in relation to the absence of Person 12 from the witness box. That submission is dealt with later in these reasons. The issue at this stage is whether the fact that the respondents did not call Person 12 means that there is such limited material as to lead to the conclusion that there is not an appropriate basis upon which to reach a reasonable decision.
141 The applicant referred to the absence of Person 12 from the witness box on a number of occasions during the course of his closing submissions. He submitted that his absence from the witness box indicated an apprehension that Person 12 would not support the respondents' case and that it is no answer to that submission to say that Person 12 is being accused of being part of a war crime. He submitted that there was no evidence from the respondents that they have tried to contact Person 12 and he has refused to speak to them. There is no evidence that they have tried to deal with him. There is, in counsel for the applicant's words, "just a vacuum there".
142 I reject the applicant's submission that Person 12's absence from the witness box goes further than a Jones v Dunkel submission. The respondents' submission is correct that there is both testimonial and documentary evidence and the Person 12 lie itself as circumstantial evidence that bears or may bear upon his presence on the mission. There is direct evidence from Person 14 of what occurred on the mission. There are also other witnesses, including the applicant and Persons 11 and 32.
4. The absence of forensic evidence
143 I referred above to a submission by the applicant concerning the absence of various forms of forensic evidence. The short answer to this submission is that Lord Mansfield's maxim is relevant to the assessment of whether the material before the Court is an appropriate basis upon which to reach a reasonable decision. One aspect of Lord Mansfield's maxim is the power of one side to produce evidence. I agree with the respondents' submission that it cannot be seriously suggested that it was within the respondents' power to exhume bodies from Afghanistan, conduct post mortems of persons who died more than 10 years ago, conduct botanical analysis of grass, obtain high quality photographs etc., and that it is by no means clear what light such forensic evidence would shed on the issues as they have developed.
​5. Contact with the Afghan witnesses
144 In addressing a submission made by the respondents that there is a consistency between the evidence of the three Afghan witnesses from Afghanistan and the evidence of the two Australian soldiers in relation to events at Darwan that supported the respondents' case that those events had occurred, the applicant submitted that it was relevant that by the time the Afghan witnesses gave evidence "they had already been the subject of contact with the middle man of the respondents, who allegedly tracked them down".
145 The precise point the applicant says follows from that submission is not clear to me. Later, the applicant's counsel observed that the three Afghan witnesses "apparently were found fortuitously by a middle man or agent for the respondents". Again, the precise point the applicant says follows from that submission is not clear to me.
146 The applicant also submitted in relation to the Afghan witnesses that it was clear that they had spoken to agents and lawyers of the respondents many times before they came to give their evidence. The applicant's counsel then submitted that it was sufficient to say that the Afghan witnesses did not come to the Court to give evidence in such circumstances that it could be suggested that their evidence is "pristine and clear of any suggestibility". He said he would deal with the matter in closed Court. In similar vein, the applicant's counsel also said that it would be misleading to suggest that the evidence of the Afghan witnesses was reliable and unprompted and uncontaminated by third party contact or discussion between themselves. Again, counsel said he would deal with the matter further in closed Court. The matter was not further developed in either open or closed Court.
147 None of these matters suggest to me a lacuna or vacuum in the evidence such that the material is so limited that it does not form an appropriate basis to reach a reasonable decision. I am able to determine whether there was any difficulty with the way they were questioned by the IGADF Inquiry and there was no evidence to suggest that there was third party contact which resulted in their accounts being consistent with the accounts of Persons 4 and 56.
148 The respondents submit, correctly in my view, that it was open to the applicant to question the Afghan witnesses in such manner as he saw fit.
6. Evidence concerning the preparation of contemporaneous documents
149 The applicant's counsel submitted that, in relation to a number of contemporaneous documents, there is a gap in the evidence in relation to who it is, it is said, prepared the documents and ​where, it is said, information came from that is unreliable or wrong. The applicant submitted that it is not entirely clear who prepared, on the respondents' case, documents which are false, wrong or, in some instances, deliberately fabricated and when that was done.
150 I will need to consider carefully the contemporaneous documents and the effect they have on the findings of fact to be made. At this point, I reject the submission that there is a fatal lacuna or vacuum in the evidence about their preparation. For example, evidence was given, including by the applicant himself, concerning the preparation of After Action Reports, SITREPs, OPSUMs, story-boards and INTREPs.
7. The arrangements with Persons 4 and 56
151 The applicant submitted that had the Court not asked a question, the arrangement between Person 4 and the respondents would not have been disclosed. The applicant would not have known of the arrangement and the arrangement was, on the applicant's submission, plainly relevant to the potential honesty and reliability of Person 4. The applicant went on to submit that a prosecutor would have been in breach of his or her duty had they not disclosed that arrangement when alleging a serious criminal offence such as that alleged against the applicant. The applicant referred to the respondents' submission that they were not a prosecutor and they had no duty to disclose the arrangement. The applicant submitted that that may or may not be correct, but the significant matter is that the respondents, at the same time, ask the Court to make a finding that the applicant committed a criminal offence on a mission (Darwan) based on the evidence of a person (Person 4) who they had struck an arrangement with in relation to not asking him questions, but they wanted to allege in respect of another mission (W108) that he (Person 4) was a murderer. The applicant made a similar, although not identical, submission in relation to Person 56. He submitted that a prosecutor would not conduct themselves in that manner because it would raise a real question as to the integrity of the evidence from the witness that they were leading. It is not entirely clear whether this submission was directed to the absence of the disclosure of the arrangements or the fact of the arrangements.
152 Insofar as the submissions were directed to the absence of the disclosure of the arrangements, the fact is that the arrangements were disclosed and there is no lacuna or vacuum in the evidence in this respect. The fact of the arrangements is a matter I will consider in the context of the particular mission.
​8. The absence of other witnesses who were present at Darwan
153 With respect to the mission to Darwan, the applicant submitted that if the cliff kick had happened, half the troop would have seen the cliff kick. He submitted that the problem with this is that it is conjecture and speculation based on evidence of one group which is not corroborated by other evidence. The applicant submitted that there are hypotheticals, but no evidence and certainly nothing put to people to explain the behaviour.
154 This is not a lacuna or vacuum in the evidence such that the material is so limited that it does not form an appropriate basis to reach a reasonable decision. It is a matter to be considered in relation to events during the mission to Darwan.
Conclusion
155 None of these matters, individually or collectively, lead to the conclusion that the material is so limited that it does not form an appropriate basis on which to reach a reasonable decision. A number of them or associated matters will need to be considered in determining the facts which should be found. The Jones v Dunkel submissions will also need to be considered.
Motive
156 In Hyam v Director of Public Prosecutions [1974] 2 WLR 607, Lord Hailsham of St Marylebone LC addressed the meaning of the word "motive". His Lordship said (at [73]):
   It has been pointed out more than once that "motive" has two distinct but related meanings. I do not claim to say which sense is correct. Both are used, but it is important to realise that they are not the same. In the first sense "motive" means an emotion prompting an act. This is the sense in which I used the term when I said that the admitted motive of the appellant was jealousy of Mrs. Booth. The motive for murder in this sense may be jealousy, fear, hatred, desire for money, perverted lust, or even, as in so-called "mercy killings", compassion or love. In this sense motive is entirely distinct from intention or purpose. It is the emotion which gives rise to the intention and it is the latter and not the former which converts an actus reus into a criminal act. … On the other hand "motive" can mean a "kind of intention" (see Glanville Williams, Criminal Law (The General Part), 2nd ed., p. 48). In this sense, in his direction to the jury, the judge (quoted above, and in the judgment of the Court of Appeal) has said: "It matters not if her motive was to frighten Mrs. Booth." …
   It is, however, important to realise that in the second sense too motive, which in that sense is to be equated with the ultimate "end" of a course of action, often described as its "purpose" or "object," although "a kind of intention," is not co-extensive with intention, which embraces, in addition to the end, all the necessary consequences of an action including the means to the end and any consequences intended along with the end.
​(See the discussion of the relevance of motive as used in the first sense in R v Cummins [2004] VSCA 164; (2004) 10 VR 15 at [24] per Ormiston JA, with whom Warren CJ and Winneke P agreed.)
157 The High Court considered the relevance of motive in De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85. Justices Gaudron, McHugh and Hayne said the following (at [28]–[30]):
   28 Motive, if proven, is a matter from which a jury might properly infer intention, if that is in issue, and, in every case is relevant to the question whether the accused committed the offence charged. As was observed by Lord Atkinson in R v Ball
      Evidence of motive necessarily goes to prove the fact of the homicide by the accused … inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not.
   So, too, absence of motive is equally relevant to the question whether the accused committed the offence charged and, as observed by Menzies J in Plomp v R, "is commonly relied upon as a circumstance tending in favour of … a person accused of a crime."
   29 Although absence of motive is relevant, the appellant's argument overlooks a critical distinction between absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other. In the present case, there was no evidence of motive, which is not the same thing as proven absence of motive. And although the character evidence called on behalf of the appellant tended to negate possible motive, it by no means established the absence of motive.
   30 The absence of evidence of possible motive is clearly a matter to be taken into account by a jury, particularly in a case based on circumstantial evidence. However, if, as in the present case, the prosecution does not have to establish motive, it is difficult to say that the absence of evidence in that regard is a matter of "positive significance", either in the sense that it is a weakness in the prosecution case or a strength in the defence case. It might be otherwise if there were positive evidence that the accused lacked motive. However, that would be a most unusual case. The present is not a case of that kind. It is simply a case where there was no evidence of motive.
158 The applicant, proceeding on the basis that the respondents rely on the applicant's statement to Person 10 during pre-deployment training to the effect that "this is how it's going to be when we get there", submitted that this evidence is not evidence of motive on any view of it. At best, it is evidence of intention, not motive.
159 The respondents submitted that they do not have to prove motive. In addition, they relied on the distinction between the absence of proven motive and ​proven absence of motive and submitted that at best, from the applicant's point of view, the evidence supports the former, but not the latter conclusion.
160 The respondents submitted that it is important to distinguish between a submission that a murder is inherently unlikely and a submission that there is an absence of evidence of motive. In relation to the former, that is a matter built into the factor in s 140(2)(c). The respondents submitted that, in any event, they have proved a motive on the part of the applicant. They have done that based on the applicant's statements during pre-deployment training to the effect that that is how it is going to be on the day and anyone suspected of being an enemy combatant would be taken into a room and shot. They submitted that none of this is a tendency use of the evidence. They submitted that the motive that they identify is obvious if one has regard to the circumstances of each of the murders at W108, Darwan, Chinartu and Fasil. The murders at W108 involved two men hiding in a tunnel in a compound that had been engaged in serious fighting with the Mentoring and Reconstruction Task Force (MRTF) all day. In relation to Darwan, Ali Jan was revealed by questioning to be someone who was not from the village of Darwan and the village was thought to be harbouring the Taliban. Chinartu provides perhaps the best example. Person 14 said that there was an instantaneous change in the mood in the room when the cache was discovered in the compound of the man who was being questioned. The respondents submit that the discovery of the cache was the thing that turned the man who was subsequently shot from an innocent compound owner into a suspected insurgent. Finally, the youth at Fasil was taken from a motor vehicle which was found to contain improvised explosive device (IED) componentry.
161 This is not a case where there is a proven absence of motive. Furthermore, the motive identified by the respondents is one that is open on the evidence.
The Effect of the Passage of Time on the Reliability of Oral Testimony
162 As will be seen, the respondents' case is, in large measure, based on the oral testimony of witnesses who, in some cases, gave evidence of events in 2009 which was approximately 12 years before they gave their evidence and, in other cases, of events in 2012 which was approximately nine years before they gave their evidence.
163 In assessing that evidence, I must take into account the effect of the passage of time on human memory and the processes of memory being overlaid by perceptions or self-interest as well as conscious considerations of what should have been or could have been said. I must also bear ​in mind the possible effect of rumours and discussions and the capacity of the human mind for ex-post facto rationalisation of events and the phenomenon of false memories.
164 In Watson v Foxman (1995) 49 NSWLR 315 (Watson v Foxman) by McLelland CJ in Eq said (at 319):
   Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
(See also Moubarak by his tutor Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218, at [77] per Bell P; and Gautam v Health Care Complaints Commission [2021] NSWCA 85 (Gautam v Health Care Complaints Commission) at [21] per Leeming JA.)
165 The effect of the passage of time and intervening matters, including rumours was addressed by McHugh JA in the well-known case of Herron v McGregor [1986] 6 NSWLR 246 said (at 254–255):
   Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively. As the United States Supreme Court said in Barker v Wingo (at 532) "what has been forgotten can rarely be shown". In some cases delay makes it simply impossible for justice to be done: Birkett v James (at 317-318, 327). In R v Lawrence [1982] AC 510 at 517, Lord Hailsham LC pointed out that: "Where there is delay the whole quality of justice deteriorates." The difficulties in ascertaining the truth about a matter after time has done its work are vividly portrayed by Street CJ in the Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against K E Humphreys (July 1983). His Honour said (at 9–10):
      "In the intervening five or six years, rumours waxed and waned. In some cases suspicion underwent subtle change to belief, which itself progressed to reconstruction, which in turn escalated to recollection. No presently stated recollection could be safely assumed not to have progressed upwards and not to be the product of one of these earlier stages. The sheer frailty of human memory of necessity required a most anxious and critical appraisal of the evidence of the witnesses, no matter how credit-worthy they might be.
      It became apparent that in the years since August 1977 the recollections even of those with undoubted first-hand knowledge have in some instances faded, in some instances fermented, and in some instances expanded. Moreover, in many cases the realisation of the significance — indeed, the enormity — of what had occurred has tended to transmute into a more or less cynical acceptance of what had, or was believed or rumoured to have, taken place."
​166 Justice McHugh addressed the matter again in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. This was a criminal case, but his Honour's observations about the effects of delay apply with equal force to civil proceedings. His Honour said (at 107–108):
   The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to "remember" is well documented. The longer the period between an "event" and its recall, the greater the margin for error. Interference with a person's ability to "remember" may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. …
   Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be.
Circumstantial Evidence
167 The applicant referred to the authorities dealing with circumstantial evidence. He submitted that the respondents' case in relation to some of the allegations of war crimes is circumstantial in nature. The respondents did not dispute the statements contained in the authorities to which the applicant referred. They did make the point that there were eyewitnesses to all the alleged murders other than the alleged murder during the mission to Fasil. They submit that it is only in relation to that murder that it can be said that their case is wholly circumstantial.
168 In Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, Dixon, Williams, Webb, Fullagar and Kitto JJ said (at 5):
   The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.
169 In a circumstantial case, all of the circumstances that are established by the evidence are to be considered and weighed in deciding whether the circumstances raise a more probable inference in favour of what is alleged (Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632 at [134]). Spigelman CJ considered the difference between permissible inference and conjecture and the difficulties on occasion in detecting the difference ​between the two in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 referring to Jones v Great Western Railway Co (1930) 144 LT 194 at 202 per Lord Macmillan; Carr v Baker (1936) 36 SR (NSW) 301 (Carr v Baker); and Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169 per Lord Wright. Sir Frederick Jordan in Carr v Baker said (at 306):
   The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible.
170 I must bear in mind, of course, that in deciding what, if any, inferences should be drawn, proper regard must be had to the effect of s 140 of the Evidence Act as described above and other evidentiary principles that may be relevant in the particular circumstances such as those in Jones v Dunkel.
Demeanour of Witnesses
171 In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (Fox v Percy), Gleeson CJ, Gummow and Kirby JJ said the following (at [30]– [31]):
   30 It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana"):
      "… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour."
   31 Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
(Footnotes omitted; see also Gautam v Health Care Complaints Commission at [25] per Leeming JA.)
172 In a handful of cases on each side, the party made an express submission that a witness was impressive. Otherwise, in addressing the evidence of a witness, the parties proceeded by ​reference to contemporary materials, objectively established facts, the apparent logic of events, the presence or otherwise of corroboration and the effect of the evidence as a whole.
173 I mention at this point that the applicant submitted that in terms of appearance, he remained polite and courteous and composed during a long and challenging cross-examination. It is certainly true that the cross-examination was detailed and challenging. Both the witness and cross-examining counsel remained composed during that process. For reasons I will give, I find that the applicant was not an honest and reliable witness in the many areas I will identify. In addition, I have found a number of other witnesses were not honest and reliable witnesses in the areas I will identify.
Jones v Dunkel
174 Each party advanced an argument in support of a Jones v Dunkel inference in relation to the failure of the other party to call a particular witness or to seek to adduce evidence on a particular topic from a witness that that party did call. The details will be discussed in due course.
175 In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 (Kuhl v Zurich Financial Services), Heydon, Crennan and Bell JJ described the rule in Jones v Dunkel in the following terms (at [63]–[64]):
   63 The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may, in appropriate circumstances, support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call the witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. …
   64 The rule in Jones v Dunkel permits an inference not that evidence, not called by a party, would have been adverse to the party but that it would not have assisted the case. …
176 In ASIC v Hellicar, Heydon J described the scope of the rule in Jones v Dunkel as follows (at [232]):
   Secondly, the Court of Appeal accepted that its reasoning went "beyond Jones v Dunkel". Indeed, it agreed with the trial judge's conclusion that the rule in Jones did not apply. As the Court of Appeal said, two consequences can flow from the unexplained failure of a party to call a witness whom that party would be expected to call. One is that the trier of fact may infer that the evidence of the absent witness would not assist the case of that party. The other is that the trier of fact may draw an inference unfavourable to that party with greater confidence. But Jones does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party.
​177 The rule in Jones v Dunkel operates in circumstances in which a party is required to explain or contradict something and so will almost always have an operation where a party bears the burden of proof on a matter: Ho v Powell at [16] and Coshott v Prentice at [80]–[81]. A Jones v Dunkel inference will not always be drawn and whether it is drawn depends on weighing all of the evidence: Flack v Chairperson, National Crime Authority (1997) 80 FCR 137 at 148–149; (1997)150 ALR 153 at 164.
178 The conditions for the operation of the rule in Jones v Dunkel are as follows: (1) the absent witness would be expected to be called by one party rather than the other; (2) the witness' evidence would elucidate a particular matter; and (3) the witness' absence is unexplained (Payne v Parker [1976] 1 NSWLR 191 (Payne v Parker) at 201–202 per Glass J (with whom Hutley J agreed)).
179 A witness may be expected to be called by one party rather than the other in circumstances where he or she might be regarded as being in the camp of one party, so as to make it unrealistic for the other party to call him: O'Donnell v Reichard [1975] VR 916 at 920 per Gillard J.
180 In Claremont Petroleum NL v Cummings (1992) 110 ALR 239 at 259, Wilcox J rejected an argument that a former director of the applicant should be regarded as being within the applicant's camp. There was no reason to believe that the uncalled witness "feels any allegiance or goodwill towards the company … the evidence shows he has had no contact with members of the present board", and it was found the witness was equally available to both parties (the respondent being a previous director of the company).
181 The second condition is made out when the uncalled witness is "a person presumably able to put the true complexion on the facts relied on [by a party] as the ground" for any inference favourable to the plaintiff: RHG Mortgage Ltd v Ianni [2015] NSWCA 56 at [75], per McColl AJA. The condition is not satisfied if there is no demonstrated reason to think the evidence of the uncalled witness would elucidate any particular matter: ASIC v Hellicar at [266].
182 In respect of the third condition, the significance to be attributed to the fact that a person did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the person was not called was because the party expected to call him or her feared to do so. The reason why the witness is not called may have no relevant relationship to the fact in issue: it may be related to, for example, the fact that the party simply does not know ​what the witness will say, the party is aware a witness has a reason for not telling the truth or refusing to assist or a party doubts the witness will cooperate given prior consultation, proof of evidence or the like. A party is not obliged to call a witness "blind" in order to avoid the inference being drawn against them: Fabre v Arenales (1992) 27 NSWLR 437 at 449–450, per Mahoney JA, Priestley and Sheller JJA agreeing.
183 Any "explanation", such as unavailability or the absence of recollection, for the failure to call the witness must be established by evidence and is not to be merely presumed from the passage of time: West v Government Insurance Office (NSW) [1981] HCA 38; (1981) 148 CLR 62 (at 70) per Murphy J; Rowell v Larter (1986) 6 NSWLR 21 (at 24–25) per Young J (as his Honour then was).
Character Evidence
184 The applicant relies on evidence of his good character in relation to his credibility and in relation to the probability or improbability of guilt (Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421; [2005] 2 Cr App R 378 (PC); Attwood v The Queen (1960) 102 CLR 353 at 359). The character evidence relates to his military service and record, and his treatment of women.
185 These are defamation proceedings and the applicant adduced a substantial body of evidence relevant to his reputation prior to the publication of the matters complained of. That evidence included statements of Mr Adam Veale, Ms Susan Wood, Ms Sarah Kelly, Mr Anthony Tremlett, Ms Deborah Rolfe AM and oral evidence from Dr Parbodh Gogna (who served with the applicant) and Dr Brendan Nelson AO (who had a close association with the applicant by reason in part of his position as Director of the Australian War Memorial). There was also an outline of evidence of Person 30 who was a captain of the SASR and who was involved in writing a citation for the applicant in relation to his actions at the Battle of Tizak and it was in respect of that citation that the applicant was awarded the Victoria Cross. The Battle of Tizak took place on 11 June 2010 and Person 30 wrote citations for other SASR soldiers who took part in the battle. The evidence establishes without contradiction by the respondents that the applicant had a very good reputation in the community as an Australian soldier.
186 The applicant put at the forefront of what he said was his exemplary military service record and distinguished military service to Australia the following. In cross-examination, Person 4 said that as far as he knew, the applicant was a good man and a brave soldier. In examination-in-chief, Person 32 said that during his deployments to Afghanistan with the applicant in ​and 2012, he did not observe any breach of the rules of engagement by the applicant and nor was he directed by the applicant to breach any of the rules of engagement. Had he observed a breach of the rules of engagement either by the applicant or by the Wakunish Partner Force in Afghanistan, he would have reported that breach up the chain of command. As I will make clear in Section 5 dealing with the mission to Chinartu, I do not accept the evidence of Person 32. I have already referred to the evidence of Person 30.
187 The applicant was awarded the Medal for Gallantry on 22 November 2006. That award related to his bravery on 2 June 2006. The award states that the applicant's actions on 2 June 2006 were carried out under heavy Anti-Coalition Militia fire and in a precarious position, threatened by a numerically superior force. The award states that the applicant's actions are a testament to his courage, tenacity and sense of duty to his patrol. The award states that his display of gallantry in disregarding his own personal safety in maintaining an exposed sniper position under sustained fire with a risk of being surrounded by the Anti-Coalition Militia was outstanding.
188 The applicant was awarded the Victoria Cross on 23 January 2011. The citation states that the Victoria Cross was awarded for the most conspicuous gallantry in action in circumstances of extreme peril as a Patrol Second-in-Command with the Special Operations Task Group on Operation SLIPPER.
189 The award states that on 11 June 2010, a troop of the Special Operations Task Group conducted a helicopter assault into Tizak, Kandahar province, in order to capture or kill a senior Taliban commander. Upon insertion, the troop was engaged by machine-gun and rocket propelled grenade fire from multiple dominating positions. Two soldiers were wounded in action and the troop was pinned down by fire from three machine-guns in an elevated fortified position to the south of the village. The award states that under the cover of close air support, suppressive small arms and machine-gun fire, the applicant and his patrol manoeuvred to within 70 metres of the enemy position in order to neutralise the machine-gun positions and regain the initiative. The award states that upon the commencement of the assault, the patrol drew very heavy, intensive effective and sustained fire from the enemy position. The applicant and his patrol members moved towards the enemy position until at a range of 40 metres they could move no further. The applicant identified an opportunity to exploit some cover provided by a small structure. The applicant approached the structure and, in the course of doing so, identified and engaged an insurgent grenadier in the throes of engaging his patrol. The applicant exposed his ​own position in order to draw fire away from his patrol. His patrol was pinned down by three enemy machine-gun positions. This conduct enabled his patrol commander to throw a grenade and silence one of the machine-guns. The applicant seized the advantage and stormed the enemy position killing the two remaining machine-gunners. After seizing the fortified gun position, the applicant took the initiative again and continued to assault enemy positions in depth during which he and another patrol member engaged and killed further enemy. The citation states that the applicant's acts of selfless valour directly enabled his troop to go on and clear the village of Tizak of Taliban. The decisive engagement subsequently caused the remainder of the Taliban in Sha Wali Kot district to retreat from the area.
190 On 26 January 2014, the applicant was awarded the Commendation for Distinguished Service. This award was for the distinguished performance of duty in warlike operations as a patrol commander with the Special Operations Task Group on Operation SLIPPER from June to November 2012. The citation states that the applicant distinguished himself as an outstanding junior leader on more than 50 high risk counter-leadership operations against a determined enemy. It states that the applicant invested heavily in training and mentoring the members of his patrol and less experienced members in the wider Task Group. In planning operations, he drew on a detailed understanding of enemy networks and the human and physical terrain in which they operate to develop lateral tactical concepts. In execution he consistently demonstrated great courage, resourcefulness and endurance.
191 The citation states that the applicant took responsibility for mentoring and developing both his own patrol and the personnel of the wider Special Operations Task Group. He readily offered advice on planning, equipment and tactical techniques, contributing directly to individual and collective capability. The award states that the applicant's efforts ensured the effective transfer of his professional knowledge and experience to a new generation of special forces soldiers. The applicant led from the front in even the most difficult and dangerous of circumstances, maintaining the highest levels of motivation and readiness in his patrol. His performance in leading five special reconnaissance missions exemplified his professional approach and technical skill. These high-threat missions required a superior situational awareness, patience, and preparedness. The applicant planned meticulously and executed skilfully, ensuring the security of his patrol and enabling mission success. The citation refers to the success of a mission on 21 October 2012 when the applicant led a lone special reconnaissance patrol deep into the insurgent stronghold of Char-Chineh, Afghanistan, to gain intelligence for future operations.
​192 Except where I reject the evidence (i.e., Person 32), I take these matters into account in considering the allegations made by the respondents concerning the applicant's conduct as a member of the SASR.
193 With respect to the applicant's good character concerning his treatment of women, the applicant relies on the following evidence:
    (1) Mr Adam Veale is an accountant and a registered tax agent and a director of Alleviate Group which is an accounting firm based in Perth. He went to school with the applicant and has been his friend since 1993. He has been his personal accountant since about 2005 and he was his manager between 2012 and 2014 when the applicant was carrying on a business as a public speaker. Mr Veale said that the applicant had a reputation for behaving in a gentlemanly and respectful manner towards women;
    (2) Ms Sarah Kelly is an associate professor of law and marketing at the University of Queensland and occupies a number of community positions. She first met the applicant in 2013 when he commenced a course at the university. They are good friends. Ms Kelly said that she had never seen the applicant being aggressive with women and, to her observation, the applicant has at all times treated his wife with respect. She finds it hard to believe the allegation of domestic violence against the applicant;
    (3) Mr Anthony James Tremlett is an investment director at Argyle Capital Partners which he described as a manager of private investments by institutional investors and other investors in the Australian agricultural sector. He joined the Australian Army in 1996 and was a member of the SASR from 2003 to 2018. He first met the applicant in 1996 and is good friends with him. Mr Tremlett said that the applicant was not the kind of person who would hurt a woman. He treated his wife and daughters with respect and had the ability to control his emotions in very challenging circumstances;
    (4) Ms Deborah Rolfe AM is a partner of a Canberra law firm and holds community positions. She met the applicant in 2011 and has become a close friend of Ms Roberts. Mr Rolfe described the allegation of domestic violence against the applicant as outrageous and that he is not the kind of person to hit a woman. He has never lost control of his emotions and always treated women with absolute respect.
194 I take this evidence into account when assessing the allegations concerning Person 17.
​The Principles in Browne v Dunn
195 The principles in Browne v Dunn (1893) 6 R 67 (HL) (Browne v Dunn) are discussed in my reasons in Roberts-Smith v Fairfax Media Publications Pty Limited (No 36) [2022] FCA 578 (Roberts-Smith (No 36)) in connection with certain evidence given by Person 5. I will not repeat that discussion. It is sufficient to note that the most significant example of a failure to comply with the principles in Browne v Dunn occurred in the case of Person 38 and his evidence in relation to events on the mission to W108. That failure is discussed in Section 2 of this Part which deals with the mission to W108.
Lies as Evidence of a Consciousness of Guilt
196 Lies are clearly relevant to credit, but in some circumstances may also be evidence of a consciousness of guilt. The respondents identified a number of lies by the applicant which they contend are not only relevant to credit, but also are evidence of a consciousness of guilt. Those lies mainly related to the missions to W108, Darwan and Chinartu respectively. At this point, I will simply identify the relevant principles.
197 The circumstances in which lies by a party give rise to a finding of a consciousness of guilt or the making of an implied admission can be complex and highly contentious. The principles applied in a civil case are similar to those applied in a criminal case (FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 310 ALR 1 at [92] per Crennan and Bell JJ).
198 The circumstances in which a lie may be capable of providing corroboration or independent proof of guilt were considered in Reg v Lucas (Ruth) [1981] QB 720 (Reg v Lucas (Ruth)) at 724 per Lord Lane CJ and Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 (Edwards).
199 The matters that must be satisfied before a lie can be considered to constitute corroboration in accordance with Reg v Lucas (Ruth) are that the lie must: (1) be deliberate; (2) relate to a material issue; (3) spring from "a realisation of guilt and a fear of the truth"; and (4) be clearly shown to be lies by evidence other than that to be corroborated.
200 In the context of a discussion which includes references to corroboration, it should be noted that s 164 of the Evidence Act abolishes all pre-existing corroboration requirements. In other words, it is not necessary as a matter of law that evidence on which a party relies be corroborated.
​201 In Edwards, Deane, Dawson and Gaudron JJ, in addressing a submission that the second and third elements of the test in Reg v Lucas (Ruth) involved reasoning which is circular, said the following (at 210):
   There is, however, a difficulty with the bare requirements in R v Lucas (Ruth) that a lie must be material and that it must be told from a consciousness of guilt. Again it is convenient to confine ourselves to that last requirement. A bare direction that consciousness of guilt is required does not provide sufficient guidance as to what matters indicate its presence. Unexplained, such a direction allows the jury to decide, in the light of all the evidence, that a lie was told with a consciousness of guilt and then to use that finding to corroborate some part of the evidence that led to the finding of a consciousness of guilt.
The plurality went on to say that in court, as well as out of court, lies may amount to an admission against interest so as to constitute corroborative evidence or independent evidence tending to establish guilt (at 208–209; see also R v Watt (1905) 20 Cox CC 852 at 853; R v Liddy [2002] SASC 19; (2002) 81 SASR 22 at [243] per Mulligan J).
202 The decision of the Court of Appeal of New South Wales in Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 is instructive in terms of the use of lies as evidence of a consciousness of guilt in civil cases. After reviewing a number of authorities, the Court said (at [87]–[88]):
   87 The authorities to which we have just referred are criminal ones. In R v Liddy, Mullighan J said at para 242-243:
      It is unnecessary to set out the circumstances in which a deliberate lie told by an accused person may amount to positive evidence of guilt as opposed to adversely reflecting upon the accused's credibility. The telling of relevant lies is a piece of circumstantial evidence from which an adverse inference of guilt may be drawn if the lie is told out of a consciousness of guilt and no other rational inference may be drawn.
   88 The concept that "no other rational inference may be drawn" is a concept of the criminal law, necessitated by the standard of proof beyond reasonable doubt. In a civil case, it is sufficient in our view for a lie to be accepted as an admission of guilt, if that is the more probable inference to be drawn. In this regard we adopt the like approach taken by the trial judge to the adoption of the knowledge test in Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 (to which we come later in these reasons) to the civil sphere. That adoption is not only appropriate but necessary to accommodate the differing standard of proof.
203 In R v Boscaino [2020] QCA 275, Sofronoff P (with whom Morrison JA and Brown J agreed) addressed the way in which lies may be used beyond credit and said (at [30]):
   The circumstantial evidence in this case was constituted by so-called "post-offence conduct" from which the jury was invited to draw an inference of guilt of murder. Sometimes this evidence is called evidence of "consciousness of guilt" and sometimes ​it is called evidence of an implied admission. As long ago as 1796, in R v Crossfield the expression "consciousness of guilt" was used to describe evidence of this kind. In the trial of an alleged conspirator in a plot to assassinate King George III the trial judge directed the jury to the significance of the accused's "flight" from England as "circumstances which do at least infer a consciousness of very great guilt, and if there be no other reason assigned for the conduct of the party, very much corroborating and supporting the charge of the particular guilt that is imputed to him" (emphasis added). In an 1896 American textbook, the learned author wrote that the behaviour of a person who fabricates evidence or lies to conceal facts "necessarily implies an admission of their truth, and a consciousness of their inculpatory effect, if uncontradicted or unexplained" (emphasis added). Both expressions are useful, in the way that jargon is often useful, as a handy tag to refer to this kind of evidence as long as the underlying concept itself is understood and applied correctly. Evidence that a person accused of a crime told a lie about a material fact concerning the crime is a piece of circumstantial evidence. Circumstantial evidence is evidence which proves a fact from which another fact may be inferred. The prosecution leads evidence about the accused's telling of a lie because that fact raises an inference that the accused is guilty of the charged crime. The reason why one might infer guilt is that, people being largely rational, there must have been a reason why the accused told the lie. As was said in Crossfield, "if there be no other reason assigned for the conduct of the party" one might conclude that the circumstantial fact raises an inference of the accused's guilt. This is because a jury can infer that the accused's reason for telling the lie was to hide something that pointed to the accused's guilt and wanting to hide something that points to one's guilt of an offence is the motivation of a guilty person. In that sense, the lie constitutes evidence of "consciousness of guilt" because the lie proves a motivation based on guilt. It can also be regarded as an implied admission of guilt in the sense that it is voluntary conduct by an accused that evinces guilt.
204 His Honour went on to say that there may be competing inferences and there might be a number of non-inculpatory explanations for lies. Furthermore, his Honour made the following observations with respect to the cumulative effect of lies with other lies or with other conduct from which an inference of a consciousness of guilt may be drawn (at [33]):
   However, the prosecution’s circumstantial case was not confined to post-offence lies. It included all of the other acts of the appellant to hide Thompson’s killing. Each individual inference of guilt in a circumstantial case need not itself be established beyond a reasonable doubt before a jury is entitled to draw an inference that the appellant was guilty of murder. A jury is entitled to have regard to the whole combination of facts, none of which viewed alone could support that ultimate inference, but which taken together can do so, provided that they reach that conclusion upon the criminal standard of proof. When the lies, which on their own might be equivocal as to guilt, are considered along with all of the other post-offence conduct, as part of an assembly of facts each of which raises its own incriminating inference, then it becomes open to the jury to accept, beyond a reasonable doubt, the ultimate inference that the appellant was guilty of murder.
(Citation omitted; see also Leung v State of Western Australia [2020] WASCA 81 at [38]–[50] per Buss J; R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [46]–[48] per Gummow, Hayne and Crennan JJ.)
​205 In summary and without wishing to be exhaustive, a court must be cautious before treating a lie as an implied admission or evidence of a consciousness of guilt and, in particular, bear in mind the following: (1) a witness cannot corroborate himself or herself so that a lie of an accused or party proved to be a lie by reason of the witness' evidence cannot be used to corroborate the witness' evidence (Edwards per Deane, Dawson and Gaudron JJ at 210); (2) it is difficult to take a false denial of guilt and conclude that it amounts to an implied admission of guilt and that is so self-evidently, but also because it would involve circular reasoning or the prosecution pulling itself up by its own bootstraps (Gionfriddo & Faure v R (1989) 50 A Crim R 327 at 332–333 per Crockett and O'Bryan JJ) or it gives rise to the prospect of the Court not recognising both the Crown's onus and standard of proof (Mercer v R (1993) 67 A Crim R 91 at 98 per Hunt CJ at CL); and (3) the fact-finder must bear in mind and consider that there may be reasons for the telling of a lie apart from a realisation of guilt (Edwards at 211 per Deane, Dawson and Gaudron JJ).
Other Matters
206 I have addressed other matters such as the principles relevant to consciousness of guilt by reason of conduct other than lies and the principles relevant to collusion between witnesses and contamination of a witness' evidence in Section 12 of this Part. I have also referred to authorities concerning identification evidence (see, for example, [700] and [1361]).