418 The evidence of Person 38 about clearing the orchard with Person 41 was not put to any of the respondents' witnesses, including Person 41. Nor was the "event" referred to by any of the other SASR witnesses called by the applicant. In my opinion, it is quite clear that Person 38's account of clearing the orchard with Person 41 should have been put, not just to Persons 40 and 41, but also to Persons 14 and 24 who would have been in a position to observe Person 38's (and, on his account, Person 41's) movements outside the compound and to Persons 42 and 43, and potentially Person 18. When these matters were put to Person 38 in cross-examination, he said the following:
And to be clear, I'm putting to you that there were also present in the court [sic courtyard] at that point in time at least Persons 40, 42 and 43 and if they were there, whether or not they actually looked, they would have been in a position to see you move from the tunnel courtyard to the orchard; correct?---Yes, that is correct.
And it's correct, isn't it, that if you were in the orchard area, you would have been visible to the cordon patrols; correct?---Again, that is not correct. I – I don't know what the cordon could or couldn't see. I didn't see any member of the cordon. Person 41 certainly saw me move, because he ended up coming with me. And Person 40 knew that I moved, because I asked him to assist me. So they will definitely know that I moved.
419 The respondents submit that had Person 38's account of clearing the orchard been put to their witnesses in cross-examination, they would have cross-examined each of Person 5, Person 29 and Person 35 about Person 38's account and may have sought to lead additional evidence-in-chief to deal with it. I accept that submission. I also accept the respondents' submission that, in the circumstances, the failure to comply with the principles in Browne v Dunn is sufficient reason in and of itself to reject the evidence of Person 38.
420 The respondents raised an objection during the evidence of Person 5 (who gave evidence well before Person 38) on the basis that a number of matters about which Person 5 gave evidence and was giving evidence, had not been put to the respondents' witnesses as required by the principles in Browne v Dunn. I considered this objection in Roberts-Smith (No 36). I referred to the range of "remedies" for a breach of the principles in Browne v Dunn (at [24]), but in that ruling, I was only required to consider the issue of whether the evidence of Person 5 identified by the respondents should be ruled inadmissible and excluded (see at [22]).
421 The respondents submit that, in any event, that is leaving aside the objection based on the rule in Browne v Dunn, the evidence of Person 38 was inherently implausible. A series of propositions were put to Person 38 in cross-examination which, although he denied, suggested that his account of clearing the orchard was implausible. It was put to Person 38 that an orchard
