Page:Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA).pdf/148

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523 In considering Person 40's evidence, I must also have regard to subsequent events insofar as they bear on his evidence and the applicant's evidence and that of his witnesses. For reasons I will give, I have considered and accept Person 41's evidence as to the execution of EKIA56 and EKIA57. Although the evidence of Person 14 must be scrutinised with care and that of Person 24 with considerable caution, I have considered and accept their evidence of what they observed outside the north-western corner of W108.

524 For reasons I will give, I have considered and reject the applicant's evidence as to the engagements outside the north-western corner of W108. I do not accept the evidence of the applicant or his witnesses unless it is corroborated by evidence which I do accept.

525 I find that Person 40 was an honest and reliable witness and I accept his evidence.

526 Person 42 was asked a number of questions in cross-examination and various matters were put to him. A couple of matters were put to him concerning statements or information in or omitted from his proof of evidence compared with his evidence at the trial. None of the matters put to him caused me to doubt his honesty or reliability. He was straightforward about what he could and could not recall. There were clearly matters he could not recall.

527 I have taken the same approach to Person 42 as I have with Person 40 and considered all of the matters I considered in the case of Person 40. I have reached the same conclusion and I find that Person 42 was an honest and reliable witness and I accept his evidence.

528 Person 43 was asked a number of questions in cross-examination and various matters were put to him. He was asked some questions about health issues he had as a result of his service in Afghanistan, but I do not consider that anything emerged from his evidence that affected his honesty and reliability. As I have said, he did not like the applicant and considered him a bully. He did not consider that the applicant was entitled to the Victoria Cross for his actions at the Battle of Tizak. However, nothing emerged that suggested to me that he was inventing his evidence because of his views about the applicant. Person 43 could not remember a number of details of events at W108 and he was quite forthcoming and candid about that.

529 I have taken the same approach to Person 43 as I have taken with Persons 40 and 42 and considered all of the matters I considered in the case of those persons. I have reached the same conclusion. I find that Person 43 was an honest and reliable witness and I accept his evidence.

530 Person 18 was asked a number of questions in cross-examination and various matters were put to him. He falls into a different category from Persons 40, 42 and 43 in that, in addition to


Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555
138