Page:Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA).pdf/227

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observe the events about which he gave evidence. I accept his evidence. His evidence means that the body of EKIA56 would be in the courtyard. That, in fact, was the evidence of Person 18 and was supported by an inherently reliable piece of evidence being the markings on the SSE evidence bags on the day.

869 I accept Person 41's evidence about witnessing the execution of EKIA57 outside the north-western corner of W108. Persons 14 and 24 also witnessed the execution. There are reasons to scrutinise Person 14's evidence with care, but in the end and having done that, I accept his evidence and it supports Person 41's evidence. Person 24's evidence must be approached with considerable caution. However, it does not stand alone and is supported by the evidence of Persons 14 and 41. Further, relevant to the analysis is that there is no suggestion that there has been any collusion, or indeed contamination, between Person 41 on the one hand, and Persons 14 and 24 on the other.

870 It has to be said that even in the case of Persons 14, 24 and 18 the motives to lie suggested to them, being matters such as professional jealously, seem unlikely to lead one witness, let alone three witnesses, to knowingly give false evidence. In any event, I do not consider that those three witnesses have knowingly given false evidence.

871 I have considered the applicant's case and the supporting evidence of Persons 5, 29, 35 and 38. I reject it. Of course, that does not of itself prove the respondents' case in that the respondents carry the onus throughout. Furthermore, I remind myself that it is open to me to not accept the case of either party.

872 The applicant's account is highly improbable when all the matters I have identified previously are considered together. Furthermore, there are a series of inconsistencies between the applicant's account and the respective accounts of his witnesses which I have identified above.

873 I have made a number of adverse credit findings against the applicant in Section 12 of this Part. I take those findings into account and, in particular, the findings in relation to Person 6 and the threatening letters sent to Person 18. In addition, I have made a number of adverse findings against the applicant in other Sections of this Part. In terms of credit, I am entitled to take them into account, although I would make the point that the conclusions I have expressed are established without them.

874 I have not drawn any consciousness of guilt inferences against the applicant in relation to his conduct with respect to Persons 6, 14 and 18 for reasons I have given in Section 12 of this Part


Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555
217