cleared the orchard with Person 41. Counsel for the applicant also recognised that the account was not in Person 38's outline of evidence.
424 The respondents submit that the failure of the applicant to comply with the rule in Browne v Dunn leads to the inescapable inference that Person 38's evidence was a recent invention, designed as an attempt to salvage the applicant's case. They submit that this is especially so in circumstances where the substance of Person 41's evidence was known to the applicant's legal representatives, those legal representatives were aware that Person 38's evidence was relevant to Person 41's evidence and Person 38 was available at all relevant times to meet with the applicant's lawyers and did, in fact, meet with them. It was certainly put to Person 38 in cross-examination by counsel for the respondents that his account about clearing the orchard with Person 41 was a recent invention. He denied that.
425 I have previously referred to the fact that in the first half of 2021, the respondents sought leave to issue Subpoenas to give evidence to various persons, including Person 41. The circumstances in which that application was made are set out in Roberts-Smith (No 12) (at [28]–[48]). I noted in those reasons (at [47]) that Mr O'Brien of Mark O'Brien Legal, the solicitors for the applicant, believed that if the respondents were granted leave to rely upon the evidence of Person 18 as now set out in his amended outline and four or five witnesses (including Person 41) in respect of whom no outlines of evidence had been or would be served, the applicant's legal representatives would be required, among other things, to reinterview Person 38 and others. That is the effect of Mr O'Brien's affidavit of 24 March 2021. Person 38 agreed in cross-examination that he was generally available to speak to the applicant's solicitors at any point between June 2018 and May 2022. The respondents submit that, in those circumstances, the reasons to infer that Person 38's account of clearing the orchard with Person 41 is a recent invention are overwhelming.
426 I asked counsel for the applicant whether the fact that the applicant did not rely on Person 38's evidence about clearing the orchard affected the Court's approach to the other evidence he gave. He submitted that it did not and that it did not impact on his credit. He submitted that I should not draw an inference adverse to Person 38 from the fact that his account of clearing the orchard was not put to the respondents' witnesses. Counsel for the applicant referred to the decision in R v Manunta [1989] SASC 1628; (1989) 54 SASR 17 (R v Manunta) at 23 per King CJ.
