427 I have considered the relevant passage in R v Manunta carefully. That case involved a jury trial and central to the Chief Justice's observations is that the jurors may not be familiar with the course of trial or preparation for trial such that they may not be aware of the reasons an account is not put to a witness other than recent invention. It seems to me, however, that I can rule out in this case the other explanations suggested in R v Manunta, such as counsel misunderstanding his or her instructions, a lack of cooperation by the witness, forensic pressures resulting in looseness or exactitude in framing questions or that the matter was simply overlooked. In rejecting those possible explanations, I have had regard to how the parties have conducted their respective cases and how the matter has proceeded generally. It is fair to say that neither party in this case has given any indication that any possible line of inquiry has not been pursued to the fullest extent. I have reached the conclusion that Person 38's account of clearing the orchard with Person 41 is a recent invention. I consider that that conclusion reflects in a significant and adverse way on the honesty and reliability of Person 38's evidence and I am not prepared to rely on any of his evidence unless it is corroborated by evidence which I accept. I should say that even if the account had been put to the respondents' witnesses, I would reach the conclusion based solely on the implausibility of the account of clearing the orchard and Person 29's evidence that it was a dishonest invention which fundamentally undermines all of Person 38's evidence.
428 Person 81 said that he would not have seen the tunnel before the compound had been declared secure because he would not have approached the compound until it was secure. Furthermore, he could not recall whether he had been told that the tunnel had been found before or after the compound had been declared secure. Person 81 said, when asked whether it is possible that the tunnel was found while he was present in the area where the tunnel was located, that he would not like to speculate. Person 81 said that he was engaged in a range of tasks and he did not carefully observe what other SASR operators were doing around him. He let them get on with their job. Person 81 said that it would follow logically if he saw the tunnel at or about the time of the Commanders' RV that, although he could not recall where the Commanders' RV was held, it was likely to have been close to the tunnel entrance.
429 The respondents submit that Person 81's evidence is consistent with the tunnel being found after the compound had been declared secure and while he was waiting nearby for the Commanders' RV to commence. The applicant submits that I should reject this submission and that considered "as a whole", Person 81's evidence was consistent with the tunnel being discovered before the compound was declared secure and he entered it. That was said to follow
