I would say it's – the key – really important bits and pieces are very accurate, but, like, ma'am asked me, you know, what was the assault plan. I can't remember, you know?
443 As the respondents point out, it was put to Person 40 by the applicant that there was no interpreter present at W108 on 12 April 2009 and yet Person 29, a witness called by the applicant, gave evidence that he recalled a person who was either an interpreter or an ANA Partner Force soldier shouting something in Pashtun in the vicinity of the courtyard. In addition, Person 29 said that he and his patrol moved from W108 to W109 with a member of the ANA Partner Force or the interpreter who accompanied his patrol "for the purposes of communicating if we came across persons on 109". Furthermore, Person 81, a witness called by the applicant, indicated that he had an interpreter with him.
444 As I understand it, there is no suggestion by the applicant that Person 40 was dishonest, motivated or affected by jealously or ill will, suffered from a mental illness or issue that would or might affect his recollection, or was confusing W108 with another mission, or innocently mistaken in his observations. There is no evidence of any of those matters. The applicant's submission was that Person 40's evidence had, through the passage of time, which in this case is substantial, "fermented to reconstruction, which in turn has escalated into selective recollection".
445 As I will explain, I do not accept that submission. The difficulty with the submission is that not only is there no reason for me to think that Person 40 was not an honest and reliable witness, but his evidence was supported by other witnesses who had no interest in the matter and who gave no indication that they were doing anything other than honestly and reliably recounting their respective recollections. The passage of time is an important matter to take into account, but is not of itself a reason to reject a witness' evidence.
446 In my opinion, there is no evidence to suggest that it is possible that Person 40 has undergone a process of creating a false memory about men coming out of the tunnel.
447 Furthermore, the evidence of Person 40's contemporaneous conversations negates any such suggestion.
448 First, Person 41 recounted a conversation he had on the day with Person 40 in the course of his evidence in which Person 40, using Person 41's name, said "Hey", Person 41, "do you know what happened to those two blokes that they pulled out of the tunnel?" Person 41 said in response the following "No, mate, I was just in that cowshed there". The applicant did not put to either Person 41 or Person 40 that that conversation did not occur.
