applicant put to Person 41 that he did not witness the applicant's engagement, but it was not put to him that he was not in the area.
718 The respondents submit that Person 38's evidence that he and Person 41 were clearing an orchard on the northern side of the compound was never put to Person 41 and could not be a basis upon which the Court would find that he was not present in the vicinity of the two small buildings at the time the applicant shot EKIA57. For reasons previously given in relation to Person 38's evidence, I accept that submission.
719 Furthermore, the respondents submit that the applicant did not put his account of his engagement with EKIA57 to Person 41 and, therefore, Person 41 was not given the opportunity to provide a possible explanation as to why an engagement could not have happened in the way described by the applicant.
720 The respondents submit that, in those circumstances, "the only submission" that is open to the applicant is that Person 41's evidence, when considered in light of all the other evidence relied on by the respondents, is incapable of supporting a finding for the respondents on the balance of probabilities. As I understand this submission, it is that because the applicant's account was not put to Person 41, Person 41's evidence could not be rejected on the basis of the applicant's account.
721 My approach to the respondents' submission concerning what was or was not put to Person 41 in cross-examination is as follows. First, as far as the applicant's account of the engagements outside the north-western corner of W108 is concerned, that evidence was given by the applicant before Person 41 gave evidence. It was open to either party to put the applicant's account to Person 41. The fact is neither did in circumstances in which neither contends that both versions could be correct. Secondly, the respondents' approach of pointing to matters not put to their witnesses is a matter I have already addressed. The example in the case of Person 41 is that it was put to him that he did not witness the execution of EKIA57 by the applicant which he described, but it was not put to him that he was not in the area. That is a matter which is a feature of the body of evidence which is Person 41's evidence, but it does not, on the submissions made to the Court, amount to some form of concession by the applicant.
722 Person 41 agreed that he had drunk from the prosthetic leg on numerous occasions. It was put to Person 41 that he was not the type of person who would happily drink from the prosthetic
