satisfied that there is a satisfactory explanation for the failure. The applicant's submission is that Person 4's election not to give evidence about the mission to W108 has left a gap in the evidence which must ultimately fall upon the respondents who bear the onus of proving their allegations. This is in a sense an observation by the applicant. I have already addressed the submission that there is simply insufficient evidence to make a decision one way or the other and rejected it. Insofar as the present submission is that the respondents bear the onus of proof and if the evidence is insufficient to discharge the onus, then the respondents fail, that proposition is undoubtedly correct.
790 The third point is related to motive and involves emphasising a point previously made. It is that the Court is being asked to find that a member of the ADF with an exemplary service record with no history of conducting himself contrary to the rules of engagement "would on 12 April 2009 decide for no reason to engage in an act of murder". That is a matter to be taken into account. The applicant also points to the evidence of Person 81 in re-examination that on 12 April 2009, he did not observe any conduct by Persons 4, 5 or the applicant that caused him to have a suspicion that they had PUC'd and murdered anybody. That is a matter to be taken into account, but is to be assessed having regard to, and in light of, the opportunity Person 81 would have had to observe the event had it occurred.
791 There were some small differences between the accounts of the respondents' witnesses with respect to the alleged execution of EKIA57. The question is whether they affect the honesty or reliability of any of the witnesses.
792 The first difference is the part of EKIA57's body being held by the applicant prior to him being put on the ground. Person 41 observed the applicant to be holding EKIA57 by the scruff of his clothing, that is, the collar/shoulder area. Person 24 said that the applicant was holding EKIA57's clothing in the region of the lower back. Person 14 did not say that he saw where EKIA57 was being held. He did say that a dark object was thrown to the ground from a height of between waist and knee. The witnesses were viewing the rough manhandling of a struggling PUC from different directions and at different distances and I agree with the respondents that the significant point is that both Persons 41 and 24 recalled the applicant holding EKIA57 by his clothing at the back.
793 The second difference relates to whether the applicant "flipped" EKIA57. Person 41's evidence was that the applicant threw EKIA57 down to the ground and EKIA57 landed on his back. The applicant turned him over before shooting him in the back. Person 24's evidence
