910 The applicant submits that I should not accept the evidence that he said to Person 10 during a training exercise at Lancelin words to the effect of "shoot him" and "that's how it is going to be on the day". The applicant denied saying those words, but I reject that denial in light of the evidence of the other witnesses which I accept and the other findings I have made about the applicant's lack of honesty and reliability. I reach the same conclusion about Person 11's evidence that he never heard the applicant encourage a member of his patrol to simulate the execution of PUCs and that the applicant never directed him to execute a PUC. I reject that evidence for the same reasons I reject the applicant's evidence.
911 The applicant submits that it is improbable that a patrol commander would instruct one of his patrol to engage in a mock execution. On the face of it, that is true, but I take into account the whole of the evidence in this case, including the findings I have made in relation to W108 and the clear evidence in this case that it occurred. Similarly, although the senior patrol commanders did not immediately remonstrate with the applicant, they did remonstrate with him shortly afterwards.
912 It is true, as the applicant submits, that Person 19 did not give evidence that the applicant said words to the effect of "that's how it is going to be on the day", but that in itself is not a reason to reject his evidence or the other powerful evidence to which I have referred. It is possible Person 19 did not hear the comment or has forgotten about it.
913 Before leaving the findings of fact, it is necessary to refer briefly to Person 9 who was on the applicant's witness list, but who was not called as a witness at the trial. Person 9 is still a member of the SASR and he is on a long-term military posting to the United Kingdom and presently in the United Kingdom. He is on short notice to move and cannot be released to travel to Australia because of his role. The applicant made an application that Person 9 be permitted to give evidence by audio-visual link. I refused that application for the reasons set out in Roberts-Smith v Fairfax Media Publications Pty Limited (No 37) [2022] FCA 580. The applicant submits that Person 9 could not be subpoenaed and, in those circumstances, a Jones v Dunkel inference should not be drawn against the applicant. The respondents made it clear in their closing oral submissions that they do not seek a Jones v Dunkel inference based on the fact that Person 9 did not give evidence.
914 There is a further point related to the fact that Person 9 did not give evidence and it is as follows. Person 4 gave evidence that he had a conversation with Person 9 during which the latter said that the applicant pointed or spoke to another individual to shoot Person 9 and that Person 9
