equipment from the base. The second matter involved Person 19's dismissal from the ADF following his conviction on a charge of recklessly gaining a financial advantage. That conviction related to the signing of a false statutory declaration concerning his girlfriend's place of residence in connection with an accommodation allowance. In his closing submissions, the applicant did not rely on either of those matters in support of his attack on Person 19's credibility or reliability. Nevertheless, for completeness and out of an abundance of caution, I have considered the evidence and neither of these matters dissuade me from accepting the evidence of Person 19 to the extent I have indicated.
927 The next question is what, if any, use can be made by the respondents of these findings?
928 The applicant did not object to the evidence about his conduct during the training exercises at Lancelin and at Bindoon at the time it was adduced on the basis that it was tendency evidence or irrelevant. Nevertheless, he contends, as I understand it, that the respondents are seeking to use the evidence as tendency evidence and that it cannot be used for this purpose for the following reasons. First, he contends that by reason of ss 97 and 99 of the Evidence Act, the evidence cannot be used as tendency evidence in the absence of a notice from the respondents that they intend to adduce such evidence. The respondents have not applied to have the notice requirement waived. Secondly, even had a notice been given by the respondents, the evidence cannot be relied on as tendency evidence unless it has significant probative value and the evidence here does not have significant probative value. Finally, the applicant contends that the respondents' reliance on the evidence as tendency evidence is fatally flawed because the respondents have not identified the particular tendency. For example, they have not identified whether the tendency was to shoot any person who was PUC'd or only those PUCs who are considered to be members of the Taliban.
929 As I have said, the respondents do not contend that the evidence is tendency evidence or has been adduced for that purpose. As I have said, they say the evidence is properly seen as evidence of the preparatory conduct for the later murders that were carried out during Rotation 18 (at Darwan, at Chinartu and at Fasil) in that the applicant specifically trained and prepared members of his patrol to carry out and cover up extra-judicial killings.
930 The precise way in which the respondents seek to use this evidence, which is not a tendency use, is not clear to me. The issue of whether a party adducing evidence is seeking to use it for the purpose of establishing a tendency or otherwise can itself be a contentious one (see