5. Contact with the Afghan witnesses
144 In addressing a submission made by the respondents that there is a consistency between the evidence of the three Afghan witnesses from Afghanistan and the evidence of the two Australian soldiers in relation to events at Darwan that supported the respondents' case that those events had occurred, the applicant submitted that it was relevant that by the time the Afghan witnesses gave evidence "they had already been the subject of contact with the middle man of the respondents, who allegedly tracked them down".
145 The precise point the applicant says follows from that submission is not clear to me. Later, the applicant's counsel observed that the three Afghan witnesses "apparently were found fortuitously by a middle man or agent for the respondents". Again, the precise point the applicant says follows from that submission is not clear to me.
146 The applicant also submitted in relation to the Afghan witnesses that it was clear that they had spoken to agents and lawyers of the respondents many times before they came to give their evidence. The applicant's counsel then submitted that it was sufficient to say that the Afghan witnesses did not come to the Court to give evidence in such circumstances that it could be suggested that their evidence is "pristine and clear of any suggestibility". He said he would deal with the matter in closed Court. In similar vein, the applicant's counsel also said that it would be misleading to suggest that the evidence of the Afghan witnesses was reliable and unprompted and uncontaminated by third party contact or discussion between themselves. Again, counsel said he would deal with the matter further in closed Court. The matter was not further developed in either open or closed Court.
147 None of these matters suggest to me a lacuna or vacuum in the evidence such that the material is so limited that it does not form an appropriate basis to reach a reasonable decision. I am able to determine whether there was any difficulty with the way they were questioned by the IGADF Inquiry and there was no evidence to suggest that there was third party contact which resulted in their accounts being consistent with the accounts of Persons 4 and 56.
148 The respondents submit, correctly in my view, that it was open to the applicant to question the Afghan witnesses in such manner as he saw fit.
6. Evidence concerning the preparation of contemporaneous documents
149 The applicant's counsel submitted that, in relation to a number of contemporaneous documents, there is a gap in the evidence in relation to who it is, it is said, prepared the documents and
