proven absence of motive and submitted that at best, from the applicant's point of view, the evidence supports the former, but not the latter conclusion.
160 The respondents submitted that it is important to distinguish between a submission that a murder is inherently unlikely and a submission that there is an absence of evidence of motive. In relation to the former, that is a matter built into the factor in s 140(2)(c). The respondents submitted that, in any event, they have proved a motive on the part of the applicant. They have done that based on the applicant's statements during pre-deployment training to the effect that that is how it is going to be on the day and anyone suspected of being an enemy combatant would be taken into a room and shot. They submitted that none of this is a tendency use of the evidence. They submitted that the motive that they identify is obvious if one has regard to the circumstances of each of the murders at W108, Darwan, Chinartu and Fasil. The murders at W108 involved two men hiding in a tunnel in a compound that had been engaged in serious fighting with the Mentoring and Reconstruction Task Force (MRTF) all day. In relation to Darwan, Ali Jan was revealed by questioning to be someone who was not from the village of Darwan and the village was thought to be harbouring the Taliban. Chinartu provides perhaps the best example. Person 14 said that there was an instantaneous change in the mood in the room when the cache was discovered in the compound of the man who was being questioned. The respondents submit that the discovery of the cache was the thing that turned the man who was subsequently shot from an innocent compound owner into a suspected insurgent. Finally, the youth at Fasil was taken from a motor vehicle which was found to contain improvised explosive device (IED) componentry.
161 This is not a case where there is a proven absence of motive. Furthermore, the motive identified by the respondents is one that is open on the evidence.
The Effect of the Passage of Time on the Reliability of Oral Testimony
162 As will be seen, the respondents' case is, in large measure, based on the oral testimony of witnesses who, in some cases, gave evidence of events in 2009 which was approximately 12 years before they gave their evidence and, in other cases, of events in 2012 which was approximately nine years before they gave their evidence.
163 In assessing that evidence, I must take into account the effect of the passage of time on human memory and the processes of memory being overlaid by perceptions or self-interest as well as conscious considerations of what should have been or could have been said. I must also bear
