- d. The Respondents will present their case.
- e. The Applicant will then call such other witnesses as he proposes to call (not being any of the witnesses he has called at the third stage identified above) with respect to the defences of justification and contextual truth.
- f. Should the Applicant himself wish to give further evidence, it will be limited to evidence in reply.
(Roberts-Smith v Fairfax Media Publications Pty Limited (No 13) [2021] FCA 549.)
321 The applicant himself elected not to give evidence in reply.
322 The effect of the order is that where the matter not put to one of the respondents' witnesses arises from the applicant's earlier evidence, there is no Browne v Dunn point as such because the respondents and their witnesses are on notice of the applicant's case. The position is different where the matter not put to the respondents' witnesses arises from the evidence of the applicant's witnesses called in reply on the issues of substantial truth and contextual truth.
323 None of this is to say that the way in which a witness is cross-examined is irrelevant. Inevitably, cross-examination highlights points of difference.
324 As it happens, the evidence of Persons 14, 24 and 18 as to the location of Person 6's patrol and, in particular, Persons 14 and 24 themselves, is supported by a number of objective matters.
325 First, there is no suggestion that Person 14 did not engage and kill EKIA50. The location of EKIA50's body was next to the break in a field wall 15 to 20 metres from the northwest corner of W108. The field wall can be seen in one of the photographs which is exhibit R5. Person 14 marked the wall with a solid black line and the location of the insurgent he engaged with a dot on exhibit R98.
326 In closed Court, Person 5 was taken to the Exploitation Report with respect to W108 and W109 (closed Court exhibit A10 Tab 11 p3) and he agreed that the location of a circle with the number 50 in it, accurately identified the location of the person engaged by Person 14.
327 Person 29 marked the location of EKIA50 on exhibit A219.
328 The applicant marked the wall with a black line and the location of the body of EKIA50 on exhibit R4.
329 Person 14 said that the assault or clearance patrols were close to the entry point at the time he engaged EKIA50. Person 14 must have been in a position to take the shot that killed EKIA50
