The material before the Court may be so limited that it does not form an appropriate basis upon which to reach a reasonable decision
119 In the course of their respective submissions, both parties refer on a number of occasions to the principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (Jones v Dunkel) in connection with evidence not called or adduced by the other party. That is one point. The other is that in the applicant's written submissions, he submits that both he and the Court were precluded from having access to the transcript of the interviews of some of the respondents' witnesses because of the operation of, among other things, s 21 of the Inspector-General of the Australian Defence Force Regulation 2016 (Cth) (IGADF Regulation). He made the submission that the Court did not have before it the entirety of evidentiary material upon which it could otherwise assess the reliability of the oral testimony of these witnesses. This gave rise to what the applicant said was a vacuum in the evidence before the Court.
120 By the time he came to make his oral submissions, the applicant broadened his submission about the vacuum in the evidence before the Court. I have already referred to the applicant's submission that this Court does not have all the evidence available that would ordinarily be available in a criminal trial, including that provided by a prosecutor with duties of disclosure and fairness. The applicant also submitted in the course of his submissions that the Court had to approach the respondents' allegations with caution because they are not war crimes investigators and they are not the police and they do not have access to all the evidence. They do not have powers of law enforcement and they do not have access to all the Defence Force material "to present a case such as this". The applicant submitted that the Court had none of the evidence that one would expect in a war crimes trial. He submitted that the respondents were not assisted by war crimes investigators. He submitted that there was no forensics and ballistics evidence, no access to prior versions of events given by witnesses and no access to footage "which one would expect would ordinarily be available when missions are being conducted".
121 These submissions by the applicant seem to give rise to an overarching or general submission that even if the Court was persuaded by the respondents' case, the Court would not be satisfied to the relevant standard by reason of the known vacuum in the evidence before the Court.
122 In Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 (Ho v Powell), Hodgson JA (with whom Beazley JA agreed) made the following two points. First, Lord Mansfield's maxim in Blatch v Archer (1774) 1 Cowp 63 at 65; (1774) 98 ER 969 at 970 that all evidence is to be
