respondents did not call Person 12 as a witness at the trial. The applicant makes a submission by reference to Jones v Dunkel in relation to the absence of Person 12 from the witness box. That submission is dealt with later in these reasons. The issue at this stage is whether the fact that the respondents did not call Person 12 means that there is such limited material as to lead to the conclusion that there is not an appropriate basis upon which to reach a reasonable decision.
141 The applicant referred to the absence of Person 12 from the witness box on a number of occasions during the course of his closing submissions. He submitted that his absence from the witness box indicated an apprehension that Person 12 would not support the respondents' case and that it is no answer to that submission to say that Person 12 is being accused of being part of a war crime. He submitted that there was no evidence from the respondents that they have tried to contact Person 12 and he has refused to speak to them. There is no evidence that they have tried to deal with him. There is, in counsel for the applicant's words, "just a vacuum there".
142 I reject the applicant's submission that Person 12's absence from the witness box goes further than a Jones v Dunkel submission. The respondents' submission is correct that there is both testimonial and documentary evidence and the Person 12 lie itself as circumstantial evidence that bears or may bear upon his presence on the mission. There is direct evidence from Person 14 of what occurred on the mission. There are also other witnesses, including the applicant and Persons 11 and 32.
4. The absence of forensic evidence
143 I referred above to a submission by the applicant concerning the absence of various forms of forensic evidence. The short answer to this submission is that Lord Mansfield's maxim is relevant to the assessment of whether the material before the Court is an appropriate basis upon which to reach a reasonable decision. One aspect of Lord Mansfield's maxim is the power of one side to produce evidence. I agree with the respondents' submission that it cannot be seriously suggested that it was within the respondents' power to exhume bodies from Afghanistan, conduct post mortems of persons who died more than 10 years ago, conduct botanical analysis of grass, obtain high quality photographs etc., and that it is by no means clear what light such forensic evidence would shed on the issues as they have developed.
