what the witness will say, the party is aware a witness has a reason for not telling the truth or refusing to assist or a party doubts the witness will cooperate given prior consultation, proof of evidence or the like. A party is not obliged to call a witness "blind" in order to avoid the inference being drawn against them: Fabre v Arenales (1992) 27 NSWLR 437 at 449–450, per Mahoney JA, Priestley and Sheller JJA agreeing.
183 Any "explanation", such as unavailability or the absence of recollection, for the failure to call the witness must be established by evidence and is not to be merely presumed from the passage of time: West v Government Insurance Office (NSW) [1981] HCA 38; (1981) 148 CLR 62 (at 70) per Murphy J; Rowell v Larter (1986) 6 NSWLR 21 (at 24–25) per Young J (as his Honour then was).
Character Evidence
184 The applicant relies on evidence of his good character in relation to his credibility and in relation to the probability or improbability of guilt (Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421; [2005] 2 Cr App R 378 (PC); Attwood v The Queen (1960) 102 CLR 353 at 359). The character evidence relates to his military service and record, and his treatment of women.
185 These are defamation proceedings and the applicant adduced a substantial body of evidence relevant to his reputation prior to the publication of the matters complained of. That evidence included statements of Mr Adam Veale, Ms Susan Wood, Ms Sarah Kelly, Mr Anthony Tremlett, Ms Deborah Rolfe AM and oral evidence from Dr Parbodh Gogna (who served with the applicant) and Dr Brendan Nelson AO (who had a close association with the applicant by reason in part of his position as Director of the Australian War Memorial). There was also an outline of evidence of Person 30 who was a captain of the SASR and who was involved in writing a citation for the applicant in relation to his actions at the Battle of Tizak and it was in respect of that citation that the applicant was awarded the Victoria Cross. The Battle of Tizak took place on 11 June 2010 and Person 30 wrote citations for other SASR soldiers who took part in the battle. The evidence establishes without contradiction by the respondents that the applicant had a very good reputation in the community as an Australian soldier.
186 The applicant put at the forefront of what he said was his exemplary military service record and distinguished military service to Australia the following. In cross-examination, Person 4 said that as far as he knew, the applicant was a good man and a brave soldier. In examination-in-chief, Person 32 said that during his deployments to Afghanistan with the applicant in
