member of Person 5's patrol was known as the "rookie" or "rookie fuck" earlier and more generally and widely than just by Persons 14, 18 and 24.
240 In his closing written submissions, the applicant sought to have the evidence concerning what was on the patrol room door in 2010 excluded on the basis that it is tendency evidence which did not meet the requirements of s 97 of the Evidence Act. The point was not developed in circumstances where there was no objection to the evidence at the time it was tendered. It is not clear to me that it is tendency evidence as distinct from evidence which, with other evidence, suggests a practice. Furthermore, whilst there is no suggestion a notice in writing in relation to the evidence was given by the respondents (s 97(1)(a)), I can indicate that had the point been reached of considering s 97(1)(b), I would have had no difficulty in concluding that the evidence, with other evidence, has significant probative value in this case. Furthermore, as I have said, the evidence was not objected to at the time of its tender and was admitted and it is too late to object to it now (Federal Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74; (2011) 193 FCR 149 at [26]).
241 Secondly, Person 19 was in the applicant's patrol in 2012 and he said that the term "rookie" was both used and understood. I will return to the evidence of Person 19 in Section 3 of this Part. I can indicate now that I accept his evidence on this issue.
242 The applicant submits that the respondents must establish that Person 5 said in 2009 that he wanted to blood the rookie, that Person 5 was referring to Person 4 when he referred to the rookie and that he, Person 5, meant killing an insurgent whether the killing was lawful or unlawful.
243 The applicant's witnesses included Persons 5, 27, 29, 35 and 38 and they denied having heard of Person 4 being referred to as the "rookie" or referring to him in that way themselves. I reject that evidence for two reasons. First, I do not accept them as honest and reliable witnesses. Secondly, such evidence is inconsistent with evidence I do accept. They certainly have a motive for denying that they heard Person 4 referred to as the "rookie" in view of the allegation that there was a need to "blood the rookie".
244 The applicant relies on the fact that, although the respondents called Person 4, they did not seek to adduce evidence from him as to what he was called by Person 5 in 2009. That is correct. The applicant submits that, in those circumstances, a Jones v Dunkel inference that Person 4's evidence would not have assisted the respondents' case should be drawn. I decline to draw this
