corner". The applicant denied the suggestion that Person 6's patrol was on the eastern edge of the ploughed field which was the location identified by Person 14.
318 Person 5 marked on a copy of an aerial photograph of W108 (exhibit A194) the location of Person 6's patrol at the time Person 5 made entry into the compound at the south-western corner of the compound. In cross-examination, he said that Person 6's patrol was split and part of Person 6's patrol moved further north on the north-western side. They were still some distance to the south of the position identified by Persons 14, 18 and 24. Person 5 denied seeing Persons 14 and 24 near the edge of the field on the northwest corner of W108. When asked whether he had a recollection of seeing Person 14 in a particular location on the day of W108, he said that he did not. He was inside and Person 14 was outside. He agreed that the evidence he had given about the location of Person 14 was based on assumptions he had made.
319 Person 29 did not see Person 14 and he did not know exactly where he was. He was not aware of where Persons 14 and 24 were positioned on the ground.
320 The respondents submit that, in circumstances where it was not put to any of Persons 14, 24 and 18 that their evidence as to their location or, in the case of Person 18, the location of Person 6's patrol, was false or mistaken and no positive alternative case consistent with the applicant's evidence was put to them, the Court would not disbelieve them and would not accept the evidence of the applicant. There are two observations to be made about this submission. First, the submission appears in the respondents' closing written submissions which were filed and served before the applicant filed his closing written submissions. I have already referred to the applicant's approach to this issue in those submissions (at [305]). Secondly, the applicant had given his own evidence about the issue before the respondents adduced any evidence on the topic so the respondents were aware of what the applicant said on the topic. That was the result of an order I made on 25 May 2021 about the order in which evidence was to be adduced at the trial. That order was as follows:
4. The trial proceed as follows:
- a. The Applicant's Counsel will open his case.
- b. The Applicant will give evidence-in-chief and be cross-examined on all issues joined on the pleadings, including the defences of justification, section 25 of the Defamation Act 2005 (NSW), and contextual truth, section 26 of the Defamation Act 2005 (NSW).
- c. The Applicant will call such other witnesses as he proposes to call on all issues joined on the pleadings other than justification and contextual truth.
