Was the Compound Declared Secure Before the Tunnel was Discovered?
362 There was a courtyard at what was thought on the day to be the north-western end of the compound. A tunnel was discovered in the courtyard.
363 The respondents submit that it is at around the point when the assault or clearance patrols entered the courtyard at the northern end of the compound, where the tunnel would ultimately be discovered, that the evidence of the witnesses called by them and the witnesses called by the applicant begins to diverge. In their closing written submissions, the respondents submit that a key matter in dispute can be reduced to the following question: "Who was present in the tunnel courtyard when the tunnel was discovered, and shortly thereafter?". The respondents submit that the significance of this issue is concerned with the identification of those witnesses who were able to observe whether or not any men were found in the tunnel.
364 The respondents submit that the evidence of each relevant witness called by them was that the tunnel was discovered after the compound had been declared secure and that the SSE process had commenced while the witness was present, or shortly before the witness was present. The respondents submit that that issue had appeared to be uncontroversial and, subject to limited exceptions, the respondents' witnesses were not challenged by the applicant on these aspects of their evidence. They submit that it was in only peripheral respects that a positive contrary case to what the witnesses in fact did, saw, or heard was put to them by the applicant.
365 Person 18's evidence, which is summarised below, provides a description of the clearance process, the decision or declaration that the compound is secure and then the SSE process which is undertaken (at [377]–[379]). One event which takes place only after a compound has been declared secure is a Commanders' Rendezvous (Commanders' RV) involving the troop commander and the patrol commanders. If a Commanders' RV is to take place in the compound, it will provide an occasion for a patrol commander on cordon duty outside the compound during the clearance to enter the compound in order to attend the Commanders' RV. Person 43 was a patrol commander who was on cordon duty at W108.
366 The respondents submit that, in addition and significantly, the lack of a dispute about the tunnel being discovered while the SSE process was being undertaken was reinforced by the outlines of evidence served in relation to the applicant's witnesses. Person 35's outline of evidence (exhibit R270 at [14]) said that the tunnel system was discovered while the SSE process of W108 was being undertaken. Person 35 was cross-examined about this and seemed to say that what he meant was that the clearance of W108 was extremely quick and it was obvious that
