369 These then were the submissions made by the respondents in their closing written submissions with respect to the defences of substantial truth and contextual truth which, as I have said, were filed before the applicant's closing written submissions with respect to those matters.
370 However, the respondents submit that the developing nature of the applicant's case as to who was present when the tunnel was discovered did not stop there. In the applicant's closing written submissions, he first notes that the respondents contend that the following persons were present in the courtyard or near the courtyard just before the tunnel was discovered:
- (1) A group of commanders who were beginning to assemble for the Commanders' RV, including Persons 81, 80, 43, 5 and 29. The troop interpreter was also present;
- (2) Members of Person 5's patrol, who had commenced SSE duties, including the applicant and Person 4;
- (3) Members of Person 29's patrol, who had commenced SSE duties, including Persons 35, 38, 40, 41 and 42; and
- (4) A group of Afghan women, who were agitated and indicating something in relation to the tunnel.
371 The applicant then notes that he does not dispute and there is no dispute between the parties that the applicant and Persons 5, 29, 35 and 38 were in the northern tunnel courtyard area when the tunnel was discovered or very shortly after the tunnel was discovered.
372 The applicant then goes on to say that he does not challenge the evidence of Persons 18, 40, 41, 42 and 43 that they were present in the tunnel courtyard area either when the tunnel was discovered or shortly afterwards except to the extent that it also involves the proposition that they were present at a time when the compound had been declared secure and at a time when the SSE process had properly commenced. The applicant seeks a finding that the tunnel was discovered before the compound was declared secure and "therefore" before the SSE process had properly commenced. The applicant makes it clear that this lack of challenge to the evidence of these witnesses goes no further than the location of those persons at the tunnel courtyard contemporaneously with the discovery of the tunnel and does not extend to their evidence "insofar as it is relied upon to support the Respondents' allegations that two Afghan men came out of the tunnel, were PUC'd and then executed by [the applicant] and/or Person 4".
