373 There is a related point made by the respondents which I have already addressed and that is, although the applicant makes a strong challenge to the credit of Persons 14 and 24, he claims to make no challenge to the honesty of Persons 18, 40, 41, 42 and 43.
374 The respondents pointed to difficulties in the coherence of the evidence in the findings identified by the applicant, including the limited concessions he appeared to make. The difficulties are best illustrated by reference to two examples given by the respondents. Person 43 was a patrol commander. His patrol held the entry point to the compound and then set up a cordon outside the compound on the south-western aspect. His patrol would have been called in once the compound had been declared secure and the SSE process was in progress and he would have gone into the compound for the purpose of attending the Commanders' RV. As I have said, a Commanders' RV is not called until after a compound has been declared secure. The applicant's approach involves accepting Person 43's presence in the tunnel courtyard area, but effectively denying his only reason for being there. Another example is the evidence of Person 18. He went to the tunnel courtyard area from another area in the compound where he was conducting the SSE process, that is, a process that commences after the compound had been declared secure in response to a radio call to the effect that a tunnel had been found. The applicant's approach involves accepting his presence in the tunnel courtyard area, but not what he was doing immediately beforehand. Person 40 is another example in the same category.
375 The respondents identify other difficulties with the applicant's limited concession about the persons present at or shortly after the discovery of the tunnel. First, the concession contradicts his own witnesses or raises at least a doubt about their recollection being the applicant, Persons 5, 29, 35 and 38 who either denied others were present or could not recall others being present. Secondly, whilst it is clearly open to a court to accept parts of a witness' evidence and reject other parts, if it is accepted that Persons 18, 40, 41, 42 and 43 were present in the tunnel courtyard area at or shortly after the time at which the tunnel was discovered and that they were honest and reliable witnesses, then it is difficult to see a basis to reject their evidence that a man or men came out of the tunnel.
376 The respondents' submissions about the development of the applicant's case and the effect of the applicant's so-called concessions raise points of some subtlety. I return to them to the extent necessary. For present purposes, I put them to one side and address by reference to the
