from the fact that he could not recall being nearby when a tunnel was discovered. The passage of Person 81's evidence is as follows:
Now, I also want to put to you that, when you were standing with that group of people including Person 43 and Person 82, it was around that point in time that the tunnel was actually discovered. Are you able to say whether you were standing nearby when the tunnel was discovered?---I don't recall that.
Now, when you say you don't recall it, do you mean you don't recall one way or another?---Well, yes. I don't recall it. Yes.
Person 81 did not have a good recollection of events at W108. That is not a criticism, but a reflection of his evidence and the fact that his focus was on a number of matters in respect of which, as troop commander, he bore responsibility. I do not consider his evidence provides any real assistance in terms of the present issue.
430 In summary, the respondents ask the Court to make a finding that the tunnel was discovered after the compound had been cleared and declared secure, the commanders had been called in for the Commanders' RV and the SSE process had commenced. The applicant seeks a finding that the tunnel was found before the compound was declared secure based on the troop's standard operating procedures and the evidence of Persons 5, 29, 35 and 38. The applicant submits that the troop's standard operating procedures were such that, to take this particular circumstance, a compound would not be declared secure until after a tunnel had been cleared and troop headquarters would not have been called into the compound for the purpose or, at least a purpose of conducting a Commanders' RV, until a compound had been declared secure. I do not understand the respondents to dispute that that would be the standard operating procedure; their point, which I consider is correct, is that the tunnel was not discovered until after the compound had been declared secure as the evidence of their witnesses was to the effect that they were carrying out tasks related to the SSE process at the relevant time or, in the case of Person 43, by, among other things, his very presence in the compound.
431 I accept the evidence of the respondents' witnesses, Persons 18, 40, 41, 42 and 43, and, as I have said, I do not accept the evidence of the applicant and Persons 5, 29, 35 and 38 on this issue insofar as it suggests that the tunnel was found before the compound was declared secure.
432 The applicant made a submission in closed Court by reference to Sensitive Documents involving a related point and that is whether the engagements of EKIA56 and EKIA57 occurred before the compound was declared secure The submission to that effect, and the reasons I reject it, is dealt with in the closed Court reasons (at [39]–[44]).
