449 Secondly, Person 43 said he had a conversation with Person 40 on 12 April 2009 about the PUCs. He said that Person 40 asked him when they were walking off or getting ready to walk off W108 where the PUCs were and Person 43 said, "You know where they are". Person 43 said that he made a vague comment so as not to incriminate someone for something that he did not know had happened or not happened. Person 40 said in response, "That's fucked". Again, the applicant did not put to Person 43 that that conversation did not occur.
450 Thirdly, Person 40 said although he did not recall the "precise verbiage", he recalled a conversation with Person 42 in Tarin Kowt in their accommodation. He said to Person 42 that what occurred was wrong and that was a reference to the killing of the man with the prosthetic leg.
451 I accept that these three contemporaneous conversations involving Person 40 occurred and I make it clear that I do so irrespective of whether there was a challenge by the applicant to the evidence.
452 Person 41 gave evidence of standing around the tunnel with Persons 29 and 35 and Person 29 yelling down the tunnel to see if there was anybody in there that would come out. This continued for a short time and Person 41 said that there was not really much there and he went to search two rooms in the north-western area of the courtyard. He marked those rooms on exhibit R92. He then heard some louder voices and talking "a bit of a commotion" outside in the courtyard. He stepped out of the room he was in and to his immediate left he noticed the applicant and Person 4 standing there and just beyond them squatting against the wall just near the tunnel entrance was an Afghan male. He described the Afghan male as an older male dressed in traditional Afghan loose top and clothing, either white or a very light colour. He had short cropped hair. Person 41's evidence is as follows:
All right. Now, when you went off to look in those rooms, you said before you had seen Mr Roberts-Smith, Person 4, Person 5, Person 29, Person 35, I think, in that courtyard area. Do you remember what they were doing, or do you remember what you saw them doing around the time that you went into those rooms?---No, I don't.
Okay. Now, tell me, when you went into those rooms, when did you see or do in there?---So I went into the first room, and there was a bit of damage to the walls from the percussion from the bomb strike. I saw there was, like, batteries on, like, a makeshift sort of shelf in there. A lot of wires. Things like wood, hacksaw blades, a couple of wires where attempted to be hidden within the mud walls. I sort of decided myself then that they must have been making IEDs in that room or within that area. There was also two – two or three large bags of a black sticky substance, which I didn't know then, but it turned out that was opium, and they were also located in that room.
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