453 The respondents submit that no coherent theory which might lead the Court to doubt Person 41's evidence to the effect that he saw an Afghan male squatting down near the tunnel entrance not long after the tunnel was discovered was put to Person 41 in cross-examination. The respondents submit that a number of matters were put to Person 41 that in the end went nowhere. For example, he was asked about whether he had been told about the events or had read about them, or had had them suggested to him by enemies of the applicant. In each case, he denied that any of those things had happened. As the respondents submit (correctly in my opinion), there was no suggestion that Person 41 was a person with any grievance against the applicant or was influenced by any of the applicant's enemies.
454 Person 41 was asked by the applicant whether he had been receiving psychiatric treatment. He said that he had been receiving such treatment since the middle of 2020 and he put that down to hearing that he had been subpoenaed and having a large workload and a manager who, he described, as quite a micro-manager. I do not consider that anything emerged from the evidence of Person 41, or indeed the evidence in the case, that suggested Person 41 had a mental health illness or issue which had or may have affected his evidence.
455 It was put to Person 41 by the applicant that he may have been feeling guilty about not reporting what he saw. Person 41 denied that he had a feeling that he was a coward because he saw something that should not have happened and did nothing to stop it.
456 It was also put to Person 41 by the applicant that he walked away from the tunnel because he was too scared to go into the tunnel. He went to the other rooms instead. I have already referred to this suggestion (at [392]–[393]). It was put to him that he had been lying to himself about what happened to cover up for his own conduct. The relevant passage in cross-examination is as follows:
But on this day, 12 April 2009, in which you saw other members of your patrol engage in heroic acts, you were scared?---No. I don't recall see any heroic acts on that day by members of my patrol.
See, is this the case, that you've been lying to yourself about what happened that day
