tunnel was clear. Person 5 said that no-one came out of the tunnel. Person 81 was informed that the compound was secure and the troop commenced a rummage search of the compound. Person 5 moved to the Commanders' RV. (The balance of the key features of Person 5's evidence is dealt with below (at [709], [846], and [859])). As I have said, I do not accept Person 5's evidence.
500 The applicant's case is that EKIA56 and EKIA57 were lawfully killed by him and another SASR soldier in engagements outside the north-western corner of W108. A full description of his account is set out later in these reasons. He submits that the contemporaneous reporting supports his account of the engagements outside the north-western corner of W108 because it establishes the following:
- (1) a significant level of foot traffic between W109, W103 and W108 throughout the afternoon;
- (2) the presence of more than one tunnel at W108; and
- (3) the presence of insurgents moving between W108 and W109.
501 The respondents submit that the engagements as described by the applicant did not occur. There are, among others, two factors suggesting that such engagements were unlikely. First, the insurgents were not seen by Person 6's patrol and they would have been if they had been there. Secondly, the failure of Person 6's cordon team to detect the insurgents is a serious matter which would have been brought to Person 81's attention had it happened and yet it was not.
502 With respect to the first matter, the applicant submits that the courtyard walls and relatively dense vegetation would or may have prevented Person 6's patrol from seeing the insurgents.
503 With respect to the second matter, the applicant relies on the following evidence of Person 81 in cross-examination:
Now, if insurgents had managed to approach Whisky 108 from the north to a distance of, say, 10 metres, that would have been a serious matter that you would have expected to be brought to your attention; is that right?---Not necessarily. Obviously, a range of contacts occur, a range of time and other complicating factors. In the end, my job is coordinating a range of different support mechanisms to enable that action to occur rather than specifically about that tactical manoeuvre inside a compound.
504 I will return to these submissions.
