hole was small so it would just be an encumbrance. His M4 rifle was too long for tunnel clearance so he left that behind. He cleared the tunnel with his pistol. Prior to going into the tunnel, he fixed his night vision goggles out of the back of his armour to his helmet so that he could clear the tunnel under "NODs". He did not locate or observe any individuals in the tunnel. He did locate and observe weaponry in the tunnel. He described what he observed. Person 35 said that he was in the tunnel for about a minute. He then went back into the tunnel and proceeded to gather everything up and started ferrying it up to the surface. He took photographs of the tunnel and the layout of the tunnel.
508 Person 35 denied the suggestion that Person 18 covered him whilst he was in the tunnel. Person 35's evidence was as follows:
And when you went into the tunnel, Person 18 covered you; correct?---That is incorrect, Mr Owens, and that simply physically could not happen. You could not describe to me that scenario where Person 18 can cover me when I made entry into that tunnel; you cannot.
Person 18 was lying down on his stomach in the tunnel hole entrance pointing his weapon into the tunnel; correct?---He was not, Mr Owens. Person 29 was covering that tunnel and only Person 29.
509 Person 38 said that he saw the applicant, Persons 5, 29 and 35 in the courtyard area in the vicinity of "some form of tunnel". He could not see any Afghan women in that area and when he was asked whether there were any fighting age males in that area, he said no and went further and said:
… there were no fighting age males in the compound.
510 Person 38 observed Person 35 take off his armour and he said that he believed that Person 35 used a handgun, a pistol and possibly his night vision and entered the tunnel. He said that he believed Person 29 had a hand on the back of Person 35 for the initial entry so as to pull him out if he was engaged. Person 38 saw Person 35 after he had cleared the tunnel, stick his head back out of the tunnel and say "clear". Person 35 said that he had found a "bunch of equipment" in the tunnel. Person 38 said that he then pushed into the orchard area to clear it. As I have already said, the applicant does not rely on that evidence and, in any event, I reject that evidence and indeed, any evidence of Person 38 except where it is supported by evidence that I do accept.
511 The applicant submits that Person 81's evidence about seeing fighting age males in the compound supports his case rather than the respondents.
