546 Person 24 was located outside the compound. He never went into the compound. He circled the area in which he was located with Person 14 on exhibit R141. Person 24 said that before he saw the applicant come outside the building with the other man in his hand, he heard Person 5 referring by name to Person 4 a couple of times saying "get in here, get here now". It seemed that Person 5 was close to the same entrance/exit that the applicant subsequently used. The respondents point out that Person 24 was not challenged about that evidence. I will refer to Person 24's evidence in some detail later in these reasons. I indicate now that I accept his evidence on this particular topic.
547 I have already referred to Person 41's evidence to the effect that he was searching one of the rooms he marked on exhibit R92 for about a minute or two when he heard some louder voices and talking, a bit of commotion outside in the courtyard. I have already described his evidence of what he saw when he stepped back into the courtyard (at [452]).
548 Person 41 gave evidence as to what happened thereafter. His evidence was as follows:
And what happened next? Person 4 and RS then approached me, and using my nickname, they said, "Hey, Person 41, can we borrow your suppressor?" I thought a bit of a strange request at first, but I complied. I removed the suppressor from my M4 assault rifle and handed it to Person 4.
Can I just stop you there. Why did you think it was a strange request? I would have thought that Person 4 would have had his on him at the time, as it was – fact that it was – well, in my patrol, at least, you either – if it wasn't on your rifle, you carried it when you left, so you had it on you at all times. So I thought initially it was a bit strange Person 4 did not have his suppressor on him. So I removed mine and handed it to Person 4, thinking he must need it because he's going to go into the tunnel and the suppressor would have muffled the loud noise if he had to use his rifle within that tunnel. So I handed it to Person 4. He then proceeded to turn around and commenced fitting the suppressor to his M4 rifle. They started to walk back towards where this Afghan male was squatting against the wall.
Just to be clear, who's they? RS and Person 4. I then thought to myself, "I think I know what's about to happen here." So I just stood there for another few seconds and – watching. Person 4 stood facing where the Afghan male was towards the tunnel entrance. RS then walked down and grabbed the Afghan male by the scruff of the shirt, picked him up, marched him a couple of metres forward to – he was in front of Person 4. He then kicked him in the back of the legs behind the knees until he was kneeling down in front of Person 4. He pointed to Person 4 and said – sorry, he pointed to the Afghani and said to Person 4, "Shoot him." And as he said that and he stepped to the side, I didn't wish to witness what was about to happen and I stepped back into that room where I found those IED components.
549 Person 41 clarified in cross-examination who asked him for his suppressor. He said that he thought it was the applicant because the applicant would call him by his nickname, whereas
