Person 4 would call him by his christian name. When asked for his suppressor, he recalled his nickname being used.
550 Person 41 said that he was about three metres from Person 4, the applicant and the Afghan male during the events previously described. He stepped back into the room where he had been and within a second or two he heard a single suppressed shot which he knew was from an M4 rifle. He waited for 15 or so seconds and stepped back out. He noticed the following:
Person 4 was the only one there at the time and there was a dead Afghan male at his feet.
551 He gave evidence that the dead Afghan male was the same person that he had previously seen by the wall and handled by the applicant. Person 41 said he walked up to Person 4 who did not say anything. Person 4 removed the suppressor from his rifle and gave it back to Person 41. The suppressor was warm so Person 41 knew that it had just been used to shoot the Afghan male with Person 4's M4 rifle. Person 41 fitted the suppressor back onto his rifle and walked over to see the dead Afghan male. Person 4 was just standing there and he seemed "to be in a bit of a shock to me".
552 Person 41 noticed that the Afghan male had been shot once in the head and that he was dead. There was quite a bit of blood flowing down around out of his head wound. He was lying on his back.
553 The respondents submit that Person 41's description of the injury is consistent with the photographs in exhibit R6. That submission is correct.
554 The applicant submits that I should not accept Person 41's evidence. An execution in the courtyard could not have taken place without a number of the witnesses, who the respondents contend were in the courtyard, having witnessed it. None of the witnesses who were in the courtyard gave evidence of having seen an execution.
555 The steps in the applicant's submission are as follows: (1) there were a significant number of people in the tunnel courtyard or very nearby, including Person 5 and members of his patrol including the applicant and Person 4, Person 29 and the members of his patrol (Persons 40, 42, 35, 38 and 41), Person 43 and Persons 81, 80 and an interpreter and a group of Afghan women. It must have been, according to the applicant, a hive of activity with the applicant seeking to draw an analogy or parallel with the factual situation in Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123; (2) Person 41's evidence was that he was in the tunnel courtyard at the
