654 Again, as I have said earlier in these reasons, Person 43 was asked about the same photograph and he was asked whether he was able to tell the Court anything about the area depicted in the photograph. He said that it showed the grass or hay which was kicked over, or was similar to the grass or hay that was covering the entrance to the tunnel and that was kicked over, by Person 35 and Person 43 identified the man shown in exhibit R6 as the person he pulled out of the tunnel, but he did not give evidence that he saw the man's dead body in the courtyard.
655 The applicant submits that the Court should place no weight on the identification evidence relating to the grass depicted in the photograph for the following reasons: (1) the Court is able to draw its own inferences and conclusions from a comparison of the grass depicted in the photograph and the grass depicted in the area adjacent to the tunnel entrance. The applicant submits that even if the cut grass shown in the photograph seems to be similar to the cut grass shown in the area near the tunnel entrance as seen on p 1 of exhibit R8, that the Court should not go any further than that; (2) neither Person 42 nor Person 43 recalled the area depicted in the photograph as being the tunnel courtyard. At most, Person 42 said that it looked like it could be the area where the tunnel was found; (3) Person 42's evidence that the oval shaped mud structures shown in the photograph were cooking areas and that such areas can be sited outside the compound was not corroborated by any other witness. There was conflicting evidence on the point. Person 35 agreed that the oval shaped mud structures were cooking ovens of a kind commonly found inside Afghan compounds, but said that he found it strange that you would cook any food in an animal pen. Person 5 did not even know whether the oval shaped mud structures were cooking ovens. Person 29 did not recognise the oval shaped mud structures as cooking ovens. Person 38 gave evidence to similar effect and said that the oval shaped mud structures were latrines and that the area "looks like an external area"; (4) none of the respondents' witnesses said that they recalled seeing the mud structures or the drainage channel that appear in the photograph in the tunnel courtyard area. The applicant submits that the absence of evidence to this effect confirmed that the area depicted in the photograph was not inside the tunnel courtyard.
656 The applicant submits that it would be pure conjecture to conclude that the area shown in the photograph of the body of EKIA56 is the tunnel courtyard based only on the fact that there is cut grass in the area and cut grass in the area adjacent to the tunnel. The applicant submits that, in fact, the evidence of Person 41 who marked "animal stables" on exhibit R92 and said that there was a drainage channel that ran adjacent to a compound wall, although he could not recall its exact location and that there were a couple of small foot pads leading up to those small
