imagery that he has seen prior to giving evidence in these proceedings. The Court should place no weight on Person 41's description of the appearance of EKIA56 and EKIA57.
702 In my opinion, Person 41's identification evidence, although I consider that it was given in good faith, must, for the reasons given by the applicant, be approached with considerable caution.
703 Person 43 identified the Afghan male shown in the photographs comprising exhibit R6 as the man he pulled out of the tunnel. He explained the notations on the evidence bag as follows. The "56" was used to identify who had taken or filled that bag and the number underneath, "108" was the target building. The description underneath is where the Afghan male was found, that is to say, the northwest corner tunnel. I have already referred to Person 43's evidence of his conversation with Person 40 about the PUCs and of Person 41's conversation with Person 40 about the PUCs. Person 43 said that the photographs did not "particularly" refresh his memory because he could recall the details shown in the photographs. In other words, he recalled the face of the person in the photographs.
704 Before moving to the respondents' case with respect to the execution of EKIA57, it is necessary to identify the respondents' case with respect to the involvement of Person 5 in the execution of EKIA56.
705 There is no direct evidence of Person 5's actions prior to the execution of EKIA56. The respondents submit that Person 5's involvement is established by circumstantial evidence. They submit that the fact that Person 5 ordered or directed the murder of EKIA56 by Person 4 is the most probable inference on all of the evidence and they rely on the following matters:
- (1) The evidence given by Person 24 about hearing Person 5 call Person 4 into the compound;
- (2) Person 5's statement before the mission of his intention to "blood the rookie" (i.e., Person 4);
- (3) A conversation between Person 5 and the applicant overheard by Person 18 during which the following was said:
Person 5: "You've just done this while the ISR is still flying above and may have recorded you?".
The applicant: "We need to find out if the ISR was still above us:.
