809 As the troop left W108, two matters of significance occurred. Person 43 said that as they were walking off and getting ready to walk off W108, he had the conversation he related which is referred to earlier, with Person 40, and Person 40 gave evidence that he saw the body of EKIA57 as they were walking off target and he recognised that man on the day as the man who came out of the tunnel.
810 Person 14 said that he went and inspected the object which looked like a human body and he confirmed that it was a human body. He noticed the prosthetic leg. He had observed Person 18 clearing the body. Person 18 described the body as a man lying on his back. He had a shaved head, a bit of a beard, dark Afghan robes or dress. He had a prosthetic leg. He had blood generally concentrated around the upper torso, upper body and centre and some blood that was kind of coming out of the nose and the mouth. He identified the body as the EKIA shown as the man with prosthetic leg, that is to say, EKIA57.
811 No witness gave evidence of seeing the body of EKIA56 outside of W108 as they departed.
812 In addition to evidence that in the post-mission discussion and reporting there was discussion about Person 4 having had an engagement, it is important to note there was evidence that shortly after the mission it was reported that there had been two men found in the tunnel who had been shot. There is evidence given in closed Court which is relevant in this respect. I refer to the closed Court reasons (at [67]).
813 The respondents submit that the initial reporting relating to the W108 mission did not include any reference to the engagement of EKIA56 and EKIA57 or the circumstances of the engagements (refer to A7 and A8 of the respondents' closed Court submissions). The first description of the circumstances of the engagement of those men was contained in the Patrol Debrief (see closed Court exhibit A10 Tab 5) which contained the now admittedly (so the respondents contend) false account that they were "squirters". The respondents submit that the lack of any contemporaneous support for the account that the applicant now advances, supports the conclusion that that account is a recent invention, and false.
814 There is no dispute between the parties that Person 6 removed the prosthetic leg of EKIA57 from W108. There is no dispute that the prosthetic leg was used as a drinking vessel in the Fat Lady's Arms in Tarin Kowt. It was brought to Australia, although the evidence does not establish who brought the leg to Australia. The applicant did not himself drink from the prosthetic leg. He has cheered on other soldiers as they have drunk from the prosthetic leg and
