821 There are aspects of the applicant's account of the engagements at W108 which are improbable. They vary in significance and it is a matter of standing back and assessing the sequence of events as a whole.
822 First, the reason the applicant gave for leaving the compound is difficult to accept at face value. His explanation in cross-examination was that he could not go into rooms in the compound with the Minimi machine-gun because it was not suitable for room combat and so while people were standing around the courtyard, he was going to push to the north-western corner and "hold a security position". In other words, he was going to provide security in the area so that he was not simply standing around and not doing anything. He went alone, it seems, without taking anyone else with him.
823 Secondly, it does seem unlikely, although not impossible, that two insurgents would appear so close to the compound at almost the precise instance the applicant walked out. The applicant said in his evidence that the insurgents appeared in a matter of three seconds. Person 6's patrol was performing cordon duties in the area identified by Persons 14 and 24 and it is unlikely that two insurgents would appear from the direction which was the threat area as far as the cordon was concerned. That would have involved a serious failure of the cordon and it is reasonable to expect that had it occurred, it would have been the subject of comment on the ground or in the post-mission reporting, or both.
824 Thirdly, I have great difficulty accepting the applicant's evidence that he does not know the identity of the SASR operator who engaged EKIA56. More accurately, I do not accept that had the engagements occurred as he described, he would not know the identity of the soldier who engaged and killed EKIA56. For convenience, I repeat some evidence of the applicant in cross-examination previously set out:
Yourself and one other unknown soldier; is that what you mean?---Well, clearly, someone else had engaged, so I was being supported.
And there were lots of people in the – well, you don't remember who that was, do you?---No, I don't.
No. This is a person who, on your account, saved your life?---Yes.
And you have no recollection whatsoever of who that person was?---That's correct.
825 Earlier in his cross-examination, the applicant had said that he assumed the person who had engaged EKIA56 was either Person 18 or Person 4, "but I actually don't know". It would appear that he never asked either of them whether they were the SASR operator who engaged
