was told by Person 35 that he had looked for another exit and did not find one. He was told that a couple of years before he gave evidence. He said that he had always thought that the two insurgents had come from the tunnel until a couple of years ago in July 2019, "probably after IGADF".
856 Person 29 agreed that he had discussed with Person 35 and possibly Person 5, a theory that the tunnel at W108 had a second exit.
857 It is difficult to understand how anyone could entertain the notion that the tunnel had a second exit. It seems clear that it did not and that no-one who had been inside the tunnel could ever have contemplated the possibility that it did. Person 35 agreed that there was no other exit to the tunnel and in answer to a question suggesting it would be obvious if there was one, he said he believed he would have found an exit in his search.
858 Person 5's account that whilst he was at the Commanders' RV meeting he heard gunshots outside the compound towards the north-western corner and that he ran out of the compound on the western side towards where the gunshots were coming from, that he had a conversation with the applicant and that he then went back to the Commanders' RV meeting, was not put to Person 43 and was contradicted by Person 29 and not supported by Person 81. An aspect of Person 5's account was that when he returned to the Commanders' RV meeting, he informed Person 81 that "there would be two KIA on the northwest corner of the compound". Person 43 was a patrol commander. It was not put to him by the applicant in the course of Person 43's cross-examination that there had been shots and that Person 5 had left the Commanders' RV meeting and returned a short time afterwards and advised Person 81 (on the basis that he was within hearing distance) of two KIAs in the vicinity of the north-western corner of the compound. This is a breach of the rule in Browne v Dunn and is to be accorded weight (Roberts-Smith v Fairfax Media Publications Pty Limited (No 36) [2022] FCA 578 at [16]).
859 To recapitulate on some of the irreconcilable differences between the evidence of Person 5 and that of the applicant: Person 5's account supports the conclusion that the applicant and Person 4 were outside the north-western corner of the compound in the presence of bodies for a considerable period of time. The lengthy presence of the applicant and Person 4 in the vicinity of the bodies of the insurgents allegedly engaged makes it very difficult to accept the applicant's evidence that he returned immediately into the compound after the engagements and did not know the identity of the SASR operator who shot the second insurgent (i.e., EKIA56). In addition, Person 5's evidence that upon his return from the reconnaissance of
