during the mission at W108 and that he did not hear any engagements with belt-fed automatic weapons, his presence in the danger area is inconsistent with the applicant's account. It is not possible to reconcile both accounts and one or both are wrong.
Key Findings and Conclusions
863 On 23 April 2021, I granted leave to the respondents to issue Subpoenas to give evidence to Persons 40, 41, 42 and 43. None of those witnesses had provided outlines of evidence. Leave was granted to the respondents to issue subpoenas almost two years after the respondents had filed their outlines of evidence on 31 May 2019. There was no mention in 2019 of Persons 40, 41, 42 or 43. The circumstances in which the respondents became aware that these persons may be able to provide information relevant to events at W108, and decided to seek leave to subpoena them, are set out in Roberts-Smith (No 12).
864 Each of those persons came to Court and gave evidence which supports a conclusion that one or more Afghan males were taken from the tunnel at W108. Person 41's evidence goes further, but I put that to one side for present purposes. No plausible motive for lying was identified in the case of these witnesses and nor was there any evidence to suggest that they had colluded to present a false account. There were other criticisms of their evidence which I have addressed, but there was no evidence of a plausible motive to lie or collusion. These witnesses were independent, had no interest in the result and were aware of the significance of giving evidence. Furthermore, they were in a position to observe the events about which they gave evidence. The combined effect of their evidence is, without more, powerful.
865 Person 18 also gave evidence which suggests that at least one Afghan male was found in the tunnel.
866 The respondents' case involves a sequence of events and in the same way as an earlier event may make a later event more or less probable, as the case may be, a later event may bear on the probability or otherwise of an earlier event.
867 In this case, there is nothing in the later events that suggest to me that the apparently straightforward and honest evidence of Persons 40, 42, 43 and 18 about one or more Afghan males coming out of the tunnel should not be accepted.
868 Person 41 gave evidence of witnessing the execution of EKIA56 in the courtyard by Person 4 at the direction of the applicant. Again, he was a witness who was independent and had no interest in the result. He was aware of the significance of his evidence and in a position to
