by Person 31. The exercise involved an assault on a mud brick compound in an Afghan village and the assault involved an initial assault or "fight through". The patrols paused at that point to discuss what would be done by way of SSE and reorganisation. The soldiers present were the applicant and Persons 4, 11, 19 and 10, and Person 31 and two members of his patrol, Persons 35 and 56. The applicant and Person 31 were standing and the other soldiers were sitting in a semi-circle on the ground in a courtyard of the mud brick compound.
919 During the discussion, the applicant said words to the effect that "any unmanned aerial vehicles would be pushed off station so they weren't observing the target area" and "you will shoot the bad cunts". The applicant also said that officers would be kept outside the compound until they were ready to receive them and "that's when any people that we suspect of being enemy combatants, we take them into a room and shoot the cunts".
920 During the discussion, either the applicant or Person 35 also said words to the effect that "if someone has been shot you can put a weapon that you carried into target down and photograph them so that they would be deemed an enemy combatant".
921 The applicant submits that this evidence of Person 19 should not be accepted for the following reasons.
922 First, he submits that neither of the other two witnesses called by the respondents who were said by Person 19 to be present, that is, Persons 31 and 56, corroborated Person 19's evidence. Person 31 said that he had no recollection of anything the applicant said. The point goes no further than that. In the case of Person 56, he was not asked by the respondents to provide his recollection of the event and the applicant submits that I should conclude from this that his evidence would not have assisted the respondents. The respondents submit that the fact Person 56 was not asked about the conversation is explained by his objection on the basis of self-incrimination to a question about whether he or any other member of the applicant's patrol carried throwdowns in 2012. I upheld Person 56's objection and I decided not to require him to give the evidence under's 128(4) of the Evidence Act. I refuse to draw an adverse inference against the respondents in those circumstances.
923 Secondly, the applicant submits that the Court must bear in mind the observations of McLelland CJ in Eq in Watson v Foxman at 319 which is set out above concerning the fallibility of human memory. I accept that and do bear in mind those observations. At the same time, I note that one aspect (and only one aspect) contributing to the fallibility — perceptions of self-
