390 Person 41 did not say whether the tunnel was discovered before the compound had been declared secure or in the course of the SSE process. However, the respondents submit that his evidence is consistent with the conclusion that the tunnel was discovered during the SSE process. They point to the following matters. Person 41 said that when he went to the courtyard area, the applicant, Persons 4, 5, 35 and 29 were there. He had "a bit of a look around" and there did not appear to be too much there. At that point, someone, and he believes it was either Person 29 or Person 35, discovered a tunnel entrance. He said that Person 29 started yelling down the tunnel and that this went on for a short time. Person 41 decided that there was not much there and he left the tunnel area and went to look at two rooms which were to the northwest of the courtyard area. He saw batteries, wires, wood, hacksaw blades and concluded that the Afghan nationals must have been making Improvised Explosive Devices (IEDs) in that room. He also observed a black sticky substance which he later discovered was opium.
391 Person 41 was cross-examined on the basis that his evidence about the discovery of the tunnel and then leaving to search the two rooms he described was correct.
392 It was suggested to Person 41 in cross-examination by counsel for the applicant that he left the area of the tunnel and did not protect the back of Persons 29 and 35 because he was scared to go down into the tunnel. The following question was put to him:
See, is this the case, that you've been lying to yourself about what happened that day in order to cover up for the fact that you were scared and walked away from backing up Persons 29 and 35?---No. That's incorrect.
393 The "backing up" referred to by the applicant's counsel in this passage is a reference to the proposition put to Person 41 that after the tunnel had been discovered, Person 41 left and did not cover the back of either Person 29 or Person 35.
394 Person 42 was also a member of Person 29's patrol. Person 42 said that the tunnel in the courtyard was not found "on the initial assault", but that there were some women in the area making a noise and indicating that there was something else within the courtyard. A more thorough search was done and the tunnel entrance was exposed. Person 42 has a recollection of Persons 35 and 38 being present when the tunnel was found. He could not recall which other members of his patrol were still present at that point.
395 It was put to Person 42 in cross-examination that he was not present when the tunnel was discovered. He denied that. As the respondents point out, the place where he was said to be, on the applicant's case, was never put to him. It was not put to Person 42 that he was back in
