a different part of the compound. Alternatively, the respondents pose the question whether it is accepted that Person 43 was present when the tunnel was discovered, but is lying about seeing people come out of the tunnel. The first part of that last question has, in the sense I have described, been answered by the fact that the applicant has made it clear in his closing written submissions which were filed after the respondents' closing written submissions that he does not challenge that Person 43 was present at or shortly after the time at which the tunnel was discovered.
400 The respondents submit that, especially in circumstances where Person 40's evidence squarely supports that of Person 43 and vice versa, and the applicant did not challenge Person 40's evidence that he was in the vicinity of the tunnel when it was discovered, and the applicant did not challenge any witness' evidence about the tunnel being discovered during the SSE process, the Court should accept Person 43's evidence as summarised above.
401 The respondents' primary submission is that, in light of the lack of direct challenges to the evidence of the above witnesses, the contrary evidence of the applicant's witnesses should be rejected. The respondents further submit that, even considered on its own terms, the evidence of the applicant's witnesses is unpersuasive and ought not to be accepted. I turn to consider the applicant's evidence and that of his witnesses.
402 The applicant gave evidence that at the time he arrived in the tunnel courtyard, Person 29's patrol arrived soon after, although he cannot recall whether all of them were there. He did not remember how the tunnel was found. All he can recall is seeing a couple of the guys "and I don't remember who, move the grass and find the grate". He does not know whether they found it or someone else found it. He said that all he knew was that he remembered seeing someone move the grass and find the grate that was sitting on top of the hole.
403 The applicant said that he had no idea whether or not the compound had been declared secure at the point immediately after the tunnel had been found and, on his account, he was walking outside. He said the SSE process would not have started before the tunnel was cleared.
404 Person 5 said that on the mission to W108 and W109, the troop had two Afghan army members attached to it and it was one of those members who drew his attention to what turned out to be the tunnel. Person 5's evidence of the presence of ANA members or Afghan Partner members was not supported by other witnesses. Person 81 said that the troop did not have any ANA members or Afghan Partner members with it at W108. Person 29 said that an Afghan Partner
