of Persons 29 and 35 is diminished because when the outlines of evidence were prepared in 2019, the applicant was not on notice that the timing of the discovery of the tunnel would be in issue, nor was he on notice that the respondents would allege that EKIA56 and EKIA57 were PUCs who had been found hiding in a tunnel in a courtyard at W108. The respondents' answer to that submission is that there is no evidence that the difference between the clearance process and the SSE process was then considered a minor or trivial detail. In my opinion, the inconsistency between outline and oral evidence in the case of Persons 29 and 35 is not an inadvertent slip by either witness and it is a matter to be taken into account in the assessment of both witnesses.
416 Person 38 was a member of Person 29's patrol. He gave evidence towards the end of the applicant's case in reply on substantial truth and contextual truth. He denied that the compound was declared secure before the tunnel was found, but I reject that evidence. This is a convenient point at which to deal with a significant matter which arose in the course of Person 38's evidence and which means that I do not accept him as an honest and reliable witness. In one important respect, Person 38's evidence was different from the evidence of every other witness who gave evidence in relation to the events at W108. He introduced an entirely new matter. His evidence as to what he did immediately after Person 35 had reappeared from the tunnel and advised those on the surface that it was clear, was as follows:
And what did you do after that?---I then pushed – I pushed forward from that compound and passed the area that I've marked E [the area in which the tunnel was found], and in the thick foliage area there that is, I guess, past that last line that I – I've drawn, there was an orchard area, and I asked Person 40 to assist me with that clearance. He – he declined, because he – he stated that his rifle was too long. He had an SR-25 sniper rifle. And then Person – hang on. Where are we at? Person 41 joined me, and we cleared the orchard area to the – as the cardinal point image on this map indicates, it would be an orchard to the northeast of the compound.
Are you able to indicate the route that you took from the position you've marked D to the area which you've referred to as the orchard that you went to clear, and mark with the letter F the orchard area on MFIA240.
MR OWENS: Can I just make a formal objection on Browne v Dunn grounds.
417 The orchard area marked on exhibit A240 by Person 38 was to the northeast of the compound next to the courtyard area in which the tunnel was found. Person 41 gave eyewitness evidence in this case of the execution of EKIA56 by Person 4 at the applicant's direction and it is very difficult, if not impossible, to see how Person 41 could have witnessed the events he said that he did if Person 38's account that he and Person 41 were clearing the orchard is correct.
