433 I find that the tunnel in the courtyard area in W108 was discovered after the compound had been declared secure.
Were Afghan Men Found in the Tunnel?
434 The next factual issue is whether two men came out of the tunnel at W108. This is a critical issue in the case. In addition to the evidence of eyewitnesses, the respondents rely on the evidence of Persons 14 and 24 even though they were at all times outside the compound. The respondents submit that if the evidence of Persons 14 and 24 is accepted as to what happened outside the compound, then that makes it more likely that men were found in the tunnel. At the same time, the respondents submit that if men were found in the tunnel, then it is more likely that the evidence of Persons 14 and 24 is correct. As general propositions, those submissions are correct.
435 Three of the respondents' witnesses — Persons 40, 42 and 43 — gave evidence that they saw men come out of the tunnel. Two of the respondents' witnesses — Persons 18 and 41 — saw fighting age males under guard in the courtyard when they went into the courtyard not long after the tunnel's discovery. The evidence of the applicant's witnesses was that there were no men in the tunnel.
436 Person 40 said that there were two women in the tunnel area and they and the interpreter were doing callouts, that is to say, calling the insurgents to come out of the tunnel. The interpreter was speaking Farsi or an Afghan dialect. Under cross-examination, it became apparent that Person 40's recollection as to the language spoken by the interpreter was poor other than that he was using an Afghan dialect. Person 40 agreed that he could neither speak nor understand Farsi. He agreed that it was possible that the interpreter was speaking Pashto. Person 40 said that Person 35 was instrumental in persuading the individuals to come out of the tunnel and that:
There was a lot of talk. There was a lot of yelling, shouting, assurance. "Come out. You will not be harmed".
437 Person 40's evidence was to the effect that the person who spoke to the interpreter said words to the following effect:
"Come out, you will be safe. You're not going to be harmed. We want to talk to you".
438 There were two insurgents in the tunnel and when they came out they were "obviously very frightened". One of the insurgents had a distinctive limp and that was the insurgent with the
