prosthetic leg. As he was coming out of the tunnel, he was lifting his trouser leg and pointing to the prosthetic leg "expecting some sort of sympathy". Person 40 described the insurgent with the prosthetic leg as an older sort of man with a beard and no shoes. He said that he did not recall anything significant about the second insurgent:
You know, beard. Baldish.
439 Person 40 said that the two insurgents were searched and then marched off to another area by the applicant and Person 35.
440 The insurgent with the prosthetic leg did not have the prosthetic leg taken off and searched. The two insurgents were marched off by the applicant and Person 35 who were behind the insurgents. Person 35 was behind the insurgent with his hands on the scruff of his neck. The applicant was controlling the other insurgent either by holding his shoulder or the scruff of his neck. Person 40 considered that what was happening was that the insurgents were led to an area for the conduct of tactical questioning. Person 40 could not recall whether the insurgents were handcuffed, but he said that it would have been standard practice for them to have been handcuffed.
441 The respondents submit that it is important to consider the nature of the applicant's challenge to Person 40's evidence. Person 40 said that he was moving back and forth between the tunnel area and an area within the northern half of the compound which he marked on exhibit R137. He was not challenged on that evidence and, therefore (so the respondents contend), he was not challenged on his evidence that he was in a position to see whether or not men emerged from the tunnel. It was put to Person 40 that he did not have an actual recollection of two men coming out of the tunnel and that he had come to think that he saw something on that day because somebody had told him that the applicant had pulled the trigger that killed the insurgent with the prosthetic leg. It was put to him that he had come to think that he saw something on that day and that he had convinced himself that he saw something on that day that is relevant to the rumour that was circulating. The rumour is what somebody had told him.
442 The respondents submit that the theory put to Person 40 in cross-examination cannot be correct. They submit that there is nothing in Person 40's evidence to suggest that his memory is unreliable and he made appropriate concessions in terms of the matters he could remember and those matters he could not. When challenged in cross-examination about the strength of his recollection of events at W108, he said:
