Person 40 recalled two men coming out of the tunnel, one had a distinctive limp and he was lifting his trouser, pointing to the prosthetic leg, expecting some sort of sympathy from the troops. He further described that man as an older sort of man with a beard and no shoes. He did not recall anything significant about the other man other than that he had a beard and was baldish. Person 42, on the other hand, said he recalled at least two, but there potentially could have been three, men come out of the tunnel. He could not remember anything specific about the physical appearance of the people that came out of the tunnel other than that they were Afghan males.
490 Fourthly, the respondents' relevant witnesses recalled the men coming out of the tunnel being PUC'd. I have already referred to the evidence of Person 43. Person 42 said that it was normal practice to handcuff individuals. Person 40 said that he saw the PUCs being searched and then marched off to another area. The respondents submit that that is consistent with the evidence of both Person 42 and Person 43 who each recalled passing the PUC that they assisted with to other SASR operators who took them away. Person 40 recalled that the two insurgents were marched off by the applicant and Person 35. Person 43 said that the insurgent he was involved with was handed over to the tactical questioning team which was Person 5's patrol. Person 42 said that, as to the individual he searched, he could not recall to whom he passed on the individual. Person 41 gave a description of the Afghan male that he saw squatting down just near the tunnel entrance which was consistent with the evidence of Person 43. He referred to the Afghan male as an older male dressed in traditional Afghan loose top and clothing, either white or very light in colour, short cropped hair. Person 18's description of what he saw when entering the tunnel in the courtyard area concerning the group of two to three soldiers with a person in white who had flexi cuffs on his wrists is also consistent with the accounts of other witnesses.
491 Person 81 was asked about this topic. He said that he was not informed as to whether there were any Afghan fighting age males found in the tunnel. He did not see any Afghan fighting age males come out of the tunnel. Person 81 said that he had a recollection of seeing fighting age males as he moved through the compound, but he did not have a recollection as to where they were in the compound. He then gave the following evidence:
Now, when you – I accept that you don't have a crystal clear recollection. But when you think that you may have gone to see the tunnel entrance, are you able to say one way or another whether there would have been any local nationals at all in that area where the tunnel was when you went to see it? --- The exact position of the local nationals: I couldn't give firm details of it. But, you know, it wasn't a large area that
