I would have gone through in that compound, so wherever that troop [commanders'] RV was is likely to where I have seen - - -
And - - -? – ---those persons.
492 Person 81 also agreed that he is unable to say one way or another whether there were people in the tunnel. All he could say was that he did not see any people come out of the tunnel. The respondents' submission is that Person 81's recollection of seeing fighting age males in the area near the Commanders' RV is as highly corroborative of the fact that men were found in the tunnel. I would not put the matter that highly. Person 81's evidence does not rule out a finding that two Afghan males were taken from the tunnel. Person 81's evidence about whether there were Afghan women present shortly after he entered the compound was as follows:
Okay. Now, I also want to put to you – and it may be that you just can't say. But at the point in time just before the commanders' RV, there were some Afghan women nearby, some of whom were quite agitated. Are you able to say one way or another whether you recall that?---I don't recall anything significant, but that is reasonably typical that they would be agitated as we enter the compound. So - - -
And, to be clear, I wish to suggest that their agitation suggested that they were concerned about people or something being hidden in the vicinity?---I don't recall.
493 I accept the submission made by the respondents that, although the documentary evidence found in the tunnel relating to EKIA57 (that is, the Afghan male with the prosthetic leg) does not prove that he himself was present in the tunnel at any particular point in time, it does establish a connection between that man and the tunnel, and strongly suggests that he used the tunnel and had been present in it. The identity documents are exhibit R193 and they relate to a man named Ahmadullah who was a right leg amputee and had a right below knee prosthesis. Furthermore, the connection between EKIA57 and the documents in the tunnel was made at the time. The Exploitation Management Data Card, Op Harpoon – COI W0108 (exhibit R17), contains the following note:
Info obtained from FE-TSE of KIA 57. NE Corner W108. 5 metres from doorway. Had prosthetic leg. Documents likely related to KIA 57 recovered from tunnel complex, in the name of "Ahmadullah". Photographed on target.
494 I turn now to address the evidence adduced by the applicant concerning the discovery of the tunnel at W108 and whether there were men in the tunnel.
495 The applicant said that he did not see any fighting age males in W108 on 12 April 2009.
496 The applicant said that the tunnel was discovered and Person 35 was chosen to go into the tunnel because he is very short in stature. The applicant did not go into the tunnel at that point. Other team members, possibly Person 18, were supporting Person 35 while he was in the tunnel
