512 On Wednesday, 1 June 2022, Person 81 gave the following evidence in the course of his evidence-in-chief:
Are you able to recall in terms of the area that you moved into after the Whisky 108 compound was called secure whether you saw any Afghan fighting-aged males in the Whisky 108 compound?---I did see people in Whisky 108, yes. As to their actual description, I would say I couldn’t give you an accurate picture, but there was people inside the compound, yes.
Are you able to recall whether you saw any Afghan women in the compound?---Yes, one of the memories I do have is a lady sweeping.
513 On the following day, Person 81 gave this evidence in the course of his cross-examination:
Now, did I understand your evidence correctly yesterday that you do have a recollection of seeing fighting-age males as you moved through the compound?---That is correct.
And may we take it again that you don’t have a recollection of where in the compound you saw fighting-age males?---That is also correct.
514 A little later, Person 81 gave the following evidence:
But are you able to say that there were men and – local men and women present?---There was. Yes.
515 The applicant submits that the first question put to Person 81 in cross-examination as set out above did not summarise accurately his evidence from the previous day. Whether that be so or not, the fact is that Person 81 listened carefully to the questions he was asked and he answered quite clearly that he had a recollection of seeing fighting age males as he moved through the compound and I do not consider that he was misled at the time.
516 The respondents submit that the evidence of Persons 5, 29, 35 and 38 about how Person 35 cleared the tunnel does not contradict the evidence of the respondents' witnesses in that it may be that Person 35 entered the tunnel and cleared it in the manner described after the two men had already come out of the tunnel compliantly as described by the respondents' witnesses. It may also be the case that Person 29 covered him for this initial clearance. However, the respondents submit that evidence that Person 29 was the one assisting Person 35 when he exploited the tunnel — as opposed to the initial clearance which was completed in a matter of minutes — and was receiving items "ferried out of" the tunnel should not be accepted.
517 It was not put to Person 18 that it was Person 29 performing the task and not him and, furthermore, the performance of such a task is inconsistent with the role of a patrol commander who, as the respondents submit, has the role of planning and commanding and not the carrying
