point, out of the right side of the corner of his eye he noticed the applicant walking along the outside wall of the compound. Person 41 marked the two small buildings and the position of the applicant when he saw him on exhibit R92. The applicant was about five metres away from Person 41. The applicant was walking up and he had another Afghan male by the scruff of his clothing with his left arm. The Afghan male had a dark top. He was being held by the scruff of the clothing, or the equivalent of the shirt collar area around near the shoulder. The applicant had his machine-gun in his right hand, right arm holding it up and "sort of frog marching the Afghan by the scruff of the neck with his left arm". Person 41 gave evidence as to what followed:
… I turned to face RS to see what was happening. He then proceeded to throw the Afghan male down onto the ground. The Afghan male landed on his back. RS then reached down, grabbed him by the shoulder, flipped him over onto his stomach, and then I observed him lower his machine gun and shoot approximately three to five rounds into the back of the Afghan male. After he had done that, he looked up and saw me standing there, and he looked at me and said, "Are we all cool? Are we good?". And I just replied, "Yeah, mate, no worries". I continued to look at him. He then stood up and walked past me and went back into the exit that I had come towards the courtyard.
715 Person 41 identified the Afghan male shot as EKIA57, that is to say, the man with the prosthetic leg. Person 41 then proceeded to the two small buildings which he had previously identified and there he had the conversation with Person 40 which I described earlier in these reasons. He accepted that it is possible that there were other members of the patrol in the vicinity when he was searching the two small buildings.
716 The respondents submit that there is no reason to doubt the honesty of Person 41, nor the substance of his evidence. The respondents submit that there were a number of failures to comply with the principles in Browne v Dunn in relation to the cross-examination of Person 41 which mean that the Court is in the unsatisfactory position of it having been put to Person 41 that his account is false, but without the applicant putting to Person 41 what he (the applicant) contends are the true facts. The respondents submit that, in any event, the grounds that the applicant advances in support of a finding that the evidence of Person 41 should not be accepted are without substance.
717 The applicant put to Person 41 that his account of the applicant executing EKIA57 was not correct, although it was not suggested to him that he was not in the vicinity of the two small buildings he had previously identified at or about the time the applicant shot EKIA57. The
