leg of an individual who he thought had been killed contrary to the laws of engagement. Person 41's response to that suggestion was:
Well, I did.
723 Person 41 admitted that he had drunk from the prosthetic leg, but maintained his denial that his account of what he saw was invented. He agreed that he now feels ashamed that he drunk from the prosthetic leg. He said that it was not "exactly appropriate, but in those situations, it was just a bit of black humour, and everyone was all in it together and it was almost like an amusing thing to do".
724 Whilst one might proceed generally on the basis that a person is less likely to drink from the prosthetic leg of a man unlawfully killed than of a man lawfully killed, the problem remains of identifying a reason Person 41 might have fabricated his evidence that he witnessed two unlawful killings. There was some suggestion that Person 41 had not "cut it" at W108, but even if in retrospect he felt some shame in leaving the tunnel area (and he denied it), that falls well short of a motive for fabricating evidence of two executions.
725 The respondents submit that, in the circumstances, there is no basis for finding that Person 41 fabricated his evidence. The respondents submit that, in the circumstances of the culture of the SASR, and especially Person 41's status as a junior trooper at the time, that the fact he drank from the leg does not cast any real doubt over the accuracy of his evidence.
726 Person 41 was asked why he did not tell Person 40 what he had seen. He said:
I just wanted to keep quiet about the whole thing and figured it wasn't my business. And, you know, I was toeing the line, so to speak. I was a new trooper; my very first trip with the SAS, so I didn't – I just wanted to toe the line and it's sort of an unwritten rule is you just go along with whatever happens.
727 As the respondents correctly submit, if anything, the fact that Person 41 had drunk numerous times from the prosthetic leg might be considered an incentive for Person 41 to say that the man had been engaged lawfully rather than unlawfully.
728 The related topic of why Person 41 did not report what he had seen has already been addressed in part in connection with EKIA56 (at [699]). He did not report it to any of his superiors in 2009 whilst on deployment in Afghanistan or upon his return to Australia. He said he may have spoken to other SASR operatives in 2009 about what he had seen. He does not recall speaking to anyone about it after returning to Australia. He was interviewed by the IGADF Inquiry towards the end of 2019. He agreed that he had another meeting with the IGADF in early
