submit that there would need to have been collusion because there can be no credible suggestion of innocent fabrication on the part of Person 41. Absent collusion, there is no explanation for how Person 41 could have concocted a story that matches the evidence of other witnesses.
733 I will address the evidence of Persons 14 and 24 shortly. The point to note at this stage is that there is no evidence of collusion between Person 41 on the one hand, and Persons 14 and 24 on the other, and the latter's evidence does support Person 41's account.
734 Person 40 saw two men come out of the tunnel. He saw them being marched off by the applicant and Person 35. He took up a position on the north-western side of the compound which he described as a defensive posture. He said that he was waiting for the next command. He heard a burst of machine-gun fire from an LSW or F89. He was facing out and the sound came from the right. It was quite close. He estimated "maybe 30 metres, thereabouts". There was initial confusion on the radio with people saying "What was that? Where did that come from?". On the way out of the compound, he saw the dead body of the man with the prosthetic leg and he marked the location of the body on exhibit R137.
735 Person 40 estimated that 20 to 25 minutes elapsed between when he saw the PUCs being marched off by the applicant and Person 35 and when he heard the machine-gun fire.
736 There was no challenge in cross-examination to this part of Person 40's evidence. The respondents accept that, in and of itself, Person 40's evidence is consistent with both the respondents' case and the applicant's case. However, that is the case only to a point. Person 40 only gave evidence that he heard a burst of machine-gun fire and he did not give evidence of hearing either suppressed or unsuppressed fire from an M4 rifle. On the assumption that on the applicant's account Person 4 was the second shooter, then the evidence is his weapon would have been unsuppressed. Person 18 said that Person 4 was carrying an M4 rifle. He said that in 2009, 2 Squadron's standard operating procedure for carrying suppressors was not to have them on all the time. They were still using the basis of reconnaissance whereby the suppressor was left off during the day and was only attached to the weapon at night (see closed Court exhibit R135). Even if the weapon was suppressed, the evidence is that a distinctive audio noise is still made. Person 18 referred to the sound being like a "whip crack". Person 14 described the sound of an M4 rifle suppressed as "Pffft, Pffft, pffft, pfft". Person 41 accepted that even with a suppressor on it, an M4 rifle still makes a loud noise. It is clear that even an
