759 Fourthly, the applicant submits that Person 14 was not truthful about his contact with other SASR soldiers during the period he was giving evidence. During the evening of the first day of his evidence he was contacted by Person 24 who gave him a "welfare call". Person 24 said in his evidence that he wanted to know from Person 14 how he was going. That would have been on the evening of 4 February 2022. The fourth of February was a Friday. On Monday, 7 February 2022 when Person 14's cross-examination resumed, he was asked whether he received any telephone calls over the weekend. He said (relevantly) that he had only spoken to his wife and he could not recall speaking to anyone else. The applicant's submission is that Person 14 was not simply a poor historian, but deliberately chose to conceal the fact of his communication with Person 24 over the weekend.
760 All of these matters must be taken into account in assessing Person 14's honesty and reliability. I note that none of the four matters just mentioned relate directly to Person 14's account of events at W108.
761 In addition to these matters, the applicant submits that the following aspects of Person 14's evidence were inherently improbable and not corroborated by any other witness: (1) that Person 14 could recall, unaided, the camouflage paint worn by members of Person 5's patrol during the W108 mission; (2) that his entire patrol, including Person 6, witnessed the alleged execution. This was not corroborated by Person 24 who said that the only other operator he could see at the time was Person 14. The applicant submits that if it were true, then the failure by Person 6 or other members of the patrol to report the alleged execution with the chain of command is "inexplicable".
762 The fact that a witness claims to remember a minor detail from many years ago is a matter to take into account, but no more than that. Person 14 gave evidence that Person 6 saw the execution and he did not report it. That is a matter to take into account, together with the fact that on the respondents' case, Persons 41, 14 and 24 also did not report it. It seems to me that despite Person 14's general statement, it is not possible to make a clear finding as to how many members of Person 6's patrol witnessed the events described by Persons 14 and 24.
763 The applicant also points out that Person 14's evidence that he saw two other soldiers in close proximity to the applicant at the time of the alleged execution was not corroborated by any other witness. That is true, although it may be that Person 14 saw Person 41 and perhaps Person 40 who were in the general vicinity.
