302 One of the matters various witnesses were asked to mark on the aerial photographs (assuming they were in a position to do so) was the location of Person 6's patrol at the time of the assault and clearance of W108 and for a period thereafter. I turn to that issue.
The Location of Person 6's Patrol during the Assault and Clearance of W108 and thereafter
303 During the course of the evidence at the trial, it seemed there was a difference between the respondents' witnesses and the applicant and some of his witnesses as to the location of Person 6's patrol and, in particular, Persons 14 and 24 while Person 6's patrol was performing cordon duties outside W108. A related issue also bearing on the location of Person 6's patrol was the location of Person 14 and EKIA50 at the time Person 14 engaged him.
304 The applicant marked the location of Person 6's patrol in the shape of an arc or semi-circle at the southern end of the compound (exhibit R4). By contrast, Persons 14 and 24 marked their location as members of Person 6's patrol much further to the north and in a similar general area (exhibits R98, R141 and A130). There are some differences between the location that Person 14 identified and that identified by Person 24 in terms of their distance to the north and out from the compound wall, but for present purposes, I do not consider these differences to be material. The material difference is between the evidence adduced by the respondents and the evidence adduced by the applicant.
305 The applicant's closing written submissions in relation to W108 include a heading of "C. Facts Not in Dispute" and then a subheading of "Location of Person 6's patrol in the cordon". Under that subheading, there is no mention of the applicant's evidence or that of his witnesses as to the position of Person 6's patrol, including Persons 14 and 24. The applicant submits that the evidence of Persons 14 and 24 is at best unreliable and that it is likely they were positioned somewhere between the respective positions which the two identified. In other words, the applicant appears to place no reliance on his own evidence and the evidence of some of his witnesses as to the location of Person 6's patrol.
306 However, it is necessary to consider the evidence because the respondents contend that the applicant and his witnesses colluded about the entry point of the assault or clearance patrols. They submit that the entry point has little significance in itself; its significance in this case is the extent to which it, in turn, suggests the likely position of Person 6's patrol acting as a cordon. The respondents also contend that the applicant lied about the location of Person 6's patrol being on the southern side of W108 and that this is not only relevant to the applicant's credit, but is also evidence of a consciousness of guilt.
