247 In addition to these questions, in the course of a long and detailed cross-examination, Person 4 was asked questions to the following effect:
- (1) how many kills within the rules of engagement he had in 2009;
- (2) whether he had the right to refuse to carry out an unlawful order;
- (3) whether he, Person 5 and Person 6 had killed Objective Depth-Charger;
- (4) what his patrol was tasked with doing on 12 April 2009;
- (5) what was the scheme of manoeuvre for 12 April 2009;
- (6) whether his patrol entered W108;
- (7) whether he saw a fighting age male in the compound; and
- (8) whether he observed a tunnel;
He objected to answering these questions on the basis of self-incrimination. I did not require him to give the evidence.
248 In the circumstances, I decline to draw an adverse inference that Person 4's evidence would not have assisted the respondents' case from the respondents' failure to ask Person 4 what Person 5 called him in 2009. Even if this be wrong, the relevant inference is that it would not assist a party's case, not that it would damage the case. Furthermore, the rule does not compel the rejection of the evidence of the party said to have failed to have called a witness, or ask a question of a witness, or the drawing of an inference in favour of that party.
249 I find that in 2009, Person 4 was referred to as the "rookie" or the "rookie fuck" within Person 5's patrol and by other members of the troop.
250 The next question is whether in the weeks leading up to the mission to W108, Person 5 said that he was going to "blood the rookie".
251 Person 14 said in his evidence that in the period leading up to the mission, he heard Person 5 say in a troop or group setting in Tarin Kowt that he was going to "blood the rookie" which Person 14 understood to be a reference to Person 4 and to Person 4 getting a kill in action. The applicant was present in the room on the occasion. However, Person 14 made it clear that Person 5 was not addressing the room. He said that, to his recollection, Person 5 was speaking to Persons 3 and 24 and himself. Counsel for the applicant elicited from Person 14 in cross-examination that the applicant was not within earshot when Person 5 said that he was going to "blood the rookie".
