O
SPECIAL COURT FOR SIERRA LEONE
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TRIAL CHAMBER II

SEPARATE AND DISSENTING OPINION OF JUSTICE SEBUTINDE IN THE DECISION ON THE CONFIDENTIAL JOINT DEFENCE MOTION TO DECLARE NULL AND VOID THE TESTIMONY OF WITNESS TF1-023

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde;

SEISED of the Prosecution Request for Leave to Call an Additional Witness Pursuant to Rule 73bis(E), filed on 6 July 2005; (“Motion”);

NOTING the Kanu – Defence Response to Prosecution Request for Leave to Call an Additional Witness Pursuant to Rule 73bis(E), filed on 8 July 2005;

NOTING the Brima – Defence Response to Prosecution Request for Leave to Call an Additional Witness Pursuant to Rule 73bis(E), filed on 11 July 2005;

NOTING the Joint Reply to Kanu and Brima – Defence Response to Prosecution Request for Leave to Call an Additional Witness Pursuant to Rule 73bis(E), filed on 13 July 2005;

HEREBY DECIDES AS FOLLOWS based solely on the written submissions of the parties pursuant to Rule 73(A) of the Rules of Procedure and Evidence of the Special Court (“ Rules”).

1. SUBMISSIONS OF THE PARTIES

Prosecution

1. The Prosecution requests the Trial Chamber to allow the inclusion of an additional witness, Lt. Col. John Petrie, to testify as to the identity of the Accused Brima and Kanu.
2. The Prosecution further requests permission from the Trail Chamber to disclose to the Defence the statement of Lt. Col. John Petrie, pursuant to Rule 66(A)(ii).
3. According to the Prosecution, the witness would prove that the Accused Brima was also known as “Gullit”, and that the Accused Kanu was also known as “55”.
4. The Prosecution submits that the Defence will suffer no unfair prejudice if the witness is allowed to be called, since the issue of identity was raised by the Defence and it must therefore expect that the Prosecution will bring evidence to establish the different names by which the Accused were known.
5. The Prosecution states that it had hoped that the issue of identification could have been resolved in a more expeditious manner than by calling an overseas witness. However, the unanticipated absence of the Accused from the courtroom during the evidence of witnesses who could have identified the Accused has made an in-court identification impossible.
6. Furthermore, the Prosecution submits that the issues of the time which it has known of the proposed evidence and due diligence have little weight when compared with the relevance and materiality of that evidence to facts in issue, the absence of prejudice to the Accused and the overall interests of justice.

Defence - Kanu

7. The Kanu Defence submits that the Prosecution have not established “good cause”, nor that the calling of the additional witness would be “in the interests of justice”, and that the Prosecution Request should therefore be denied.
8. The Kanu Defence points out that the additional witness once worked for the Office of the Prosecution and submits that it is not in the interests of justice to call a witness who is a member of one of the parties to the case.
9. It submits that even if it were to be established that Kanu could be affiliated with the code “55”, this would not be conclusive evidence that Kanu was the “55” who committed certain crimes and held a particular position. Therefore, the Prosecution has failed to show that the circumstances being argued to show good cause are directly related and material to the facts in issue.
10. The Kanu Defence further submits that the fact that Kanu was, amongst others, referred to as “55” is not “new evidence”, since he is referred to as such in the indictment.
11. It is also submitted that the evidence of the proposed witness could have been made available at an earlier point in time and that the Prosecution has not exercised due diligence in bringing it forward.
12. The Kanu Defence maintains that the Prosecution has failed to establish any of the criteria for the calling of additional witnesses established by Trial Chamber 1 in Sesay.[1]

Defence – Brima

13. The Brima Defence associates itself, mutatis mutandi, with the legal arguments and submissions made by the Kanu Defence.

Joint Prosecution Reply

14. The Prosecution argues that the previous employment of the proposed witness does not render him “one of the parties to the case.” Further, the proposed witness is being called in his capacity as a former Commanding Officer of the RSLAF Joint Provost Unit as part of IMATT, and not as a former employee of the Office of the Prosecutor.
15. The Prosecution says that the proposed evidence is relevant because its case is that the code name “55” applied exclusively to Kanu and that Brima is also known as “Gullit”. Given the nature of his evidence, a dock-identification is unnecessary.

2. DELIBERATIONS

GRANTS/ DISMISSISES the Motion.

Done at Freetown this 8th day of June 2005.

[Seal of the Special Court for Sierra Leone]

[1] Prosecutor v. Sesay, Kallon, Gbao, Case No. SCSL -15 – T, Decision on Prosecution Request for Leave to Call an Additional Expert Witness, 10 June 2005.