TRIAL CHAMBER I

Public Document

DECISION ON PROSECUTION NOTICE PURSUANT TO RULE 92bis
TO ADMIT INFORMATION INTO EVIDENCE

TRIAL CHAMBER I (“Trial Chamber I”) of the Special Court for Sierra Leone (“Special Court”) composed of Hon. Justice Bankole Thompson, Presiding Judge, Hon. Justice Pierre Boutet, and Hon. Justice Benjamin Mutanga Itoe;

SEIZED of the Prosecution Notice Pursuant to Rule 92bis to Admit Information into Evidence filed by the Office of the Prosecutor (“Prosecution”) on the 30th of May 2006 which seeks to admit portions of a series of documents into evidence (“Application”);

NOTING the Prosecution Corrigendum to Prosecution Notice Pursuant to Rule 92bis to Admit Information into Evidence filed by the Prosecution on the 25th of July 2006 which contains the authentic version of the report of the non-governmental organisation No Peace Without Justice Conflict Mapping Programme entitled “Conflict Mapping in Sierra Leone: Violations of International Humanitarian Law from 1991 to 2002”;

NOTING the Sesay and Gbao Joint Response to Prosecution Notice Pursuant to Rule 92bis to Admit Information in Evidence filed by Counsel for the Accused Issa Hassan Sesay and Augustine Gbao (“Defence”) on the 5th of June 2006 (“Response”);

CONSIDERING that Defence object to the admission of the documents on the following grounds:

• Information admitted pursuant to Rule 92bis must be connected with “identifiable witnesses who could otherwise be called” who are required to be able to confirm the reliability of the evidence;[1]
• Since this issue has not been argued before, none of this Court’s jurisprudence on Rule 92bis should be followed;[2]
• Documentary evidence should be admitted under Rule 89(C) and not Rule 92bis;[3]
• The five-day time limit to file an objection under Rule 92bis is inadequate given the volume of material and if its primary argument is rejected, the Defence request a reasonable period of time to be granted in order to allow them to consider their position on the admissibility of the evidence before any final decision on admissibility is made;[4]

MINDFUL of the Trial Chamber’s Consequential Order Regarding Decision On Prosecution’s Motion for Judicial Notice and Admission of Evidence in this case in which the Trial Chamber took judicial notice of the existence and authenticity of some documents and judicial notice of the existence, authenticity and contents of some others[5];

MINDFUL of the provisions of Rule 89 and Rule 92bis of the Rules of Procedure and Evidence (“Rules”) which read as follows:

Rule 89: General Provisions (amended 7 March 2003)

(A) The rules of evidence set forth in this Section shall govern the proceedings before the Chambers. The Chambers shall not be bound by national rules of evidence.

(B)    In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.

(C)    A Chamber may admit any relevant evidence.

Rule 92bis: Alternative Proof of Facts (amended 14 March 2004)

(A) A Chamber may admit as evidence, in whole or in part, information in lieu of oral testimony.

(B) The information submitted may be received in evidence if, in the view of the Trial Chamber, it is relevant to the purpose for which it is submitted and if its reliability is susceptible of confirmation.

(C) A party wishing to submit information as evidence shall give 10 days notice to the opposing party. Objections, if any, must be submitted within 5 days.

REITERATING, as this Court has frequently noted, “the Rules favour a flexible approach to the issue of admissibility of evidence, leaving the issue of weight to be determined when assessing probative value of the totality of the evidence.”[6]

CONSIDERING that the Appeals Chamber has emphasised that Rule 92bis is deliberately different from the corresponding Rule in the ICTY and the ICTR:

The judges of this Court, at one of their first plenary meetings, recognised a need to amend ICTR Rule 92bis in order to simplify this provision for a court operating in what was hoped would be a short time-span in the country where the crimes had been committed and where a Truth and Reconciliation Commission and other authoritative bodies were generating testimony and other information about the recently concluded hostilities. The effect of the SCSL Rule is to permit the reception of “information” – assertions of fact (but not opinion) made in documents or electronic communications – if such facts are relevant and their reliability is “susceptible of confirmation”. This phraseology was chosen to make clear that proof of reliability is not a condition of admission: all that is required is that the information should be capable of corroboration in due course.[7]

MINDFUL of this Chamber’s Decision on Prosecution’s Request to Admit into Evidence Certain Documents Pursuant to Rules 92bis and 89(C) in the case of Prosecutor v. Norman, Fofana and Kondewa, in which it held that at the stage of admission, the Chamber must determine whether documents admitted under Rule 92bis are relevant, whether they possess sufficient indicia of reliability and whether their admission would not prejudice unfairly the Defence, such as in situations where documents pertaining to the acts and conduct of the Accused are admitted into evidence without giving the Defence the opportunity of cross-examination;[8]

CONSIDERING that this Chamber has already allowed the admission of transcripts of witnesses testimony from other trial proceedings and the exhibits admitted during their testimony in Prosecutor v. Sesay, Kallon and Gbao on many occasions[9] and has also allowed the admission of a solemn declaration[10];

MINDFUL that this type of documentary evidence, and in fact in some cases these identical documents, have already been admitted in the other trials before the Special Court, Prosecutor v. Norman, Fofana and Kondewa[11] and Prosecutor v. Brima, Kamara and Kanu[12];

NOTING that all of the documents filed in this Application were previously disclosed to the Defence and filed with the Court as a part of the Prosecution’s Motion for Judicial Notice filed on the 2nd of April 2004[13] and/or part of the proposed exhibit list filed on the 26th of April 2004[14];

SATISFIED that the proper interpretation of Rule 92bis is that already elaborated in the jurisprudence of this Court and that Rule 92bis is clearly flexible enough to allow the admission of documentary evidence;

MINDFUL that the Appeals Chamber also emphasised that the “weight and reliability of such ‘information’ admitted via Rule 92bis will have to be assessed in light of all the evidence in the case”;[15]

REMINDING the Defence that this Trial Chamber has already shown its willingness to grant extensions of the time limitation for filing objections to Rule 92bis notices when they are properly sought;[16]

FINDING that the Defence should have filed an application for an extension of the time limitation if they felt that they did not have sufficient time to analyse the documentary evidence instead of filing an objection that did not address the obviously relevant issue of the admissibility of the individual documents;

DISAPPROVING of the Defence’s attempts to split this Response and place the burden on the Chamber to grant a belated extension of time and REFUSING to allow any further time to the Defence to address the admissibility of the documents;

CONSIDERING that the documents for which judicial notice has already been taken with regard to their existence, authenticity and contents[17] are already in evidence and that no purpose will be served by admitting these documents again under Rule 92bis;

REITERATING that this Trial Chamber has already ruled in its Decision on Rule 92bis in Prosecutor v. Norman, Fofana and Kondewa[18] that:

CONSIDERING that the international tribunals admit documentary evidence in various forms, when such evidence is: “(a) “crime-base” evidence; (b) whether there was a widespread and systematic attack on a civilian population; (c) issues of command structure (leaving aside, however, whether a particular accused exercised the role of a commander); and (d) whether crimes occurred in the context of an international armed conflict”;[19]

CONSIDERING that in the jurisprudence of the international tribunals “newspaper articles generally are not considered a reliable source of evidence and are often excluded for lack of probative value”;[20]

CONSIDERING that admissibility of books, journals and newspapers “will depend on the circumstances of the particular occasion and the significance of the evidence” and such evidence will not be admitted “if it [is] related to some crucial issue in the case” but more likely will be admitted “if it deals with matters by way of background”;[21]

SATISFIED that the identified portions of the documents listed in Annex I to this Decision are relevant to the purpose for which they are sought to be admitted, that their reliability is susceptible of confirmation and that their admission would not unfairly prejudice the Defence;

FOR THE ABOVE REASONS, the Trial Chamber PARTIALLY GRANTS the Prosecution application:

THE CHAMBER ORDERS that the identified portions of the documents listed in Annex I to this Decision shall be admitted into evidence;

ORDERS Court Management to allocate Exhibit numbers to the admitted portions of the documents as listed in Annex I to this Decision and that each admitted portion should be preceded by the relevant cover page submitted by the Prosecution for ease of reference;

FURTHER ORDERS the Prosecution to file a complete copy of page 2 [Court Management Page 19100] of the Joint Communiqué, Meeting between the Special Representative of the UN Secretary General to Sierra Leone and the Delegation of the Revolutionary United Front, Abidjan, 19-21 February 1999;

FURTHER ORDERS the Prosecution to file a better quality recording of the video entitled “Cry Freetown”;

AND ORDERS that the other documents contained in the Prosecution Application are not to be admitted into evidence.

[1] Response, paras 4-6.
[2] Id., para. 8.
[3] Id., paras 9-11.
[4] Id., paras 12-13.
[5] Prosecutor v. Sesay, Kallon and Gbao, SCSL-04-15-T, Consequential Order Regarding Decision On Prosecution’s Motion for Judicial Notice and Admission of Evidence, 24 May 2005. The documents are listed in Annex I, with Part I listing those documents for which judicial notice has been taken of the existence and authenticity and with Part II listing those documents for which judicial notice has been taken of their existence, authenticity and contents.
[6] Prosecutor v. Sesay, Kallon and Gbao, SCSL-04-15-T, Ruling on Gbao Application to Exclude Evidence of Prosecution Witness Mr. Koker, 23 May 2005, para 4. See also, Prosecutor v. Norman, Kondewa and Fofana, SCSL-04-14-AR65, Fofana – Appeal Against Decision Refusing Bail, 11 March 2005, paras 22-24 and Prosecutor v. Sesay, Kallon and Gbao, SCSL-04-15-T, Ruling on the Identification of Signatures by Witness TF1-360, 14 October 2006 para. 4.
[7] Prosecutor v. Norman, Fofana and Kondewa, SCSL-2004-14-AR73, Fofana – Decision on Appeal Against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence, 16 May 2005, para. 26.
[8] Prosecutor v. Norman, Fofana and Kondewa, SCSL-04-14-T, Decision on Prosecution’s Request to Admit into Evidence Certain Documents Pursuant to Rules 92bis and 89(C), 15 July 2005, p. 4.
[9] Prosecutor v. Sesay, Kallon and Gbao, SCSL-04-15-T, Decision on the Prosecution Confidential Notice Under 92bis to Admit the Transcripts of Testimony of TF1-023, TF1-104 and TF1-169, 9 November 2005; Decision on the Prosecution Confidential Notice Under 92bis to Admit the Transcripts of Testimony of TF1-081, 21 February 2006; Decision on the Prosecution Confidential Notice Under 92bis to Admit the Transcripts of Testimony of TF1-156 and TF1-179, 3 April 2006; Confidential Decision on the Prosecution Confidential Notice Under 92bis to Admit the Transcripts of Testimony of TF1-369, 23 May 2006; Decision on the Prosecution Notice Under 92bis to Admit the Transcripts of Testimony of TF1-256, 23 May 2006; and Decision on the Prosecution Notice Under 92bis to Admit the Transcripts of Testimony of TF1-334, 24 May 2006.
[10] Prosecutor v. Sesay, Kallon and Gbao, SCSL-04-15-T, Decision on Prosecution Request for Leave to Call An Additional Witness and Notice to Admit Witness’ Solemn Declaration Pursuant to Rules 73bis(E) and 92bis, 5 April 2006.
[11] Prosecutor v. Norman, Fofana and Kondewa, supra note 8.
[12] Prosecutor v. Brima, Kamara and Kanu, SCSL-04-16-T, Decision on Prosecution Tender for Admission into Evidence of Information Contained in Notice Pursuant to Rule 92bis, 18 November 2005.
[13] Prosecutor v. Sesay, Kallon and Gbao, SCSL-04-15-PT, Prosecution’s Motion for Judicial Notice and Admission of Evidence, 2 April 2004.
[14] Prosecutor v. Sesay, Kallon and Gbao, SCSL-04-15-PT, Materials Filed Pursuant to Order to the Prosecution to File Disclosure Materials and Other Materials in Preparation for the Commencement of Trial of 1 April 2004, 26 April 2004.
[15] Prosecutor v. Norman, Fofana and Kondewa, supra note 7, para. 27.
[16] Prosecutor v. Sesay, Kallon and Gbao, SCSL-04-15-T, Order for Extension of Time [for Counsel for Sesay] to Respond to the Prosecution Confidential Notice Under 92bis to Admit the Transcripts of Testimony of TF1-023, TF1-104 and TF1-169, 27 October 2005; Order for Extension of Time [for Counsel for Gbao] to Respond to the Prosecution Notice Under Rule 92bis to Admit the Transcripts of Testimony of Witness TF1-369, 8 May 2006.
[17] See Annex II, Part II of the Consequential Order Regarding Decision On Prosecution’s Motion for Judicial Notice and Admission of Evidence, supra note 5.
[18] Prosecutor v. Norman, Fofana and Kondewa, supra note 8, pp. 4-5.
[19] Judge Richard May and Marieke Wierda, International Criminal Evidence (Transnational Publishers, New York: 2002), para. 10.59, p. 346.
[20] Id., para. 7.105, p. 248. See also Prosecutor v. Kvocka et al., Decision on Zoran Zigic’s Motion for Rescinding Confidentiality of Schedules Attached to the Indictment Decision on Exhibits, 19 July 2001.
[21] May and Wierda, supra note 19.