PROSECUTOR v SAM HINGA NORMAN & ORS - WRITTEN REASONED DECISION ON PROSECUTION MOTION FOR LEAVE TO CALL EVIDENCE IN REBUTTAL AND FOR IMMEDIATE PROTECTIVE MEASURES FOR PROPOSED REBUTTAL WITNESS (SCSL-04-14-T ) [2006] SCSL 139 (27 November 2006);
SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA ROAD • FREETOWN • SIERRA LEONE
PHONE: +1 212 963 9915 Extension: 178 7000 or +39 0831 257000 or +232 22 295995
FAX: Extension: 178 7001 or +39 0831 257001 Extension: 174 6996 or +232 22 295996
TRIAL CHAMBER I
Before:
|
Hon. Justice Bankole Thompson, Presiding Judge
Hon. Justice Pierre Boutet Hon. Justice Benjamin Mutanga Itoe |
|
Registrar:
|
Mr. Lovemore G. Munlo, SC
|
|
Date:
|
27th of November 2006
|
|
PROSECUTOR
|
Against
|
SAM HINGA NORMAN
MOININA FOFANA ALLIEU KONDEWA (Case No.SCSL-04-14-T) |
Public Document
WRITTEN REASONED DECISION ON PROSECUTION MOTION FOR LEAVE TO CALL EVIDENCE IN REBUTTAL AND FOR IMMEDIATE PROTECTIVE MEASURES FOR PROPOSED REBUTTAL WITNESS
Office of the Prosecutor:
|
|
Court Appointed Counsel for Sam Hinga
Norman:
|
Christopher Staker
James Johnson Joseph Kamara Mohammed A. Bangura |
|
Dr. Bu-Buakei Jabbi
John Wesley Hall, Jr. Alusine Sani Sesay Court Appointed Counsel for Moinina
Fofana:
|
|
|
Victor Koppe
Arrow Bockarie Michiel Pestman Steven Powles |
|
|
Court Appointed Counsel for Allieu
Kondewa:
Charles Margai Yada Williams Ansu Lansana Susan Wright |
TRIAL CHAMBER I (“The Chamber”) of the Special Court for Sierra Leone composed of Hon. Justice Bankole Thompson, Presiding Judge, Hon. Justice Pierre Boutet and Hon. Justice Benjamin Mutanga Itoe;
SEIZED OF the “Prosecution Motion for Leave to Call Evidence in Rebuttal and for Immediate Protective Measures for Proposed Rebuttal Witness”, filed by the Office of the Prosecutor on the 13th of October 2006,[1] wherein they seek: 1) the Leave of The Chamber to call one witness in rebuttal at the conclusion of the Defence case; and 2) request immediate protective measures for this proposed rebuttal witness, if the first request is granted;[2]
MINDFUL OF the “Order for Expedited Filing”, issued by The Chamber on the 13th of October 2006,[3] wherein The Chamber ordered that “any Response to the Motion shall be filed no later than Monday, the 16th of October 2006, at 4:00 p.m.” and that “any Reply to the said Response shall be filed no later than Tuesday, the 17th of October 2006, at 4:00 p.m.”;
MINDFUL OF the “Order to Prosecution to Disclose to the Defence, Interview Notes and Unredacted Statement of the Proposed Rebuttal Witness”, issued by The Chamber on the 16th of October 2006;[4]
MINDFUL OF the “Confidential Prosecution’s Disclosure of Interview Notes and Unredacted Statements of the Proposed Rebuttal Witness”, filed by the Prosecution on the 16th of October 2006;[5]
MINDFUL OF and CONSIDERING all the submissions filed by the Parties in relation to this Motion filed by the Prosecution;[6]
MINDFUL OF the provisions of Article 17(4)(c) of the Statute and of Rule 26bis of the Rules of Procedure and Evidence guaranteeing the right of the accused to be tried fairly, expeditiously, and without undue delay;
PURSUANT to Rule 85(A)(iii) of the of the Rules of Procedure and Evidence of the Special Court (“Rules”); and
CONSIDERING the Oral Decision issued by the Chamber on this Motion on the 18th of October, 2006, refusing the Prosecution leave to adduce Rebuttal Evidence;
HEREBY ISSUES THE FOLLOWING UNANIMOUS WRITTEN AND REASONED DECISION:
FACTS
- The
Office of the Prosecutor, on the 13th of October, 2006,
filed a Motion seeking the Leave of the Chamber to Call Evidence at the close of
the case for the Defence, of One
Witness in Rebuttal and for Immediate
Protective Measures for that Proposed Witness.
- The
Chamber, on the 13th of October, 2006, issued an Order
for Expedited Filing. Submissions were thereafter exchanged between the Parties
in relation to
the Prosecution’s Application. After a deliberation on the
submissions so presented, the Chamber, on the 18th of
October, 2006, by a Unanimous Oral Decision, ruled that there were no merits in
the Prosecution’s Application. Accordingly,
We dismissed the Motion. The
Chamber, in that Oral Decision, indicated that ‘a Written Reasoned
Decision will be published
in due
course.’[7]
- Pursuant
to this ruling in that Oral Decision, The Chamber now issues the following
Unanimous, Written and Reasoned Decision on the
strength of the Submissions of
the Parties.
BACKGROUND INFORMATION
- The
3 Accused Persons in this case are charged, inter alia, with Murder, a
crime against humanity, contrary to Article 2(a) of the Statute of the Special
Court and with Other Violations of
International Humanitarian Law, contrary to
Article 3 of the Statute, and Article 3 Common to the Geneva Conventions of
12th August, 1949, and of Additional Protocol II of
8th June, 1977.
- In
order to establish the alleged Offence of Murder as charged, the Prosecution, as
part of its case on this charge, adduced evidence
to prove that the 3 Accused
were involved in an alleged ritual and sacrificial killing in the Poro Bush in
Talia Yawbeko, otherwise
also known as Base Zero, of one Mustapha Fallon, a
native of Kati Village.
- After
the Prosecution had closed its case, the Defence Team of the
2nd Accused called one Mohammed Fallon as a witness.
In his testimony on the 27th of September, 2006,
Mohammed Fallon testified that Mustapha Fallon was his brother and that he was
killed in a battle in the town
of
Koribondo[8].
- It
is as a result of this testimony in favour of the Defence theory on the killing
of Mustapha Fallon, that the Prosecution filed
this Motion on the
13th of October, 2006, seeking the leave of this
Chamber to adduce rebuttal evidence in order to counter the Defence evidence
provided
by Mohammed Fallon, one of the 2nd
Accused’s Defence Witnesses.
THE APPLICABLE LAW
- Rule
85(A) of the Rules on which the Motion is brought provides as follows:
‘Each Party is entitled to call witnesses and present evidence. Unless otherwise directed by the Trial Chamber in the interests of justice, evidence at the trial shall be presented in the following sequence:
(i) Evidence for the Prosecution;
(ii) Evidence for the Defence;
(iii) Prosecution evidence in rebuttal with leave of the Trial Chamber;
(iv) Evidence ordered by the Trial Chamber;’
- Rule
89 of the Rules on the admissibility of evidence also provides as follows:
‘(A) The Rules of evidence set forth in this Section shall govern the Procedures before the Chambers. The Chamber 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.
10. Article 17(4)(c) of the Statute provides as follows:
In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality:
- To
be tried without undue delay.
11. Rule 26bis of the Rules of Procedure and Evidence provides as follows:
The Trial Chamber and the Appeals Chamber shall ensure that a trial is fair and expeditious and that proceedings before the Special Court are conducted in accordance with the Agreement, the Statute and the Rules, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.
PROPOSED REBUTTAL EVIDENCE
- In
Annex A of its Motion, the Prosecution summarises the evidence it seeks to
adduce in rebuttal as follows:
‘Mohammed Fallon testified that his brother Mustapha Fallon was not killed at the Poro Bush near Talia Yawbeko[9] as indicated by Prosecution witness TF2-014 (SCSL 04-14-T Trial Transcript of 10th March, 2005, Page 54-59) Mr Fallon testified rather that his brother was killed in an attack on Koribondo (SCSL 04-14-T, Trial Transcript 27th September, 2006, Page 24 – 32)’[10]
- This
summary is, in effect, the evidence which the Prosecution argues, could not,
with reasonable diligence, have been foreseen by
the Prosecution.
- On
the other hand, the evidence in rebuttal proposed by the Prosecution is
summarised, still in Annex A of the Motion, as follows:
‘TF2-225 will rebut the novel point in the evidence of Mohammed Fallon (27 September 2006 page 24-32) that Mustapha Fallon was killed in Koribondo by AFRC/RUF. TF2-225 will give evidence that he was a friend of Mustapha Fallon and accompanied Fallon to the Poro Bush near Talia. TF2-225 was present when Fallon was killed in that bush.’
- This
piece of evidence proposed in rebuttal, according to the Prosecution, relates to
a new matter which surfaced from the testimony
of 2nd
Accused’s Defence Witness, Mohammed Fallon, at a time when it could not
have been reasonably anticipated by the Prosecution
that the Defence would
actively seek to present evidence that Mustapha Fallon was killed in battle in
Koribondo.[11]
STATE OF THE EVIDENCE BEFORE PROSECUTION’S APPLICATION TO CALL REBUTTAL EVIDENCE
- The
evidence of this alleged killing was provided on the
10th of March, 2005, by one Albert Nallo, TF2-014, a
Prosecution witness who, in his testimony, gave details on how it was carried
out.
Mr Nallo had this to say in his evidence on the 10th of March,
2005.[12]
‘[...]Yes my Lord, I knew he was called Mustapha Fallon[...]Well, we killed him[...]Dr Allieu Kondewa and Chief Norman and Moinna Fofana; all were there[...]They laid him and they cut off his throat[...]In the Poro Bush when we were in Talia Yawbeko, known as Base Zero[...]I was there; I was standing there.’[13]
- In
response to the Prosecutor’s question whether he knew why he was killed,
Nallo responded:
‘Very well, very well[...]Allieu Kondewa said that we needed human sacrifice[...]so as to protect the fighters[...]so as to make them invisible, and so we would have arranged the charm, so as to capture Koribondo, because we had attempted to go to Koribondo many times.’[14]
- As
to how Mustapha Fallon was chosen to be a sacrifice Nallo continued and said:
‘[...]Well, the high Priest Dr Allieu Kondewa[...]said that the spirit with which he was dealing with, they had chosen Mustapha Fallon among the group as the sacrificial lamb. That was how Mustapha Fallon was chosen[...]the 2 brothers of Mustapha Fallon were there[...]all of them cam from Kati[...]They went and pleaded with Kondewa and Chief Norman that it was their brother. They said all of them came from the same home. They said they would intervene on his behalf so that he could be released. Kondewa said when his old spirits had laid hands on somebody he would never be released[...]After Mustapha Fallon had his throat cut,[...]We took his parts. The other body -- the male body -- was burnt to ash. The liver was cooked with some medicine, some herbs, which Chief Allieu Kondewa brought out and mixed with it. All of us ate that and we took an oath. We must not explain what had happened not even to the other Kamajors and Mustapha Fallon’s people at Kati. So, Chief said -- so they told us all that if they asked for Mustapha Fallon let us tell them that he had been killed in Koribondo. Junisa left at once and went and told his people at Kali that “Well, your son has been killed at Koribondo[...]’.
- Mr
Nallo in his evidence continued and said:
‘Mustapha Rogers, Momoh Rogers and Sheku Massaquoi -- Chief Norman gave them 300,000 Leones. Told them to have it so as not to explain how Mustapha Fallon died. In war anything can happen. He said if you go and explain outside and if somebody should cry, if that secret leaks, we will kill you because you have nowhere to go. You cannot go to Bo. As long as you are within the Kamajor zone I have the absolute power to get you wherever you are.’
- In
cross examination, this part of Mr. Nallo’s evidence alleging that
Mustapha Fallon was killed in the Poro bush was challenged
by Court-Appointed
Counsel for the 1st Accused, Hinga Norman, who put to
him that no killing of Mustapha Fallon took place in Talia Yawbeko. Nallo
rejected this suggestion.
This indeed was the state of the evidence after Nallo
had testified and up to when the Prosecution closed its case on the
14th of July, 2005.
- We
note that in the presentation of his Defence and in the course, not only of his
Examination-In-Chief on the 31st of January 2006, but
also in his Cross Examination by Mr Margai for the 3rd
Accused on the 3rd of February, 2006, and also under
Cross Examination by Mr Taverner on the killing of Mustapha Fallon, the Accused,
Hinga Norman,
denied any knowledge of someone called Mustapha Fallon or of the
killing of a person by that name. He said he was only hearing of
the killing of
a person called M. Fallon there in Court. He also denied knowledge of ever
knowing the Poro Bush in Talia even though
he acknowledged that in every Mende
Town, there is supposed to be a Poro Bush. Talia, from Norman’s evidence,
is a Mende Town.
- At
the close of the presentation of the case for the 1st
Accused, Hinga Norman, the 2nd Accused who did not
testify, called Witnesses on his behalf. The Defence Team of the
2nd Accused, Moinina Fofana, called one Mohammed
Fallon, an alleged brother of the late Mustapha Fallon, to testify on his
behalf. Mohammed
Fallon, in his Examination-In-Chief, agreed that his brother
was killed but rejected and contradicted Nallo’s version of the
place
where the killing took place and the circumstances surrounding his death.
According to his version, his alleged brother was
killed by the AFRC in a town
called Koribondo which, from the evidence on the records, had allegedly been
attacked at least 3 times
by the Kamajors. In his testimony under
cross-examination, Mohammed Fallon said he did not agree with Nallo’s
version which
he characterised as a lie. He denied the suggestion made to him
by the Prosecution that his evidence-in-chief was a misinformation.
- It
is as a result of this testimony by Mohammed Fallon which was called to
contradict that of Mr Nallo, that the Prosecution, in accordance
with the
provisions of Rule 85(A)(iii) of the Rules of Procedure and Evidence, after
closing its case on the 14th of July 2005, now seeks
leave of this Chamber to call witness TF2-225 as a witness to rebut the
contradictory evidence of Defence
Witness, Mohammed Fallon, in relation to his
narration on details relating to the death of Mustapha Fallon.
SUBMISSIONS OF THE PARTIES
Motion:
- The
Prosecution, in this Motion, seeks to call one witness to rebut a specific
aspect of the evidence given by Defence Witness, Mohammed
Fallon who testified
that Mustapha Fallon was killed in battle in Koribondo and not ritually
sacrificed in the Poro Bush in Talia
Yawbeko as alleged by Prosecution Witness
TF2-014, Albert Nallo.
- The
Prosecution argues that this evidence, which was in direct contradiction with
that of Prosecution Witness TF2-014, is a significant
issue that can be
clarified by the evidence of the proposed rebuttal witness. The Prosecution
adds that this would help the Trial
Chamber ‘to determine the guilt or
innocence of all the Accused by the hearing of specific probative
evidence.’[15]
They submit that ‘the version of events as narrated by Mohammed Fallon
could not, with reasonable diligence, have been foreseen
by the
Prosecution’[16],
and that ‘the proposed rebuttal evidence relates to a significant issue
that is of probative
value.’[17]
- The
Prosecution further argues that ‘although this witness, in previous
interviews with the Prosecution, declared some knowledge
of events surrounding
Mustapha Fallon’s death in Talia, he did not reveal to the Prosecution,
the extent of his knowledge including
that relating to the relationship between
Mohammed Fallon and Mustapha Fallon, until a 28th July,
2006 interview after the close of the case for the
Prosecution.’[18]
- The
Prosecution in effect, is affirming that this evidence was not available to it
before the 28th of July, 2006, when the rebuttal
witness made a statement on this piece of evidence and that it only became
available after it had
closed its case on the 14th of
July, 2005.
- The
Prosecution adds that it ‘has attempted to obtain the cooperation of the
proposed rebuttal witness many times’ and
that ‘it is only recently
that he has agreed to testify freely on behalf of the
Prosecution’.[19]
- It
contends ‘that the rebuttal evidence will not cause any significant delay
and will assist the Court in properly assessing
this area of contested
testimony’.[20]
- On
the Law that is applicable on this subject, the Prosecution concedes the
following grounds, although it argues strenuously that
they do not adversely
affect the case it is making. These grounds include:
- That
Rule 85(A)(iii) does not create an entitlement for the Prosecution to call
rebuttal evidence.[21]
- That
as was stated by the Trial Chamber of the ICTY in the Delalic et al case,
the admissible rebuttal evidence ‘must relate to a significant issue
arising directly out of the Defence evidence which
could not reasonably have
been
anticipated.’[22]
- That,
as was held in the case of The Prosecution v
Limaj,[23]
rebuttal evidence may not be called by the Prosecution merely because its case
has been met by contradicting evidence or in order
to reinforce its
case-in-chief.
- That
Rule 85(A)(iii) does not create an entitlement for the Prosecution to call
rebuttal evidence.[21]
- The
Prosecution however submits that ‘a Trial Chamber has a wide discretion to
admit, limit or preclude rebuttal evidence depending
on the circumstances of the
case and bearing in mind, the necessity to proceed
expeditiously’.[24]
- To
support this proposition, the Prosecution relies on the dictum of the ICTY Trial
Chamber Decision in the case of The Prosecution v
Oric[25]
which it cited extensively.
Response:
- The
Defence, on the following submissions, invites the Chamber to dismiss the
Prosecution’s Motion.
- That the Prosecution have been in contact with the Proposed Rebuttal Witness since the 25th of October, 2003, and that the Proposed Witness alleged that Mustapha Fallon was killed in the Poro Bush at the behest of the 3rd Accused in the presence of the 1st and 2nd Accused.
- That in that Statement, the Proposed Rebuttal Witness gives a long and comprehensive account of the alleged killing.[26]
- That this proposed evidence has been available to the Prosecution since the 25th of October, 2003, long before they opened and indeed closed their case.
- That the said Witness was not called by the Prosecution as part of its case-in-chief.
- That ‘the evidence of the Proposed Witness was essentially corroborative of Nallo’s evidence and that Rogers could at one stage have been called by the Prosecution as part of its case-in-chief.’[27]
- That ‘the Prosecution is under a duty to adduce all evidence critical to proving its case by the close of its case and that it is only where a new issue is raised in the course of the Defence case that rebuttal evidence may be contemplated.’[28]
- That in the current case, ‘the Prosecution were on clear notice that Nallo’s alleged description of the killing of Mustapha Fallon was in dispute and that this was clearly put to Nallo in cross examination by Counsel for the 1st Accused.’[29]
- That ‘the Prosecution cannot call additional evidence merely because its case has been met by certain evidence to contradict it.’[30] The Defence in this regard, argues that the Prosecution in the current case is simply seeking to adduce the proposed evidence because the evidence of Nallo has been contradicted by the Defence evidence and further, that Nallo’s evidence was disputed by the Defence during his cross examination. The Defence then concludes ‘that ‘meeting’ of Nallo’s assertion by a contradictory version of events does not, in and of itself, give rise to a prosecutorial right to call rebuttal evidence.’[31]
- That ‘evidence which goes to a matter that forms a fundamental part of the case which the Prosecution is required to prove in relation to the charges brought in the indictment should be brought as part of the Prosecution’s case-in-chief and not in rebuttal.’ [32]
- That ‘the standard for admissibility of rebuttal evidence is that such evidence must relate to a significant issue arising directly out of the Defence evidence which could not reasonably have been anticipated.’[33]
- That ‘only highly probative evidence on a significant issue in response to Defence evidence and not merely evidence which reinforces or fills gaps in the Prosecution’s case-in-chief, will be permitted in rebuttal and that evidence on peripheral and background issues will be excluded.’[34]
Reply:
- The
Prosecution in reply again relies on a statement in a Decision of the Trial
Chamber of the ICTY in the Oric case. We take the option to cite it here
in the interests of our assessment of the arguments raised by the Parties. The
Chamber
had this to say in that statement:
‘In a system where, as in this Tribunal, at the pre-trial stage the Prosecution is limited in the number of witnesses it can produce and time in which it needs to conclude its case, a rigid application of the characteristically high or strict standard of admissibility for rebuttal evidence may consequently encourage or even compel the prosecution to seek to admit an over-abundance of evidence in its case-in-chief in order to avoid the risk of foreclosure of evidence deemed critical by the Prosecution at the rebuttal stage of the proceedings, and that a flexible application of the standard of admissibility is preferred by the Trial Chamber as it might avert such an undesirable approach in conducting trials before the Tribunal’[35]
The Prosecution submits:
- That ‘it clearly needs to be selective in the evidence that it brings in a trial and that if trials are to be conducted efficiently, its selection of evidence should take into account, the degree to which particular issues are in dispute.’[36]
- That even after the Prosecution’s witness list has been finalised, it will still be possible at that stage, if necessary, for the Prosecution to apply to add further witnesses to the Prosecutions witness list during the course of the Prosecution’s case if that were necessary to counter an alternative version of events put by the Defence that the Prosecution could not have reasonably anticipated.[37]
- It
is the Prosecution’s case in this motion that no such alternative version
was provided to it during the cross examination
of Prosecution witnesses by the
Defence even though the Prosecution, in another breath, admits that under the
procedures in force,
there is no obligation on the Defence to provide this
information to the Prosecution which, in these circumstances, is left to
anticipate
what it considers will likely be the more contentious issues in the
case.
- - That
‘it is irrelevant to an application to call rebuttal evidence, whether or
not the proposed rebuttal evidence was previously
known or available to the
Prosecution but rather, whether the evidence is being called to rebut Defence
evidence that could not have
been reasonably anticipated by the Prosecution
during the Prosecution
case.’[38]
- - That
‘it is irrelevant to an application to call rebuttal evidence, whether or
not the proposed rebuttal evidence was previously
known or available to the
Prosecution but rather, whether the evidence is being called to rebut Defence
evidence that could not have
been reasonably anticipated by the Prosecution
during the Prosecution
case.’[38]
- That
‘it could not have been reasonably anticipated by the Prosecution during
the Prosecution case that the Defence would actively
seek to present evidence
that Mustapha Fallon was killed in battle in
Koribondo.’[39]
CHAMBER’S ASSESSMENT OF THE CONTENT OF
REBUTTAL
WITNESS’ STATEMENT AND HIS PROPOSED TESTIMONY
- Following
the Prosecution’s Motion to call Witness No. TF2-225, the Proposed
Witness, to rebut the evidence of Mohammed Fallon,
the Prosecution, on the
16th of October 2006, further filed and disclosed to
the Defence, Interview Notes and Unredacted Statements of the proposed Rebuttal
Witness.
- This
filing brought into light, the fact that the Proposed Rebuttal Witness has since
been in contact with the Prosecution, and certainly
before the
25th of October 2003 when he made a statement to
Prosecution. We observe that this statement was obtained by the Prosecution, 8
months
before the Prosecution opened its case against the 3 Accused Persons on
the 3rd of June, 2004.
- This
lengthy and detailed
statement[40] contains
facts and information concerning the 3 Accused Persons including a graphic
description of the alleged killing of Mustapha
Fallon which, according to him,
took place at night in the Poro Bush in Talia Yawbeko in his presence and in the
presence of the
3 Accused
Persons.[41]
- In
that statement, the Proposed Witness alleges that an amount of Le300.000 was
given by 1st Accused to them with instructions that
they should tell anybody who asked for Mustapha Fallon that he was killed in the
Koribondo
attack.[42]
- We
also note that the Prosecution, again on the 5th of
December, 2003, had a further contact with this same Witness and recorded a
statement from
him.[43] That
statement, like the earlier one of the 28th of October,
2003, also contains material which the Prosecution could also have used to their
advantage.
- We
therefore find that the statement of the 28th of July,
2006, which the Prosecution is alleging contained the first revelation of the
facts and which it is now relying on to buttress
the application to call
rebuttal evidence, is only the 3rd in a series of
statements and contacts that the Prosecution had with TF2-225, the Proposed
Rebuttal Evidence Witness.
- In
these circumstances, it is necessary for us to examine the nature and content of
the Rebuttal evidence the Prosecution is seeking
to be admitted so as to enable
us to determine whether it satisfies the legal standard that is required and
that We have set out
for purposes of exercising our discretion under Rule
85(A)(iii) of the Rules, to grant or to deny the Prosecution’s
application.
DELIBERATION
THE LEGAL STANDARD
- The
Chamber observes that although Rule 85(A)(iii) of the Rules respectively set out
the sequence for the presentation of evidence
and recognises the possibility of
the Prosecution adducing evidence in rebuttal, it does not set out the
conditions under which such
evidence could be admitted. Rather, it leaves it to
the discretion of the Trial Chamber.
- In
the exercise therefore of our discretion to grant or to refuse an application
for leave to adduce rebuttal evidence, the Chamber
should, like in the exercise
of our inherent discretionary judicial powers, do so judicially, in the overall
interests of justice,
and in total regard to and respect of the rights of the
Parties without of course losing sight of the imperatives and necessity to
conduct the proceedings expeditiously.
- While
therefore conceding to the Prosecution, their legal right and entitlement to
seek the leave of the Chamber to adduce rebuttal
evidence after the presentation
of the case for the Defence, We reiterate here that We remain guided in the
process by those fundamental
principles and conclude that for such evidence to
be admitted, it must, in our considered opinion, and those of some judicial
precedents
of the ICTY and the ICTR, fulfil the following conditions:
- It
must be relevant to the fact or facts in issue.
- It
must have probative value in the determination of the issue or issues under
consideration[44], and
in particular, in the process of assessing the innocence or culpability of the
Accused.[45]
- It
must relate to a significant issue arising from the Defence case for the first
time.
- Such
evidence must have arisen ‘ex improviso’ to the extent that
no human ingenuity could reasonably have anticipated, or foreseen the
possibility of its being adduced by the
Defence.[46]
- It
must be evidence which did not exist before the closure of the case for the
Prosecution or that of the Defence or that even if
it existed, the Prosecution
could not, even by the exercise of reasonable diligence, have come into its
possession for purposes of
adducing it during the examination in chief of its
witnesses.[47]
- That
the calling of evidence in rebuttal is not a ploy to reopen its closed case with
a view to curing certain perceived defects or
shortcomings in the case for the
Prosecution.
- That
it is not being called merely to confirm or reinforce the Prosecution’s
case[48] or because
its case has been met by certain evidence to contradict
it,[49] and further,
that evidence cannot be called on a collateral issue relating to the credibility
of the witnesses.
- That
the granting of leave to adduce the evidence in rebuttal will not in any way
violate the principles that underlie the doctrine
of equality of arms and of
fundamental fairness nor would it unduly delay the
proceedings[50]
thereby compromising the statutory obligation of ensuring a fair and expeditious
trial without putting in jeopardy, or violating
the statutory rights of the
Accused.
- It
must be relevant to the fact or facts in issue.
- In
the domain of rebuttal evidence, it is a cardinal principle of law that for such
evidence to be admissible, the party seeking to
adduce it must, like Lord Tindal
C.J. laid down in the case of Rv.
Frost,[51] make a
showing that such evidence relates to ‘a matter arising ex
improviso which no human ingenuity can foresee’. This is therefore be
limited to cases where evidence which is called in rebuttal is
directed to facts
which are set up for the first time by the evidence for the defence. Indeed, as
a general principle of practice,
and as was held in the case of Rv.
Miliken,[52]
‘all evidentiary matter that the Prosecution intends to rely upon as
probative of guilt should be adduced before the close
of their case if it be
then available.’
- A
corollary to the TINDAL C.J.’s, which is also a well tested Principle of
Law, as far as a Judges prerogative goes on this
subject which we mention here
by analogy for purposes of this decision, is that a Trial Judge has the power to
call a witness not
called by either the Prosecution or the Defence without their
consent if he considers that course necessary in the interests of justice.
However, as was held in the case of Rv
Harris,[53]
applying the test laid down by Lord Tindal, the Judge should not call such a
witness after the evidence for the Defence is closed,
except in a matter arising
‘ex improviso which no human ingenuity could foresee’ and
only where no injustice or prejudice could be caused to the defendant.
- In
fact, We observe that the solid base on which these legal principles are founded
and applied, underlies an equally consecrated
common law principle that was
enunciated in the case of
Bersin,[54]
that there must, at a certain stage, be an end to any litigation. This
principle, as reflected in Article 17(4)(c) of the Statute
of the Special Court,
in criminal matters and within the context of this Motion, underscores the
necessity to dispose of cases in
an expeditious manner with a view to avoiding
undue delays in trying Accused Persons and unnecessarily prolonging trial
proceedings,
imperatives which would certainly be violated if we were to grant
this Prosecution’s Motion.
DELAY IN THE PROCEEDINGS
- Furthermore,
if We were to grant this application, We think that We would have opened the
door to an interminable process in the sense
that We would have triggered new
proceedings in which We should, and ought to, as a matter of law, and consistent
with the principles
of equality of arms and of fundamental fairness,
obligatorily grant to the Defence, on Our Own motion, if not at their behest,
the
right, not only to cross examine this rebuttal witness, but also, if it so
expresses the desire, to allow it to call additional evidence
to rebut or to
contradict the Proposed Rebuttal Witness’s evidence. This course of
action will open possibilities to our being
confronted with further applications
of this nature and or of others from either the Prosecution or from the
Defence.
- Even
though the Prosecution, in support of its vested interests, argues that the
granting of this application will not unduly delay
the proceedings, We are of
the opinion, and We so do hold, that granting this rebuttal Motion has the
potential of unreasonably and
unnecessarily prolonging and delaying these
proceedings. In this regard We did, in our Decision on a similar situation when
determining
an application for leave to amend an indictment in the
Prosecution v. Sesay, Kallon and Gbao have this to say:
“The crucial consideration in this process, in our opinion, is one of timing. The question to be asked is whether the application for amendment is brought at a stage in the proceedings where it would not prejudice the rights of the Defence to a fair and expeditious trial and furthermore, whether it is made in the overall interests of justice rather than its having the effect of giving an undue advantage to the Prosecution, thereby putting in jeopardy, the doctrine of equality of arms between the Prosecution and the Defence.’ [55]
- This
Chamber, again in disposing of and considering a similar
issue,[56] still
relating to an application by the Prosecution to amend and indictment, took this
same stand and reiterated this same principle.
We today, have no cause to shift
grounds on this view which We reiterate and confirm by analogy, in the instant
case.
- In
the Delalic et al.
case,[57] the
Trial Chamber of the ICTY, in similar circumstances, also gave consideration, to
an issue which it considered was necessary to
justify the exercise of its
discretion to admit what in that case, was classified as ‘fresh
evidence’. These, according
to that Sister Chamber, included:
- (i) The
‘advanced stage of the trial’, i.e. the later in the trial that the
application is made, the less likely the evidence
will be admitted;
- (ii) The delay
likely to be caused by reopening of the Prosecutions’ case, and the
suitability of an adjournment in the overall
context of the trial; and
- (iii) The
probative value of the evidence to be presented.
- (i) The
‘advanced stage of the trial’, i.e. the later in the trial that the
application is made, the less likely the evidence
will be admitted;
CHAMBER’S JUDICIAL REASONING
- In
order to arrive at a fair determination of the issue and arguments raised in
this motion, We would like to state, for the record,
that it is our view that
the statutory burden of proof that lies on the Prosecution, obligates it not
only to establish the guilt
of the Accused beyond all reasonable doubt, but also
equally imposes on it, on the other hand, a corresponding obligation and duty
of
ensuring that all the relevant evidence on which the proof of guilt is or will
be based, is presented before the Chamber with
due diligence, preferably, before
the closure of its case and before the opening of the case for the Defence.
- This
approach, We believe, insulates the Prosecution from possible testimonial and
evidentiary surprises which, if raised by the Defence,
would necessarily oblige
it to resort to seeking leave to adduce rebuttal evidence. It is indeed common
knowledge that Tribunals,
because of rules inherent in the due process, are
generally very weary to grant applications of this nature. The justification
for
this judicial attitude is based on considerations such as the evidence
either being available to the Prosecution at the time of the
presentation of its
case, or could indeed, through the exercise of reasonable diligence, have been
anticipated, obtained, and adduced
by the Prosecution in the course of the
presentation of its case-in-chief, or at the latest, before proceeding to close
it.
- We
are of the opinion that the threshold to be placed on the obligation and duty
imposed on the Prosecution to act with due diligence
in assembling, preparing
and presenting its case, and this, preferably before it closes it, should be
high in order to avoid or limit
applications of this nature which are reserved
for very deserving situations and circumstances that the law warrants.
- On
this subject, We refer to and adopt the dictum of the Trial Chamber of the ICTY
again in the case of Delalic et
al[58] in which
the Chamber had this to say:
‘The essence of the presentation of evidence in rebuttal is to call evidence to refute a particular piece of evidence which has been adduced by the defence. Such evidence is therefore limited to matters that arise directly and specifically out of defence evidence. Where the evidence sought to be introduced in rebuttal is itself evidence probative of the guilt of the accused, and where it is reasonably foreseeable by the Prosecution that some gap in the proof of guilt needs to be filled by the evidence called by it, then generally speaking the Trial Chamber will be reluctant to exercise its discretion to grant leave to adduce such evidence. The Prosecution thus, cannot call additional evidence merely because its case has been met by certain evidence to contradict it.’
- We
take this view because the Prosecution, in its submissions, makes it clear that
the justification they rely on to secure the granting
of this application is
premised on the fact that it did not, and could not anticipate the eventuality
that Mohammed Fallon would
be giving evidence that the alleged killing of
Mustapha Fallon took place in Koribondo, and not, as alleged by its witness, Mr
Nallo,
in the Poro Bush in Talia Yawbeko. To quote the Prosecution’s
submission in this regard on which it relies to justify its
Motion ‘it
could not have been reasonably anticipated by the Prosecution during the
Prosecution’s case that the Defence
would actively seek to present
evidence that Mustapha Fallon was killed in battle in
Koribondo’.[59]
- It
sounds judicially strange to us as a Chamber, for the Prosecution, not to expect
or anticipate that the evidence it adduces to
sustain its case would be met with
serious challenges from the Defence at any stage of the proceedings and at every
available opportunity.
It would equally be strange for the Prosecution to
entertain a comfortable feeling that where such an eventuality occurs, it can
seek a recourse to the rebuttal option which the Court would ordinarily and so
readily grant. This should not and cannot be the
case on a subject of this
nature where the Chamber has to pattern its decisions on a case by case basis
and depending on the particular
circumstances of each case.
- In
fact, in the context of a judicial contest, the contrary attitude should
constitute the posturing of the Prosecution. It should
expect these surprises
and place itself at all times on a permanent alert and in a disposition to
anticipate, respond to, and resist
a constantly assailing Defence, with a view
to warding off or containing these normal and conventional procedural surprises
that
are vital and important components of the art of advocacy.
- It
is indeed inconceivable to imagine that a prosecution, conducted with the
expected traditional diligence, can discount, not expect,
or not anticipate such
an alleged surprise, especially where it concerns and touches on such a
potentially contentious allegation
in which the 3 Accused Persons are alleged to
have carried out a ritual murder of an individual and stand indicted not only
for it
but for other alleged killings, as well.
THE NATURE AND CONTENT OF THE PROPOSED REBUTTAL EVIDENCE
- In
order to arrive at a fair determination of this Motion, it is necessary for us
at this stage, to examine the nature and content
of the proposed rebuttal
evidence in order to advise ourselves in arriving at the decision as to whether
or not it fulfils the legal
criteria We have enunciated, the most important of
them being that it should be evidence on a new issue which has arisen ex
improviso and related to facts that could not, by the exercise of reasonable
diligence, have been foreseen or anticipated by the Prosecution
and furthermore,
that this proposed evidence is not just an attempt or a ploy by the Prosecution
to reopen its case so as to reinforce
an important and strategic aspect of it
which it perceives or considers may have been contradicted or discredited by the
evidence
adduced by the Defence.
- In
this regard, We would like to seek recourse to the Decision of the Trial Chamber
of the ICTY in the Semanza
Case[60], where it was
held and We quote:
‘Where, however, a new issue is raised in the Defence case that the Prosecutor could not reasonably have anticipated, a Common Law Judge has the discretion to permit the Prosecutor to bring rebuttal witnesses. Rebuttal is not permitted merely to confirm or reinforce the Prosecutor’s case, or to deal with collateral issues. Rebuttal is permitted when it is necessary to ensure that each party has an opportunity to address issues central to the case.’
- In
the present case and as we have already observed, there is in fact no new fact
which is central to it that has arisen for the first
time in the Defence case.
We observe from the Schedule A of the Prosecution’s Motion that the
evidence which it intends to
call in rebuttal is not new but merely a bid to
confirm and to reinforce its case that Mustapha Fallon was killed, as Nallo, one
of their witnesses had testified, not in battle in Koribondo, but in the Poro
Bush in Talia Yawbeko.
- We
also would like to observe in this regard, that the piece of evidence relating
to the Defence’s thesis that Mustapha Fallon
was killed in Koribondo is
not a new matter that has arisen ‘ex improviso’. It is
indeed very clear, and we do so find, that the Prosecution knew about this
version of the evidence because it was placed
at its very door steps by Mr Nallo
in his testimony on the 10th of March,
2005[61], and even
long before that and much earlier, in the October 25, 2003 Statement that the
Proposed Rebuttal Witness provided then to
the Prosecution, and recently
disclosed to the Defence and to Us, following the Order of this Chamber.
- Based
on the foregoing considerations, We do conclude that the Prosecution had
knowledge of the Koribondo battle front version of
the killing of Mustapha
Fallon since the 25th of October 2003, indeed, quite a
long time before the commencement of the Prosecution’s case and
particularly, from Mr Nallo’s
testimony on the
10th of March, 2005, and that it had all the time to
make decisions on the status and place to be accorded to the Proposed Witness in
the strategic planning of these proceedings before opening the
Prosecution’s case on the 3rd of June 2004 and
closing it on the 14th of July, 2005.
- In
the Motion before us, what We are able to decipher and do find as a matter of
fact, that in seeking leave to adduce rebuttal evidence,
the Prosecution, from
the summary it has provided in Annexure A of its Motion, is only seeking to
reopen its case with a view to
contradicting the Defence evidence of Mohammed
Fallon and to reinforce Mr Nallo’s version. This strategy, in Our
opinion,
is procedurally wrong. It indeed constitutes an attempt, as the
Prosecution itself
admits,[62] to have
incorporated in the records, at an impermissible stage and time frame, a
corroborative version of Mr Nallo’s allegations,
which because it was, as
We have found, clearly available to them earlier on in the process for use
during the conduct of their case-in-chief,
and therefore, fails to qualify to be
legally categorised and characterised as rebuttal evidence.
- In
this regard, We note that the Prosecution has submitted that the Defence did not
put it on notice at any time in the proceedings,
and particularly during their
cross examination of Albert Nallo, that they disputed the latter’s version
of the killing of
Mustapha Fallon nor did they suggest to Nallo that he was
killed in battle in Koribondo as alleged by the Defence Witness, Mohammed
Fallon. The Prosecution in so submitting, seems to suggest that to avoid
surprises, the Defence should disclose its strategies to
it. Such a submission,
in Our opinion, is both practically unrealistic and legally meretricious.
ALLEGED ABSENCE OF REBUTTAL FACTS UNTIL THE
28TH OF JULY, 2006
STATEMENT BY THE PROPOSED
REBUTTAL WITNESS
- Briefly
stated, the Prosecution’s submission is that it could not, up to and when
it closed its case, have anticipated that
the Defence would seek to adduce
evidence that Mustapha Fallon was killed in battle in Koribondo and not in the
Poro Bush in Talia
Yawbeko. The Prosecution goes further to say that even
though the Proposed Witness who it now seeks to call in rebuttal, in his
interviews with the Prosecution and to quote them, ‘declared some
knowledge of the events surrounding Mustapha Fallon’s
death in Talia
Yawbeko, he did not reveal to the Prosecution, the extent of his knowledge,
including in relation to the relationship
between Mohammed and Mustapha Fallon
until a 28 July 2006 interview after the close of the Prosecution’s
case’.[63]
- We
would like to observe from the facts on the records, that this statement by the
Prosecution is not only untrue but disingenuous
on the face of it in the light
of the detailed revelations in the Proposed Rebuttal Witness’s Statement
made to the Prosecution
and dated the 25th of October,
2003, and this, long before the shorter, and We would say, uneventful statement
of the 28th of July, 2006, on which the Prosecution is
now relying. We in fact note that no explanation has been offered by the
Prosecution
as to why they did not, in that submission, make any specific
mention of or reference to either the very detailed and comprehensive
statement
of the 28th of October, 2003, and that which followed
on the 5th of December, 2003, which were already in its
possession and whose facts, it certainly had or should have used long before the
Prosecution’s
case opened on the 3rd of June,
2004.
- If
therefore, as the Prosecution now contends, the evidence of this Proposed
Witness was necessary to corroborate Nallo’s evidence,
which basically is
the purpose that this rebuttal application is seeking to achieve, they should
have called him as a witness at
the appropriate time when presenting the
Prosecution’s case, or used that or those statements and the facts
contained therein
in one way or the other, to the Prosecution’s advantage
in the course of conducting its case-in-chief or its cross examination
of the
Defence Witnesses.
- What
we do find here, is an attempt to remedy some perceived lapses on the part of
the Prosecution. It is Our opinion that leave
to call rebuttal evidence cannot
be granted in such circumstances because it does not meet the standard and has
the potential of
curing, to the detriment and prejudice of the rights of the
Accused, the possible or perceived defects which could have been averted
by the
Prosecution within a permissible time frame.
- Having
regard to the above, We reject the Prosecution’s submission ‘that it
is irrelevant to an application to call rebuttal
evidence whether or not the
proposed rebuttal evidence was previously known to the
Prosecution’[64]
as ill conceived, misguided and indeed a misleading statement of Law. We
accordingly reiterate that the exercise of the Chamber’s
discretion to
grant an application to call rebuttal evidence, can only be properly grounded on
the showing that the evidence arose
ex improviso during the presentation
of the case for the Defence, and that the Prosecution neither knew of its
existence nor could it reasonably
have anticipated, through the exercise of
ordinary human ingenuity, that the Defence will adduce such evidence.
- As
we have mentioned
earlier[65], it is our
finding that what the Prosecution is attempting to do here is to invoke the
rebuttal procedure to reopen and reinforce
its case. In Our opinion, the
doctrine of fundamental fairness and of equality of arms would be defeated if We
were ever minded
to grant this application, unless we correspondingly grant to
the Defence, a right, not only to cross examine the Proposed Witness
but also,
and in addition, to exercise its right to call further witnesses to buttress the
alleged Koribondo based version of the
killing of Mustapha Fallon. This, to our
mind, will occasion a delay in the proceedings and thereby jeopardise and
violate the rights
of the Accused Person to a fair and expeditious trial as we
have already
indicated[66],
because, and we do emphasise, that there must be finality to the process.
ADMISSIBILITY UNDER RULE 89(C) OF THE RULES OF PROCEDURE AND EVIDENCE
- The
Prosecution in its submissions has also urged us to admit this proposed evidence
in the light of the provisions of Rule 89(C)
of the Rules of Procedure and
Evidence. However, even though this proposed evidence might be relevant, We are
of the opinion, and
We do so hold, that the said evidence, notwithstanding the
submissions by the Prosecution in this direction, cannot, given the facts
and
circumstances of this Motion which we have highlighted, examined, and analysed,
be admitted even under the very broad and apparently
largely
permissive[67]
provisions of Rule 89(C) of the Rules of Procedure and Evidence which grants The
Chamber, the discretion ‘to admit any relevant
evidence’.
- We
adopt this stand because taking such a course will, in Our view, be in violation
of settled and well established legal principles
and the jurisprudence on the
subject of admissibility of rebuttal evidence. Accordingly, and for the reasons
that we have advanced
earlier on, we dismiss this legal proposition advanced by
the Prosecution.
CHAMBER OBSERVATIONS
- We
have also noted that there was a mention by Mr Nallo in his testimony and in the
Proposed Rebuttal Witness’s detailed Statement
of the
25th of October, 2003, which he made to the
Prosecution, of an amount of Le300.000 allegedly having been given to this
Proposed Witness
and other individuals by the 1st
Accused with firm instructions, after the alleged killing at night of Mustapha
Fallon which they say they witnessed and was allegedly
coupled with a threat
from the 1st Accused, for them to say, if they were
ever asked, that Mustapha Fallon was killed in the Koribondo attack.
- We
conclusively find that these facts were to the knowledge and in the possession
of the Prosecution, and constituted sufficient notice
to the Prosecution that
the death of Mustapha Fallon as alleged and narrated by Nallo, was going to be
contested on the strength
of these facts which were not in the least, new. In
these circumstances, the Prosecution cannot credibly contend, as it now seeks
to
do, that it could not have anticipated these facts before opening its case or
indeed, soon after the close of Mr Nallo’s
testimony before the Chamber,
on the 15th day of March, 2005.
- It
is on this score that We accordingly, given the circumstances of this case,
dismiss as misconceived and untenable, the legal thesis
and argument canvassed
by the Prosecution, ‘that it is irrelevant to an application to call
rebuttal evidence, whether or not
the proposed rebuttal evidence was previously
known or available to the Prosecution, but rather, whether the evidence is being
called
to rebut the Defence evidence that could not have been reasonably
anticipated by the Prosecution during the Prosecution
Case’[68], and
further, ‘that it could not have been reasonably anticipated by the
Prosecution during the Prosecution case that the Defence
would actively seek to
present evidence that Mustapha Fallon was killed in battle in
Koribondo.’[69]
- It
is Our view, that granting this Motion to adduce rebuttal evidence on arguments
which We consider ill-conceived, and unconvincing,
and according any approval or
credence to such a theory would amount to overturning a tested long-standing
traditional and settled
principle on the admissibility of rebuttal and new
evidence which was laid down, as We have earlier stated, in 1829 by Lord Tindal
C.J. in the case of Rv
Frost[70] and
which still applies with full force as a basic first principle on this subject
in current Municipal and International Judicial
practices in matters relating to
criminal procedure, practice, and evidence.
CONCLUSION
- The
focus of the case the Prosecution has been making to secure Our leave for the
requests it has made in this Motion is, as We understand
it, that the evidence
to the effect that Mustapha Fallon was killed at the battle front in Koribondo
is new and has taken them by
surprise. They indicate that they never knew or
expected that the Defence would put forward this version of an incident which,
from
their perspective, took place in the Poro Bush in Talia Yawbeko.
- We
entertain no hesitation nor do we have any reserves to arrive at the conclusion
that the facts on the record do not, and cannot,
justify a finding in this
direction to warrant our granting this Motion because the legal standard for
granting it has not been met.
It is Our finding, notwithstanding the
Prosecution’s submissions, that the evidence sought to be adduced in
rebuttal does
not qualify as such under that rubric because it is not new and
further, that it did not arise ex improviso in that it indeed could,
through the exercise of reasonable diligence, have been expected or anticipated
by the Prosecution during
the conduct of their case-in-chief and in any event,
before proceeding to close it.
- In
the light of the foregoing analysis and considerations, We are of the opinion,
and We do so hold, that the Prosecution, in its
submissions on the facts and on
the law to support their Motion, has not met with the required legal standard to
warrant Our exercising
Our discretion in their favour under Rule 85(A)(iii) of
the Rules of Procedure and Evidence,to grant the leave they are seeking,
to
adduce the proposed Rebuttal Evidence.
- It
is our decision therefore, that the Motion be dismissed and that in the
circumstances, there is no necessity or justification
to examine the
2nd arm of the Motion on the Protective Measures for
the proposed Witness which now becomes meaningless as it automatically
lapses.
The Chamber HEREBY denies the Motion as lacking in merit; and
ACCORDINGLY ORDERS that it is dismissed.
Done in Freetown, Sierra Leone, this 27th day of November 2006.
_____________________________
Hon. Justice Benjamin Mutanga Itoe |
__________________________
Hon. Justice Bankole Thompson Presiding Judge Trial Chamber I |
_______________________
Hon. Justice Pierre Boutet |
[Seal of the Special Court for Sierra Leone]
[1]
SCSL-04-14-T-715.
[2]
Ibid., para.
1.
[3]
SCSL-04-14-T-716.
[4]
SCSL-04-14-T-718.
[5]
SCSL-04-14-T-719.
[6]
SCSL-04-14-T-717, “Fofana Response to Prosecution Motion for Immediate
Protective Measures for Proposed Rebuttal Witness”,
filed by Court
Appointed Counsel for the Second Accused on the 16th of
October, 2006 (“Fofana 1st Response”);
SCSL-04-14-T-720, “Confidential Defence Response to Prosecution Motion for
Leave to Call Evidence in Rebuttal”,
filed by Counsel for Fofana on the
16th of October, 2006 (“Fofana
2nd Response”); SCSL-04-14-T-721,
“Confidential Prosecution Reply to Defence Response to Prosecution Motion
for Leave to
Call Evidence in Rebuttal and for Immediate Protective Measures for
Proposed Rebuttal Witness”, filed by the Prosecution on
the
17th of October 2006 (“Reply”).
[7] Transcript of 18th October, 2006, p. 2, lines 20-21.
[8] Also spelt as
Koribundo and
Koribundu.
[9]
Transcript of 27th September, 2006, p. 49, lines
1-5.
[10] Motion,
Annex A, p.
11.
[11] Reply,
para. 15, lines 4-7.
[12] Transcript of
10th March , 2005, p.p. 54-60 and Transcript of
14th of March, 2005, p.
43.
[13] Transcript
of 10th March, 2005, p.p.
54-56.
[14]
Transcript of 10th March, 2005, p.
56
[15] Motion, p.
4, para. 8.
[16]
Motion, p. 5, para.
9.
[17] Motion,
para. 11.
[18]
Motion, para. 12, lines
1-6.
[19] Motion,
para. 12, line
6.
[20] Reply,
para. 11.
[21]
Motion, para.
3.
[22] Motion,
para. 4.
[23]
Prosecutor v. Limaj et al. Case No. IT-03-66, “Decision On
Prosecution’s Motion To Admit Rebuttal Statements Via Rule
92bis”, dated 7th July,
2005.
[24] Motion,
para. 5.
[25]
Prosecution v. Oric, Case No. IT-03-68, Decision On The Prosecution
Motion With Addendum And Urgent Addendum
To Present Rebuttal Evidence
Pursuant To Rule 85(A)(iii), dated 9th February
2006.
[26] The
Prosecution v. Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, Prosecution’s Disclosure Of
Interview
Notes And Unredacted Statements Of The Proposed Rebuttal Witness, p.p.
19401- 19409, dated 16th of October,
2006.
[27]
Response, p. 4, para.
18
[28] Response,
p. 4, para.
19(ii)
[29]
Response, p. 6, para.
25
[30] Response,
p. 7, para.
31(iv)
[31]
Response, p. 8, para.
32
[32] Response,
p. 4, para.
19(i)
[33]
Response, p. 5, para.
19(iv)
[34]
Response, p. 5, para.
19(v)
[35]
Prosecution v. Oric, Case No. IT-03-68, “Decision On The
Prosecution Motion With Addendum And Urgent Addendum
To Present Rebuttal
Evidence Pursuant To Rule 85(A)(iii)”, p. 4, dated
9th February, 2006.
[36] Reply, p. 2,
para. 3.
[37]
Reply, para.
5.
[38] Reply, p.
5, para. 14, Lines 4 –
5.
[39] Reply, p.
6, para. 15.
[40] The
Prosecution v. Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, “Prosecution’s Disclosure Of
Interview
Notes And Unredacted Statements Of The Proposed Rebuttal Witness”,
p.p. 19397-19412, dated 16th of October,
2006.
[41] The
Prosecution v. Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, “Prosecution’s Disclosure Of
Interview
Notes And Unredacted Statements Of The Proposed Rebuttal Witness”,
p.p. 19404-19409, dated 16th of October,
2006.
[42] The
Prosecution v. Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, “Prosecution’s Disclosure Of
Interview
Notes And Unredacted Statements Of The Proposed Rebuttal Witness”,
p.p. 19408, dated 16th of October, 2006.
[43] The
Prosecution v. Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, “Prosecution’s Disclosure Of
Interview
Notes And Unredacted Statements Of The Proposed Rebuttal Witness”,
p.p. 19413, dated 16th of October, 2006.
[44] Prosecution
v. Oric, Case No. IT-03-68, “Decision On The Prosecution Motion With
Addendum And Urgent Addendum
To Present Rebuttal Evidence Pursuant To
Rule 85(A)(iii)”, dated 9th February,
2006.
[45] The
Prosecutor vs Ntagerura, Case No. ICTR-99-46-T, “Decision On The
Prosecutor’s Motion For Leave To Call
Evidence In Rebuttal
Pursuant To Rules 54, 73, And 85 (A) (iii) Of The Rules Of Procedure And
Evidence”,
dated
[46] Lord
Tendal Rv
Frost
[47]
Prosecution v. Delalic et al, Case No. IT-96-21,
“Appeals Judgement”, dated 20th
February,
2001.
[48]
Prosecutor v. Semanza, Case No. ICTR-97-20-T “Decision on
the Prosecutor’s Motion for Leave to Call Rebuttal Evidence and the
Prosecutor’s
Supplementary Motion for Leave to Call Rebuttal
Evidence”, dated 27th March,
2002.
[49]
Prosecution v. Delalic et al, Case No. IT-96-21,
“Appeals Judgement”, dated 20th
February,
2001.
[50]
Prosecution v. Delalic et al, Case No. IT-96-21,
“Appeals Judgement”, dated 20th
February,
2001.
[51] (1839) 4
State Tr NS 85 at 386, Halsbury’s Laws Of England, Vol. 11 Para
294.
[52] (1969) 53
Cr. App. Rep.
330
[53] Rv
Harris [1927] 2 KB
587
[54] [1912]
CPD 969
[55]
The Prosecution v. Sesay, Kallon and Gbao, Case No. SCSL-04-15-T,
Decision on Prosecution Request for Leave to Amend Indictment, p. 10, para. 27,
dated 6th February,
2004.
[56] The
Prosecution v. Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, Decision
on Prosecution Request for Leave to Amend Indictment, dated
20th May,
2004.
[57]
Delalic et al, Case No. IT-96-21-A, “Appeals Judgement”,
dated 20th February, 2001.
[58] Supra,
note 58.
[59]
Supra, note 39.
[60] Prosecutor
v. Semanza, Case No. ICTR-97-20-T, “Decision on Defence Motion for
Leave to Call Rejoinder Witnesses”,
30 April 2002; para.
5.
[61] Transcript
of 10th March, 2005, Evidence of Nallo, p. 58, para.
19, lines 12-18
[62] Reply, para.
15, lines 8 and 16.
[63] Motion, p. 5,
para. 12, line
13-17.
[64] Reply,
para. 14, lines
3-5.
[65] See para.
72 of this
Decision
[66] See
para. 51 of this Decision
[67] Prosecution
v. Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, Fofana Appeal Against
Refusing Bail Decision,
11th of March, 2005,
paras 22-24 & 29.
[68] Reply, para.
14, lines 4 and
5.
[69] Reply,
para. 15 lines 4-7.
[70] Supra,
Note 46.