TRIAL CHAMBER I

Public Document

DECISION ON PROSECUTION APPLICATION FOR
LEAVE TO AMEND THE INDICTMENT

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 Application for Leave to Amend Indictment” filed publicly by the Office of the Prosecutor (“Prosecution”) on the 20th of February 2006 (“Motion”);

NOTING the Response to the Motion filed by the Defence for the First Accused, Issa Sesay, on the 2nd of March 2006 (“Sesay Response”), the Response to the Motion filed by the Defence for the Second Accused, Morris Kallon, on the 2nd of March 2006 (“Kallon Response”) and the Response to the Motion filed by the Defence for the Third Accused, Augustine Gbao, on the 2nd of March 2006 (“Gbao Response”);

NOTING the Reply to the Sesay Response filed by the Prosecution on the 7th of March 2006 (“Reply to Sesay”) and the joint Reply to the Kallon Response and the Gbao Response filed by the Prosecution on the 7th of March 2006 (“Joint Reply to Kallon and Gbao”);

MINDFUL of the Amended Consolidated Indictment filed in this case by the Prosecution on the 13th of May 2006 (“Indictment”);

PURSUANT to Article 17 of the Statute of the Special Court (“Statute”) and Rules 26bis, 50, 52 and 54 of the Rules of Procedure and Evidence (“Rules”);

NOW HEREBY ISSUES THE FOLLOWING UNANIMOUS DECISION:

I. THE SUBMISSIONS

A. The Motion

1. The Prosecution through this application, seeks to amend the Amended Consolidated Indictment in the RUF Case. The two proposed amendments are the following:

A. Paragraphs 48, 62 and 80 to be amended so that the words “Between about 14 February 1998 and 30 June 1998...” be changed to read “Between about 14 February 1998 and 31 January 2000...” (“Proposed Amendment A”);

B. Paragraph 31 to be amended so that the word “from” is deleted and replaced with “between” so that the sentence reads: “In this position, between about April 1997 and about mid 1998, Augustine Gbao was subordinate...” (“Proposed Amendment B”) [1]

2. The Prosecution submits that the aforementioned Proposed Amendment A relates exclusively to the time frames pleaded as particulars of the crimes of unlawful killings, under Counts 3-5, physical violence, under Counts 10-11, and looting and burning, under Count 14, respectively, alleged to have occurred in the Kono District[2] while Proposed Amendment B is solely a formal or semantic change.[3]
3. According to the Prosecution, some of the witnesses who testified before the Trial Chamber in relation to these crimes for the Kono District already gave evidence indicating or suggesting that some crimes may have fallen outside the specific time period stated in paragraphs 48, 62 and 80 of the current Indictment.[4] The Prosecution submits that if the Trial Chamber is ultimately satisfied beyond a reasonable doubt that an Accused is criminally responsible for a particular crime to which the said paragraphs relate, the Accused must be convicted of that crime even if the evidence does not establish that the crime necessarily occurred within the time specified in those paragraphs of the Indictment, or even if the evidence establishes that the crime occurred outside that specific time period.[5] The Prosecution submits that is not seeking to add new allegations to the existing charges and that it would be good practice in the present circumstances to seek an amendment to the Indictment in order make the stated periods consistent with the evidence already before the Chamber and give the Defence better notice and particulars of the case that the Accused have to meet.[6]
4. In addition, the Prosecution further submits that Proposed Amendment A will not cause any prejudice to the Accused. According to the Prosecution, all concerned witnesses were extensively cross-examined on the facts because the evidence in question was relevant to Counts 1 and 2 which incorporate all the acts alleged in relation to all of the other counts and which therefore, include relevant events in the Kono District, spanning the broader time period until January 2000. The Prosecution contends that there should therefore be no need to recall any witness.[7]

B. The Defence Responses

9. All of the Defence teams object to the Proposed Amendment A on the grounds that the amendment of the Indictment is not in the interest of justice, is prejudicial to the Accused, and that the Prosecution acted without the ordinary diligence in promptly bringing the Motion. The Defence contend that the proposed amendment, if granted, will unduly delay the proceedings. Proposed Amendment B is not opposed by the Defence.

i. The Sesay Response

10. The Defence asserts that if Proposed Amendment A is granted it would amount to addition of multiple “fresh allegations amounting either to separate charges or to new allegations in respect of an existing charge” which would cause irreparable prejudice to the accused.[8]
11. The Defence also submits that, if leave is granted, Rule 50(B) of the Rules would be invoked and witnesses who have already testified might have to be recalled. This, according to the Defence, would delay the Accused’s trial which to date has imposed a three year detention on a man presumed to be innocent and thereby breach the Accused’s right to be tried without undue delay under Article 17(4)(c) of the Statute.[9] The Defence also submit that the Prosecution has offered no reasons to explain the delay in bringing forward the Motion.[10]
12. Accordingly, the Defence concludes that it would be wholly unfair to allow the Prosecution to prosecute the trial until two-thirds of their case has been presented and the Accused have been in custody for three years, having given notice that there would be no prosecution of alleged offences in Kono from 30 June 1998, and then to allow a change of the goal posts by 17 months to allow the introduction of over one hundred more factual allegations of such crimes.[11]
    

ii. The Kallon Response

13. The Defence argues that there has been a protracted interval of 9-24 months between the discovery of the evidence alleged to be in support of the proposed new amendments, and the filing of the instant Motion[12] and that such protracted interval since discovery amounts to undue delay which, if ignored, will defeat the judicial guarantees and safeguards of the rights of the Accused to be tried fairly and expeditiously.[13] According to the Defence, the expansion of the time frames by about one and a half years constitutes new charges under Rule 50 of the Rules.[14]
14. According to the Defence, the jurisprudence requires that the Prosecution should have immediately filed its application after the first witness was heard. Defence argues further that it was the Prosecution’s duty to investigate further and promptly find out whether any of the witnesses it intended to call were likely to testify on events outside the temporal scope of the indictment. [15]

iii. The Gbao Response

15. The Defence submits that certain circumstances militate against the fairness of the proposed amendments, and that they include: lack of due diligence or attempt to demonstrate due diligence by the Prosecution in making the application; the quantum of testimony already given and affected by the application; the potential delay in the proceedings and the fault of the Prosecution in not mitigating that delay; the substantive nature of the proposed changes; the fact that the changes involve an expansion rather than a narrowing or more specific framing of the Prosecution case against the Accused; the significant length of the expansion in time frame rendering the temporal change more than merely cosmetic; the significance of dates in this Indictment where the particulars of specific crimes are not articulated with precision; and the advanced stage of the proceedings. Finally, the Defence contends that the effect of the Prosecution’s failure to bring the Motion for at least more than 12 months is tantamount to “trial by ambush.”[16]
    

C. The Prosecution Replies

i. The Reply to Sesay

16. The Prosecution reiterates that the amendment sought will not bring additional evidence of additional crimes. According to the Prosecution, it is seeking to make the Indictment more consistent with the evidence that is already before the Trial Chamber and the Defence know what evidence has been adduced so far.[17]
17. The Prosecution notes that the general time frame alleged for the charges against these Accused under Counts 1-2 of the Amended Consolidated Indictment is “at all times relevant to the indictment”, that is from 16 November 1996 up to 10 March 2003. In Kono District, the Indictment already and expressly includes various crimes committed between 25 May 1997 and about January 2000.[18]

ii. The Joint Reply to Kallon and Gbao

18. In its Joint Reply, in addition to the submissions made in its Reply to Sesay, the Prosecution states that the Defence has been on notice for some time that some of the crimes alleged in paragraphs 48, 62 and 80 of the Indictment may have occurred outside the timeframe specified therein. As regards the argument that the time frame is broad, the Prosecution states that this Trial Chamber already held that “the sheer scale of the alleged crimes makes it ‘impracticable’ to require a high degree of specificity in such matters as the identity of the victims and the time and place of the events”, and that a time frame could acceptably be formulated, for instance, as “at all times relevant to this indictment.”[19]

III. THE APPLICABLE LAW

A. Statutory Provisions

19. In the Special Court for Sierra Leone, applications for leave to amend an indictment are governed by Rule 50 of the Rules. Rule 50 provides that:

(A)    The Prosecutor may amend an indictment, without prior leave, at any time before its approval, but thereafter, until the initial appearance of the accused pursuant to Rule 61, only with leave of the Designated Judge who reviewed it but, in exceptional circumstances, by leave of another Judge. At or after such initial appearance, an amendment of an indictment may only be made by leave granted by a Trial Chamber pursuant to Rule 73. If leave to amend is granted, Rule 47(G) and Rule 52 apply to the amended indictment.

(B)    If the amended indictment includes new charges and the accused has already made his initial appearance in accordance with Rule 61:

(i) A further appearance shall be held as soon as practicable to enable the accused to enter a plea on the new charges;

(ii) Within seven days from such appearance, the Prosecutor shall disclose all materials envisaged in Rule 66(A)(i) pertaining to the new charges;

(iii) The accused shall have a further period of ten days from the date of such disclosure by the Prosecutor in which to file preliminary motions pursuant to Rule 72 and relating to the new charges.

B. Existing Case-Law

20. Since its inception, this Chamber has had occasion, in some Decisions on the subject, to articulate the general operative principles in this area of the law.[20]
21. Firstly, in our CDF Amendment Decision, we laid down the applicable standard for evaluating the merits of applications of this nature. There, we stated as follows:

The crucial consideration in this process, in our opinion, is one of timing and whether the application for the amendment is brought at a stage in the proceedings where it would not prejudice the rights of the accused 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.[21]

In that Decision, we emphasised that in general, time is of the essence in such matters and delay would militate against the granting of an amendment to an indictment if it would result in unfairness to the Accused. From the Chamber’s perspective, this principle remains tenable and valid as the overriding test.

22. In its Decision on Amendment of the Consolidated Indictment, the Appeals Chamber observed as follows:

In principle, the Indictment may be amended at any stage of the proceedings, up to the conclusion of the trial, if the Court is satisfied that the Defence will not be prejudiced by the amendment and that making it will be in the interests of justice. The Special Court Rules do not preclude later amendments.[22]

23. The said Appeals Chamber then proceeded to distinguish three categories of amendments to indictments, indicating their respective degrees of permissibility or impermissibility in these terms:

Amendments to an Indictment, broadly speaking, fall into three categories:

1. Formal or semantic changes, which should not be opposed.
2. Changes which give greater precision to the charge or its particulars, either by narrowing the allegation or identifying times, dates or places with greater particularity or detail. Such amendments will normally be allowed, even during the trial.
3. Substantive changes, which seek to add fresh allegations amounting either to separate charges or to a new allegation in respect of an existing charge.[23]

24. As to the permissibility or otherwise of the third category, the Appeals Chamber had this to say:

Amendments in the third category will be carefully scrutinised and call for clear justification if they are to be allowed once the trial is underway. The Prosecution at this stage must satisfy the court not only that the substantial amendments cause no prejudice to the defence but that they will not delay or interrupt the trial. Once a criminal trial has begun it should proceed with as little distraction as possible to its conclusion on the Indictment as opened by the Prosecution. In inquisitorial systems and civil trials there is more flexibility, but it is fundamental to the adversarial system of criminal justice that once a trial is underway with live witnesses it should proceed straight-forwardly without change of goal-posts.[24]

25. We would like, in this regard to refer to the case of Prosecutor v. Muhimana, where the Trial Chamber of the International Criminal Tribunal for Rwanda (“ICTR”) stressed that “the fundamental issue in relation to granting leave to amend an indictment is whether the amendment will prejudice the Accused unfairly”.[25] On the issue as to whether any delay resulting from the amendment infringes the right of the Accused to be tried without undue delay, the Chamber in that case reasoned that this could depend upon “(i) the circumstances of the particular case, including any improper tactical advantage sought by the Prosecution, and (ii) the exceptional character of criminal proceedings involving war crimes, including the general complexity and difficulties necessarily inherent in the investigation of such crimes”.[26]

IV. EVALUATION OF MERITS OF THE APPLICATION

26. In evaluating the merits of the application, the Chamber considers it necessary, to address first, the Prosecution’s contentions as regards “Proposed Amendment A”. The amendments sought here are in respect of paragraphs 48, 62, and 80 of the existing Amended Consolidated Indictment so that the words “Between about 14 February 1998 and 30 June 1998” be replaced by the words “Between about 14 February 1998 and 31 January 2000”.
27. The Prosecution’s submission in support of this proposed amendment is threefold: (i) that some of the witnesses who testified before the Chamber in relation to these crimes for the Kono District already gave evidence indicating or suggesting that some events may have fallen outside the specific time periods stated in the paragraphs 48, 62, and 80 of the existing Indictment; (ii) that if the Trial Chamber is satisfied beyond a reasonable doubt that an accused is criminally responsible for a particular crime to which the said paragraphs relate, the Accused must be convicted of the crime even if the evidence does not establish that the crime necessarily occurred within the specific time period stated in those paragraphs of the Indictment or even if the evidence establishes that the crime occurred outside that specific time period, (iii) that it is not seeking to add new allegations to the existing charges and that it would be good practice in the present circumstances to seek an amendment to the Indictment in order to make the stated periods consistent with the evidence already before the Chamber and give the Defence better notice and particulars of the case that the Accused has to meet.
28. On the issue of possible delay, the Prosecution contends that the application is being made at this stage of the proceedings because the evidence regarding the Kono District is still being heard and it was not possible to know previously to what extent the testimony would diverge from that known to the Prosecution at the time the Indictment was filed. It contends further that evidence relating to Kono District was heard during the first four trial sessions, and that significant evidence relevant to Kono District was heard in the fifth trial session (Witnesses TF1-272, TF1-361, TF1-360 and TF1-036), and in the sixth trial session (Witness TF1-366).
29. It is further argued by the Prosecution that witnesses it intends to call in the seventh trial session were expected to testify about events in Kono District. It therefore argues that it has not delayed in bringing the application and that there would have been little purpose in bringing it immediately after the evidence of the first witness to events in Kono District differed from the Indictment in terms of the timing of these events.
30. As already noted, each Defence Team objected to the proposed amendment. The pith and substance of the Defence submissions in support of their objection can be summed up in four propositions, namely, (i) that it is not in the interest of justice, (ii) that it is prejudicial to each Accused, (iii) that the Prosecution acted without due diligence by not promptly bringing the Motion, and (iv) that if the amendment is granted, it will unduly delay the proceedings.
31. We would like to observe that the Prosecution is making this application at a time when its case is drawing to an end. Even though it is conceded that the Court could, depending on the circumstances, grant an amendment at one stage or the other of the trial, the Chamber must advise itself properly in examining such applications, guided by the nature and substance of the amendment sought, to ensure that it could not negatively impact on the doctrine of fundamental fairness and on the rights of the Accused at this late stage of the trial.
32. In our Majority Decision in the case of Prosecutor v. Sesay et al., the Prosecution’s application was for leave to amend the Indictment to add a new Count related to forced marriage. The Chamber granted the amendment because it was of the opinion that “the amendment sought is not a novelty that should necessitate fresh investigations as the defence contends”.[27] We further held that “[t]his is only logical because granting it would neither occasion an ‘undue delay’ of the trial of the accused, nor a breach of the statutory rights of the accused as provided for under the provisions of Article 17(4)(a) of the Statute”.[28]
33. In the instant case, the circumstances are different. The amendment sought seeks to expand the time frames of the Indictment by about 18 months in order to align it with the evidence that has already been adduced by the Prosecution. The Chamber is of the opinion that if this amendment were granted, it will not only change the goal posts that were fixed by the Indictment on which the trial has so far been conducted, but will also be prejudicial to the rights of the Accused to a fair and expeditious trial and to be informed promptly of the nature, and we would say, the scope and extent of the charges against him, as guaranteed by Article 17 of the Statute of this Court.
34. The Prosecution admits that it knew of the disparity between the time frames alleged in the Amended Consolidated Indictment and the evidence that it had so far adduced, but that it was waiting for the right moment to apply for the amendment, preferably after all the evidence had been adduced.
35. In this regard, and in disallowing the Prosecution’s Appeal against a refusal by the Trial Chamber to grant a motion for an amendment of the indictment, the Appeals Chamber of the ICTR had this to say in the case of the Prosecution v. Bizimungu et al.:

... amendments that narrow the indictment and thereby increase the fairness and efficiency of the proceedings should be encouraged and usually accepted ... Had the Prosecution solely attempted to add particulars to its general allegations, such an amendment might well have been allowable because of their positive impact on the fairness of the trial...[29]

36. The Chamber observes, as we did earlier on, that this amendment sought by the Prosecution does not accord with the principles and considerations enunciated in the Sesay case nor does it, with the dictum of the Justices of the Appeals Chamber of the ICTR in the Bizimungo case cited above.
37. It is significant, in our considered view, to note that in terms of its character and substance, Proposed Amendment A is legally different from any of the amendments falling within the three-fold category of the CDF Appeals Chamber Amendment Decision. In the present situation, the Chamber is confronted with a proposed amendment that is fundamentally different in the sense that it seeks judicial endorsement of the exercise of a prosecutorial discretion, at such an advanced stage of the trial, to reconcile a divergence or discrepancy between the evidence adduced on highly contentious matters and the allegations as to material times in respect of such matters in the Indictment.
38. Guided by the law on the subject of indictments as already enunciated, and putting in judicial focus, the respective contentions and submissions of the Prosecution and the Defence specifically in relation to Proposed Amendment A, the clear issues for determination are: (i) whether the Prosecution acted with due professional diligence in bringing the Motion at the time it did, (ii) whether the proposed amendment will amount to new charges or new allegations, (iii) whether granting the said amendment sought will unfairly prejudice the Accused, and (iv) whether granting the said amendment will serve the overall interests of justice.
39. Addressing the first issue, that is whether the Prosecution acted with due professional diligence in bringing the Motion at the time it did, the Chamber opines that even though “in principle”, an indictment “may be amended at any stage of the proceedings”[30] such latitude as is granted to the Prosecution in applications of this type is only permissible “within the confines of the law and by respecting, not only the legal protection accorded to the Accused by the Statute, but also, the principle of ‘a fair and expeditious trial’.”[31] It is equally pertinent, from the Chamber’s perspective, that such prosecutorial latitude be subject, amongst other factors, to the limited time mandate dynamic of the Court. On this specific issue, we have had occasion to remark that:

... what could amount to an “undue delay” in trying an accused is certainly more demanding, and we would say that it really means “a much shorter time frame” that may be longer in municipal judiciaries which are institutional monuments that do not wither away with time like international criminal tribunals such as ours, do. Extreme expeditiousness in trying the Accused Persons should therefore be, and is in fact, our watchword .....while we remain permanently preoccupied by, and still determined in ensuring that justice to appear credible and to be so perceived, should not only be done, but should manifestly and undoubtedly be seen to have been done.[32]

40. In support of the application, the Prosecution argues that it was not possible, prior to the time of the hearing of the evidence regarding the Kono District to discern the extent to which the testimony would diverge from that known to the Prosecution at the time the Indictment was filed. This contention, in the Chamber’s view, on its face, is far-reaching in its implications in so far as the delay factor is concerned in that it implies the enjoyment of an unfettered latitude by the Prosecution to seek an amendment at any time there is a divergence between the evidence known to the Prosecution at the time of the filing of the Indictment and that given at the trial. This proposition, if upheld, would amount to granting an absolute discretion to the Prosecution to align the evidence with the charges at any stage of the trial. This has never been the law. We therefore reject that argument.
41. In the Chamber’s view, a delay of this nature in seeking the amendment, is not acceptable in that it clearly evidences lack of due diligence on the part of the Prosecution to act with promptitude in seeking the said amendment. The records disclose, for instance, that Witness TF1-304 testified before the Trial Chamber between the 12th and 17th of January, 2005, while Witness TF1-012 testified between the 2nd and the 4th of February, 2005. Other witnesses testified as early as April 2005.[33]
42. By parity of reasoning, the twofold contention of the Prosecution that it would have been of little purpose to seek the proposed amendment after the evidence of the first witness had been addressed,[34] and that it was necessary to wait after the relevant witnesses have testified,[35] is likewise legally untenable since the Prosecution did have notice from the time of the testimonies of the first witnesses relating to the expanded time frames in respect of the events in the Kono District, and, therefore, could have exercised due professional diligence in notifying the Chamber and the Defence of the expanded time frames, and thus be in conformity with the principle of equality of arms and respect for the right of each Accused to be promptly informed of the case against him. We opine that the principle that amendments can be granted at any time is not absolute. It is subject to the two aforementioned statutory principles. Where a late amendment infringes the principle of equality of arms and the statutory right of an accused to be informed promptly of the nature of the case against him, it will be unconscionable to grant the amendment. In support of this reasoning, we adopt the view taken by the Appeals Chamber of the ICTR in the case of Prosecutor v. Muvunyi, where it was held as follows:

Under some circumstances, the Prosecution might justifiably wait to file an amendment while it continues its investigation so as to determine whether further evidence either strengthens its case or weakens it. ... Where the Prosecution has delayed unnecessarily in bringing particular allegations, and this delay has caused prejudice to the defendant, it is within the Trial Chamber’s discretion to find that this delay constitutes sufficient ground to refuse and amendment to an indictment.[36]

43. In the light of the foregoing analyses of the applicable principles of law on the subject of amendment of indictments, the factual state of the records as to the protracted time lapse of about 7 months, as a minimum, to 13 months, as a maximum,[37] between the discovery of the divergence between the testimonial evidence and the alleged time frames in the Indictment, and the filing of the Motion, and our reasoning in respect of the first issue for determination, we hold that it logically follows, as regards the second, third, and fourth issues for determination as articulated, that it would be unfair and prejudicial to the Accused herein to grant Proposed Amendment A. To do so would unleash an unpredictable chain of procedural possibilities regarding the protection and guarantees of the rights of the Accused under our Rules of Procedure and Evidence occasioning undue and protracted delay of the trial especially having regard to the advanced stage we have now reached in the proceedings. The Chamber, accordingly, refuses leave in respect of Proposed Amendment A.
44. In the case of Proposed Amendment B, the majority of this Chamber agrees with the Prosecution that the changes sought are of a semantic nature with no adverse impact on the rights of the Accused and fall within the ambit of the first category of amendments to indictments as indicated by the Appeals Chamber.[38] Such amendment will merely correct the current form of the Amended Consolidated Indictment and will not touch upon its substance. We accordingly, grant Proposed Amendment B.

6. DISPOSITIONS

44. Proposed Amendment B is allowed to proceed as it is non-contentious.
45. Having found that the Prosecution did not act with the due professional diligence in bringing forward Proposed Amendment A in a timely manner and that this constitutes undue delay, the Motion fails in this regard.
    

FOR THE ABOVE REASONS, THE TRIAL CHAMBER

HEREBY GRANTS THE MOTION IN PART solely with reference to Proposed Amendment B, and accordingly:

ORDERS that the Prosecution shall file by no later than Wednesday, the 2nd of August 2006 at 12:00pm, a corrected version of the Amended Consolidated Indictment, to be marked as “Corrected Amended Consolidated Indictment” which will become the Indictment under which the trial shall proceed;

ORDERS that the Corrected Amended Consolidated Indictment shall be immediately and personally served to each of the Accused pursuant to Rule 52 of the Rules, as well as to each of their respective Defence Counsel;

ORDERS that the current Amended Consolidated Indictment shall be thereafter marked “not to be proceeded with.”[39]

DISMISSES THE REMAINING OF THE MOTION with reference to Proposed Amendment A.

Hon. Justice Benjamin Mutanga Itoe appends a Separate Dissenting Opinion to the present Decision with sole reference to Proposed Amendment B.

[1] Motion, para. 2.
[2] Id., para. 4.
[3] Id., para. 16.
[4] Id. para. 4.
[5] Id., para. 6. The Prosecution argues that the amendment is justified in Common Law on the basis of the so called Dossi principle. According to this principle “From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence.” See R v. Dossi, 13 CR. App.R. 158 (CCA), at pp. 159-160. See also Archbold Criminal Pleading, Evidence and Practice, 2002 Edition, paras. 1-127 to 128. See also Prosecutor v. Rutaganda, Case No. ICTR-96-3-A, Judgment, 26 May 2003, paras 296-306.
[6] Motion, para 5.
[7] Id., paras 13-14.
[8] Sesay Response, para. 1.
[9] Id., paras 8-10.
[10] Id., para. 10.
[11] Id., paras 7-9, 13 and 17.
[12] Kallon Response, para. 14.
[13] Id., para. 22.
[14] Id., paras 18 and 26.
[15] Id., para. 30.
[16] Gbao Response, para. 12.
[17] Reply to Sesay, paras 4, 5, 9, 14, 20.
[18] Id., paras 8, 13, 15, 17.
[19] Joint Reply to Kallon and Gbao, para. 8. See also Prosecutor v Sesay, SCSL-2003-05-PT, Decision and Order on Defense Preliminary Motion for Defects in the Form of the Indictment, Trial Chamber, 13 October 2003, para. 21.
[20] See Prosecutor v. Norman, Fofana and Kondewa, Case No. SCSL-04-14-PT, Decision on Prosecution Request for Leave to Amend the Indictment, 20 May 2004 (“CDF Amendment Decision”); See also Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-04-15-PT, Decision on Prosecution Request for Leave to Amend the Indictment, 6 May 2004 (“RUF Amendment Decision”).
[21] CDF Amendment Decision, supra note 20, para. 35. See also RUF Amendment Decision, supra note 20, para. 27.
[22] Prosecution v. Noman, Fofana and Kondewa., Case No. SCSl-04-14-AR73, Decision on Amendment of the Consolidated Indictment, 16 May 2005 (“CDF Appeals Chamber Amendment Decision”), para. 78.
[23] Id. para. 79.
[24] Id., paras 78 and 80. See also Prosecutor v. Niyietegeka, Case No. ICTR-96-14-T, Decision on Prosecutor’s Request for Leave to file an Amended Indictment, 21 June 2004, para. 33.
[25] Prosecutor v. Muhimana, Case No. ICTR-1995-1B-I, Decision on Motion to Amend the Indictment, 21 January 2004, para. 4.
[26] Id. For further articulation of this general applicable standard, being variations of the same theme, see also Prosecutor v. Bizimungu, Case No. ICTR-98-44-PT, Decision on Prosecutor’s Interlocutory Appeal against Trial Chamber II Decision on 6 October 2003 Denying Leave to File Amended Indictment, 12 February 2004; Prosecutor v. Karemera, ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, 12 December 2003. See also Prosecutor v. Kovacevic, IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, 2 July 1998; Prosecutor v. Halilovic, Case No. IT-01-48-PT, Decision on Prosecutor’s Motion Seeking Leave to Amend the Indictment, 17 December2004.

[27] RUF Amendment Decision, supra note 20, para. 51.
[28] Id.
[29] Prosecutor v. Bizimungo et al., Case No. ICTR-99-50-AR50, Decision on Prosecutor’s Interlocutory Appeal against Trial Chamber II Decision of 6 October 2003 Denying Leave to File Amended Indictment, 12 February 2004, paras 19-20.
[30] See CDF Appeals Chamber Amendment Decision, supra note 22, para. 78.
[31] CDF Amendment Decision, supra note 20, para. 52.
[32] Id., para. 53.
[33] For the various witnesses mentioned by the Prosecution as giving their testimony relating to events in Kono District falling outside the current time periods of the Amended Consolidated Indictment, see Motion, para. 14 and id., Annex A. In addition, Witness TF1-263 testified between the 6th and the 11th of April, 2005; Witness TF1-141 testified between the 11th and the 19th of April, 2005; Witness TF1-363 testified between the 19th and the 26th of April, 2005;Witness TF1-272 testified on the 5th of July, 2005; Witness TF1-361 testified between the 11th and the 19th of July, 2005; Witness TF1-360 testified between 19th and the 26th of July, 2005; and Witness TF1-036 testified between the 27th of July and the 3rd of August, 2005.
[34] See Motion, para. 14.
[35] See Reply to Sesay Response, para. 15.
[36] Prosecutor v. Muvunyi, Case No. ICTR-00-55A-AR73, Decision on Prosecution Interlocutory Appeal against Trial Chamber II Decision of 23 February 2005, 12 May 2005, para. 51. See also Id., Case No. ICTR-00-55A-PT, Decision on the Prosecutor’s Motion for Leave to File an Amended Indictment, 23 February 2005, paras 43-50.
[37] See supra note 30.
[38] See CDF Appeals Chamber Amendment Decision, supra note 22, para. 79. See also infra, para. 23.
[39] See also CDF Appeals Chamber Amendment Decision, supra note 22, para. 89; Prosecutor v. Taylor, Case No. SCSL-03-01-I, Decision on Prosecution’s Application to Amend the Indictment and on Approval of Amended Indictment, 16 March 2006, para. 12.