TRIAL CHAMBER I

Public Document

DISSENTING WRITTEN REASONS OF HON. JUSTICE PIERRE BOUTET ON MAJORITY DECISION ON ORAL DECISION ON OBJECTION TAKEN BY COUNSEL FOR THE THIRD ACCUSED, AUGUSTINE GBAO, TO THE ADMISSIBILITY OF PORTIONS OF THE EVIDENCE OF WITNESS TF1-371

1. With due respect for my Learned Brothers, Justice Bankole Thompson, Presiding Judge and Justice Benjamin Mutanga Itoe, I cannot agree with their respective analysis nor can I agree with their findings and disposition of this Objection and therefore append this Dissenting Opinion.
2. The Objection raised by Mr. Cammegh, one of the Court Appointed Counsel for the Third Accused, Augustine Gbao, according to his submissions, goes to the fundamental fairness of the process with respect to the Third Accused and the statutory right of the Accused to adequately prepare for his defence. The Defence also raised a secondary issue, although this point has not been really developed, about the Prosecution’s duty to promptly disclose to the Defence any relevant information in its possession. In particular, a breach of Rule 66 was alleged although it was conceded by the Defence that it was done without any mala fide on the part of the Prosecution.[1]
3. The Defence submitted, more particularly, that it will suffer prejudice if this evidence that the Prosecution is attempting to introduce “in relation to the allegations of unlawful killings allegedly committed in the Kono District” is admitted, because most of that evidence has deliberately not been challenged by the Third Accused for the specific reason that there had never been any evidence led by the Prosecution that the said Accused “either partook in such crimes or could be said to have had any knowledge or control over that”.[2] The Third Accused, according to the Defence, was “simply never implicated, even taking the law in relation to joint criminal enterprise, or command responsibility, to its widest definition”.[3] The Defence claims further that they were alerted to the evidence on unlawful killings only recently. The Defence argues that this prejudice has been caused by a violation of Rule 66 with the service on the 10th of July 2006 of the supplemental statement of Witness TF1-371,[4] statement containing the evidence complained of.
4. On the basis of this alleged prejudice, the Defence seeks as remedy the exclusion of the evidence related to the alleged involvement of the Third Accused in the unlawful killings in the Kono District because they submit this evidence of Witness TF1-371, if admitted, would unfairly prejudice the Defence in that it could not proceed to adequately prepare for the cross-examination of this Witness about these events in the Kono District and to recall previous witnesses to allow their cross-examination would delay the proceedings.
5. Applications about disclosure and remedies applicable for breaches that may have occurred are generally governed by Rule 66, 89 and 95. The relevant jurisprudence of this Chamber on this issue, especially in the RUF case, is extensive and exhaustive.[5] In particular, I would like to recall here the following applicable principles:

• In the evaluation of the possible novelty of evidence presented during a witness testimony, it may not be possible to include every matter that a witness will testify upon at trial in a witness statement regardless of its nature. Based on the principle of orality, witnesses shall ideally be heard directly in open court. [6]
• As the primary charging instrument, the indictment itself, together with the Prosecution Pre-Trial Brief and Supplemental Pre-Trial Brief, has already served notice on the Accused as to the material facts alleged in the charges against him.[7]
• Proofing witnesses prior to their testimony in court is a legitimate practice that serves the interest of justice. This is especially so given the particular circumstances of many of the witnesses in this trial who are testifying about traumatic events in an environment that can be entirely foreign and intimidating for them.[8]
• The Prosecution has an obligation to continuously disclose witness statements obtained from a witness prior to his testimony at trial in accordance with Rule 66 of the Rules.[9] In order to establish that the Prosecution has breached its disclosure obligations under the said Rule, the Defence must make a prima facie showing of materiality and that the requested evidence is in the custody or control of the Prosecution.[10] Alleged breaches of disclosure obligations should normally be addressed promptly and expeditiously.[11]
• The obligation of disclosure by the Prosecution of the evidence in its custody which it intends to introduce to establish material facts of the charges and the allegations contained in the indictment does differ from, and should not be confused with its obligation to state the material facts constituting the charges against the accused persons in the indictment and as to the form and contents of the indictment.[12]
• Rule 89(C) vests the Trial Chamber with discretionary power to admit any relevant evidence and to exclude evidence that is not relevant. The Appeals Chamber has noted that the Rules favour a flexible approach to the issue of admissibility of evidence, leaving the issue of weight to be determined when assessing probative value of the totality of the evidence.[13]
• The Chamber may pursuant to Rule 95 exclude evidence where its admission would bring the administration of justice into disrepute. Under this Rule and in pursuance of its inherent jurisdiction, the Chamber may exclude evidence whose probative value is manifestly outweighed by its prejudicial effect.[14]
• The Trial Chamber has a discretionary power as regards the assessment of which is the appropriate remedy in case of breach of disclosure obligations. This assessment involves an exercise of discretion by the Chamber and requires a particular factual inquiry into the evidence in question.[15] As a general rule, the judicially preferred remedy for a breach of disclosure obligations by the Prosecution, if proven, is an extension of time to enable the Defence to adequately prepare rather than the direct exclusion of the evidence concerned.[16]

6. Guided by the aforementioned applicable principles and consistent with previous Decisions of this Chamber on these matters, I am of the opinion that the Objection should be overruled in that:

a) the evidence in question is relevant, and therefore admissible; and,

b) the Defence had sufficient notice of the nature of the evidence in question in order to prepare for its case.

I find consequently that no unfairness to the Third Accused could have resulted from the disclosure process for the reasons further amplified hereafter.

7. A review of the record shows that Witness TF1-371 has been added to the existing Prosecution witness list by a unanimous Decision of this Trial Chamber on the 6th of April, 2006 and, consequently, his original unredacted witness statements have been disclosed to the Defence as early as the 8th of May 2006. It has to be noted that, in the relevant Prosecution application to add Witness TF1-371 to its list, filed confidentially on the 10th of March 2006, the Prosecution indicated that it anticipated that this Witness would testify, inter alia, about the following:

g) Reports of the killings of civilians in Kono District (Tombudu) in 1998 by Morris Kallon and Savage.

h) Augustine Gbao as the Overall Chief Security of the RUF and the head of the Military Police, Internal Defence Unit and Intelligence Office. The Intelligence Officer in Kono reported directly to Gbao and Mosquito about events taking place on the ground.[17]

8. In its confidential Response, the Defence already argued against the addition of Witness TF1-371 to the Witness List on the grounds, inter alia, at this late stage of the trial proceedings, the wide-ranging nature of the evidence of this Witness and the resulting prejudice suffered by the Defence in not having had the opportunity to properly assess this evidence by cross-examination of other witnesses who had previously testified at trial.[18] An argument essentially of the same nature as the one submitted now in support of the objection to the admissibility of these portions of the evidence of this same Witness TF1-371.
9. In our unanimous Decision on this application, we ordered that Witness TF1-371 be added to the Prosecution witness list at this late stage of the proceeding on the grounds that his evidence was material and admissible, and it contributes to the overall interest of justice and it will not prejudice the Defence.[19]
10. On the 19th of June, 2006, during the Status Conference that preceded the 8th Trial Session in this Case, the list of witnesses scheduled to testify at trial as well as the disclosure to the Defence of their statements, including those of Witness TF1-371, were discussed with the Parties. In those circumstances, having been given the opportunity to do so, Court Appointed Counsel for the Third Accused, did not make any comments.[20]
11. The Amended Consolidated Indictment charges the Third Accused, inter alia, with allegation of unlawful killings committed in the Kono District. In addition, paragraph 32 of the Amended Consolidated Indictment reads as follows:

Between about mid 1998 and about January 2002, AUGUSTINE GBAO was Overall Security Commander in the AFRC/RUF forces, in which position he was in command of all Intelligence and Security units within the AFRC/RUF forces. In this position, AUGUSTINE GBAO was subordinate only to the leader of of the RUF, FODAY SAYBANA SANKOH, and the leader of the AFRC, JOHNNY PAUL KOROMA.

12. References to the Third Accused alleged involvement concerning allegations of unlawful killings in Kono District are also contained in the Prosecution Pre-Trial Brief and, in particular, in paragraphs 601-607 of the Prosecution Supplemental Pre-Trial Brief.[21] All such matters that were found to be appropriate for consideration in making determination about issues of a similar nature and substance by this Trial Chamber as previously discussed.
13. In my view, the evidence in question could, therefore, be relevant in relation the Amended Consolidated Indictment, and in particular to the joint and superior criminal responsibility of the Third Accused. This is, in my opinion, evidence that goes to specific allegations contained in the Indictment and is clearly relevant.
14. I should add that various Prosecution witnesses previously testified at trial, and were indeed cross-examined by Court Appointed Counsel for the Third Accused, on the alleged Command Structure of the RUF and to the alleged role of the Third Accused as Overall Security Commander for the RUF during the timeframe relevant to the evidence in questions and about the nature of this role.[22] In this respect, the Court Records, in my view, not only do not support the representation made by Court Appointed Counsel for the Third Accused about cross-examination of previous witnesses called by the Prosecution but contradicts their assertion about their decision not to cross-examine previous witnesses about the role of the Third Accused to use their words, whether he “either partook in such killings, or could be said to have had any knowledge or control over that”.[23] Before pursuing with the reason for my dissent I would like to observe that it I find it to be disingenuous for Court Appointed Counsel for the Third Accused to affirm that they never had a “hint of Augustine Gbao’s knowledge or control over what was going on in Kono”[24] before they received the Witness last statement from the Prosecution.
15. I therefore find, contrary to the what has been stated by Court Appointed Counsel for the Third Accused, that there is no evidence to support his claim that the said Accused has been ambushed and, consistent with our prior Decisions about disclosure, that the Defence had sufficient notice from the Prosecution application to add Witness TF1-371 to the Witness List and from the written statements of this Witness of allegations concerning unlawful killings in the Kono District and involving the Third Accused.
16. Furthermore, I fail to see how this evidence can be ruled to be inadmissible in the circumstances described whilst this same evidence, if uttered for the first time by the Witness while testifying in court would in all likelihood be ruled admissible based upon our previous Decisions on the principle of orality. It maybe, that a request for adjournment of the cross-examination might have to be considered but nevertheless such evidence would be admissible. The sole remedy available to the Defence, if necessary here, could have been an extension of time in order to prepare for the cross-examination of this Witness TF1-371 and such extension of time would not have occasioned any undue delay.
17. Consequently, and based on the foregoing review and analysis, I am of the opinion that the possible prejudicial effect, if any, of the admission of the said evidence does not outweigh its probative value. Such evidence is therefore admissible and should have been admitted.

[1] Transcripts, 21 July 2006, p. 14.
[2] Transcripts, 21 July 2006, p. 7-8.
[3] Transcripts, 21 July 2006, p. 8.
[4] Transcripts, 21 July 2006, p. 14.
[5] See, for example: Prosecutor v. Sesay et al., Case No. SCSL-04-15-T, Ruling on Application for the Exclusion of Certain Supplemental Statements of Witness TF1-361 and Witness TF1-122, 1 June 2005 (“Ruling on Witnesses TF1-361 and TF1-122”); Id., Ruling on Oral Application for the Exclusion of Statements of Witness TF1-141 Dated Respectively 9th of October, 2004, 19th and 20th of October, 2004, and 10th of January, 2005, 3 February 2005 (“Ruling on Witness TF1-141”); Id., Ruling on Oral Application for the Exclusion of “Additional” Statement for Witness TF1-060, 23 July 2004 (“Ruling on Witness TF1-060”); Id., Ruling on the Oral Application of the Exclusion of Part of the Testimony of Witness TF1-199, 26 July 2004; Id., Ruling on Disclosure Regarding Witness TF1-015, 28 January 2005; and Id., Ruling on Disclosure Regarding Witness TF1-195, 4 February 2005 (“Ruling on Witness TF1-195”). See also Prosecutor v. Norman et al., Case No SCSL-04-14-T, Decision on Disclosure of Witness Statements and Cross-Examination, 16 July 2004 (“Norman Disclosure Decision”); Prosecutor v. Sesay et al., Case No. SCSL-04-15-T, Decision on Defence Motion for Disclosure Pursuant to Rules 66 and 68 of the Rules, 9 July 2004 (“Decision on Disclosure Pursuant to Rules 66 and 68”).
[6] Norman Disclosure Decision, supra note 5, para. 25.
[7] Prosecutor v. Sesay et al., Case No. SCSL-04-15-T, Decision on the Defence Motion Requesting the Exclusion of Evidence Arising from the Supplemental Statements of Witnesses TF1-168, TF1-165 and TF1-041, 20 March 2006, (“Decision on Witnesses TF1-168, TF1-165 and TF1-041”), para. 10; see also id., Decision On The Defence Motion For The Exclusion of Certain Portions of Supplemental Statements of Witnesses TF1-117, 27 February 2006, paras 10-11 and 13; Id., Decision On The Defence Motion For the Exclusion of Evidence Arising From the Supplemental Statements of Witnesses TF1-113, TF1-108, TF1-330, TF1-288, 27 February 2006, paras 9, 11 and 13.
[8] Prosecutor v. Sesay et al., Case No. SCSL-04-15-T, Decision on the Gbao and Sesay Joint Application for the Exclusion of the Testimony of Witness TF1-141, para. 33.
[9] Norman Disclosure Decision, supra note 5, paras 22-23. See also, for instance, Prosecutor v. Sesay et al., Case No. SCSL-04-15-T, Decision on the Gbao and Sesay Joint Application for the Exclusion of the Testimony of Witness TF1-141, 26 October 2005, para. 19; id., Ruling on Witness TF1-141, supra note 5;
[10] See Decision on Disclosure Pursuant to Rules 66 and 68, supra note 5, para. 27.
[11] Ruling on Witnesses TF1-361 and TF1-122, supra note 5, para. 32. See also Prosecutor v. Bizimungu et al., Case No. ICTR-99-50-T, Decision on Prosper Mugiraneza’s Motion for Appropriate Relief for Violation of Rule 66, 4 February 2005, paras 9 and 10.
[12] Decision on Witnesses TF1-168, TF1-165 and TF1-041, supra note 7, para. 11; See also id., Decision on Defence Motion for an Order Directing the Prosecution to Effect Reasonably Consistent Disclosure, 18 May 2006. For a general guidance on the form and contents of an indictment, see Prosecutor v. Norman et al., Case No. SCSL-04-14-AR73, Decision on Amendment of the Consolidated Indictment, 16 May 2005.
[13] Prosecutor v. Sesay et al., Case No. SCSL-04-15-T, Written Reasoned Ruling on Defence Evidentiary Objections Concerning Witness TF1-108, 15 June 2006, para. 9; Prosecutor v. Norman et al., Case No. SCSL-04-14-AR65, Fofana – Appeal Against Decision Refusing Bail, 11 March 2005, paras 22-24. See also Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungo’s Motion to Exclude the Testimony of Witness TN, 28 October 2005, para. 7. On the issue of flexible approach to the admissibility of evidence, see also Prosecutor v. Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000, para. 34.
[14] Prosecutor v. Sesay et al., Case No. SCSL-04-15-T, Ruling on Gbao Application to Exclude Evidence of Prosecutor Witness Mr. Koker, 23 May 2005., para. 7.
[15] Ruling on Witness TF1-060, supra note 5, paras 2-3. See also Prosecutor v. Bagosora et a.l, Case No. ICTR-41-T, Decision on Certification of Appeal Concerning Will-Say Statements of Witness DBQ, DP and DA, 5 December 2003, paras 7 and 10.
[16] See, for instance, Ruling on Witnesses TF1-361 and TF1-122, supra note 4, para. 24. In certain instances, it has to be noted, the Chamber has also ruled for the exclusion of evidence not properly disclosed by the Prosecution. See Ruling on Witness TF1-195, supra note 5, para. 7.
[17] Prosecutor v. Sesay et al., Case No. SCSL-04-15-T, Prosecution Request for Leave to Call Additional Witness and for Order for Protective Measures pursuant to Rules 69 and 73bis(E), 10 March 2006, para. 12.
[18] Id., Confidential Gbao Response to the Prosecution Motion to Add Witness, 20 March 2006, paras 1, 4 and 7.
[19] Id., Written Reasons for the Decision on Prosecution Request for Leave to Call Additional Witness TF1-371 and for Order for Protective Measures, 15 June 2006, paras 18-19.
[20] Transcripts, Status Conference, 19 June 2006, p. 16.
[21] See Prosecution Supplemental Pre-Trial Brief pursuant to Order to the Prosecution to File a Supplemental Pre-Trial Brief of 30 March 2004 as Amended by Order to Extend the Time for Filing of the Prosecution Supplemental Pre-Trial Brief of 2 April 2004, 21 April 2004.
[22] See, for example, Witness TF1-036; Witness TF1-071; Witness Dennis Koker (TF1-114).
[23] Transcripts, 21 July 2006, p. 7, l. 11-12.
[24] Transcripts, 21 July 2006, p. 15, l. 4-8.